Sweeney and Repatriation Commission (Veterans' entitlements)
[2018] AATA 560
•20 March 2018
Sweeney and Repatriation Commission (Veterans' entitlements) [2018] AATA 560 (20 March 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/0476
Re:Anthony Sweeney
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:20 March 2018
Place:Brisbane
I vary the decision under review to provide that the post-traumatic stress disorder condition and erectile condition of the applicant are service-related conditions; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of the pension. The date of effect of the decision of the Tribunal is, in accordance with subsection 21(1) of the Veterans’ Entitlement Act 1986, determined to be 11 July 2012, being the date on which the application for an increase in pension was lodged.
.......................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – claim for pension for PTSD and erectile dysfunction conditions – PTSD diagnosis not accepted – erectile dysfunction not accepted as service-related – hypothesis connecting several traumatic incidents during service with PTSD – relevant Statement of Principles’ support the hypothesis connecting service with conditions – decision varied to provide that PTSD and erectile conditions are service-related conditions – application remitted for assessment of pension.
LEGISLATION
Veterans’ Entitlements Act 1986 – ss 9, 13(1), 120, 120A, 196A, 196B(2)
CASES
Repatriation Commission v Deledio (1998) 49 ALD 193 at 206
Border v Repatriation Commission [2010] FCA 1430Forrester v Repatriation Commission [2013] FCA 898
SECONDARY MATERIALS
Statement of Principles concerning Post-Traumatic Stress Disorder No. 5 of 2008
Statement of Principles concerning Post-Traumatic Stress Disorder No. 6 of 2008
Statement of Principles concerning Post-Traumatic Stress Disorder No. 82 of 2014
Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014
Statement of Principles concerning Psoriatic Arthritis No. 5 of 2012
Statement of Principles concerning Psoriatic Arthritis No. 6 of 2012
Statement of Principles concerning Erectile Dysfunction No. 43 of 2013
Statement of Principles concerning Erectile Dysfunction No. 44 of 2013
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
20 March 2018
INTRODUCTION
The applicant was 67 years old on 7 December 2010 when he made his claim to the Department of Veterans’ Affairs (DVA) for post-traumatic stress disorder (PTSD), erectile dysfunction, cam disorder in the left hip and psoriatic arthritis in the left and right hips.
On 2 April 2012 the respondent denied the applicant’s claim for PTSD on the grounds that there was no valid diagnosis of PTSD, and that the erectile dysfunction, cam disorder and psoriatic arthritis were not service related. The applicant appealed this decision to the Veterans’ Review Board (VRB).
On 20 November 2014 the VRB affirmed the respondent’s decision, rejecting the applicant’s claim for the four conditions on the same grounds and finding that the applicant’s disability pension was to continue to be assessed at 60% of the general rate.
On 2 February 2015 the applicant then applied to this Tribunal to review the original decision with regard to the conclusion that PTSD and erectile dysfunction were not service related.
HISTORY
The applicant is a veteran who served over 20 years in the Royal Australian Navy between 1961 and 1982. He has been in receipt of a disability pension assessed at 60% of the General Rate since 24 February 2011[1] for a number of medical conditions including solar keratosis, sensorineural hearing loss, bilateral tinnitus, migraines, intervertebral disc lesion cervical spine, abscess, eczema, loss of teeth and ischaemic heart disease.
[1] Exhibit A, T-documents, cover page
SERVICE
The veteran had multiple periods of operational and defence service. He performed short periods of operational service in the Far East Strategic Reserve at various periods throughout 1962 and one period in 1963, in Vietnam in 1962, 1963 and 1965, and in Malaysia and Singapore at various periods in 1965 and 1966.[2] The applicant performed eligible defence service from 7 December 1972 to 9 March 1982.[3]
[2] Exhibit A, T-documents, T23 at p. 129
[3] Exhibit A, T-documents, T26 at p. 168
LEGISLATIVE FRAMEWORK
Section 13(1) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that where a veteran is incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 9 of the Act provides that an injury or disease shall be taken to be war-caused if the injury suffered or diseases contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.
As the veteran has performed operational service, the determination of whether an injury or disease is war-caused is to be made by applying the standard of proof outlined in subsections 120(1), 120(3) and 120A of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:
(i)…in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Subsection 120(3) of the Act also provides:
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Section 120A sets out how a hypothesis must be assessed:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran…
Statement Of Principles
Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) which is an independent medical body that issues Statements of Principles (SoPs) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.
Section 196B(2) of the Act provides that if the RMA:
… is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans;
…
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
A SoP is binding on the respondent and various review bodies, including this Tribunal.
There are a number of Statements of Principles (SoPs) relevant to this matter including:
(a)Statement of Principles concerning Post-Traumatic Stress Disorder No. 5 of 2008
(b)Statement of Principles concerning Post-Traumatic Stress Disorder No. 6 of 2008
(c)Statement of Principles concerning Post-Traumatic Stress Disorder No. 82 of 2014
(d)Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014
(e)Statement of Principles concerning Psoriatic Arthritis No. 5 of 2012
(f)Statement of Principles concerning Psoriatic Arthritis No. 6 of 2012
(g)Statement of Principles concerning Erectile Dysfunction No. 43 of 2013
(h)Statement of Principles concerning Erectile Dysfunction No. 44 of 2013
There are no relevant SoPs that exist for the condition of cam deformity of the hip.
EVIDENCE
The applicant articulated in statements and oral evidence a number of incidents that occurred during his service:
(a)an instance of sexual assault that occurred during transit on a train between ships in April 1962;[4]
(b)two instances of physical assault; one in which the applicant fell backwards down a ladder and struck his head, and the second where he was struck by a sailor and fell back, striking his head, and lost consciousness;[5]
(c)an exercise while on the HMAS Duchess where the applicant was required to use the ship’s sea boat to ‘sweep’ the waters for evidence of dangerous flotsam, and clear any obstructions in the vicinity in Vung Tau Harbour in Vietnam; the applicant made a request, which was subsequently denied, for protection in the form of arms and ammunition as he believed this was a dangerous exercise;[6]
(d)an exercise while on the HMAS Duchess where the applicant was required to direct an intercepted boat carrying contraband into the harbour for which he was denied protection and was required to wait with the contraband boat for about two to three hours without support;[7]
(e)an instance of verbal threats from subordinates where they threatened to kill the applicant;[8] and
(f)an assault whereby a member of the RAN knocked out the applicant’s two front teeth.
[4] Exhibit C, Statement of Anthony Sweeney dated 14 July 2015
[5] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 2 of 6
[6] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 4 of 6
[7] Oral evidence
[8] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 5 of 6
When the applicant was asked during examination in chief why he did not raise issues or the incidences above with the chain of command, he responded that he thought they had been summarily dealt with. The applicant stated in cross-examination that he did not seek treatment because people would think he was trying to dodge his duties.
Medical reports
There are a number of contradictory medical reports in evidence. The applicant relied on the assessment of Dr Perce Tucker, the applicant’s treating psychiatrist, who provided a report and gave evidence at a resumed hearing. The respondent relied upon the conclusions of Dr Milad and Dr Ding, who saw the applicant and provided reports for the purposes of the claim with DVA but did not give evidence at the hearing of the matter in this Tribunal.
Dr Perce Tucker, Consultant Psychiatrist
Dr Tucker completed a report to DVA on 1 June 2015[9] which stated in the cover letter that he sees the applicant on a regular basis “as an Inpatient and Outpatient for monitoring and management of his severe chronic PTSD… caused by traumatic physical and sexual assaults during his RAN service. This PTSD meets DSM IV and RMA diagnostic criteria for ‘stressors’ and problems / symptoms.”
[9] Exhibit E, Report of Dr Tucker dated 1 June 2015 at p. 1
In the Medical Impairment Worksheet attached to the covering letter, Dr Tucker attributes an impairment rating of ‘57’ to the applicant for his claimed conditions. Dr Tucker calculated that the applicant suffered from an impairment of 20 points under Table 4.1 for subjective distress, 15 points under Table 4.2 for manifest distress, eight points under Table 4.4 for occupation, eight points under Table 4.6 for social interaction plus six points under either Table 4.5 Domestic Situation/Table 4.7 Leisure activities (which were equally scored with only one being counted towards the total impairment rating).
A number of clinical notes of Dr Tucker are in evidence and indicate that the applicant has been treated by Dr Tucker since at least July 2010 for PTSD. The clinical notes note the increase in PTSD at a number of times throughout 2010 and 2011.[10] The notes also indicate at one time, on 18 March 2011, that the applicant’s depression is “well controlled”.
[10] Exhibit F, Clinical notes of Dr Tucker
Dr Tucker also provided a number of earlier reports including one dated 22 November 2013[11] and another dated 21 February 2014[12], as well as Emotional & Behavioural Medical Impairment Worksheets completed by Dr Tucker on 20 April 2012[13] and 28 February 2013.[14] The worksheets completed by Dr Tucker in 2012 and 2013 are very similar to the most recently completed impairment assessment in 2015; both worksheets attribute the applicant a total impairment of 57 points with almost exactly the same impairment ratings split between each of the tables.
[11] Exhibit A, T-documents, T28 at p. 199
[12] Exhibit A, T-documents, T29 at p. 200
[13] Exhibit A, T-documents, T28 at p. 195
[14] Exhibit A, T-documents, T27 at p. 192
Dr Tucker’s report dated 21 February 2014[15] outlines the causes of the applicant’s PTSD and notes:
[15] Exhibit A, T-documents, T29 at pp. 201-202
“Tony experienced a number of stressors while in the RAN (which he has consistently and emotionally appropriately reported over the past three – four years…) In each case the experience was horrifying and terrifying for him – and he thought he would be killed or seriously harmed:
1. Boarding and taking an Indonesian boat inshore while unarmed (c. 1963-64)
2. Being assaulted and violently raped by a gang of sailors (c. 1963) = major stressor
3. Being alone & unarmed in a Cutter sweeping for mines, divers, etc. in Vung Tau harbour (c. 1965-66)
Further stressors
a) Assaulted by a gang of sailors causing his head to strike the hard deck à concussion = major stressor – Vung Tau 1966
b) Assaulted by a sailor (who was discharged because of the incident) c. 1975 (Sydney) when he was smashed in the face & lost his front teeth …
Tony gets very upset & frustrated when talking about these stressors. He needs your help.”
Dr Les Ding, Consultant Psychiatrist
Dr Ding provided a report on 27 January 2004 after examining the applicant on 19 December 2003.[16] He reached a conclusion that the applicant did not suffer from PTSD, nor did he find any evidence of a psychiatric disorder at all.
[16] Exhibit A, T-documents, T9 at pp. 34-41
Dr Ding based this conclusion on the oral history provided by the applicant of his experiences in the RAN during the consultation. Dr Ding summarises[17]:
“He experienced an intensely distressing posting of two years on the HMAS Duchess, where he was ostracised and harassed. During that time he was intensely distressed and may have experienced significant symptoms of depression.
There has not been any evidence of subsequent psychiatric disorder, although his bitterness and resentment continues.
The specific episode of injury relates to being tripped onto the floor, striking the back of his head with brief concussion.
He subsequently developed severe headaches of a migrainous nature and deteriorating pain and stiffness affecting his neck and shoulders periodically, accentuating into a migrainous headache.
I found no evidence of a psychiatric disorder and I was specifically aware of the need to exclude post traumatic stress disorder, major depressive disorder and an anxiety disorder.
There is significant irritability, resentment and some lowering of his mood state, however they do not warrant a psychiatric diagnosis. These symptoms are in my opinion commensurate with the impact of his pain symptoms and his strong sense of grievance.”
Dr Mohamed Milad
[17] Ibid at p. 37
Dr Milad examined the applicant on 17 December 2012 and provided a subsequent report dated 14 January 2013.[18]
[18] Exhibit A, T-documents, T26 at pp. 170-191
Dr Milad reported that the applicant’s “…current presentation indicates the possibility of adjustment disorder with mild anxiety features related to current stressors and life events.”[19]
[19] Ibid at p. 181
Dr Milad specifically stated that he was not provided with any previous psychiatric reports to clarify the applicant’s diagnosis and treatment received.[20] Dr Milad summarises that the applicant[21]:
“…continues to have some negative thoughts in relation to his previous experience from his services in the Navy but does not fulfil the criteria of post-traumatic stress disorder type illness.”
[20] Ibid at p. 185
[21] Ibid at p. 181
Dr Milad considered the applicant’s self-assessment in a military PTSD checklist, versus the doctor’s own scoring of the applicant on the Hamilton anxiety scale and Montgomery Asberg depression scale[22]:
“The scores on the PTSD checklist self-assessment military version does [sic] not correspond well with the scores on the anxiety and depression objective scale that I performed. There is an indication that probably there is an exaggeration of symptoms on the scale to highlight his issues.”
[22] Ibid at p. 185
CONSIDERATION
The applicant has withdrawn the claim relating to the left and right hips. After reviewing the material that had been filed this concession was properly made. For determination is whether the applicant sustained PTSD and erectile dysfunction during his operational or eligible defence service.
The Tribunal was assisted by the typed document (exhibit H), which is a compilation of the three handwritten statements of the applicant (exhibits B, C and I). This typed document refers to a number of incidents occurring to the applicant during periods of his operational service and eligible defence service. Evidence relevant to the incidents occurring overseas includes the evidence of Commander W Franklin, RAN Rtd (exhibit D) and the Report of Proceedings, HMAS Duchess (exhibit G).
There are five important incidents outlined by the applicant:
Incident #1. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess in Vung Tau Harbour, the applicant describes an incident occurring to him involving the conduct of other sailors as he descended a ladder.
Incident #2. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess in Vung Tau Harbour, the applicant describes an incident where he was tasked to man a sea boat and sweep a river mouth to render safe any item that could threaten HMAS Duchess, which included improvised explosive devices. The applicant's requests for a weapon to assist with the task were denied.
Incident #3. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess the applicant's life was threatened by another sailor. The applicant describes an incident where HMAS Duchess was carrying out insurgency operations in the Malacca Straits and he was directed to man a boat carrying civilians of unknown nationality and to take the boat inshore and wait for the return of HMAS Duchess. The applicant's requests to be issued a weapon for personal protection were denied.
Incident #4. During April 1962 whilst serving on HMAS Quickmarch in Australian waters the applicant was the victim of a sexual assault by other sailors.
Incident #5. During 1975 and whilst on duty at the Australian Naval Toredo Maintenance Establishment at Neutral Bay in Sydney, the applicant was assaulted by a RAN sailor when the sailor punched the applicant in the mouth, causing the applicant to lose his two front teeth.
Having regard to the above it is contended that matters concerning incidents #1 to #3 inclusive occurred during periods of operational service.
Although incident #4 forms part of the factual context of the scope of incidents occurring to the applicant, incident #4 does not appear to fall within the scope of the Act, having occurred in 1962. Incident #4 forms part of the medical evidence and as a consequence it forms part of the factual matrix relevant to the applicant.
It was submitted that incident #5 meets the requirements of eligible defence service and accordingly falls within the scope of the Act.
The applicant is eligible for a pension if there is a diagnosis of a condition that is related to his service, by way of a reasonable hypothesis which is supported by the relevant SoP.[23] This requires consideration of the diagnosis and the four steps outlined in the case of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 (Deledio).
Post-traumatic stress disorder
[23] See Veteran’s Entitlement Act 1986, section 120A
I have to consider whether the applicant has post-traumatic stress disorder.
Dr Tucker considers that the applicant had suffered from severe chronic PTSD for more than 10 years. He has completed two worksheets.[24] He has also completed three reports on 22 November 2013, 21 February 2014 and 1 June 2015. In these documents Dr Tucker has given his opinion that the applicant's severe chronic PTSD meets the DSM IV criteria. Dr Tucker reaffirmed his diagnosis in his reports of 22 November 2013 and 1 June 2015.
[24] Exhibit A, T-Documents, T27 and T28
As a treating psychiatrist Dr Tucker has had the advantage of being able to have a longitudinal view of the condition of the applicant. Dr Tucker has a thorough understanding of the applicant’s history and his symptomology. Dr Tucker was extensively cross-examined by the respondent and gave his evidence in a forthright manner. One matter of concern was whether Dr Tucker was able to ascertain the clinical onset of PTSD. Dr Tucker quite properly stated that he was unable to state when there was clinical onset of the condition. However, he maintained that the applicant has been exposed to a number of stressors which contributed to that condition. There was quite properly no challenge to his diagnosis of PTSD.
Two other psychiatrists have examined the applicant. Dr Ding examined the applicant on 19 December 2003, and he recognised that the applicant had two years of distressing experiences on board HMAS Duchess. Dr Milad, who examined the applicant on 17 December 2012, has diagnosed the applicant with probable adjustment disorder with anxiety symptoms, which was possibly precipitated by ongoing stressors after retirement including divorce, living in a shed for the past six years, and building his own home for the past six years, complicated by recent health problems and a heart attack.[25]
[25] Exhibit A, T-documents, T26 at p. 182
In considering all the medical evidence, I find that it is more probable than not that the applicant has the condition of PTSD and I place reliance on the report of Dr Tucker in making this finding. His diagnosis of PTSD was not challenged in cross-examination. His reports of 22 November 2013, 21 February 2014 and 1 June 2015 have not been challenged by any health professional, as was his conclusion that the reliability and honesty of the applicant were found to be “quite historical”. While he was being cross-examined Dr Tucker was firm in his opinion that there are stressors which contributed to the condition. I am also mindful that Dr Ding recognised that the applicant had two years of distressing experiences on board HMAS Duchess. While Dr Tucker was unable to date the onset of the PTSD condition, he considered that each of the stressors contributed to the condition.
Deledio steps
I must consider firstly all the material which is before me and determine whether this material points to a hypothesis connecting the injury of the applicant with the circumstances of the particular service rendered by him.
There is evidence from Dr Tucker that incidents in the applicant’s operational service in East Timor caused his PTSD because he experienced a life-threatening event in the course of his service.
I consider that the material points to a hypothesis connecting the applicant’s PTSD to his relevant service. I make no finding of fact as to the events in connection with the claim at this stage of the four step process: see Deledio at 206.
I must next consider whether there is a relevant SoP in force. As noted above, there are eight relevant SoPs connected to the operational and defence service performed by the applicant.
I must then consider whether this hypothesis is reasonable by way of being supported by the relevant SoP. There are a number of SoPs in contention. I consider that it is sufficient to identify whether the hypothesis is supported by either the Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008 as amended by No. 19 of 2014 (the “2008 PTSD SoP”), which was in force after the date of claim, or under the Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (the “2014 PTSD SoP”).
2008 PTSD SoP
In order for there to be a reasonable hypothesis under the 2008 PTSD SoP, the circumstances must satisfy one of the factors set out in section 6, including the following:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;[26] or
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;[27] or
(ba) having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i)the individual concerned; and
(ii)a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder.[28]
[26] Statement of Principles concerning post-traumatic stress disorder No. 5 of 2008, Factor 6(a)
[27] Ibid, Factor 6(b)
[28] Id.
The definitions of the terms “category 1A stressor” and “category 2A stressor” are contained in section nine of the 2008 PTSD SoP:
"a category 1A stressor" means 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;
"a category 1B stressor" means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
The applicant described in some detail one incident which has caused him stress:[29]
“Incident #2
The same day, mid-afternoon I was told to report to the executive officer for instructions. He explained that I was required to man the sea boat and the task was to sweep across the mouth of the river in order to catch or render safe any object and flotsum (sic) such as general rubbish, tree branches found floating down the river which may endanger any ship in the harbour. The concern was that the V.C. may have positioned (I.E.D.) Improvised Explosive Devices to this flotsum (sic) which may attach itself onto a ship and cause damage. I considered this order and thought this could be a very dangerous exercise. In that my training was using explosives and these things are very tricky, however I requested the use of some protection in the way of some firearm and ammunition for the safe disposal of any object found, but was denied the use of any, as I was not a Gunnery Rating.
To this day my attempts to recall what happened after this command causes me great anxiety. I am shaking as I write this. This is not good, the only thing to use as protection is a boat hook (a pole with a hook and point).”
[29] Exhibit H, typed Statement of Anthony Sweeney, at p. 2
I consider that the incident related by the applicant comes within the terminology of a “perception of threat and/or harm to the integrity of the self” within the meaning of factor 6(ba) of the 2008 PTSD SoP. This factor requires that the applicant must have a perception of threat and/or harm to the integrity of the self as a consequence of being in what the individual concerned, and a reasonable person in the circumstances of that individual would have, considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder.[30] As this is one of the incidents that Dr Tucker considered has caused PTSD, this incident would necessarily have been before the clinical onset of PTSD. Dr Tucker in his report of 21 February 2014 (at p 3) remarked the applicant: “He was alone and unarmed in a cutter sweeping for mines, divers, et cetera, in Vung Tau Harbour”. The applicant gave evidence that there were two other sailors in the boat with him. Dr Tucker considered that the main concern was that the applicant was unarmed.
[30] Statement of Principles concerning post-traumatic stress disorder No. 5 of 2008, Factor 6(ba)
In Border v Repatriation Commission [2010] FCA 1430 at [77] Reeves J., in considering the 2008 PTSD SoP, emphasised the need of the Tribunal to assess the “subjective perception” of the applicant. The fact that the applicant requested firearms protection shows that he believed he faced a threat to the integrity of his self. Dr Tucker under cross-examination remarked that the incident was “nerve-wracking and frightening”. In Border v Repatriation Commission [2010] FCA 1430 at [77] Reeves J. has also explained that the Tribunal has a need to apply the “objective subjective test”. This requires an examination of the position of a reasonable person outlined above. I consider that a reasonable person would certainly have a perception of threat and/or harm to his or her integrity if there is a possibility of an IED being attached to flotsam. Even if the flotsam did not include an IED it could still damage the cutter in which the applicant was located. My conclusion in relation to this is reinforced by the need to take such protective measures in Vung Tau Harbour, by having the cutter precede the vessel. I am also mindful that the material discloses that divers may have been a threat; if the applicant had come across an enemy diver who was armed he would have been defenceless. The material certainly discloses the applicant as being in a “threatening, hostile, hazardous and/or menacing situation and/or environment”.
I am now required under section 120(1) of the Act to consider whether I can be satisfied beyond reasonable doubt that the PTSD condition was not war-caused. In Forrester v Repatriation Commission [2013] FCA 898, Mortimer J at [80], in discussing this fourth step in Deledio, has referred to “the very high level of satisfaction required to reject a veteran’s claim at [this] stage”.
After my review of the evidence I have come to the conclusion that there is no evidence which would enable me to be satisfied beyond a reasonable doubt that the PTSD condition of the applicant was not war-caused. The respondent has quite properly not made any submission that the Tribunal would be satisfied beyond a reasonable doubt that the PTSD condition of the applicant was not war-caused. It is true that the applicant when cross-examined did not recall all the details of the event in Vung Tau Harbour. However, he raised the question of how a person could be defenceless in a boat to go and find IEDs with a stick. I am also mindful that the applicant stated that he was shaking when he was recalling details of the incident.
Dr Milad has reported that the applicant was unarmed and patrolling in a “small boat that was usually in front of the HMAS ship”. I do not give weight to his opinion that this was not a life threating situation as no reasons for that opinion are given.
Erectile dysfunction
The respondent has properly conceded that if the applicant was successful in his claim relating to PTSD then the applicant would also succeed in relation to the claim for erectile dysfunction.
CONCLUSION
I vary the decision under review to provide that the post-traumatic stress disorder condition and erectile condition of the applicant are service-related conditions; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of the pension. The date of effect of the decision of the Tribunal is, in accordance with subsection 21(1) of the Veterans’ Entitlement Act 1986, determined to be 11 July 2012, being the date on which the application for an increase in pension was lodged.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
........................................................................
Associate
Dated: 20 March 2018
Dates of hearing: 7 October 2015 and 19 September 2016 Date final submissions received: 7 March 2017 Counsel for the Applicant: Mr J Streit Solicitors for the Applicant Fedorov Lawyers Advocate for the Respondent: Mr B Williams
3
0