Todd and Repatriation Commission
[2004] AATA 81
•30 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 81
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/11
VETERANS' APPEALS DIVISION ) Re GORDON ALBERT DAVID TODD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date30 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse a claim for disability pension to Gordon Albert David Todd for alcohol abuse and post traumatic stress disorder.
................SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – post traumatic stress disorder and alcohol abuse – Tribunal satisfied beyond reasonable doubt applicant did not experience claimed stressor – decision affirmed
Veterans’ Entitlements Act 1986: s9
REASONS FOR DECISION
30 January 2004 Deputy President Don Muller 1. Gordon Albert David Todd, the Applicant, claims that he suffers from the war-caused disabilities of post traumatic stress disorder and alcohol abuse.
2. The Applicant made his claim pursuant to the provisions of the Veterans’ Entitlements Act 1986 (the Act) on 20 May 1998. He claimed disability pension for “nerves”. In that claim he said that the stressors which he believed caused his “nerves” were “service life down in the bowels of ships all of the time general. Navy”.
3. The Applicant joined the Royal Australian Navy on 14 January 1966. He served until 13 January 1975 when he was discharged with the rank of Petty Officer. He has eligible operational service for the purposes of the Act due to the fact that:
(a)the ship he was serving on, HMAS Vampire, on escort duty for the HMAS Sydney, entered Vung Tau Harbour on 19 May 1969, where it remained for 4 hours 15 minutes, from 6.45am to 11.00am; and
(b)he was serving on the HMAS Sydney when it spent two days in Vung Tau Harbour in February 1972.
4. The Applicant came off duty at 8.00am on the morning of 19 May 1969. He claims that between 6.45am and 8.00am, he heard an exceptionally loud scare charge explode against the hull of the ship. In his statement dated 15 May 2001 he described the experience as follows:
“I was given the forenoon watch in ‘A’ boiler room on the steam turbine alternator which was situated on the port side next to the Hull. During the course of my four hour watch, scare charges were dropped next to the hull and would detonate approximately 5 metres below the surface and the noise inside the hull was considerable and very frightening. On one occasion, one was very loud and the noise seemed different from the others. I took off and headed up the ladder when the Petty Officer of the watch stopped me. I had visions of the side caving in followed by a wall of water and being trapped in the boiler room. Prior to going on watch and during the course of the day, I was told that a Sampan carrying Vietcong was ambushed near Vung Tau and the occupants were killed and also just prior to our ship arriving enemy swimmers/sappers were found in Vung Tau Harbour. An improvised mine containing explosives and Russian mines were located. I watched aircraft and helicopter gunships firing on enemy positions ashore. Upper deck sentries armed with SLR rifles opened fire on some suspicious looking boxes. All of this increased my fear of vulnerability being down in the machinery space and this added to my feeling of claustrophobia being trapped down below.”
In his evidence to the Tribunal on 25 July 2003, the Applicant said that he thought the ship had been hit by a rocket or mortar and that he “took fright and bolted towards a ladder” to escape from the boiler room. He said that he was stopped by a petty officer who told him that the noise was probably due to a scare charge. He said that apart from him and the petty officer there were two other seamen in the boiler room. They appeared to him to be not unduly concerned. The Applicant said that he calmed down and remained in the boiler room until his watch finished about one hour later. He then went upstairs to the deck.
5. On 17 June 1998, Dr. Una Stephenson, psychiatrist, examined the Applicant and produced a report dated 22 June 1998. According to the report, the stressors related by the Applicant to Dr. Stephenson were:
· He married in 1970 by which time he had already been in the Navy for a few years. In the early years of their marriage, the main problems arose because of his service commitments; his wife didn’t like being left alone and this was particularly difficult when he had to leave her in Sydney in a property owned by a very odd landlady who was a problem drinker. Mr. Todd recalls he got so stressed at the time that he went on a binge drinking session and ended up briefly in hospital.
· During his naval service, including his time in Vietnam and with the Far Eastern Strategic Reserve, he was never actually under fire but he describes chronic stress and pressure which got to him. Much of his work was done in the engine room in charge of machinery; he was aware that it was a highly responsible job and was also aware of the possible drastic consequences of a mistake. The only highly unusual incident he recalls was one when a helicopter, coming down onto his ship, had its rotor fouled by a loose rope, and crashed onto the deck nearly falling on top of him.
· When the Melbourne incident occurred, he was on a destroyer that went to the rescue. He and his mates were involved in trying to rescue survivors and also retrieving bodies and equipment from the water. He found this very upsetting and was aware that such things have happened before and could happen again.
· He says he still remembers his naval service almost daily. He has some bad memories and some good ones; he appears to have spent much time worrying about “doing the right thing” and the possible consequences of a mistake, being aware that that mistake might cause one to be charged with an offence against discipline, but much worse it could just possibly cause something like the Melbourne incident. Being on watch was very stressful for him.
· There have been other sources of stress and anxiety in later life, especially in the last ten years or so; he recalls very difficult times due to personality clashes back in 1988, when he and other members of the Tully Council were funding and building the Edward Kennedy walking track, and again last year, at work, having to deal with an employee who wasn’t making the grade really got him down. Indeed since he was suffering physical health at the same time, he feels he nearly had a “nervous breakdown”.
Dr. Stephenson reported that she found it very hard to asses show much of the Applicant’s symptoms of stress and anxiety were due to his naval service and how much due to factors in his civilian life.
6. The Applicant’s claim was rejected on 9 July 1998, on the grounds that there was no medical diagnosis of an illness.
7. In March 1999, the Applicant was seen by another psychiatrist, Dr. Michael Likely. Dr. Likely reported as follows on 25 March 1999.
“He stated that when aboard the HMAS Vampire, docked at Vung Tau, clearance divers would regularly make checks of the ship, to exclude the possibility of enemy mines having been attached. Mr Todd, in his capacity as an Engineer, was working habitually in the engine room, when sometimes charges would detonate in the vicinity of the engine room. These had been dropped by clearance divers, but Mr Todd recalled his response at the time as being one of intense distress, since the sudden intense noise would lead him to believe that perhaps a mine had detonated. He described constantly being one edge and vigilant, whenever the ship was docked, being in fear of either an enemy mine attack or of being shelled.
He recalled another incident, when he was on board the HMAS Vampire, when a helicopter delivering mail flown by a relieving pilot, ran into difficulties. Mr Todd stated that the line from the helicopter to the ship snapped and wrapped itself around the helicopter’s rotor blade. Mr Todd and his comrades were extremely concerned by this, since they believed that the helicopter would crash and considered their lives to be in imminent danger. Fortunately however the pilot managed to regain some semblance of control over the helicopter and to ditch it. No lives were lost, although Mr Todd’s response at the time was one of intense horror and fear.
The third traumatic incident, occurring in 1969, was perhaps the most difficult for Mr Todd. It occurred when the HMAS Melbourne had a collision with an American Escort Destroyer, the Evans, resulting in the destroyer being sliced in two and the loss of lives of approximately 70 United States seamen. It occurred at approximately 3 o’clock in the morning and Mr Todd and his crew members on the Vampire were involved in sweeping the area looking for survivors or bodies. Mr Todd recalled with intense horror the sight of two bodies being brought on board the Vampire and also numerous survivors. He stated that this made him feel particularly vulnerable and that his life was in imminent danger.”
Dr. Likely diagnosed PTSD and alcohol abuse arising as a result of his Navy service in 1969.
8. The Veterans’ Review Board heard the matter on 27 July 1999. The VRB adjourned the matter in order that there be obtained a more definitive diagnosis of the Applicant’s psychiatric problems.
9. In November 1999, the Applicant was again interviewed by Dr. Stephenson. In a report dated 22 November 1999, Dr. Stephenson diagnosed PTSD and said that the stressors were:
“…. specific stressors were his involvement in the aftermath of the Melbourne collision, when he had to help with the retrieval of casualties and equipment and actually saw the bodies of some of the dead, and also the specific incident when a helicopter came very near to crashing on the deck of his ship. A more generalised and ongoing stress was the nature of his duty down below in the engine room while his ship was on active service close to the Vietnam coast line; there was always the possibility that the ship might be mined by hostile divers or be shelled by enemy on the shore so any inexplicable noise outside caused him distress and anxiety.”
10. The VRB resumed hearing the matter on 28 June 2000. The VRB varied the decision under review by including the diagnosis of PTSD, but then went on to conclude that the Applicant’s alcohol abuse and PTSD was not war-caused because he had not experienced a stressor sufficiently severe to satisfy the relevant Statement of Principles.
11. The Applicant then applied to this Tribunal for review of the VRB decision.
12. The Applicant was again seen by Dr. Likely on 20 June 2001. Dr. Likely’s report dated 20 June 2001, contains statements which suggest that the Applicant repeated his claims that the stressors which he believed led to his illness were:
(a)The sounds of the scare charges whilst he was in Vung Tau;
(b)The helicopter accident; and
(c)The retrieval of bodies from the collision between the HMAS Melbourne and the Evans.
13. The Applicant also claimed, in his statement dated 15 May 2001, that during his service on HMAS Sydney, the aircraft carrier spent some time in Vung Tau Harbour in late February 1972. He claimed that he was again frightened by the sound of scare charges exploding in the water around the carrier.
14. Further investigations into these matters by representatives of both the Applicant and the Respondent have revealed the following facts:
(a)The helicopter incident occurred off Jervis Bay, not, as the Applicant had claimed, while he was on operational service in South East Asian waters. The helicopter did not crash onto the ship. At any event the incident did not occur during a period of eligible service for the purposes of the Act.
(b)Re: the collision between the Melbourne and the USS Frank E. Evans. The collision occurred about 3.00am on 4 June 1969. There was only one body recovered which was picked up by one of Melbourne’s boats and transferred to the USS Kearsage by helicopter before the Vampire arrived in the area. The Vampire altered its course at 3.20am and arrived in the area at 5.00am. She lowered both of her boats and took part in a search of the area. No bodies, nor any survivors were taken on board the Vampire. In any case, this event occurred during a period of non-eligible service.
(c)There was no firing by fixed wing aircraft or by helicopters on near shore targets on Vung Tau Peninsula in May 1969. There may have been some fighting on Xa Long Hai which was approximately 16 kms from where the Vampire was stationed.
(d)The Sydney was in Vung Tau Harbour in February 1972 to pick up the last of the Australian troops and their equipment (474 men, 64 vehicles and 102 containers). At that time scare charges were dropped at least 70 metres from the ship. On that occasion the Sydney took on board a group of dignitaries, some of whom stayed overnight (the Australian Ambassador to Saigon, the Chief of the General Staff, the Commander Australian Forces Vietnam and other staff officers. The guard and a band were paraded, after which the dignitaries were conducted on a tour of the ship.
15. At the Tribunal hearing on 25 July 2003, the only stressor relied upon by the Applicant was the extra loud scare charge on 19 May 1969.
16. During the course of his evidence and cross-examination, the Applicant made the following points:
· He had been in the Navy for three years prior to going to Vietnam in May 1969. He had been on board vessels which had been involved in naval exercises in the years prior to May 1969. He was familiar with scare charges for at least two years before May 1969. He expected scare charges in Vung Tau Harbour. Nevertheless, he was startled by what he believed to be an extremely loud explosion on board the Vampire on the morning of 19 May 1969.
· He did not tell Dr. Stephenson that the helicopter came down on the ship. He told her that he thought it might come down on the ship.
· In relation to the Melbourne/Evans collision, he was led to believe that two objects wrapped in canvas on the deck, were bodies.
· He did not tell Dr. Stephenson that he was involved in rescuing survivors and bodies.
17. The material put before the Tribunal points to a hypothesis connecting the Applicant’s PTSD and alcohol abuse with the circumstances of the service rendered by him. The hypothesis is that on 19 May 1969, the loud explosion of the scare charge caused such a severe reaction in the Applicant that it precipitated his alcohol abuse and PTSD.
18. The relevant Statements of Principles are contained in the following:
PTSD: No 15 of 1994 as amended by 225 of 1995
“1.Being of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder;
4. For the purposes of this Statement of Principles:
“experiencing a stressor” means the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person’s, or other people’s, physical integrity; and
(b)the person’s response to that event involved intense fear, helplessness or horror;
No. 3 of 1999 as amended by No. 54 of 1999
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
Alcohol Abuse: No. 5 of 1994
1.Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;
“stressful event” means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
No. 76 of 1998
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
19. The Applicant is entitled to the benefit of whichever of the above SoPs are more favourable to his case. The later SoP in relation to PTSD contains the word “severe” prior to the word “stressor”.. The later SoP in relation to alcohol abuse requires the Applicant to have experienced a “severe stressor” whereas the earlier SoP requires the Applicant to have experienced a “stressful event” prior to the clinical onset of alcohol abuse.
20. The Tribunal takes the view that in the context of a claim such as this, the stressor, or stressful event, would have to be of a significant magnitude before it could be claimed to have caused a severe, chronic psychiatric illness which has lasted over thirty years. The addition of the word “severe” in the later SoPs clarifies the matter but does not impose a more onerous test.
21. The Tribunal finds difficulty in accepting, objectively, that a scare charge would do much more than startle an experienced naval person. It would not satisfy whichever SoP was being used. However, if the Applicant’s evidence is accepted, this particular scare charge caused him to believe that he was about to die; that is, that he did experience a severe stressor, or a stressful event.
22. On the Applicant’s case, the four SoPs listed above are satisfied.
23. The Tribunal does not accept the Applicant as a credible witness for the following reasons:
(a)He initially exaggerated the danger to him in the helicopter incident.
(b)He claimed the helicopter incident took place during his operational service in South East Asia, when it actually took place off Jervis Bay.
(c)His account of retrieving bodies and survivors from the Melbourne/Evans collision was false. His claim that the incident caused him great distress and was one of the factors which led to his psychiatric illness was also false.
(d)His claim in that upon entering Vung Tau Harbour in May 1969, he saw fighting at close quarters, was an exaggeration.
(e)His claim to have experienced significant stressors during the two day period when the Sydney was picking up the last of the Australian troops in 1972, was an exaggeration. His concerns, if he had any, were apparently not shared by the dignitaries who were on board as guests.
(f)When he was first interviewed by Dr. Stephenson in 1998, he did not even mention scare charges. The scare charge incident has since grown in importance.
(g)The Tribunal does not accept that on the morning of 19 May 1969 the direction of the Petty Officer to the Applicant to go back to work, would have been sufficient to calm him, if he indeed was in a blind panic, attempting to escape from what he believed was death by a wall of water.
24. The Tribunal is satisfied beyond reasonable doubt that on 19 May 1969, the Applicant did not experience a stressor or a stressful event of sufficient severity to cause his PTSD or his alcohol abuse.
25. The Applicant’s PTSD is not war-caused.
26. The Applicant’s alcohol abuse is not war-caused.
27. The decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 25 July 2003
Date of Decision 30 January 2004
Counsel for the Applicant Mr. D. Honchin
Solicitor for the Applicant Purcell Taylor
Counsel for the Respondent Mr. R. Derrington
Solicitor for the Respondent Australian Government Solicitor
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