Todd and Repatriation Commission

[2002] AATA 658

DECISION AND REASONS FOR DECISION [2002] AATA 658

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/43

VETERANS' APPEALS DIVISION          )          
           Re      GORDON TODD    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date6 August 2002 

PlaceBrisbane

Decision      The Tribunal decides that the decision of the Veterans' Review Board dated 28 June 2000 is affirmed.              
   ....(Sgd) K L Beddoe....
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements – whether applicant suffered a severe stressor - whether applicant's PTSD & alcohol abuse were war-caused 

REASONS FOR DECISION

6 August 2002        Mr K L Beddoe (Senior Member)            

1. The respondent refused a claim for nerves, stress and anxiety on the basis that the diagnosis could not be confirmed.  The Veterans' Review Board found a diagnosis of post traumatic stress disorder ("PTSD") and alcohol abuse but found there was not a reasonable hypothesis connecting those diagnosed conditions with the applicant's operational service.

2. At the hearing the issues were confined in effect to whether the applicant had suffered a stressor which came within the terms of the relevant statement of principles.

3. The applicant's case was conducted by Mr Honchin of counsel and Mr Stoner represented the respondent. Oral evidence was given by the applicant. Documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents tendered were marked as exhibits.

4. The applicant, who was born on 29 August 1946, served in the Royal Australian Navy from 14 January 1966 to 13 January 1975.  In early 1966 while serving on HMAS Anzac the applicant experienced escort of HMAS Sydney to South Vietnam but only as far as the Malacca Straits.  His experience of service in South Vietnam came in 1969 while serving on HMAS Vampire which escorted the Sydney into Vung Tau Harbour on 19 May 1969.  The Vampire was in Vung Tau Harbour from daybreak until early evening on the same day.

5. While in Vung Tau Harbour the applicant was on a four hours watch in the boiler room.  During the course of the watch the ship dropped scare charges as seems to have been standard practice for Australian Navy ships at anchor in the harbour.  One explosion was louder than the others and caused the applicant to attempt to go on deck until he was stopped by a petty officer.  He says he envisioned the side of the ship's hull caving in so that he would become trapped by water in the boiler room.  During the time in the harbour the applicant witnessed firing by aircraft in the distance and upper deck sentries on Vampire firing on suspicious objects in the harbour.

6. The applicant also served on HMAS Sydney which left Sydney for South Vietnam on 14 February 1972 and returned to Townsville on 9 March 1972.  The Sydney was at anchor in Vung Tau Harbour on 28 and 29 February 1972.  In his statement (Exhibit A) the applicant describes his time on Sydney between Australia and South Vietnam as follows:

   "I also served on HMAS Sydney in 1972 and spent two days at anchor.  I experienced the same fears going back again.  I had only been married for 14 months and did not want to sail because of the previous trip on HMAS Vampire and problems my wife was having with our present accommodation at that time.  My wife visited a Navy psychologist to try and stop me from sailing on that trip.  On route to Vietnam we stopped in Singapore where I ended up in the Navy Hospital, in a straight jacket, in a padded room, off my head from alcohol and a nervous breakdown caused by stress and worry about not being able to help my wife who was on her own in Sydney and for fear of not seeing her again.  I was sent back on board the next morning with nothing on but a pair on long trousers and carrying a 'Neil Robertson' (straight jacket) stretcher.  I was pointed at with remarks like 'Toddy can't handle it', and other jibes.  Word gets around fairly quickly on a ship when you get carried off ranting and raving.  I also have nightmares of being chased by people and being cornered.
   I was given watchkeeping duties in the boiler room during our stay in Vung Tau and the same fears came flooding back again with the scare charges being dropped and the reports that go around about divers being caught, mines located on ships, ships being sunk, all of this causing fear and claustrophobia in a confined space down in the bowels of a large ship.
   This time the period of being on duty down in the boiler room was over a longer period.  The fire fights at night were very visible on shore and added to the fear of being shelled."

1. In his oral evidence the applicant confirmed that he did not wish to go to South Vietnam on the Sydney and tried to drown sorrows while on shore in Singapore resulting in hospitalisation in a straight jacket.  The incident is described in the statement of Francis Guy as follows:

   "On our first day in Singapore (I am not sure of the exact date, I believe it was late in the Month) I had spent the day ashore and returned on board late that night.  As I crossed the gangway I was approached by the Officer of the Day who told me that I was required at the Anzuk Woodlands Hospital as a friend of mine, Gordon TODD, was in Hospital because he had suffered some sort of breakdown and had attempted to jump out of a moving taxi, he was uncontrollable and they believed that I was probably one person who could communicate with him and calm him down.
   I went to the hospital and I was taken to Gordon.  I found him in a padded room and in a restraining jacket, he was obviously very upset, he was ranting and shaking and quite distraught.  I was able to quieten him down for a short period and requested the attending nurse to remove the straining jacket.  This was done.  He told me that he was very worried about Dawn (his wife), he was concerned for her welfare and he believed that he shouldn't have left her is Sydney in the circumstances that he had and he wanted the Navy to fly him home immediately so that he would look after her.  He believed at that time that the Navy wasn't interested in him or his problems.
   As the conversation went on Gordon once again became agitated and at one point lashed out, hitting me in the face with enough force to knock me over. There were other people with me at the time and they were also attacked.  It took a combined effort to control him and once again he had to be restrained.  During the course of the night he calmed down.
   Prior to this incident I had known Gordon for a period of 7 (seven) years and at all times had found him to be a person of very steady habits, quite conscientious and highly respected by both officers and crew alike.  I was aware from the start of the trip that something was troubling Gordon but I didn't ask what his problems were."

1. The applicant says that he increased his consumption of alcohol while serving on Vampire and Sydney by drinking his own ration of beer plus any he got from other sailors.  It is reasonable to infer that the most significant increase in alcohol consumption was while not on board ship, as illustrated by the Singapore incident, where Naval rationing of beer was not applicable.

2. In his oral evidence the applicant gave evidence about the collision between HMAS Melbourne and USS Evans on 26 June 1969.  He said that bodies were taken on board by Vampire and he was horrified by the sight of these bodies but said he did not recall telling Dr Likely that it was his most difficult experience in his naval service.  He said that Vampire was part of the Far East Strategic Reserve at the time of the accident but cannot recall the ship's location at the time of the accident.
   The Medical Evidence

3. Copies of clinical notes by Navy medical officers in document T4 show a history of headaches variously described as tension headaches, headaches and migraine.  The history given at the time indicates a history going back to school days.

4. Document T4 includes a report by Dr Stephenson, Community Psychiatrist, dated 22 June 1998 and addressed to the Department of Veterans' Affairs.  Dr Stephenson sets out a history which includes the following:

   "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 stressed at the time that he went on a binge drinking session and ended up briefly in hospital!
   In later years, there have been problems in the marriage caused by what he describes as his tendency to rant and rave at the children and at wife.  He bitterly regrets that it has impaired his relationship with children quite seriously over many years, and he attributes this to chronic anxiety which started during his naval service.
   During his naval service, including his time in Vietnam and with the Far Eastern Strategies 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."

1. Dr Stephenson identified the applicant as being susceptible to stress and probably being a bit of a perfectionist making it difficult for him to shake off anxiety.  She did not make a positive diagnosis but recommended training in basic stress management.

2. In a further report addressed to the Department of Veterans' Affairs and dated 22 November 1999, Dr Stephenson confirmed Dr Likely's diagnosis of PTSD.  She also said that the specific stressors were the Evans/Melbourne incident and a crash landing of a helicopter while the applicant was serving on HMAS Vampire.  She also said that service on Vampire in South Vietnam was a more generalised stressor.

3. In a pro forma report dated 9 June 1998, a Dr Dressler diagnosed generalised anxiety disorder (T4/29-30).

4. Dr Likely, consultant psychiatrist, made a report to Dr Dressler dated 25 March 1999 in which he diagnosed as follows:

   Axis I             PTSD (chronic – as a result of Navy service in 1969)
   Axis II           No disorder
   Axis III          Hearing difficulties.  Hypercholesterolaemia
   Axis IV          Stressor of chronic ill health.  Work stress.
   Axis V            Current GAF 51-60

5. Dr Likely attributed three separate incidents as likely causes of the applicant's PTSD.

   (a)      on board HMAS Vampire in Vung Tan Harbour;

   (b)Helicopter accident while on board HMAS Vampire at an undisclosed time and place but not likely to be South Vietnam; and

   (c)the collision between HMAS Melbourne and USS Evans – described as perhaps the most difficult for the applicant apparently because of two bodies being recovered and brought on board Vampire with survivors from the collision.

1. Dr Likely made a further report, dated 20 June 2001, addressed to the applicant's solicitors.  He repeated the history.  The report adds to the history by referring to evidence from the applicant's wife not referred to in the first report to the effect there was a discreet change in the applicant's condition after he returned from his first tour of duty in South Vietnam in May 1969.  Dr Likely sets the history out as follows:

   "It is important to note that there was a discreet change in Mr Todd's condition after he returned from his first tour of duty in Vietnam in May of 1969.  His wife told me that she could recall him becoming angry and argumentative and 'going off'.  She recalled that at this stage she was pregnant with her first child and recalled 'walking the streets of Bondi' wondering where her future lay with a man such as Mr Todd.  The incident involving the USS Frank E Evans did not occur until June 1969 and therefore Mr Todd's symptoms were present before this incident."

1. The difficulty with this history is that it is more likely than not, but not explained to me, that the visit to Vung Tau Harbour and the incident involving USS Evans were on the same tour of duty, given that after South Vietnam the Vampire proceeded to Manila arriving on 25 May 1969 (T4).  It is unlikely that the applicant returned from the tour of duty in May 1969. 

2. Dr Likely arrives at a more specific hypothesis in that second report because he attributes the cause of PTSD to the first visit to South Vietnam.
   Consideration

3. It is now beyond argument that the applicant has an accrued right to have this matter considered in the light of the statements of principle in force at the time of the respondent's determination.  That is subject to the applicant also having the right to rely on a subsequent statement of principles which may be favourable to the applicant's case.

4. Here the applicant relies on the statements of principle in force at the time of the Commission's determination and the subsequent instruments as follows:

   (a)Instrument 3 of 1999 as amended by Instrument 54 of 1999 concerning PTSD;

   (b)Instrument 15 of 1994 as amended by Instrument 225 of 1995 concerning PTSD; and

   (c)Instrument 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.

5. The applicant says the relevant stressor is the period the HMAS Vampire was in Vung Tau Harbour.  While on an objective basis it is unlikely that scare charges would or could sink the Vampire, the unexpected louder explosion caused by shooting from the deck was an event that may come within "experiencing a stressor" as defined in Instrument 15 if 1994.  It is not contended that any other events are relevant. While I did not understand the applicant to rely on the expanded meaning in the definition of "experiencing a severe stressor" in Instrument 54 of 1999 the hypothesis does come within that expanded definition.  The proposition is that the unexpected louder explosion caused the applicant to abandon his post and attempt to go on deck until ordered back to his post.  He says, in effect, he did so because of a perceived fear for his physical integrity thereby denying motives such as curiosity.

6. Dr Likely's hypothesis linking the PTSD to the explosions in Vung Tau Harbour also comes within the terms of Instrument No 3 of 1999 as amended by Instrument No 54 of 1999.  Dr Likely says in Exhibit B that there was intense distress on the part of the applicant as a consequence of the explosions around the ship.  The hypothesis also accepts that the applicant experienced a stressor prior to the clinical onset of PTSD and the diagnosed condition of PTSD is a psychiatric condition meeting the description in paragraph 2 of the Instrument.

7. Put at its highest, and in particular, the applicant did not understand what had caused the louder than usual explosion and was therefore not to know that the explosion was a deliberate consequence of firing from the Vampire's deck to maintain the security of the ship.  On an objective basis there was minimal danger to the Vampire and its crew.  The real cause of the applicant's reaction to the explosion was born out of ignorance of the circumstances of the louder than usual explosion and not any objective danger to the ship and crew.

8. I am satisfied, beyond reasonable doubt, there was no objective threat to the Vampire while the ship was at anchor in Vung Tau Harbour.  Given this conclusion the definition of "experiencing a stressor" in Instrument 15 of 1994 and Instrument 54 of 1999 ("severe stressor") cannot be satisfied as a question of fact.

9. I am satisfied, beyond reasonable doubt, that there was no objective threat to HMAS Sydney while it was in Vung Tau Harbour.  Nothing happened that could on an objective view, be seen as a relevant threat to the ship and its crew.

10. If it was relevant to do so I would have been satisfied that the incident involving HMAS Melbourne and USS Evans was an event that would come within both definitions of "experiencing a (severe) stressor".  It is likely therefore that the applicant's PTSD had its genesis in that incident but that is a matter which I am not required to decide.  It is more likely than not that this incident occurred on the same tour of duty as the day in Vung Tau Harbour. 

11. Because I am satisfied beyond reasonable doubt, that the applicant did not experience a relevant stressor while on operational service, I must find that the hypothesis proposed by Dr Likely, and found to be within the template prescribed by either of the relevant Statements of Principle, is contrary to the fact.  I am satisfied beyond reasonable doubt, that the applicant's diagnosed condition of PTSD was not caused by his operational service in South Vietnam.

12. The hypothesis in relation to Alcohol Abuse depends upon a finding the PTSD was caused by operational service.  As I am satisfied that was not the case.  I am also satisfied that the claimed condition of alcohol abuse/dependence cannot succeed.

13. For these reasons the decision of the Veterans' Review Board will be affirmed.

    I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

    Signed:         Sarah Oliver
       Associate

    Date of Hearing  20 September 2001
    Date of Decision  6 August 2002
    For the Applicant  Mr Honchin
    For the Respondent                 Mr Stoner