WATSON And REPATRIATION COMMISSION
[2010] AATA 743
•29 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 743
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5277
VETERANS' APPEALS DIVISION ) Re PETER WATSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr Egon Fice, Senior Member
Dr Kerry Breen AM, Member
Date29 September 2010
PlaceMelbourne
Decision The Tribunal affirms the decision of the Veterans' Review Board made on 16 July 2009. (sgd) Egon Fice
Senior Member
VETERANS AFFAIRS – Royal Australian Engineers – sensorineural hearing loss – tinnitus – atrial fibrillation – lumbar spondylosis – Post Traumatic Stress Disorder – alcohol dependence – alcohol abuse - depression - war caused - generalised anxiety disorder – traumatic event – standard of proof – operational service – balance of probabilities – reasonable hypothesis – severe stressor – clinical onset – confronted with an event – chronic adjustment disorder – diagnostic criteria – causal connection – threat – experiencing a life threatening event – subjectively feared for his life – objectively there was no threat – war caused injury – war caused disease
Repatriation Act 1920
Veterans’ Entitlements Act 1986(Cth) s 7, s 9, s 9(1)(a) s 9A, s 13(1), s 120, s 120(1), s 120(3), s 120A, s120A(3), s 196B(2), and s 196B(11)Byrnes v Repatriation Commission (1993) 177 CLR 564
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Imperial Bottle Shops Pty Ltd and Anor v Commissioner of Taxation [1991] FCA 276
Law v Repatriation Commission (1980) 29 ALR 64
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Gorton (2001) 110 FCR 321Repatriation Commission v Smith (1987) 15 FCR 327
Stoddart v Repatriation Commission (2003) 197 ALR 283
Walsh v Rother District Council [1978] 1 ALL ER 510
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
Statement of Principals concerning Post traumatic Stress Disorder - Instrument No 3 of 1999
Statement of Principals concerning Post traumatic Stress Disorder - Instrument No 54 of 1999
Statement of Principals concerning Posttraumatic Stress Disorder - Instrument No 5 of 20084th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders
REASONS FOR DECISION
29 September 2010 Mr Egon Fice, Senior Member
Dr Kerry Breen, Member
1. Mr Peter Watson was conscripted into the Australian Army commencing his service on 27 January 1971. He was discharged on 26 July 1972, having completed the prescribed period of service. He was deployed to South Vietnam, arriving in that country on 16 September 1971, and he remained there until 22 October 1971, some five weeks in total. He was an apprentice carpenter when conscripted and, because he had almost completed his apprenticeship when conscripted, his civil qualifications were confirmed and he was certified as a competent tradesman in the carpenter and joiner classification on 3 May 1971.
2. On 8 April 1971 Mr Watson was allocated to the Royal Australian Engineers (RAE). He was posted as a trainee to the School of Military Engineering (SME) for special corps training from 19 April 1971 to 18 June 1971. On 18 June 1971 he qualified as a field engineer (FE).
3. Mr Watson completed the Battle Efficiency Course at Canungra on 4 August 1971. On deployment to South Vietnam, he joined 21 Engineer Support Troop which was a part of 1 Field Squadron Group based at Nui Dat.
4. On 18 March 2008 Mr Watson lodged a claim for the disability pension with the Department of Veterans' Affairs (DVA). He claimed he suffered from hearing/tinnitus, severe facet joint arthritis, atrial fibrillation, post traumatic stress disorder (PTSD), alcohol dependence and depression. In its reasons for decision, the Repatriation Commission (the Commission) determined that the appropriate medical diagnoses for the claimed conditions were:
(a)sensorineural hearing loss;
(b)tinnitus;
(c)atrial fibrillation;
(d)lumbar spondylosis;
(e)PTSD; and
(f)alcohol dependence.
5. On 5 August 2008 the Commission accepted Mr Watson's claim for sensorineural hearing loss and tinnitus, but it rejected his claims in respect of lumbar spondylosis, atrial fibrillation, PTSD and alcohol dependence. On 19 August 2008 Mr Watson lodged an application seeking review of the Commission's decision by the Veterans' Review Board (VRB). Mr Watson subsequently withdrew his application in respect of lumbar spondylosis.
6. On 16 July 2009 the VRB set aside the Commission's decision regarding atrial fibrillation and instead decided that Mr Watson's atrial fibrillation was war-caused. However, it affirmed the Commission's decision regarding PTSD and alcohol dependence. Mr Watson's application to this Tribunal is in relation to those two conditions. In addition, as an alternative to PTSD, Mr Watson claims that his condition may be described as generalised anxiety disorder.
7. The issues which we must decide are:
(a)whether Mr Watson suffers from PTSD or generalised anxiety disorder, and alcohol dependence or abuse;
(b)if Mr Watson has any of the above conditions, their date of clinical onset; and
(c)if Mr Watson suffers from any of the above conditions, whether they are war-caused as that expression is defined in the Veterans’ Entitlements Act 1986 (VE Act).
DIAGNOSIS – PTSD
8. The process of determining whether a disease or injury is war-caused involves an antecedent decision about the disease or injury from which a veteran claims he or she suffers. The problem with cases involving PTSD is that the question whether that disease is suffered by the veteran is bound up with the question of connection with war service. A diagnosis of PTSD requires identification of a traumatic event which is of such a nature that it could give rise to the disease in question. As Gray J explained in Mines v Repatriation Commission [2004] FCA 1331, in cases involving PTSD, the diagnosis involves two questions. The first is whether the person is suffering from symptoms which, if the traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
9. Gray J also suggested that there might be more than one possible traumatic event and that there might be a question as to which event is responsible for the PTSD claimed. If any one of those possible traumatic events is not associated with a veteran's war service, the decision maker needs to resolve the question whether the symptoms result from the events associated with the veteran's war service, or with the other event or events.
10. Before outlining the two possible processes of reasoning suggested by Gray J in Mines case, one needs to understand the operation of s 120 of the VE Act dealing with standard of proof. Relevantly, s 120(1) of the VE Act provides:
120 Standard of proof
(1) Where a claim under Part II for a pension 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.
Note: This subsection is affected by section 120A.
. . .
11. Section 120(4) of the VE Act provides:
. . .
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
. . .
12. Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, we must decide the question of diagnosis to our reasonable satisfaction (see Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) of the VE Act . . . decide the matter to its reasonable satisfaction, was comprehensively analysed by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. . . .
This means that we are required to decide the question of diagnosis on the balance of probabilities.
13. Gray J in Mines case stated that more than one process of reasoning was possible when determining the question regarding the diagnosis of PTSD. He said, at [40]:
. . . The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio [Repatriation Commission v Deledio (1998) 83 FCR 82] would be satisfied without difficulty. . . .
14. The alternative process of reasoning suggested by Gray J is to treat all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered by a veteran, on the reasonable hypothesis basis required by s 120(1) of the VE Act. According to his Honour, a decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with the finding of PTSD. The question of whether there was PTSD would be determined on the reasonable hypothesis basis, using the four steps referred to in Repatriation Commission v Deledio (1998) 83 FCR 82.
15. Gray J said, despite what was said in Byrnes v Repatriation Commission (1993) 177 CLR 564, the Full Court of the Federal Court has consistently followed the first process of reasoning to which we have referred above. The process, he said at [46], was:
'The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.’
16. While we have no doubt that the process described by Gray J is correct, and in any event, we are bound to follow it, since his Honour decided Mines case, the SoP dealing with PTSD has altered. The current SoP, which took effect from 9 January 2008, is Instrument No 5 of 2008. The significant difference between the current SoP and the SoP which was current at the time Gray J decided Mines case, lies in the factors which must exist before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of the person's relevant service. In the SoP which was current at the time of the Mines decision (Instrument No 3 of 1999 as amended by No 54 of 1999), one of the factors which had to exist was described as experiencing a severe stressor prior to the clinical onset of PTSD. The expression, experiencing a severe stressor, was defined in terms identical to Criterion A1 which is set out in DSM-IV-TR (4th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders) as follows:
A. The person has been exposed to a traumatic event in which both of the following were present:
1. the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
2. the person's response involved intense fear, helplessness, or horror.
Note: In children, this may be expressed instead by disorganized or agitated behavior
17. However, in the current SoP, that factor is now described as experiencing a category 1A stressor before the clinical onset of PTSD or experiencing a category 1B stressor before the clinical onset of PTSD. The definitions of a category 1A stressor and a category 1B stressor are no longer consistent with Criterion A1 in DSM-IV-TR. A category 1A stressor involves experiencing a life threatening event but no longer includes being confronted with such an event. It includes being subject to a serious physical attack and being threatened with a weapon, being held captive, being kidnapped or being tortured, but there is no reference to events concerning persons other than the veteran. The definition of category 1B stressor includes being an eyewitness to a person being killed or critically injured; being an eyewitness to atrocities inflicted on another person or persons; being an eyewitness to or participating in the clearance of critically injured casualties; viewing corpses or critically injured casualties as an eyewitness; or killing or maiming a person. While some of the events described under the definition of a category 1B stressor could fit the description of being confronted with events involving death or serious injury, the effect of the definition is to significantly narrow the nature of events which fit the description.
18. The problem which we perceive exists under the current SoP concerning PTSD is the fact that Criterion A in DSM-IV-TR continues to refer to a person being confronted with an event that involved actual or threatened death or serious injury or threat to the physical integrity of self or others. However, to satisfy the definition of a category 1A stressor, a person must experience the events described under Criterion A. There is no reference to being confronted with any of those events. Under a category 1B stressor, there is a reference to being an eyewitness to events which might fall within the Criterion A description, as well as killing or maiming a person. There is no reference to being confronted with an event of the type described in Criterion A.
19. The difficulty we face is that the Full Court of the Federal Court in Woodward and Another v Repatriation Commission (2003) 131 FCR 473 (Woodward) rejected the notion that being confronted with an event meant that the person had to be present in the sense that they either experienced or witnessed the event. The Court said, at 495:
The definition of "experiencing a severe stressor" has three elements that relate to a person's encounter with an event involving death -- the person must have "experienced, witnessed or [have been] confronted with an event that involved death ...". Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be "confronted with" an event that he or she has neither experienced nor witnessed.
In any event, as a matter of ordinary usage to be "confronted" with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he "confronts". This is no less the case when the confronting event [sic] is one involving death or serious injury.
20. Therefore, while the diagnostic criteria set out in DSM-IV-TR might be met, thereby permitting a diagnosis of PTSD, when it comes to applying the factors which must be present before it can be said that a reasonable hypothesis has been raised connecting a claimant's PTSD with the circumstances of his or her relevant service, they may not be able to satisfy the category 1A or category 1B stressor definitions. For example, if a veteran was confronted with (but did not witness or experience) an event which involved a threat to the physical integrity of self or another person, while that could satisfy Criterion A of DSM-IV-TR, it would not fall within the category 1A or category 1B stressor definitions. If we are correct about that, what Gray J said in Mines case regarding the first process of possible reasoning may no longer apply. That is, it is no longer possible to assume that if we are reasonably satisfied on the balance of probabilities that a traumatic event confronted during operational service led to the PTSD, there will exist a reasonable hypothesis sustained by reference to the SoP. While this appears to be an anomaly created by the amended SoP No 5 of 2008, we must deal with it as best we can having regard to the processes outlined by Gray J in Mines case.
21. We also need to be mindful of what the Full Court said in Repatriation Commission v Budworth (2001) 116 FCR 200 regarding the characterisation of the disease suffered by a veteran. The Full Court said, at 207 [19]:
. . . This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence . . . shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).
22. The medical documents before us in evidence disclose that Mr Watson attended the South Morang Medical Centre in April 2007 indicating that he wished to apply for a disability pension, having been referred to that Centre by an RSL advocate. The clinical notes indicate that the problems Mr Watson said he had acquired were hearing and tinnitus, lumbar disc and heart problems. Those notes do not mention any alcohol or psychiatric problems.
23. Nevertheless, on 29 October 2007, Dr Rob Moffitt referred Mr Watson to Dr Arthur Velakoulis, a psychiatrist. Prior to this referral, and prior to attending the South Morang Medical Centre, it appears Mr Watson was treated at the Childs Road Medical Centre from August 1986. The clinical notes from that Medical Centre make no reference at all to any psychiatric or alcohol problems. The notes refer to Mr Watson having bad sleep at night due to mild stress in his life in September 2004.
24. There was also a note made by Dr David Festa on 25 August 2009 which records Mr Watson suffering from low energy levels for two weeks with severe lethargy in the late afternoon. Dr Festa said that Mr Watson had poor sleep with early morning waking, he lay awake worrying about work and other stressors, for example, his daughter with schizophrenia. He had poor motivation to work.
25. Among the medical documents is a brief report prepared by Dr John Cotroneo, a cardiologist. In his report dated 3 May 2006, Dr Cotroneo said that Mr Watson was a 56 year old man with no significant medical history other than back pain. He had attended the Emergency Department three days before being seen by Dr Cotroneo with his first episode of atrial fibrillation. Apparently, he described chest tightness associated with sweating and light headedness. He also described a history of sweating independent of his chest tightness symptoms with the sweating usually occurring at night and being so profuse he was frequently required to change pyjamas as well as sheets. Dr Cotroneo said it was possible that Mr Watson suffered from intermittent atrial fibrillation which precipitated chest pain as well as the sweating.
26. Dr Velakoulis examined Mr Watson on two occasions and wrote a brief report dated 17 February 2008. Dr Velakoulis reported that Mr Watson presented with a chronic history of symptoms consistent with service related PTSD. According to Dr Velakoulis, Mr Watson gave a history of suffering from chronic re-experiencing, avoidance symptoms and prominent hyper-vigilant symptoms. He suffered from claustrophobia and a high base line level of anxiety, at times to the point of near panic. At work, he found it difficult to cope with various stressors and demands and could be irritable. Dr Velakoulis also stated that Mr Watson told him he used alcohol to deal with his high stress levels and said that he consumed 10 standard alcoholic drinks per night for the past 15 years, with few periods of abstinence. He indicated that Mr Watson told him he was under immense stress from his work, his daughter's battle with chronic schizophrenia and his son's recent court hearing in relation to a fatal motor car accident, as well as several other family matters. Dr Velakoulis did not record any events which related to or may have occurred in the course of Mr Watson's army service.
27. On 13 July 2008, following a request from DVA, Dr Velakoulis provided a detailed psychiatric report regarding Mr Watson. In the history he took from Mr Watson, he recorded that Mr Watson served in Vietnam in 1971 for approximately six weeks following training as an engineer. He was deployed with 21 Engineer Support Troop based primarily at Nui Dat with 1 Field Squadron. His day to day work involved general duties including work in a workshop; working with tools and equipment; maintenance; work with a forklift for the removal of steel; and, on several occasions, patrol work. Mr Watson told Dr Velakoulis that he was not clear why he only served six weeks in Vietnam. He described having difficulty mingling with other troops and that others would rarely talk to him. He said that at one point an officer approached him and told him he was going home within four days. He said he had no idea why that was the case. In Nui Dat, he felt particularly lonely and depressed and would regularly sit alone and have dinner by himself as he was somewhat ostracised by his fellow soldiers. He suffered from poor sleep and was highly anxious about the risk he was exposed to in his operational environment.
28. Mr Watson is recorded as having told Dr Velakoulis that he was never fired upon and that there were no specific incidents where his life was immediately threatened. However, he had recurrent and at times, difficult to control, thoughts that such incidents might occur. He suggested this was one of the reasons why he was sent home. He told Dr Velakoulis that on two occasions or so he was involved in patrols during which he was scared. He said he recalled laying in the wet jungle thinking about what might happen to him and this caused him to be very nervous. He told Dr Velakoulis that on one night, sirens went and all the lights went off and we had to get our rifles. However nothing eventuated from that. He also told Dr Velakoulis that he was involved in forklift work in scrub around Nui Dat and that he felt like a sitting duck at risk of being fired upon. He described experiencing great distress after a local Vietnamese man stole a camera and was fired upon by an Australian serviceman (the forklift incident).
29. According to Dr Velakoulis, Mr Watson told him that on his return to Australia, he had symptoms which waxed and waned in severity. He described recurrent and intrusive dreams in relation to his military service in Vietnam, occurring at least two to three times per week and associated with periodic waking from sleep. He described trying to sleep in Vietnam, hearing the sounds of mortar or artillery fire at night, or being on patrol during very wet, rainy nights and lying awake trying to sleep. He woke regularly with associated distress in relation to those dreams.
30. Mr Watson told Dr Velakoulis that he did not commonly experience daytime reflections about his time in Vietnam but he always tended to be very busy during the day. Dr Velakoulis said that the re-experiencing of those symptoms was not particularly prominent or intrusive and did not occur particularly frequently. Dr Velakoulis also said there was evidence of psychological and physiological reactivity when Mr Watson was exposed to reminders or cues relating to Vietnam service. He referred to triggers such as television and newspaper articles, conversations and the sight of Vietnamese people. As a result, over the years Mr Watson tended to avoid Vietnamese precincts within Melbourne and he avoided particular television and newspaper articles. He also described high anxiety in small or enclosed spaces. He attributed that to a training incident at Canungra Jungle Training Centre when in the process of practising manoeuvres within tunnels. Apparently a fellow soldier panicked in the tight surrounds and had to be assisted in being removed from the tunnel.
31. As far as emotional numbing was concerned, Dr Velakoulis said there was no clear evidence to suggest any symptoms of this given his description of relationships with his family and wife over the years. Nevertheless, he thought there was clear evidence to suggest a longstanding history of hyper-arousal symptoms, including an exaggerated startle, irritability and chronically disturbed sleep. Mr Watson also described prominent chest and respiratory symptoms associated with extremely high anxiety, which tended to build up during the day reaching a point of near panic. Mr Watson said that he relieved his high anxiety by using alcohol. He said he spent significant periods of time during the day worrying about various concerns, including his business, being on time, day to day issues, his family and in particular his family's health, as well as a variety of other issues.
32. Mr Watson also described periods of depressive symptoms since the 1970s. He said he often finds himself ruminating about various concerns, in particular family concerns relating to the physical health of his children, his daughter who suffers from schizophrenia as well as the marital issues of another daughter and legal matters in relation to one of his sons.
33. In this report, Dr Velakoulis said Mr Watson told him that his alcohol intake was high and had remained so since his Vietnam service. He told Dr Velakoulis that he drank at least six heavy beers per night with no alcohol free days and he had periodic alcohol binges. He denied any significant physical or forensic sequelae associated with his high alcohol use. He said his alcohol intake prior to army service was minimal.
34. Mr Watson described his past psychiatric history, including receiving counselling from a Vietnam Veterans' Counselling Service counsellor between 2006 and 2007 in relation to anxiety and depressive symptoms. However, we had no evidence of any such counselling before us. He told Dr Velakoulis that he suffered from atrial fibrillation but denied any other significant medical difficulties. However, this statement was not supported by his medical records which indicate a number of serious physical complaints including:
(a)a fractured mid shaft at the left humerus and bruising of his back and left ribs as a result from a fall from a ladder in 1991;
(b)severe laceration of the left hand in 1995;
(c)basal cell carcinoma on the side of his neck and also possibly another on the left forearm which were removed;
(d)episodes of chest pain and tightness with an ECG showing a left bundle branch block;
(e)degenerative changes in the acromioclavicular joint;
(f)severe low back pain in 1999;
(g)osteoarthritis of the spine diagnosed in 2003;
(h)fatigue and dizziness waking at night with sweats;
(i)gradually worsening polyuria and nocturia for two years reported in 2007;
(j)chest pain with new onset of left bundle branch block and irregular pulse in 2007; and
(k)work injury, after being hit by an excavator on right side of body resulting in painful left middle finger, pain left side of chest.
35. On clinical examination, Dr Velakoulis noticed Mr Watson's affect was mildly anxious and depressed with reduced reactivity. There was no evidence of psychotic symptoms or perceptual disturbance. Mr Watson said he felt he was suffering from an anxiety disorder and that he was probably drinking too much and suffering from mood symptoms.
36. Dr Velakoulis concluded that Mr Watson met the criteria in DSM-IV for PTSD, of a mild to moderate severity. He attributed the PTSD to Mr Watson's Vietnam service. He described Mr Watson as feeling an intense and overwhelming perception of life threat while being involved in general day to day duties at Nui Dat and also on patrol on several occasions. Dr Velakoulis speculated that Mr Watson's overwhelmingly high level of anxiety is likely to have led to his premature return to Australia. In fact, in August 1971 the then Prime Minister, Mr W McMahon, announced that Australia’s troops would be out of Vietnam by Christmas and that national service would be reduced from 2 years to eighteen months. This led to the commencement of Operation Interfuse which was the orderly withdrawal of Australian troops from operations. This was the likely cause for Mr Watson’s brief stay in Vietnam.
37. Dr Velakoulis opined that although Mr Watson's symptoms were consistent with generalised anxiety disorder, these were best subsumed under the diagnosis of PTSD.
38. Dr Velakoulis noted that Mr Watson suffered from periodic depressive symptoms, teariness, and variable motivation and attention, but said that those did not meet the criteria for major depressive disorder. He noted that Mr Watson's PTSD and anxiety symptoms had generally deteriorated in recent years, resulting in an increasing impairment in his capacity to perform work duties and to deal with others.
39. Under cross examination Dr Velakoulis said he disagreed with Dr Nigel Strauss, also a psychiatrist, that Mr Watson displayed symptoms of generalised anxiety. He said those symptoms were subsumed under PTSD. In his view, PTSD and anxiety disorder were not two independent diseases. Dr Velakoulis also disagreed with Dr Strauss’ diagnosis of adjustment disorder as he considered that to be only a transient process.
40. Dr Velakoulis was taken to his clinical notes which he made in the course of a consultation with Mr Watson on 28 April 2008. Dr Velakoulis recorded that Mr Watson told him that he was bored at Nui Dat. He could not remember what he did while he was there although he mentioned several times that he was a loner. He recorded Mr Watson telling him that he sat alone, even for meals and that he felt homesick and depressed. Dr Velakoulis agreed that Mr Watson was not confronted with an imminent life threat while in Vietnam. He summarised that session with Mr Watson and said it was likely that he suffered from generalised anxiety disorder with underlying PTSD.
41. Ms Jean McCulloch, an advocate with Department of Veterans' Affairs, put to Dr Velakoulis that Mr Watson did not meet the criteria for the diagnosis of PTSD. Dr Velakoulis said he was not sure. He said Mr Watson may have mild PTSD or be just under the diagnostic criteria. Dr Velakoulis also agreed that in the course of his sessions with Mr Watson, there was much focus on stress caused by family and work concerns and more recent events in his life.
42. Dr Timothy J Entwisle, a psychiatrist, provided a written report following a psychiatric assessment of Mr Watson following two consultations. In his report, which is dated 17 February 2010, Mr Watson is said to have told Dr Entwisle about recent traumatic events involving his son, an apprentice, and personal problems involving his family. Mr Watson also said he suffered from chronic back pain for a long period of time and that although he continued to work, clearly it created significant difficulties for him. He also explained to Dr Entwisle that he suffered from atrial fibrillation.
43. Mr Watson told Dr Entwisle that he suffered from really bad anxiety. Mr Watson explained that he drank at night after work to quell his anxiety but that he progressively had been waking every night in the early hours of the morning with his mind racing.
44. According to Dr Entwisle, Mr Watson told him that he was in Vietnam for six weeks. He was flown overseas in a C130 Hercules and landed at Nui Dat. He explained to Dr Entwisle that he joined 1 Field Squadron but there was not much to do. He was put in the carpenter's shop where he swept the floors. There was only one other soldier there. The men with whom he worked were not friendly. He said he felt shut out by his fellow soldiers, including those with whom he shared a tent. He described himself as a pretty quiet 21 year old. According to Mr Watson, there was only one person in the Unit who spoke with him and that only occurred once in the six weeks he was there. When he would go to the wet canteen, he would sit and drink on his own.
45. Mr Watson described a patrol which he had to do while at Nui Dat. He described himself as imagining things in the night while on watch and that he did not sleep well at all. He confirmed that he only went on patrol on one occasion.
46. Mr Watson also recounted an incident when he was in a village with a truck and forklift. He said one of the villagers stole a camera and the soldier involved fired shots at the villager who was running away. He never saw that person. He was not sure what happened but he was concerned about the prospect of retaliation.
47. Mr Watson told Dr Entwisle that he continued to think about those things every night. He explained it was more so in the last two years. Mr Watson said that after a few weeks, a 2nd Lieutenant told him he was going home. He explained that he had been scared all the time that he was over there.
48. Mr Watson told Dr Entwisle he was discharged in July 1971 prior to which he was working as a barman at the Officers' Mess. He said he returned to carpentry work and tried to work for his old boss but they did not get on. He then went out and worked on his own account. He described himself as, on return from Vietnam, turning into an alcoholic. He said he was drinking all the time, going to parties and driving home drunk.
49. Dr Entwisle recorded that Mr Watson told him his mind races and he would worry about work; he had trouble going to sleep and he would wake in the night. However, Dr Entwisle said Mr Watson described no dreams or nightmares in regard to his army experience.
50. Dr Entwisle described Mr Watson as a chronically anxious man who used alcohol to assist him regarding those symptoms. He also said that Mr Watson's back injury contributed to his condition. Dr Entwisle diagnosed Mr Watson as suffering from generalised anxiety disorder.
51. In his examination in chief, Dr Entwisle was referred to Dr Velakoulis' report and the fact that he had diagnosed Mr Watson with PTSD. Dr Entwisle maintained that the correct diagnosis was generalised anxiety disorder and that Mr Watson did not meet the criteria for PTSD under DSM-IV. Dr Entwisle was also referred to a report prepared by Dr Strauss. Dr Strauss diagnosed Mr Watson as suffering from adjustment disorder. Dr Entwisle disagreed with Dr Strauss's diagnosis. In his opinion, because Mr Watson had suffered for a very long period of time from anxiety, that was far too long a period to be diagnosed as adjustment disorder.
52. In cross examination Ms McCulloch directed Dr Entwisle's attention to the clinical notes of the Childs Road Medical Clinic, and in particular a consultation on 20 September 2004. The notes indicate Mr Watson saw Dr Sabah Hussain and he described having bad sleep at night and mild stress in life. Ms McCulloch said that was the first medical record which referred to stress or sleeping problems. Dr Entwisle said there were two possibilities, those being that he was not distressed by the events he described he experienced in Vietnam, or that if he was, he was not talking about them. Dr Entwisle said that Mr Watson did not explain that his unit was decommissioned and moved out to Vung Tau. He did not explain that he was transferred to another unit nor did he explain that a friend of his, Mr Simos, was also in Vietnam at Nui Dat while Mr Watson was stationed there.
53. Dr Entwisle was asked about Mr Watson's psychiatric symptoms and it was put to him that many were about his work rather than Vietnam. Dr Entwisle agreed with that. He also agreed that Mr Watson did not describe to him dreams or nightmares. When questioned by the Tribunal, Dr Entwisle said that Mr Watson's anxiety was first manifested when he came back from Vietnam and was discharged. This was because he spoke about trouble adjusting to civilian life and that he had disturbed sleep.
54. Dr Strauss interviewed Mr Watson on 17 March 2010 and provided a written report of the same date. In the history taken by Dr Strauss, Mr Watson is recorded as having discussed a number of personal problems including his children which caused him great concern. He also expressed concern about his atrial fibrillation which he said made him very anxious and tense.
55. Dr Strauss recorded that Mr Watson told him that he spent some six weeks in Vietnam. He explained that he was never accepted by other soldiers at 1 Field Squadron and that, being a quiet person by nature, he had trouble mixing. He recounted the patrol episode at Nui Dat which he described as nerve racking. He told Dr Strauss that nothing untoward happened; that he was never fired upon nor was he involved in any battle. He also told Dr Strauss about the incident where another soldier's camera equipment was stolen and that soldier shot at the thief. He described that as upsetting.
56. Dr Strauss recorded that Mr Watson said his emotional state changed approximately three or four years ago. He said that prior to that, he would dream about his time in Vietnam but it never worried him and he would simply get up in the morning and go to work. It never caused him to awaken during the night. However his sleep patterns changed over the last three or four years. He was sleeping only three or four hours per night and his memories of Vietnam would wake him and make him tense and worried. Dr Strauss said that Mr Watson told him he became increasingly agitated and tense in recent years and that he worried a lot about small things. Mr Watson said that he used to be much more relaxed when he was working but now gets very tense and upset easily. Mr Watson also described becoming panicky in lifts; suffering a panic attack when sitting in a vehicle being driven by a colleague; and a panic attack on a flight to Queensland.
57. Dr Strauss was provided with the Childs Road Medical Clinic notes and he noted that Mr Watson's sleep problems began in recent years. The notes recorded that in August 2009 he was worrying about his daughter, who suffered from schizophrenia.
58. In Dr Strauss's opinion, Mr Watson had always been a perfectionist and has quite marked obsessional traits in his personality. He has worked very hard all of his life and he had difficulty with interpersonal relationships at times. In recent years, his children caused him stress, particularly his daughter who suffered from schizophrenia, and his son who was involved in an accident in 2009. In that year, Mr Watson's father died and his great nephew also died. Mr Watson's apprentice died in 2009 in unfortunate circumstances and the year was extremely difficult for him.
59. Dr Strauss said that Mr Watson's difficulties seemed to stem back about three or four years when he developed atrial fibrillation and a sleep problem. He said Mr Watson had become increasingly anxious and depressed over the last three or four years but there was no medical evidence to suggest that prior to that, he had those problems.
60. Dr Strauss was of the opinion that Mr Watson's time in Vietnam was not particularly significant. He said Mr Watson told him that his life was reasonable until three or four years ago and although he thought about his time in Vietnam, it never troubled him or affected his work capacity. However, since his deterioration over the past three or four years, he had trouble sleeping and woke at night thinking about Vietnam. In Dr Strauss's opinion, Mr Watson's perspective has changed significantly over the last three or four years.
61. Dr Strauss accepted that Mr Watson was anxious and depressed and he diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. The onset of this condition was relatively recent and due to his personality type, his years of excess work and his personal situation particularly in respect to his daughter. He was of the opinion that Mr Watson's atrial fibrillation was associated with his anxiety and that the two conditions were probably related. Despite that, Dr Strauss was of the opinion that Mr Watson did not have an incapacity for employment on psychiatric grounds. He believed Mr Watson was capable of normal work. He did not believe that Mr Watson's adjustment disorder was related to his time in Vietnam and he did not agree that Mr Watson suffered from PTSD.
62. In his examination in chief, Dr Strauss was asked to comment on Dr Velakoulis's diagnosis of PTSD. Dr Strauss said that in his opinion, Mr Watson did not display the range of symptoms required to establish PTSD; that he could not identify an originating stressor; and that for many years Mr Watson coped well with life and that his problems were of recent development.
63. Mr Andrew Larkin of counsel, who appeared on behalf of Mr Watson, cross examined Dr Strauss about the length of his consultation with Mr Watson. Apparently, Mr Watson was critical of the time taken for the consultation, suggesting it was superficial. Dr Strauss said that the consultation was certainly not less than 30 minutes but, in any event, he was able to take an adequate history. He said he relied on his notes to prepare his report. When Mr Larkin suggested to Dr Strauss that in order to reach a diagnosis, he needed to question Mr Watson about the events he described while in Vietnam, Dr Strauss disagreed and said that the history given to him by Mr Watson did not establish a traumatic event at all. Therefore, he did not need to pursue that any further. When it was put to Dr Strauss that he simply formed the view that there was no significant stressor, and therefore Mr Watson did not suffer from PTSD, he responded by saying that in order to meet the SoPs concerning PTSD, there needed to be a significant traumatic event. Dr Strauss said he did not rule out anxiety.
64. Mr Larkin submitted that Dr Velakoulis' diagnosis should be preferred to that of Dr Entwisle and Dr Strauss. Alternatively, if we did not accept Dr Velakoulis' diagnosis of PTSD, we should accept Dr Entwisle's diagnosis of generalised anxiety disorder. Ms McCulloch of course urged us to accept Dr Strauss' diagnosis of chronic adjustment disorder with mixed anxiety and depressed mood.
65. The SoP concerning PTSD, which was current on 5 August 2008, when the Commission made its decision regarding this matter, was Instrument No 5 of 2008. Clause 3(b) states that for the purpose of the SoP, PTSD means a psychiatric condition meeting the diagnostic criteria set out in DSM-IV‑TR.
66. DSM-IV-TR sets out six criteria for a diagnosis of PTSD. The specified number of elements in each criterion must be present in order to make a PTSD diagnosis. Criterion A is set out above at paragraph [16].
67. Criterion A requires the person to have experienced, witnessed or having been confronted with a particular event or events. Therefore, we need to apply what the Full Court in Woodward said about being confronted with an event, which is set out above at paragraph [19].
68. The Full Court went on to give an example of where a member of the armed forces taking part in casualty clearance, who may well have been outside the area of immediate conflict and therefore neither experienced nor witnessed the events which caused the casualties, could nevertheless be confronted with the threat of death or serious injury. That particular event appears now to have been subsumed under the definition of a category 1B stressor in the current SoP which refers to being an eyewitness to or participating in the clearance of critically injured casualties. However, the important aspect of this element is that in order to be confronted with an event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others, the person must in fact witness an event which could result in the eyewitness being confronted (in their mind) with events which involve actual or threatened death or serious injury. It follows that a person cannot be said to have been confronted with one of these kinds of events if the person did not witness the events set out under the definition of a Category 1B stressor.
69. In Mr Watson's case, there was nothing in his evidence which would even suggest that he witnessed a life threatening event, threats of serious injury or a threat to the physical integrity of self or others in the two events he relied upon for his claim for PTSD. Also, no person actually suffered death or serious injury in either the patrol incident or the forklift incident. The word threat, according to Chambers 21st Century Dictionary, means:
1 a warning that one is going to or might hurt or punish someone. 2 a sign that something dangerous or unpleasant is or may be about to happen. 3 a source of danger.
When used as a verb, it means:
1 to make or be a threat to someone or something. 2 to give warning of something, usually unpleasant or dangerous. 3 intr said of something unpleasant or dangerous: to seem likely to happen.
70. Applying the ordinary meaning of the word threat or threatened to the events relied on by Mr Watson, there is nothing which happened on his night patrol which could be said to be a warning or a sign that something dangerous or unpleasant was or might be about to happen. While we do not doubt for one moment that the risk of harm in an operational area is ever present, mere presence in an operational environment and conducting duties associated with being in that environment cannot, by themselves, constitute a threat for the purposes of the VE Act. We say that because s 9(1)(a) of the VE Act provides that an injury or disease contracted by the veteran is taken to be a war-caused disease if the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service. In other words, there needs to be a discrete threatening event in the course of conducting operational service in order to establish the injury or disease as having been war-caused. As Mr Watson said, nothing happened on that patrol although he was, throughout its course, constantly fearful that something could happen. The first part of Criterion A of DSM-IV-TR dealing with PTSD requires an event to in fact have occurred which produces the response set out in paragraph 2 of Criterion A. In our opinion, the mere risk of such an event happening does not satisfy Criterion A.
71. Mr Larkin submitted that there was material before the Tribunal pointing to Mr Watson believing he was in danger when he was outside the base at Nui Dat on patrol and in the course of delivering steel when he said he rode shotgun on the forklift and the incident involving the firing of shots at a person who had stolen a camera occurred. Mr Larkin submitted that the material pointed to Mr Watson believing that either his own life or the lives of others were in danger during the theft of the camera incident. Mr Larkin referred to the Full Court decision in Woodward where it approved the reasoning of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 (Stoddart).
72. The difficulty we have with Mr Larkin's submission is that in both the Woodward and Stoddart's cases, the SoP concerning PTSD referred simply to experiencing a severe stressor. That expression was defined in the SoP in the terms of Criterion A1 of DSM-IV. However, the current SoP concerning PTSD (Instrument No 5 of 2008) refers to experiencing a category 1A or a category 1B stressor before the clinical onset of PTSD. The expression, a category 1A stressor, means:
(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;
73. It follows that experiencing a category 1A stressor is not the same as experiencing a severe stressor, as was the case prior to the current SoP concerning PTSD. Whereas the first two elements in that definition were previously tied to the broad statements set out in Criterion A1 of DSM-IV-TR, a category 1A stressor now deals with experiencing particular events while the definition of a category 1B stressor essentially deals with being an eyewitness to certain events. Therefore, the question which arises is whether the definitions of a category 1A stressor and a category 1B stressor nevertheless continue to admit a subjective element as stated by Mansfield J in Stoddart's case. His Honour said, at 293:
The definition of “experiencing a severe stressor” relevantly requires the applicant to have experienced, witnessed or been confronted with an event or events of a certain character. The issue is to identify what character of event or events may amount to a threat of death or serious injury or to physical integrity.
And at 294:
The adjectival clause “that involved actual or threat of death or serious injury …” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury.
74. His Honour concluded, at 296
In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
75. By way of contrast, the matters set out under the definition of a category 1A stressor are more precisely prescribed under the definition. The person must have experienced a life threatening event. The events described in (b) and (c) do not apply to Mr Watson. Therefore, it seems to us that we should first determine whether the events described by Mr Watson, judged objectively, in fact fall within the description experiencing a life threatening event. The problem for us is that while Mr Watson was on patrol outside Nui Dat, there was no event which he identified as constituting a threat to his or to anyone else’s life. Undoubtedly, simply being on a patrol in an operational area means that the risk of a threat would necessarily be higher than perhaps in a non operational area. However, the SoP and Criterion A1 of DSM-IV-TR do not deal with the risk of a threat, but rather a threat. In other words, there must be some sign or indication of an event which might cause harm. Mr Watson did not identify such an event while on patrol around Nui Dat. For that reason, we find that Mr Watson's perceptions in the course of that patrol were idiosyncratic and personal. They do not fall within the description which would meet Criterion A1 or, for that matter, the definition of a category 1A stressor. As far as the subjective element is concerned, while Mr Watson may have subjectively feared for his life, it could not be said that he experienced or was confronted with a life threatening event.
76. As for the forklift incident, where Mr Watson said that the soldier riding shotgun with him on the forklift fired shots towards a person who had stolen his camera, Mr Watson's evidence was not that the shots were fired at the thief. In fact he expressly stated that he did not know whether the shots were fired at the thief. He simply heard shots. His concern was that there could have been return fire as a consequence of the shooting. However, there was no evidence at all of any other armed persons within the vicinity or of any aggressive or hostile act towards the soldiers by the locals in the village. Again, Mr Watson's problem lies with the meaning of the word threat. He did not refer to anything in his evidence which would so much as suggest an indication or a sign of impending or likely harm. While he may well have subjectively experienced fear of a heightened risk of a threat evolving as a consequence of that incident, viewed objectively, the state of affairs existing at that time cannot be said to have involved any threat. We refer to what the Full Court in Woodward said at 499:
We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
77. Therefore, although it is possible that Mr Watson perceived himself to be threatened at the time of the theft of the camera incident, there was no objective evidence to suggest that his perceptions were reasonable. In fact, viewed objectively, there was no threat. While the risk of a threat arising may have been increased by the incident, that does not, in our opinion, satisfy Criterion A1 of DSM-IV-TR nor would it satisfy the definition of a category 1A stressor under the SoP. We find that this incident does not meet the diagnostic Criterion A1 of DSM-IV-TR and therefore a diagnosis of PTSD could not be made based on this event or the patrol event.
DIAGNOSIS - GENERALISED ANXIETY DISORDER & CHRONIC ADJUSTMENT DISORDER
78. According to Dr Entwisle, upon examination, Mr Watson presented as a depressed and anxious man with some obsessional tendencies. Dr Entwisle diagnosed Mr Watson with generalised anxiety disorder. In his written report, Dr Entwisle did not explain why he arrived at that diagnosis. However, in his oral evidence, Dr Entwisle said that his diagnosis was based on his impression of Mr Watson being obsessive and wary about things. He said it was unclear whether Mr Watson suffered from anxiety before going to Vietnam, but he came home anxious and worried, suffering from loneliness and the feeling of not being accepted. This had a significant impact on his confidence and he did not cope well.
79. DSM-IV-TR describes the diagnostic criteria for generalised anxiety disorder and it includes these:
A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B. The person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). Note: Only one item is required in children.
1. restlessness or feeling keyed up or on edge
2. being easily fatigued
3. difficulty concentrating or mind going blank
4. irritability
5. muscle tension
6. sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
. . .
E. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
. . .
80. Dr Entwisle did not refer specifically to the diagnostic criteria for generalised anxiety disorder set out in DSM-IV-TR. While the history Dr Entwisle took from Mr Watson was consistent with him meeting three or more of the symptoms set out in Criterion C, there was no evidence of excessive anxiety and worry or that Mr Watson found it difficult to control the worry. In fact, as Dr Entwisle said, Mr Watson was a workaholic and although he was anxious and tended to worry, there was no suggestion that those symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning, at least not until possibly three or four years ago. In fact, the past three or four years have been particularly difficult for Mr Watson, due to matters of a personal nature, particularly those concerning his family and close friends. Dr Entwisle said that Mr Watson impressed as a depressed and anxious man with some obsessional tendencies.
81. The difficulty we have with Dr Entwisle's diagnosis is that he has not distinguished Mr Watson's mental functioning in the period since coming home from Vietnam from the period commencing three or four years ago and the more recent events in his life. By way of contrast, Dr Strauss did distinguish between those two periods in Mr Watson's life.
82. Dr Strauss was of the view that Mr Watson has always been a perfectionist and has had marked obsessional traits in his personality. This seems to accord with the evidence Mr Watson gave about his working life. Dr Strauss also opined that people who work very hard, such as Mr Watson has done all his life, often have difficulty with interpersonal relationships at times. This also accords with the evidence given by Mr Watson. In fact Mr Watson described his difficulties arising shortly after coming back from Vietnam, when he returned to his former employer where he was an apprentice prior to being conscripted into the army. Mr Watson could no longer tolerate being told what to do and within a very short space of time, set out to establish his own business.
83. Dr Strauss referred to the fact that Mr Watson's psychological state began to deteriorate three or four years ago when his atrial fibrillation became a significant problem. That also accords with Mr Watson's evidence, indicating sleep problems and waking at night with sweats due to atrial fibrillation. Dr Strauss concluded that Mr Watson was anxious and depressed and that he had a chronic adjustment disorder with mixed anxiety and depressed mood. In his opinion, this had come about relatively recently because of his personality, his years of excessive overwork and the personal situation he found himself in particularly the problems with his daughter who suffered from schizophrenia. He was also of the opinion that Mr Watson's atrial fibrillation was associated with his anxiety.
84. In our opinion, Dr Strauss's analysis of Mr Watson's psychological condition more accurately accords with the history given by Mr Watson of his service in Vietnam and his working life. It takes account of the very significant recent events which have taken place in Mr Watson's life and which have caused him to become particularly anxious and depressed. For those reasons, we find, on the balance of probabilities, that Mr Watson suffers from chronic adjustment disorder with mixed anxiety and depressed mood. Although Dr Entwisle and Dr Velakoulis rejected a diagnosis of chronic adjustment disorder, they did so on the basis that this was a temporary condition. However, that is not quite an accurate statement of the diagnostic criteria set out in DSM-IV-TR. Criterion E provides that once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months. At this stage, because of the serious personal problems being experienced by Mr Watson, we do not consider that the stressor or stressors referred to by Dr Strauss have terminated.
DIAGNOSIS – ALCOHOL DEPENDENCE/ALCOHOL ABUSE
85. In the alcohol questionnaire completed by Mr Watson on 4 April 2008, he stated that he consumed seven to ten standard drinks per day. He said he never permanently stopped drinking and he considered that his alcohol consumption was due to, or contributed to, by his service. He said that he started to drink after he joined the Army. In his oral evidence, Mr Watson said that he was stressed, worried, lonely and isolated in Vietnam; and his drinking increased substantially. When he returned from Vietnam, he worked as a barman in the Officers’ Mess at Holsworthy where he said alcohol was readily available to him. When asked about his drinking level he said he consumed between four to six or seven stubbies per night. He said he consumed more on weekends. He described the impact of his drinking as having affected his marriage and that he became more aggressive. He described himself as having the shakes in the morning.
86. When asked whether he ever had problems with the law regarding his alcohol consumption, he said he did not. He said that he kept a breathalyser under the seat of his truck to ensure that he did not drive while over the alcohol limit. However, this evidence was in stark contrast to the evidence he provided to the VRB regarding this subject. The transcript of that hearing discloses that when he was asked whether he had ever been caught drink driving, he said: not – sort of, yes. When asked if he was charged Mr Watson said:
Yes, I got a suspended –what do you call it – a restrictive licence many years ago. I was a cub leader and we were up at – this is when I was, you know, out of the Army and my kids started cubs and we took them away to – near the snow – Mount Buffalo and the – three of the leaders or a couple of parents and myself and another leader went to the pub and we left a couple of guys there with the kids, and come out of the pub and I was driving back and the police were sitting up the street. Anyway, I kept driving, got out of the car, we started walking through the trees, over the fence, and the policeman sort of – here’s me driving and I said I wasn’t driving. Anyway, went to Court and – what happened, the Barrister – I was allowed to drive between – for working hours only. Yes, for working hours only.
87. Mr Watson was also asked about his relationship with his children. He said that was okay when they were growing up but as they got older, he didn’t do much with them. He mentioned that his eldest son lived at home and that he thought that Mr Watson drank too much. His eldest son worked with him and did his apprenticeship under him.
88. The problem with Mr Watson’s evidence of his drinking is that, not only has he made inconsistent statements regarding the consequences of his alcohol consumption, but Mr Watson did not call his eldest son or his wife to give an account of his level of alcohol consumption. There was no suggestion that those persons could not have given objective evidence about his alcohol consumption. The difficulties we have with the statements that he has made are not dissimilar to the problem which Hill J addressed in Imperial Bottle Shops Pty Ltd and Anor v Commissioner of Taxation [1991] FCA 276. Although that was plainly a tax decision in which the applicant had the burden of proving that the tax assessment made by the Commissioner was excessive, it nevertheless illustrates the problem with the kind of statements made by Mr Watson about his drinking levels. His Honour said, at [31]:
A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be ‘tested most closely, and received with the greatest caution’: Pascoe v Federal Commissioner of Taxation (1956) 11 ATD 108 at 111.
His Honour went on to indicate that it would be a rare case where a taxpayer in those circumstances would succeed in satisfying the burden of proving that the tax assessment was excessive unless there was other corroborative evidence which would make it more probable than not that his sworn testimony was to be believed.
89. While of course we are aware that the applicant in proceedings before the Tribunal does not bear the onus of proving any matter, Mr Watson’s evidence about his alcohol consumption is necessarily a self serving statement. It should, as Hill J said, be treated with caution. While we cannot reject Mr Watson’s evidence about his alcohol consumption, we cannot give it great weight. This is particularly so where he has in fact given contradictory evidence on this subject before the VRB. Also, Mr Watson gave us no indication that his eldest son or his wife could not have been called to give evidence of his drinking.
90. Mr Watson’s evidence to the VRB was that he drank four to six stubbies per day. Assuming he drank full strength beer, that level of consumption amounts to between four and nine standard drinks per day (see Australian Government Department of Health and Ageing website regarding the Australian standard drink). That is somewhat less than what was stated in his alcohol questionnaire.
91. In his written Report dated 13 July 2008, Dr Velakoulis stated that Mr Watson met the criteria for alcohol dependence. He attributed that disease to Mr Watson's military service; his time in Vietnam and the need to self medicate his PTSD/ generalised anxiety disorder symptoms. He noted that Mr Watson had a family history of high alcohol intake due to his father's consumption and he suggested that might be as a result of genetic pre-disposition. According to Dr Velakoulis, Mr Watson continued to drink at least ten standard drinks per day with no alcohol free days, he had difficulty reducing his intake and he exhibited evidence of tolerance and withdrawal symptoms.
92. In his clinical notes, Dr Velakoulis has recorded what Mr Watson said about his drinking. It appears that Mr Watson said that he drank three to five stubbies of heavy beer during week days, increasing to about six stubbies on weekends. Mr Watson told Dr Velakoulis that he enjoyed drinking beer and that he could see nothing wrong with it. Mr Watson kept a diary and he recorded his beer consumption in December 2007, April 2008, June 2008, and July 2008. His consumption ranged between three and six stubbies of heavy beer per night. In his notes, Dr Velakoulis has recorded that Mr Watson was able to reduce his intake slightly to two heavy beers per night, although he has also recorded an occasion of binge drinking. Dr Velakoulis testified that Mr Watson had not indicated to him that his drinking had any impact on his ability to work as a builder.
93. In his written Report of 17 February 2010, Dr Entwisle made no diagnosis regarding alcohol consumption. In his evidence in chief, he was asked to confirm that he had made no diagnosis regarding Mr Watson’s alcohol consumption. Dr Entwisle simply stated it was a symptom of Mr Watson’s anxiety and that he was self medicating to relieve his symptoms. When it was put to him that Mr Watson was drinking solidly, Dr Entwisle said that Mr Watson did not suffer from alcohol dependence or alcohol abuse.
94. In his written statement, Dr Strauss recorded that Mr Watson was drinking four or five stubbies a night in Vietnam but that was only for a period of six weeks. Dr Strauss said that Mr Watson’s excessive alcohol consumption occurred in the last few months of his Army experience when he was working as a barman in the Officers’ Mess. Apparently, he told Dr Strauss that his alcohol consumption increased enormously at that time. Dr Strauss was also of the opinion that Mr Watson’s alcohol intake has never affected his employment. He did not believe it could be considered to be pathological. He was of the view that it was not appropriate to conclude that Mr Watson had a problem with alcohol that caused any significant detrimental effect in relation to his activities of daily living or his work capacity. Given the unsatisfactory state of the evidence on this subject, we find that Mr Watson’s evidence regarding his consumption of alcohol was unreliable.
95. The diagnostic criteria for substance dependence set out in DSM-IV‑TR are:
A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same twelve month period:
1. tolerance, as defined by either of the following:
a. a need for markedly increased amounts of the substance to achieve intoxication or desired effect
b. markedly diminished effect with continued use of the same amount of substance
2. withdrawal, as manifested by either of the following:
a. the characteristic withdrawal syndrome for the substance (refer to criteria A and B of the criteria sets for Withdrawal from the specific substances)
b. the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms
3. the substance is often taken in larger amounts or over a longer period than was intended
4. there is a persistent desire or unsuccessful effort to cut down or control substance use
5. a great deal of time is spent in activities necessary to obtain the substance …
6. important social, occupational, or recreational activities are given up or reduced because of substance use
7. the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance …
96. It is reasonably clear to us that on the evidence, Mr Watson does not meet the criteria for substance dependence as set out in DSM-IV‑TR. There was no evidence of a maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by the criteria we have referred to above. Furthermore, both Dr Entwisle and Dr Strauss were of the view that Mr Watson did not suffer from alcohol dependence or abuse. Accordingly, we find that Mr Watson does not suffer from alcohol dependence or alcohol abuse.
97. Having found that Mr Watson does suffer chronic adjustment disorder with mixed anxiety and depressed mood, we need to determine whether that condition was war-caused as that expression is defined in the VE Act.
WAS MR WATSON’S CHRONIC ADJUSTMENT DISORDER WAR-CAUSED?
98. Where a veteran is incapacitated from a war-caused injury or a war‑caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
99. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):
… an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
100. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7, VE Act).
101. Mr Watson contended that his psychological problems, however described, can be attributed to his operational service.
102. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
103. Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
104. Toohey J said, in relation to the 1920 Repatriation Act, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.
105. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused, unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Mr Watson rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his chronic adjustment disorder.
106. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth.
107. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a SoP, determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
108. The method by which ss 120(1), 120(3) and 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Deledio’s case. There Beaumont, Hill and O’Connor JJ said:
(i) The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(ii). If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
(iii) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
(iv) The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Hypothesis
109. Mr Watson contended that the onset of his psychological problems arose out of his service in Vietnam and in particular, the anxiety and distress he experienced in the course of a night patrol outside the Nui Dat base as well as the incident involving the theft of the camera while he was riding shotgun on the forklift. Although it was contended that Mr Watson saw his fellow soldier setting off in pursuit of the villager who apparently stole some camera equipment, and he saw the soldier raise his rifle and fire shots in the direction of the thief, Mr Watson’s oral evidence was that he did not see the event but that he heard the shots. It was contended that Mr Watson was concerned that the Vietnamese man might be killed and he was fearful that there might be retaliation from other local Vietnamese people in the village.
110. In our opinion, the material which was before us does point to a hypothesis connecting Mr Watson’s psychological problems with his operational service.
Current SoP
111. The Repatriation Medical Authority (RMA) has made a SoP concerning adjustment disorder. The current SoP is number 37 of 2008 which came into effect on 2 July 2008. Because the Commission’s decision regarding Mr Watson’s claim was made on 5 August 2008, Instrument number 37 of 2008 is the appropriate Instrument for the purposes of Mr Watson’s claim (see Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321).
Is Mr Watson’s hypothesis reasonable?
112. The hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. That is, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person’s service. Because Mr Watson’s case was put on the basis that he suffered from PTSD, the factors set out in the adjustment disorder SoP were not raised in the course of the hearing. However, we have identified the following factors which might apply in Mr Watson’s case. They are:
(a) experiencing a Category 1A stressor within the three months before the clinical onset of adjustment disorder;
(b) experiencing a Category 1B stressor within the three months before the clinical onset of adjustment disorder; and
…
(d) experiencing a Category 2 stressor within the three months before the clinical onset of adjustment disorder.
113. The expressions Category 1A stressor and Category 1B stressor are defined in the SoP. Those definitions are identical to the definitions of those expressions used in the SoP concerning PTSD. For the reasons which we have already explained when dealing with Mr Watson’s PTSD claim, we find that Mr Watson’s claimed stressors during the course of his operational service do not satisfy the descriptions of a Category 1A stressor or a Category 1B stressor.
114. The expression Category 2 stressor is defined relevantly as one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
…
(c) having concerns in the work or school environment including: ongoing disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment; and
…
(f) having a family member or significant other experience a major deterioration in their health.
115. While the material before us does indicate that Mr Watson suffered social isolation while in Vietnam, that was not due to the factors mentioned in (a) above. There is also material in the evidence before us which might point to the matters we have referred to in (c) and (f). However, that material does not point to a relationship between those events and Mr Watson’s operational service. Furthermore, the material before us points to the fact that his adjustment disorder is a relatively recent event, arising in the past three or four years. Following his service in Vietnam, it appears that Mr Watson conducted a successful business as a builder and there is no material before us which connects his more recent problems with his Vietnam experiences. Accordingly, we find that Mr Watson’s hypothesis does not fit within the template established by the SoP concerning adjustment disorder. As is stated in Deledio’s case regarding the third step, it follows that his hypothesis cannot be reasonable. Therefore, Mr Watson’s claim cannot succeed.
CONCLUSION
116. In our opinion, Mr Watson does not meet the diagnostic criteria for PTSD. The correct diagnosis of his psychological condition is chronic adjustment disorder with mixed anxiety and depressed mood. This condition is relatively recent, occurring in the past three to four years. It arose from personal matters not connected with his operational service in Vietnam.
117. We have also found that Mr Watson does not suffer from alcohol dependence or alcohol abuse. The medical evidence does not support this claim.
118. While we are satisfied that Mr Watson suffers from chronic adjustment disorder, the material before us does not point to a causal connection between that condition and his operational service. That is because his hypothesis does not satisfy any of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised. Therefore, Mr Watson’s claim based on this condition must fail.
119. We find that the decision of the VRB made on 16 July 2009 was correct. We affirm that decision.
I certify that the one hundred and nineteen [119] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member and
Dr Kerry Breen AM, MemberSigned: .................Elise Montalto.............................................
Elise Montalto, AssociateDate/s of Hearing 19 & 20 July 2010
Date of Decision 29 September 2010
Counsel for the Applicant Mr Andrew Larkin
Solicitor for the Applicant Ms Lauren Gillett, Williams Winter
Advocate for the Respondent Ms Jean McCullochSolicitor for the Respondent Ms Rosalinda Casamento, Department of Veterans Affairs
0
19
0