Wilson and Repatriation Commission
[2001] AATA 872
•19 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 872
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/1078
VETERANS' APPEALS DIVISION )
Re TERRENCE CHARLES WILSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Miss E.A. Shanahan, Member
Date19 October 2001
PlaceMelbourne
Decision The Tribunal varies the determination of the Repatriation Commission, made 24 February 2000 and affirmed by the Veteran's Review Board on 26 July 2000, to provide that Post Traumatic Stress Disorder is a war-caused disease, and that pension is payable to the veteran at 40% of the general rate with effect from 6 September 1999.
(Sgd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS – whether generalised or post-traumatic stress disorder is a war-caused disease – correct diagnosis of condition – both psychiatrists called at hearing agreed that applicant suffered a psychiatric condition which resulted from his service in Vietnam – time limit for clinical onset specified in Statement of Principles for generalised anxiety disorder did not allow the veteran's psychiatric condition to be accepted as war-caused if it was diagnosed as generalised anxiety disorder – whether applicant met the diagnostic criteria for post-traumatic stress disorder – beneficial nature of the Veterans' Entitlements Act – finding that applicant suffered war-caused post-traumatic stress disorder – decision set aside
Veterans' Entitlements Act 1986 s 20(1) and (3)
Statement of Principles Instrument No. 3 of 1999
Statement of Principles Instrument No. 54 of 1999
Statement of Principles Instrument No. 1 of 2000
Benjamin v Repatriation Commission [2001] FCA 522
Budworth v Repatriation Commission [2001] FCA 317
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gosewinkel (1999) 59 ALD 690
Whitbourne v Repatriation Commission [2001] FCA 1353
REASONS FOR DECISION
19 October 2001 Mrs Joan Dwyer, Senior Member
This is an application for review of a determination of the Repatriation Commission (T14) made on 24 February 2000 and affirmed by the Veterans Review Board on 21 March 2000 (T2). The Repatriation Commission accepted the conditions of non-melanotic malignant neoplasm of the skin and bilateral sensorineural hearing loss as war-caused under the Veterans Entitlements Act 1986 ("the Act"), but decided that the conditions of generalised anxiety disorder and seborrhoeic keratosis were not war-caused. The Repatriation Commission granted Mr Wilson a disability pension at 10 percent of the general rate under the Act. The Veterans Review Board affirmed the decision under review, save that it varied the date of the effect by one day.
Mr Hyde of Counsel appeared for Mr Wilson. Mr Purcell, of Counsel, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mr Wilson gave evidence. Evidence on his behalf was also given by Dr Cole, a psychiatrist. The respondent called Dr Walton, who is a psychiatrist.
Mr Wilson served in the Australian Army as a National Serviceman from 29 September 1966 to 28 September 1967. He rendered operational service in Vietnam from 15 July 1966 to 22 June 1967. Entitlement issues are therefore to be decided in accordance with the reasonable hypothesis standard of proof in s 120(1) and (3) of the Act. Under s 120A, if there is a Statement of Principles ("SoP") in existence in respect of a particular condition, that condition is only to be found to be war-caused if the SoP upholds as reasonable the hypothesis relied on by the applicant.
The first issue concerns the claim for seborrhoeic keratosis. Mr Wilson had made a claim to have a "skin condition" accepted on the ground that the condition was caused by exposure to sun. He referred to "skin cancer" in his claim. His local doctor, Dr Wong, (T9) diagnosed him as having had a basal cell carcinoma removed from his back and as having seborrhoeic keratosis on his chest. The Tribunal had before it excerpts from medical texts and medical opinions to the effect that sun exposure does not cause seborrhoeic keratosis (T docs pp31 and 32, R4 and A2). There is no SoP applicable to seborrhoeic keratosis. Thus the Tribunal could find the condition to be war-caused if there was material raising a reasonable hypothesis that the condition was war-caused. Mr Hyde conceded that there was no evidence to that effect. The Tribunal therefore does not find that seborrhoeic keratosis is war-caused.
Mr Wilson saw a dermatologist, Dr Connors, who in his report of 23 February 2001 (A2) mentioned, for the first time, that as well as having a number of seborrhoeic keratoses, Mr Wilson also suffered from seborrhoeic dermatitis affecting the scalp, forehead, eyebrows and naso labial grooves. Dr Connors suggested that seborrhoeic keratosis could be accepted as war-caused on the basis that Mr Wilson had an inability to obtain appropriate clinical management for this condition. He explained there was no doctor, only a medic, in the compound in Vietnam, and Mr Wilson did not feel he would obtain correct management from the medic.
The applicant's solicitor, in his Statement of Facts and Contentions submitted that the applicant's original claim for "skin condition" was wide enough to cover not only the accepted non-melanotic malignant neoplasm of the skin and the rejected seborrhoeic keratosis, but also seborrhoeic dermatitis. The Tribunal rejected that submission on the basis that the description of treatments provided in the claim was "removal of cancerous growths", and that there was no indication that Mr Wilson had ever referred to the seborrhoeic dermatitis when he was examined in respect of this claim. The Tribunal was of the view that there had been no claim in respect of seborrhoeic dermatitis, and that condition had not been considered by the Repatriation Commission or the VRB. Thus there was no reviewable decision in respect of seborrhoeic dermatitis.
The major issue before the Tribunal was whether Mr Wilson suffers from a war caused psychiatric condition. The first psychiatrist who examined Mr Wilson in respect of this claim, was Dr Chester. He obtained a history of Mr Wilson coping well with his experiences in Vietnam and not experiencing any major contemporaneous trauma. Although Dr Chester had a history of some symptoms, such as dislike of large crowds and some feeling of being antisocial at times, he concluded that the mental state examination did not reveal any signs of psychiatric disorder.
Mr Wilson next saw Dr Parkin, at the request of the Pascoe Vale RSL. Dr Parkin obtained a much more detailed history. He noted that Mr Wilson told him that he was uptight and nervous about talking with him. Dr Parkin obtained a history, as had Dr Chester, of dislike of crowds, but also a history of sleep disturbance. Mr Wilson told Dr Parkin that he had some problems associated with Asians. He worried and he suffered from episodes of choking when he could not swallow, these symptoms were associated with sudden episodes of feeling very nervous and that everyone was looking at him. Dr Parkin found that Mr Wilson had 10 of 13 symptoms for a diagnosis for panic disorder. However Dr Parkin's preferred diagnosis for Mr Wilson was post-traumatic stress disorder ("PTSD"). Dr Parkin made that diagnosis on the basis of a history of frightening experiences while in Vietnam, and in particular being fired on at Nui Dat the night before the battle of Long Tan, when Mr Wilson thought he was going to die. Another incident Mr Wilson described to Dr Parkin was when he was called over to see the body of a Viet Cong, who had been shot by an Australian Army patrol, and brought to the compound at Nui Dat.
Dr Cole and Dr Walton, the two psychiatrists who gave evidence at the hearing, agreed that Mr Wilson does suffer from a psychiatric condition as a result of his experiences in Vietnam. The reason why there was a dispute between the parties was that there was a difference in diagnosis between Dr Cole and Dr Walton. Somewhat surprisingly, because of the SoPs which the Tribunal is bound to apply, the difference in diagnosis makes a significant difference as to whether or not the psychiatric condition can be found to be war caused under the Act.
Dr Walton favoured the diagnosis of generalised anxiety disorder. He wrote at p 5 paragraph 2 of his report (R6):
There are numerous potential aetiological factors in relation to an anxiety disorder. There is nothing in this man's family background, either by way of experience or genetic predisposition, which is relevant. Mr. Wilson does not suffer from the type of personality structure which would render him vulnerable to an anxiety condition. There is no relevant physiological disturbance. While this man's full-blown anxiety condition has been of substantially delayed onset, in my opinion there is a definite connection with his Vietnam War experience (emphasis added).
Dr Cole, like Dr Parkin, diagnosed Mr Wilson as suffering from PTSD. He wrote (A1):
OPINION: Mr. Wilson is suffering from a chronic post traumatic stress disorder as a direct result of his experiences in Vietnam. He does in fact re-experience the traumatic events quite clearly, has flashbacks and suffers from nightmares in addition to his other symptoms. He also suffers other symptoms including claustrophobia, panic attacks and dysphagia which, although not necessary for the diagnosis of a post traumatic stress disorder, represent an upsurge of anxiety in a vulnerable personality (emphasis added).
The significance of the different diagnoses is that, whereas the SoP's for both conditions accept that a reasonable hypothesis may be raised where there is a service related stressor, the SoP for generalised anxiety disorder, Instrument No. 1 of 2000, requires that the severe psychosocial stressor be experienced "within the two years immediately before the clinical onset of anxiety disorder". In contrast, the SoP for PTSD does not specify any time within which the clinical onset must occur. All it requires is that the veteran have experienced a severe stressor prior to the clinical onset of PTSD.
Although Mr Wilson said that he had some psychological or psychiatric symptoms shortly after his return from Vietnam, his evidence was that the symptoms had become more marked in recent years. He did not see any psychiatrist until the year 2000 and no psychiatrist expressed the opinion that, on the history given, Mr Wilson suffered from generalised anxiety disorder within two years of his exposure to a severe psychosocial stressor in Vietnam.
Mr Hyde submitted that the Tribunal should find that the correct diagnosis for Mr Wilson's psychiatric condition is PTSD. Mr Purcell submitted that the Tribunal should find that Mr Wilson currently suffers from a mild generalised anxiety disorder, but that no reasonable hypothesis consistent with the relevant SoP is raised. He submitted that Mr Wilson did not experience a severe psychosocial stressor which was service related, within two years immediately before the clinical onset of generalised anxiety disorder. The reason why Mr Purcell did not accept the diagnosis of PTSD, was that Dr Walton had not found that Mr Wilson suffered all the diagnostic criteria specified in the definition of PTSD in the relevant SoP.
Mr Wilson, in his evidence, described the two main traumatic events during his service as a National Serviceman in Vietnam. The first occurred on the night before the battle of Long Tan. Approximately one month after Mr Wilson arrived in Vietnam, he was asleep at Nui Dat in the tent he shared with a regular soldier. Mr Wilson said that he woke to a thunderous noise outside the tent. He asked the regular soldier what the noise was. He replied that it was shell fire and added, "get out of bed and hop in the drain". Mr Wilson explained that the drain was a rainwater drain, which had purposely been dug deep enough to act as a trench, as well as a drain. There were sand bags around the drain to provide protection. He said he jumped in wearing his underpants, his boots, his helmet and clutching his rifle and lay there listening to the sound of the shellfire and the artillery returning fire. He said about 15 rounds of fire landed in the vicinity of his tent and he heard calling out indicating that one person had been wounded. His tent had holes from shrapnel.
Mr Wilson said that while he was lying in the gutter he was conscious that he had to keep his head down and not move. He was petrified and thought he was going to die.
The second incident Mr Wilson described occurred when an Australian Army patrol from a reinforcement unit had been sent out to familiarise itself with the terrain. They had killed a Viet Cong soldier. They brought the body back to base as they intended to take it to the local village, to prove to the locals that the Viet Cong were not infallible. Mr Wilson said the body was brought back in a mattress cover and was tipped out on the ground at the base. Soldiers were called over to come and have a look. He said the man was stripped to the waist and had eight or ten bullet holes in his back. When they tipped him over they saw that the bullets had come out the front.
Those two incidents have been described by Mr Wilson to Dr Parkin, Dr Cole and Dr Walton. The report of the military historian, Mr Duckworth (R5), confirmed that Mr Wilson's account was consistent with the military records and the recollections of officers serving at Nui Dat at the relevant time. We find that Mr Wilson's account of those incidents is accurate.
Dr Parkin, Dr Cole and Dr Walton accepted that those incidents, and in particular the incident when Mr Wilson had to leap into the drain because of shellfire, would constitute a traumatic event within the meaning of that term in paragraph 2(b) of the SoP for PTSD, Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999. Paragraph 2(b) reads as follows:
2. (b) For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) 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; and
(ii) the person's response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
Paragraph 5(a) of the SoP provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
Paragraph 4 requires that factor 5(a) must be "related to any relevant service rendered" by Mr Wilson.
The term "experiencing a severe stressor" is defined in paragraph 8 of the SoP. As amended by Instrument 54 of 1999, it reads as follows:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the
Veterans' Entitlement Act applies, events that qualify as stressors include:(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
We find that Mr Wilson's experiences of being fired on and his experience of viewing the Viet Cong casualty are occasions when he experienced a severe stressor during operational service in Vietnam.
Dr Walton in his report (R6) at paragraph 4 pages 5 and 6, considered the question of whether or not Mr Wilson should be diagnosed as suffering from PTSD. He considered each of the criteria in the definition in the SoP and wrote:
In view of the question being raised by colleagues, I have also turned my mind to the Statement of Principles in relation to Post-Traumatic Stress Disorder, Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999.
Firstly, the veteran does meet the threshold criterion in relation to experiencing a severe stressor. Not only was he under direct threat of serious injury or death but he also witnessed casualties. His response, I believe, is properly described as involving intense fear.
In relation to the re-experiencing phenomena, it is correct to state that the veteran is now prone to recurring, although not especially intrusive, thoughts about his traumatic experiences, however that seems not to have emerged clearly until the last two years.
While the veteran very likely does suffer from distressing dreams, because he is unable to recall the content when he wakes, it is not at all clear that these are recapitulation dreams of his military experiences, although the probability is that they are.
The veteran is not prone to intense imagery as if reliving the experiences.
The veteran does describe some psychological distress when prompted by reminders of his military service but he does not describe this as being of intense severity.The veteran did not report to me being especially easily startled or other evidence of physiological overreactivity, although recently he has been prone to vomiting and tremor.
This veteran does not describe efforts to especially avoid thoughts, feelings or conversations associated with his military experience, rather in recent years he having sought out contact with fellow veterans, albeit in a context of his mental state deteriorating.
The veteran is avoidant of situations which evoke anxiety such as crowds but not particularly of stimuli that may prompt his memory of his past adverse experiences.
It is not the case that this veteran has any inability to recall important aspects of the trauma.
This veteran is not afflicted by markedly diminished interest or participation in significant activities.
The veteran does not report feeling detached or estranged from others.
The veteran does not exhibit a restricted range of affect.
This veteran does not describe a sense of foreshortened future.
The veteran does have a long history of insomnia and, more recently, irritability and difficulties with concentrating. In situations where he believes that anxiety may arise, not necessarily clearly related to his military experience, he does tend to be hypervigilant in relation to escape routes. He does not describe an exaggerated startle response.
Clearly this veteran's symptoms have persisted for in excess of one month.
I believe it is fair comment that, at least in the past two years, there has been clinically significant distress in social situations rather than occupational or domestic situations.
While it is my view that the veteran seems not to meet all the criteria specified in the Statement of Principles, especially in relation to 2.(b)(C), I would simply note that it certainly is a well-recognised phenomenon that the emergence of a clear symptom profile indicative of post-traumatic stress disorder may be delayed for many years after the salient trauma is experienced. Clinically I prefer the diagnosis of generalised anxiety disorder.
The respondent's case was that Mr Wilson did not fully meet the criteria in the definition of post-traumatic stress disorder in the SoP, and thus the Tribunal could not be satisfied on the balance of probabilities that he suffered from that disease. Both Dr Cole and Dr Walton expressed some reservations about applying the criteria for diagnosis in a completely strict and legalistic or "fastidious" way. They both indicated that in clinical practice a diagnosis is not made by precisely considering each of the specified criteria.
We were somewhat surprised by the emphasis which Mr Purcell placed on the presence of each of the specified diagnostic criteria, in view of the fact that Dr Walton, the respondent's medical expert, was of the opinion that Mr Wilson did suffer from a psychiatric disease, namely generalised anxiety disorder, which was related to his service in Vietnam. Dr Walton acknowledged "there are some post-traumatic features". Dr Walton recognised that the SoP for generalised anxiety disorder (Instrument No. 1 of 2000) required that the clinical onset of the condition be within two years of experiencing a severe psychosocial stressor, but he commented that, "while this man's full-blown anxiety condition has been of substantially delayed onset, in my opinion there is a definite connection with his Vietnam War experiences." (R6 p5).
It would seem inconsistent with the beneficial nature of the Act (see Budworth v Repatriation Commission [2001] FCA 317 (29 March 2001, para 37)) that a veteran, especially one who has operational service, who in the opinion of medical experts chosen by the Repatriation Commission suffers from a psychiatric disease related to his operational service, should not succeed in having that disease recognised as war-caused.
In this matter we have not had to consider what approach we would have adopted had we found that Mr Wilson satisfied all but one of the diagnostic criteria for PTSD. On the evidence we heard, we find that Mr Wilson does satisfy the diagnostic criteria for PTSD.
Paragraph 2(a)(A)(i) of the SoP requires that Mr Wilson:
(A) . . . has been exposed to a traumatic event in which:
(i) 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; and
(ii)the person's response involved intense fear, helplessness, or horror; and
Dr Parkin, Dr Cole and Dr Walton all expressed the opinion that the incident when Mr Wilson came under shell fire and felt intense fear satisfies criterion (A)(i). We find that is clearly so. It is not so clear whether the incident when Mr Wilson had to confront the body of a Viet Cong soldier killed by an Australian Army patrol also satisfies this criterion. Mr Wilson was asked what effect this incident had on him. He replied at trans 17: "There and then it didn't sort of - because I think I was angry about what happened to our blokes, you know … but you don't like seeing a dead body with all the bullet holes in it". That response would not satisfy criterion (A)(ii), but the tenor of Mr Wilson's evidence was that he has found that incident more troublesome as time has passed and that he has recurrent images of the body. We do not find that Mr Wilson's response to the incident with the body of the Viet Cong soldier was sufficient for that incident to be classed as a traumatic event satisfying criterion (A)(ii). But we do consider it can be regarded as part of the traumatic events of Mr Wilson's service in Vietnam.
The SoP in criterion (B) provides:
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
Diagnostic Criteria (B) requires that the traumatic event, that is to say the night of the shell fire, be persistently re-experienced in one or more of the specified ways.
Dr Parkin had a history that about once a month recurrent and distressing recollections of the event cause Mr Wilson to clam up and not say anything for an hour. Dr Parkin noted that he went for a walk at work. Dr Cole had a history that Mr Wilson had flashbacks of his experiences in Vietnam, but not on a regular basis and that he re-experienced the traumatic events quite clearly. Dr Walton noted that Mr Wilson was now prone to recurring, although not especially intrusive, thoughts about his traumatic experiences. In addition Mr Wilson emphasised to the Tribunal that he had intrusive distressing recollections of the event particularly on a stormy night and particularly if he was home alone at night. Mr Wilson did say that he has recollections of the body of the Viet Cong soldier with the bullets holes in the back. Although we have not found that event to be the "traumatic event", we think it would be inappropriate not to take account of those intrusive and distressing recollections as well as the intrusive distressing recollections of being under shellfire. Mr Wilson described images of the body of the Viet Cong soldier, but his recollections of the night of the shellfire are more in the way of thoughts or perceptions of feeling uncomfortable on a stormy night, rather than actual images of himself in the trench. We find that criterion (B)(i) is satisfied.
As to criterion (B)(ii), Mr Wilson consistently described recurrent distressing dreams from which he wakes perspiring, but he said he does not recollect all the content of the dreams and so he cannot say they are recurrent distressing dreams of the event. When asked to give an example of a dream, so far as he could recall it, he said they often concern him walking down a roadway. Dr Walton wrote of the dreams (R6):
While the veteran very likely does suffer from distressing dreams, because he is unable to recall the content when he wakes, it is not at all clear that these are recapitulation dreams of his military experiences, although the probability is that they are.
The diagnostic criteria in the SoP only require that Mr Wilson does persistently re-experience the traumatic event in one of the specified ways. We have already made that finding as to the first specified way. It is therefore not necessary for us to make a finding as to the dreams. We do however refer to the discussion of the question of the appropriate standard of proof as to diagnostic criteria in Repatriation Commission v Gosewinkel (1999) 59 ALD 690, Budworth v Repatriation Commission [2001] FCA 317 (29 March 2001), Benjamin v Repatriation Commission [2001] FCA 522 (30 May 2001), Meehan v Repatriation Commission [2001] FCA 597 (25 May 2001) and Whitbourne v Repatriation Commission [2001] FCA 1353 (21 September 2001) . We consider that it would be appropriate to find that Mr Wilson's dreams do satisfy criterion (B)(ii), whether the reasonable hypothesis or the balance of probabilities standard of proof is to be applied. Thus we find that criterion (B)(ii) is also satisfied.
Dr Parkin was of the opinion that all the other ways specified in criterion (B) are satisfied. We do not on the evidence before us make those findings.
Criterion (C) provides as follows:
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
Criterion (C) requires that there be persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) as indicated by three or more of seven specified ways. Dr Parkin found all except (iv) and (vii) to be satisfied.
Dr Cole noted that Mr Wilson had never marched or been to a reunion, although he joined the RSL on his return from Vietnam and had belonged ever since. He also noted that Mr Wilson did not watch war films or documentaries and tried to avoid anything that reminded him of the war, except that Mr Wilson joined the Vietnam Veterans' Lodge almost two years ago, and had been to his first Anzac Day service in the year 2000.
It was criterion (C) which Dr Walton considered Mr Wilson did not satisfy.
Mr Wilson told the Tribunal that he avoids war films on television and does not go to see them at the movies. He explained that recently he had been to Point Cook to see the Air Museum and had visited the section on Vietnam. He said he had become upset that night. He said that when he is watching television, if things get too much for him he gets up and goes out of the room. He said he has not kept up any involvement with his Unit and he had not worn his campaign medals at all until last year. He said he had tried to put the events of Vietnam behind him but, "I don't think you can completely block out everything." (trans 36). Dr Cole said that Mr Wilson had told him that in the past when he had been going to parties, he had purposely had sufficient alcohol to make him drunk, so that people would not expect him to talk to them about Vietnam. Mr Wilson did not say that in evidence but he did say that he often did not like going to parties because he felt people would ask him questions about Vietnam which he did not want to answer, and he did not want to be rude. We find that Mr Wilson does make efforts to avoid thoughts, feelings or conversations associated with the trauma of his service in Vietnam. Thus criterion (C)(i) is satisfied.
As to Criterion (C)(ii), Mr Wilson gave quite detailed evidence about the decision he and his wife had made to move from Clayton to his present address at Patterson Lakes. He said that he sometimes has bad feelings when he sees Asian people, and that one reason why he and his wife had moved from Clayton was that there were too many Asian people there. He said most of the shops were now run by Vietnamese people and he found that he was staying at home rather than going to the shops due to the number of Vietnamese in the shopping centre. Mr Wilson explained that he does not avoid all Asian people and in fact his treating doctor, Dr Wong, is Chinese. He has retained him as his doctor, even though he has now moved from Clayton. He said the numbers of Vietnamese in the Clayton shopping centre made him feel uncomfortable there. We find that the decision to move from the home in Clayton, where he and his wife had lived for over 30 years, does indicate the making of efforts to avoid places or people that arouse recollections of the trauma. Similarly, Mr Wilson's lack of involvement with his Unit, and the fact that he did not go to marches, where it was appropriate to wear his campaign medals, shows avoidance of places or people that arouse those recollections. Criteria (C)(ii) is satisfied.
Mr Wilson also gave evidence that he has a markedly diminished interest or participation in significant activities. He said that he has problems in crowds and he likes to be in a familiar area and does not like strange places. He said for this reason, even though he goes to the football at the MCG, if it is a big crowd he sometimes goes home. As already mentioned he said that he has little interest in attending parties and social occasions. He also said that he is not a reader because he finds it easier to watch T.V. He explained that previously he was very much into mechanics, but for years he has not been interested in reading even on that topic. We find that evidence satisfies Criterion (C)(iv).
We find that Mr Wilson does show persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness as indicated by (i), (ii) and (iv) of the specified ways in criterion (C).
Criterion (D) requires:
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response;
Mr Wilson mentioned to all the psychiatrists, and in his evidence to the Tribunal that he has had difficulty falling and staying asleep since his return from Vietnam. He said "I have never been a good sleeper since I came back". He explained that he had started drinking excessively because he thought that would help him sleep better. He said he has strange dreams and cold sweats. He explained that it was partly because he had such difficulty sleeping, that he had been found work as a nightshift taxi driver suitable for him. He said that his wife tells him that he is irritable. He did not describe outbursts of anger, but he said that quite often he simply has to walk away from a situation at work, in order to deal with anger, or feelings of upset. He also described using deep breathing in the toilet or the lunch room at work if he is upset. He said that on occasions he rings his counsellor and talks through a problem with him. Mr Wilson also described difficulty concentrating. For instance he said that he watches television rather than read, because he finds the watching of television easier. Mr Wilson's description of always looking for an exit point if he is in a crowd, even in a restaurant because he knows that he may have his nervous choking feeling and need to get out quickly does, in the opinion of Dr Walton, constitute an example of hypervigilance. Dr Walton did not obtain a history of an exaggerated startle response but when the Tribunal asked Mr Wilson how he reacted to noise like a car backfiring outside he said "I can spin around then". (trans 26)
We find that Mr Wilson does have persistent symptoms of increased arousal as indicated by two or more, in fact by all, of the specified characteristics. There was no evidence to suggest that he had any of those characteristics prior to the trauma. We find that Criterion (D) is satisfied.
Finally diagnostic Criteria (E) and (F) require that the duration of the disturbance indicated by the relevant symptoms is more than one month and that it causes clinically significant distress and impairment in social, occupational or other important areas of functioning. On the history given by Mr Wilson we find that those criteria are satisfied.
We find that Mr Wilson's psychiatric disease is appropriately diagnosed as PTSD, and that it is a war-caused disease.
The parties agreed that if we were to find that Mr Wilson suffered from PTSD and that it was a war-caused disease, the appropriate impairment rating was 14 points on Chapter 4 on the Guide to the Assessment of Rates of Pensions ("GARP"). That rating of 14 points was made by Dr Cole in respect of PTSD and by Dr Walton in respect of the psychiatric symptoms he diagnosed as generalised anxiety disorder. We find that to be the appropriate rating.
We find that Mr Wilson is entitled to pension at 40% of the general rate from 6 September 1999. That rate is calculated as follows:
POINTS CHAPTER AND TABLE OF GARP AND ASSESSOR
Non-melanotic malignant neoplasm of the skin 5 11.1 as assessed by the Repatriation Commission (T13)
Bilateral sensorineural hearing loss 1 7.1, 7.1.11 assessed by Dr Morgan (R7)
Post-traumatic stress disorder 14 Chapter 4 as assessed by Dr Walton and Dr Cole
Using the combined values chart at Chapter 18 of GARP the ratings of 14 for PTSD and 5 for non-melanotic malignant neoplasm of the skin combine to give an impairment rating of 18 points. When 1 point is added for sensorineural hearing loss that is increased to 19 points. Using the conversion to degree of incapacity table at Chapter 23 of GARP, an impairment rating of 19 rounded up to 20 yields pension at 30%, with a lifestyle rating of 1, and 40%, with a lifestyle rating of 2.
The parties did not address the Tribunal on whether a lifestyle rating of 1 or 2 should be selected in this matter, but some guidance on that issue is given in option 2 Chapter 22 of GARP. It reads as follows:
Option 2 is to be used if the veteran chooses not to self-assess or to complete a Lifestyle questionnaire. Under this option the determining authority should generally allocate a lifestyle rating based on the level of medical impairment. This rating is not to be less than the higher of the ratings contained in the "shaded area" of Table 23.1 in Chapter 23 (Conversion To Degree Of Incapacity). (emphasis added)
Applying the principle that where a lifestyle rating is made by using Table 23.1, it should not be less than the higher of the ratings contained in the shaded area, we decide that the appropriate rate of pension is 40% of the general rate from 6 September 1999.
The decision under review will be varied to provide that PTSD is a war-caused disease and that pension is payable to Mr Wilson at 40% of the general rate with effect from 6 September 1999.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Miss E A Shanahan, Member
Signed: Grace Carney
AssociateDate/s of Hearing 13 September 2001
Date of Decision 19 October 2001
Counsel for the Applicant Mr D Hyde
Solicitor for the Applicant De Marchi and Associates
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Nil
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