Young and Repatriation Commission
[2007] AATA 55
•9 February 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 55
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/193
VETERANS' APPEALS DIVISION ) Re RONALD GIBSON YOUNG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date9 February 2007
PlacePerth
Decision The Tribunal sets aside the decision of the Veterans’ Review Board dated 22 February 2005 and, in substitution therefor, decides that:
· the applicant does not suffer from post traumatic stress disorder;
· the applicant suffers from major depressive disorder, and alcohol dependence, and that each of those conditions is a war-caused disease, within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth), with effect from 28 June 2001.
The matter is remitted to the respondent for a reassessment of the rate of the applicant’s disability pension on the basis of this decision.
..........[Sgd S D Hotop] ..........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Australian Army from July 1967 to July 1969 – applicant rendered operational service in Vietnam from April 1968 to April 1969 – applicant suffers from major depressive disorder and alcohol dependence – applicant does not suffer from post traumatic stress disorder – material before Tribunal raises reasonable hypothesis connecting applicant’s major depressive disorder and alcohol dependence with circumstances of his operational service – Tribunal not satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s major depressive disorder and alcohol dependence war-caused – applicant’s major depressive disorder and alcohol dependence are war-caused diseases – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth), s 5D, s 9, s 120 and s 120A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION
9 February 2007 Deputy President S D Hotop Introduction
1. Ronald Gibson Young (“the applicant”), who was born on 14 May 1947, served in the Australian Army, pursuant to the National Service Act, from 12 July 1967 to 11 July 1969, and his Army service included service in Vietnam from 30 April 1968 to 9 April 1969 (being “operational service” for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”)).
2. On 28 September 2001 he made a claim for a disability pension under Pt II of the Act in respect of the following disabilities which he claimed were war-caused:
·“hearing loss/ tinnitus”;
·“PTSD”; and
·“alcohol abuse”.
3. On 12 February 2002 a delegate of the Repatriation Commission (“the respondent”) determined that the appropriate medical diagnoses of the applicant’s claimed disabilities were, respectively:
·bilateral sensorineural hearing loss;
·depressive disorder; and
·alcohol dependence or alcohol abuse.
The delegate went on to decide that the applicant’s bilateral sensorineural hearing loss was war-caused, but that his depressive disorder and alcohol dependence or alcohol abuse were not war-caused.
4. On 22 February 2005 the Veterans’ Review Board (“VRB”) varied the delegate’s decision by adding a diagnosis of post traumatic stress disorder (“PTSD”) but otherwise affirmed the delegate’s decision that the relevant disabilities (including PTSD) were not war-caused.
5. On 26 May 2005 the applicant applied to the Tribunal for review of the VRB’s decision.
6. The application was heard by the Tribunal, constituted by Brigadier R D F Lloyd, Member, on 4 July 2006, and the Tribunal then reserved its decision. Brigadier Lloyd, however, subsequently became unavailable for the purposes of the proceeding, and on 10 October 2006 the Tribunal was reconstituted, pursuant to s 23(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), to consist of Deputy President S D Hotop. With the agreement of the parties, the Tribunal, as so reconstituted, for the purposes of completing the proceeding, has, in accordance with s 23D(2) of the AAT Act, had regard to the record of the proceeding before the Tribunal as previously constituted (including a record of the evidence taken in that proceeding), and has not held a further hearing.
The Issues and the Tribunal’s Determination
7. The issues for the Tribunal’s determination are as follows:
·whether the applicant suffers from one or more psychiatric conditions; and, if so
·the appropriate diagnosis of each condition; and
·whether each condition is war-caused.
8. For the reasons which follow, the Tribunal has determined that:
·the applicant suffers from 2 psychiatric conditions whose appropriate diagnoses are as follows:
- major depressive disorder; and
- alcohol dependence;
·the applicant’s depressive disorder and alcohol dependence are each war-caused.
The Evidence
9. The evidence before the Tribunal comprised:
·the “T Documents” (T1-T20, pp 1-77) lodged by the respondent in accordance with s 37 of the AAT Act;
·Exhibits A1-A4 tendered by the applicant, and Exhibit R1 tendered by the respondent; and
·the oral evidence of the applicant, Dr B Jansen and Major J Tilbrook.
The applicant’s evidence
10. The applicant confirmed that his service with the Australian Army included service in Vietnam from 30 April 1968 to 9 April 1969 where he served as a Canteen Attendant at the Rest and Convalescence Centre (“R & C Centre”) in Vung Tau until November 1968 when he was posted to the 2nd Armed Forces Canteen Unit (“2AFCU”) in Vung Tau where he served for the remainder of his period of service in Vietnam.
11. In his witness statement dated 29 June 2006 (Exhibit A3), he stated:
“...
16.There was a lack of security at the R & C Centre at Vung Tau and its vulnerability and inability to repel any possible enemy incursion had me constantly in a state of fear and anxiety.
17.I saw and heard the War going on all around me and felt that I had no way to escape, to relax or find refuge...
18.Shortly after arriving in Vietnam, I was issued with a SLR and ammunition. Standing orders required that the weapon be kept loaded but in ‘make-safe’ condition. It was constantly reinforced that I could not retaliate unless I was directly fired upon. I knew that if I was attacked, I would most probably be killed. I severely doubted my ability to adequately defend myself and I felt afraid and unsettled.
...
20.During my service I saw and heard the War being conducted over the Delta and the mountains. Some nights we would go up on the roof of the R & C Centre and watch air battles taking place. Occasionally I saw flashes from B52 strikes.
21.I saw the casualties first hand and I saw the effect on our troops. They would often graphically describe their experiences.
22.I saw the damaged vehicular transport, the helicopters and equipment, particularly at the American bases.
...
24.I was often exposed to many armed Vietnamese in civilian/peasant clothing and was constantly anxious as to whether they were friend or foe.
...
34.At the time I was first stationed in Vietnam, the 1 Aust R & C Centre was not yet secured.
35.There was no perimeter fencing and this can be shown on the photographs that I took. The fact that the premises was subsequently fenced and a guard post and full-time guards installed vindicated my belief that I had been in acute danger while stationed there.
...
37.During my time at the R & C Centre... there were no additional sentries from D & E Platoon.
38.The staff of the R & C Centre had to stand a single roving sentry for night security. Two armed R & C men rotated throughout the night in stints of about 4 hours each.
39.There were no dedicated sentries or security. It was left up to the staff of the R & C Centre to cover this as part of their daily routine.
40.It was impossible to adequately secure the two buildings with only one man. Each was three storeys high and had front and side yards with low walls. Few of the rooms had door locks, other than the various storerooms.
41.All of the weapons of the R & C guests were securely locked in a sea container and because of this, they were not available for immediate use. The resting troops did not have access to their weapons and were not part of any R & C defence plan.
42.As far as I knew, no D & E Platoon members mounted any guard at the R & C Centre during the time I was there.
...
51.On a number of occasions I heard shots fired. I don’t know whether or not these were deemed to be reportable. It didn’t matter to me. I was scared.
...
53.When I heard the shots being fired, I was worried about my personal safety. I didn’t know whether or not we were the intended target. I was in a War zone and vulnerable. There was no such place as a safe place.
...”
The applicant, in his witness statement, then referred to various specific incidents, as follows.
The first gunshots incident
“57.On the first occasion that shots were fired outside the R & C Centre, I was on guard duty.
58.I happened to be near the roof. I ran to the northern end and crouched behind a flimsy wall, which I knew would not stop a bullet.
59.I saw a man crouched down behind the corner of a white concrete fence across the vacant block next door.
60.I had him targeted perfectly. I knew then that I could kill if I needed to.
61.RSM White arrived carrying an F1 submachine gun and reinforced the standing order to withhold fire unless fired upon.
62.I found out later that there had been a running fight between the civilian Police and local criminals. The man that I had perfectly targeted was a Policeman.
63.At the time I felt afraid and confused, but at the same time relieved that I didn’t have to kill.”
The second gunshots incident
“64.The next occasion occurred some 6-8 weeks later. Shots were heard from the road outside the R & C centre and instantly our guests in the bar were on the floor.
65.None had any access to weapons as they were securely locked away. I was behind the bar and I immediately leapt over it and ran to turn off the lights. The light switch was high on the wall and we were at the very front of the building and exposed to the street below.
66.I was extremely nervous exposing myself and got to the lights (sic). I was terrified. I couldn’t let anyone know how shit scared I was but I remained worried and upset for a long time afterwards.”
The “swan” incident
“67.On another occasion I had arranged to go on a ‘swan’. I was unable to go because I had been caught breaking the curfew and had been confined to the R & C Centre.
68.A phone call came later that day from Headquarters, advising that I had been severely wounded in a helicopter near the Cambodian Border. The US crew had taken another Australian, but had not changed the name on their rosters.
69.I was told that the other serviceman took a 50 calibre round up through his knee and up into his chest.
70.The practice of going on a ‘swan’ was immediately banned permanently.
71.I felt extremely guilty that it was him that was injured and not me.”
The guard duty/dog incident
“75. On that occasion, I was on guard duty with Sergeant Ian Anderson, when we heard a disturbance on the boundary fence.
76.We were 150 metres away at the end of our main office building and the whole area was well floodlit. I had to cross 100 metres of open ground and go down the side of the warehouse.
77.I chambered a round in my SLR and I crossed the area.
78.I was terrified and crossed slowly, all the while waiting to be hit by a bullet.
79.We eventually found dog tracks in the sand, but I wasn’t pacified by that. I was even more upset when I went to unload my rifle and found that the breech had not fully closed and my rifle wouldn’t have fired. I felt that I was living on blind luck. I shook for a long time after.”
The rubbish tip incident
“81.I was the only truck driver in the unit and I had the honour of regularly loading all the rubbish from 1AFCU and disposing of it at the rubbish tip.
82.I usually took an offsider with me for armed security and to help me unload.
83.The nature of the stores, which included foodstuffs, cigarettes, giftware, alcohol and soft drinks created a lot of packing and damaged goods to dispose of.
...
86.Normally I would have had another man with me. Due to the unavailability of other people (I think they were either on driver training courses or sorting/unloading the latest shipment from Australia) I had no option but to go alone because we needed the truck.
87.As I went to the tip regularly, I saw allied personnel there, however, more often than not, the gate and the area had no duty guards about and I never saw them close to the tipping edge.
...
91.On one occasion there was no-one available to come with me and I went alone armed with a 9-millimetre pistol.
92.When I got to the tip, we were (sic) mobbed by scavengers.
93.I was feeling extremely vulnerable and very scared.
94.A larger crowd than usual mobbed me and they were all over the truck, scrapping over bits and pieces.
95.I couldn’t control them and I became more and more panicked.
96.I pulled out my 9-millimetre pistol and tried to threaten them off the truck. They knew and I knew that I couldn’t use the pistol unless I was fired upon, so it was an empty threat. I was severely shaken and upset.
97.I didn’t tell anyone when I returned to the compound, but I resolved that I would never go alone again, whatever the situation.
98.I again felt guilty at feeling so vulnerable.”
The casualties incidents
“103.I observed casualties at the Base Hospital helicopter pad during my time with the 2AFCU.
104.I was used by all as the company driver and witnessed the casualties while I was delivering packages to an Officer at the Base Hospital.
105.I had to go to a specific building and office. I cannot remember the Officer’s name or exactly where his office was, other than that it was close to the walkway from the landing pad. On each of the occasions I had to track him down and I was only once told to leave by an RSM.
106.On three different occasions, I went to the Base Hospital delivering packages, when the dust off the (sic) chopper came in with wounded men.
107.These casualties were transported from the heliport to the hospital via a walkway.
108.When I saw the casualties I was close to the walkway near the hospital building.
109.I couldn’t help myself from looking at these men. Some were in an extremely bad condition. Each time I saw them I felt numb, agitated and sick. I later felt afraid and guilty for looking.
...”
12. In cross-examination the applicant gave the following evidence:
·during the time that he was stationed at the R & C Centre no guard was placed at the front gate;
·there were 14-15 Army staff working at the R & C Centre, each of whom had been issued with a SLR rifle;
·during the time that he was stationed at the R & C centre, to his knowledge no attack on, or incursion into, the Centre was made by anyone;
·at the time of the second gunshots incident, there were 40-50 guests in the lounge/bar area who immediately hit the floor, and he instinctively switched off the lights and they remained switched off for about 45 minutes during which time he retrieved his weapon, went up onto the roof and looked out for anyone with a gun or anyone who might pose a threat to the Centre;
·in the rubbish tip incident, there were 30-40 Vietnamese scavengers, some of whom had side arms, while others had rifles;
·in the casualties incidents, he was about 20 feet away and he saw that the casualties were bandaged but that there was “visible blood”, whereupon he “froze” and was “quite upset”, and these incidents made him feel that his own safety was in jeopardy;
·as regards his alcohol consumption, before he went into the Army he only drank on weekends and then only “a few cans”; during recruit training he drank “a little bit more”, but from about 3 months after arriving in Vietnam his drinking “got worse” and he got to the point where he was drinking about 24 cans per day and was also drinking spirits; he continued to drink heavily after returning to Australia until recently when he reduced his alcohol consumption following treatment;
·he does not know what caused him to drink so heavily and he is unable to point to a specific reason for the increase in his alcohol consumption.
The medical evidence
The report of Dr D Shub, Consultant Psychiatrist
13. Dr Shub provided a report, dated 15 January 2002, to the Department of Veterans’ Affairs as follows:
“Psychiatric history:
Mr Young stated that he was called up for national service in 1967, and served in Vietnam from 1968 to 1969 inclusive. He was involved with the catering division, and was not involved in active service. However, he indicated that he was stationed at a base which was relatively isolated – and he stated that he constantly was fearful of his safety. He indicated that he worked during the day within his division, and at night was expected to be involved in guard duty. He stated that there was a large communication base near to where they were stationed, which he felt would be a prime enemy target.
Mr Young stated that there were skirmishes on the street where their building was located, and that he was aware of air strikes occurring in close proximity to their base. He indicated that the main issue for him was that of a constant sense of insecurity.
After leaving Vietnam Mr Young described a range of psychological symptoms which he felt arose exclusively as a result of his exposure to those stresses mentioned above in Vietnam. He described episodic bouts of depressed mood, irritability, mixed sleep disturbance (involving both initial and delayed insomnia), cognitive impairment (particularly involving short term memory and his ability to focus), demotivation, appetite and weight gain, diminished energy levels, episodic flashbacks regarding his experiences in Vietnam, avoidant behaviours, and a sense of constantly being on edge.
...
Summary and assessment:
Mr Ronald Young is a 54 year old married Vietnam veteran who served between 1968 and 1969. Although not exposed to active service, he stated that he was constantly in a state of anxiety regarding his safety due to the isolated nature of their base, and the tension involved with being on guard duty during the evenings. He also was aware of the strategic nature of the base, and notes that there had been fire fights and booby traps laid in the street on which their base was located.
As a consequence of the experiences whilst in Vietnam, Mr Young developed a range of psychological signs and symptoms that have been described above... From a diagnostic point of view I believe that Mr Young developed a major depressive disorder, fulfilling the DSM-IV criteria. I do not believe that he fully experienced Post Traumatic Stress Disorder – though did experience some aspects of this clinical state. In any event, he required treatment for his psychological disorder – and has been commenced on the antidepressant drug Citalopram at the initial dosage of 20 mg daily. This dosage has subsequently been increased to 40 mg daily, with Mr Young noting some significant diminution in his troublesome psychological symptoms. However, he still has some residual symptoms – predominantly involving irritability, generalised anxiety, low levels of energy, and cognitive impairment. By cognitive impairment, I am referring to his poor short term memory and the difficulty he experiences in concentrating and remaining on task...”
The evidence of Dr B Jansen, Psychiatrist
14. Dr Jansen confirmed that he had prepared reports dated 15 April 2002, 30 November 2004, and 18 January 2005 concerning the applicant, and that he is currently treating the applicant.
15. In his report of 15 April 2002 (T13, pp 52-55), which was addressed to the applicant’s general practitioner, Dr Jansen summarised the applicant’s service history as follows:
“Mr Young’s service history was that he was drafted for national service at the age of 19 and underwent basic military training in Puckapunyal and joined the stores department. After jungle training he was posted to Vietnam at the so-called R & C or Rest and Convalescent Centre. This particular post was isolated from other military support but was close to a communications antenna. At this centre, he was exposed to numerous stories of the war that was going on around him by those who attended. The staff at the R&C Centre were responsible for their own security. They frequently saw the fire fights going around their perimeter with the bombers and helicopters visible. Some soldiers were at times violent in the context of intoxication, on medication and on alcohol. A regular opportunity which he and other staff were offered was to go on a helicopter mission but as he was adjudged to have been absent without leave the night before his trip, a replacement was sent. This replacement was later shot in the knee and chest. The practice was thereafter stopped. On another occasion, Mr Young describes nearly shooting a Vietnamese sympathiser in the knowledge that he was an enemy. He also heard of the demise of the French equivalent of the staff at the R&C Centre which further added to the context of fear.”
He described the applicant’s presentation as follows:
“Mr Young presented with the following symptoms: he complained of arousal, nervousness, sweats and shakes, poor concentration and memory, restless sleep during which he experiences violent dreams (corroborated by his wife), decreased interest in activities which he previously found enjoyable such as rally driving, and a degree of social withdrawal. These symptoms have worsened significantly since his retrenchment and in addition he reports excessive fatigue, irritability and muscle tension. He describes an excessive tendency to worry also.
When he first returned from Vietnam, he was also acutely anxious and describes a period where he would sleep with a loaded shotgun by his bed. Over time he managed his anxiety by a combination of addictive behaviours which included immersing himself in his work and drinking alcohol...
With regard to his alcohol use, immediately after returning from Vietnam he drank heavily between 20 and 30 standard drinks a day. This has only moderated over the last 20 years, but he still drinks approximately 10 standard drinks daily...”
He concluded by expressing the following opinions:
“In conclusion, I believe that Mr Young has a combination of Generalised Anxiety Disorder, Alcohol Dependence and Alcohol Abuse. It is my opinion that the Statement of Principles of the Veterans’ Entitlements Act for these disorders are met, namely, that the conditions arose directly out of his active service, and a reasonable aetiological link between his service and his psychiatric condition is present. I believe that his alcohol use is a direct attempt to ameliorate his anxiety symptoms and may also contribute to his hypertension.
I see less evidence cross-sectionally of a Depressive Disorder, although I acknowledge that Mr Young is currently on therapeutic doses of an antidepressant. I agree with Dr Shub that the criteria for Post Traumatic Stress Disorder are not met.”
16. In his report of 30 November 2004 (T15), which was addressed to the applicant’s (then) advocate, Dr Jansen stated:
“Thank you for your correspondence of 20 October 2004. As you know Ron has now completed the Post Traumatic Stress Disorder Programme which has an intensive four-week inpatient stay as its major focus. As a result many of the previously unresolved issues are now clearer.
It has come to pass that in the weeks before leaving for Vietnam Ron was the witness of a particularly horrific motor vehicle accident along the Hume Highway. This occurred during his corps training. As was his usual practice, he would hitch-hike back to Melbourne as he did not have transport. On one occasion he was picked up by a man in an old Nissan 4-wheel drive. About half-way between Puckapunyal and Melbourne on an infamous hill named Pretty Sally, he came by a recent motor vehicle accident. This is a notorious area for accidents where north-bound trucks in attempting to climb the hill slowed down and used low gears. As the road descended it narrowed to 3 lanes, a north-bound lane, a passing lane and a south-bound lane. He arrived upon the accident at the same time the Police did. A new GT Ford Flacon had careered under the back of a semi-trailer with sufficient force to move the rear dual trailer wheels about 2 metres forward. The roof of the car was gone and the 5 men inside were dead. Most of them had been decapitated. He witnessed blood and remnants everywhere. His emotional response was one of extreme horror with physical reactions of being sick. He felt numb later.
Further, although Ron underplays this, in the days preceding his departure he was essentially mugged by a group of local hoodlums. He was found by the Police having been relieved of his cash and the Police returned him halfway to barracks. A sympathetic taxi driver took him the rest of the way for no payment. This incident made the Melbourne paper. Therefore, we have 2 very significant events before his departure for Vietnam, one sufficient to cause Post Traumatic Stress Disorder.
When he arrived in Vietnam his already apprehensive nature having been exacerbated by the Post Traumatic Stress Disorder led to high levels of arousal. In his diary of recollections of the event there is a repeated entry referring to the fact that he felt unprotected and had no weapon.
His task in Vietnam involved two areas, work in the R&C Centre in Vung Tau and working within 1AFCU and at the Australian Logistics Supply Base. In the R&C Centre there was no perimeter security, no defensive strong points and no security guards. Here he was exposed to stories from resting troops who were on day breaks, often providing an opportunity for the troops to debrief. This was assisted by alcohol, cigarettes and other snacks. The focus during this time was on the welfare of the troops and his own state at the time was therefore secondary. He states that many of the men wanted to talk about what was happening to them and their experiences ‘fears and demons and the conduct of war’. His emotional reaction had to be kept in check. With someone with pre-existing Post Traumatic Stress Disorder this would have been a particularly stressful environment.
It is my view that his experiences as a result of his tenure in Vietnam would have exacerbated a pre-existing Post Traumatic Stress Disorder and precipitated, in addition, a Depressive Disorder. Therefore, the fact that he presents with depression and symptoms of PTSD despite a clear stressor from within Vietnam for the PTSD being absent, is, I believe, resolved.
Mr Young’s alcohol abuse and dependence is also explained. His role in the R&C Centre in Vung Tau involved a significant amount of alcohol. Further, he was racked with a sense of guilt that he was a non combatant, compounded by teasing he received from his peers.
...”
17. In a follow-up report, dated 18 January 2005, to the applicant’s (then) advocate, Dr Jansen stated:
“I wish to clarify certain aspects relating to my most recent report on Ron Young. I felt that his attendance at the PTSD Programme and the emergence of discrete psychosocial stressors assisted in formulating his application to the Department of Veterans’ Affairs. I wanted to expand on this briefly.
Firstly, there was the problem of resolving the fact that he presents cross-sectionally, now, with features of Post Traumatic Stress Disorder, but in addition a depressive disorder which has been quite severe, and alcohol dependence. Because of the presence of the Post Traumatic Stress Disorder symptoms we have tried to search for a life-threatening stressor in keeping with the Statement of Principles of Veterans’ Entitlements Act. What we have come up with was an identifiable stressor for his PTSD, but occurring outside his Vietnam tenure. Therefore, it has been my contention that he went to Vietnam with PTSD already or, at the very least, acute stress disorder.
What he emerged from Vietnam with, however, was in addition, a depressive disorder and alcohol dependence. Indeed, both of these conditions have been significant in impairing his functioning in recent years. What we had to resolve, however, were what the specific stressors for the depressive disorder and alcohol dependence may have been. My understanding of the Statement of Principles is that the threshold for the stressors is not the same in depression and alcohol dependence as in Post Traumatic Stress Disorder. However, I do feel that the threshold is clearly met. There are examples of psychosocial stressors such as coming across French graves in a rudimentary state soon after arriving, later to find out the specific and gory circumstances in which they succumbed, two occasions of shots being fired outside the R&C centre, the injury to a colleague who took his place on the helicopter ride, the disturbance on the boundary fence whilst he was on guard duty, his difficult experiences as a truck driver making trips to the tip and the witnessing of unloading of severely injured individuals at the base hospital whilst he was delivering supplies.
...”
18. In his oral evidence Dr Jansen opined that the applicant, by reason of the stressor events (stated in his reports) which he experienced in Vietnam, had developed a depressive disorder, and alcohol abuse, upon his return to Australia from Vietnam. He also opined that the applicant had a pre-existing PTSD condition which was precipitated by the motor vehicle accident that he witnessed shortly before he went to Vietnam and which had worsened as a result of his experiences in Vietnam. He said that he had no doubt that the specified incidents which, according to the history given to him, were experienced by the applicant, were sufficient to cause him to feel substantial distress. Asked to explain the basis of his opinion that the applicant’s pre-existing PTSD had worsened by reason of his Vietnam experiences, Dr Jansen said:
“...the content of the re-experiencing symptoms and the issues of arousal relate more to the Vietnam experience than the car accident issue...” (Transcript, p 31)
Dr Jansen also referred, in this context, to the casualties incidents as follows:
“...the three occasions where he was delivering canteen supplies at the Base hospital when helicopters had come in with some injured men and... he saw [them] in what he described as extremely bad condition, blood, field dressing etc, unable to walk themselves...” (Transcript, p 31)
Dr Jansen confirmed that he had no doubt that the applicant’s depressive disorder, the exacerbation of his PTSD, and “the alcohol abuse that followed” were the result of his experiences in Vietnam. (Transcript, p 29)
The evidence of Major J Tilbrook
19. Major Tilbrook confirmed that, at the request of the Department of Veterans’ Affairs, he prepared a report dated 2 October 2005, on behalf of Writeway Research Service, regarding the applicant’s service in Vietnam and his contentions in relation thereto. Major Tilbrook’s report was tendered in evidence by the respondent (Exhibit R1).
20. Major Tilbrook concluded his comprehensive report with the following summary of his findings:
“a.The security arrangements for the R&C Centre in VUNG TAU were considered by the COMD 1 ALSG to be quite adequate.
b.No reports were found in 1 ALSG records of small arms fire being heard in the immediate vicinity of the R&C Centre, however, indiscriminate shootings by criminal elements during night curfew did occur in VUNG TAU township.
c.The massacre of approximately thirty French officers by a VIET MINH assassination squad did occur at a military social function held at the Grand Hotel on the VUNG TAU beachfront in circa 1951/52. The victims were buried in the military cemetery in the grounds behind the old French garrison which was located 150 metres from the 1 AUST R&C Centre in LE LOI Street.
d.As a soldier posted to 1 AUST R&C Centre (or posted to 2 AFCU as a Canteen Attendant or Issue Point Attendant) the Veteran would not have had any duty reason to deliver canteen supplies to 1 AUST FD HOSP. For safety reasons no casual observers were permitted to be present in the immediate vicinity of VAMPIRE pad which was policed by the hospital’s RSM.
e.Although refuse would have been regularly cleared away from the R&C Centre by PA&E garbage contractors, it is quite possible that the Veteran accompanied other members of his unit to the VUNG TAU military rubbish tip when it was necessary to dispose of unserviceable stores which had been sentenced to destruction by bash/burn/bury as directed by the OC of the AFV Amenities & Welfare Unit.”
21. Major Tilbrook’s oral evidence may be summarised as follows:
·as regards the gunshot incidents referred to by the applicant – he examined the 1ALSG Headquarters duty officer’s log and did not find any instances of the R&C Centre reporting arms fire outside or blacking out; however, the sound of gunfire and similar disturbances in the streets of Vung Tau, especially after curfew (11.00pm), were “not unremarkable” events;
·as regards the rubbish tip incident referred to by the applicant – 1ALSG standing orders required that vehicles leaving the Base would carry a minimum of a driver and an armed passenger, and it would have been a breach of the relevant standing order if the applicant had driven to the rubbish tip on his own;
·as regards the casualties incidents referred to by the applicant – although the officers-in-charge tried to ensure that transfers of casualties from the helicopters to the Base hospital were not witnessed by observers, it is possible that the applicant may have been in the vicinity and witnessed the transfer of casualties (as claimed by him).
The Legislation
22. Section 5D(1) of the Act contains the following relevant definition:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
…”
Section 9 relevantly provides:
“(1) Subject to this section, for the purposes of this Act, 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:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
…”
The standard of proof on which it is to be determined whether a “disease” is a “war-caused disease” is prescribed by s 120 of the Act which relevantly provides:
“(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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…”
Analysis and Findings
Does the applicant suffer from one or more psychiatric conditions, and, if so, what is/are the appropriate diagnosis/diagnoses?
23. These issues are, in accordance with s 120(4) of the Act, to be determined to the Tribunal’s reasonable satisfaction: Repatriation Commission v Cooke (1998) 90 FCR 307.
24. On the basis of the report of Dr Shub, and the report dated 18 January 2005 and the oral evidence of Dr Jansen, the Tribunal is reasonably satisfied, and finds, that the applicant suffers from a psychiatric condition, namely, major depressive disorder (being a “disease”, as defined in s 5D(1) of the Act).
25. On the basis of the reports and oral evidence of Dr Jansen, and having regard to the applicant’s evidence regarding his alcohol consumption, the Tribunal is reasonably satisfied, and finds, that the applicant also suffers from alcohol dependence (being a “disease”, as defined in s 5D(1) of the Act).
26. As regards PTSD, although Dr Jansen, in his report of 15 January 2002, agreed with the opinion, expressed by Dr Shub in his report of 15 January 2002, that the applicant did not satisfy the criteria for PTSD, he subsequently opined that the applicant, at the commencement of his service in Vietnam, had a pre-existing PTSD condition which had been precipitated by his witnessing the result of a horrific motor vehicle accident shortly before his departure for Vietnam and that that PTSD condition had been exacerbated by his experiences in Vietnam.
27. For the purpose of determining whether the applicant suffers from PTSD, the Tribunal has had regard to the diagnostic criteria for PTSD specified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM IV”). The Tribunal agrees with Dr Jansen that the applicant’s being confronted with the result of a horrific motor vehicle accident in which 5 people were killed would satisfy criterion A of the diagnostic criteria in that he was thereby exposed to a sufficiently traumatic event for the purposes of that diagnostic criterion. There is, however, no evidence before the Tribunal that the applicant has since persistently re-experienced that particular traumatic event, as required by diagnostic criterion B. Accordingly, the Tribunal, on the basis of the evidence before it, is not satisfied that the applicant was suffering from PTSD when he commenced his period of service in Vietnam. Nor is the Tribunal, on the basis of the evidence before it, satisfied that any of the abovementioned incidents, which the applicant claims he experienced during his service in Vietnam, suffices to meet diagnostic criterion A, or that diagnostic criterion B is met.
28. Accordingly, the Tribunal is not reasonably satisfied that the applicant has suffered, or presently suffers, from PTSD.
Is the applicant’s major depressive disorder a war-caused disease, within the meaning of s 9 of the Act?
29. For the purpose of considering and answering this question the Tribunal must, pursuant to s 120A(3) of the Act, have regard to any relevant Statement of Principles (“SoP”) determined under s 196B(2) of the Act.
30. The Repatriation Medical Authority (established by s 196A(1) of the Act) has determined, under s 196B(2) of the Act, the following relevant SoP which has, at all material times, been in force:
·Statement of Principles concerning Depressive Disorder (Instrument No 58 of 1998).
That SoP relevantly states:
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
...
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…
8. For the purposes of this Statement of Principles:
…
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
...”
31. For the purpose of determining whether the applicant’s major depressive disorder is a war-caused disease, within the meaning of s 9 of the Act, the Tribunal will proceed in accordance with the approach laid down by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
The raised hypothesis
32. The material before the Tribunal – in particular, the applicant’s evidence, the report of Dr Shub, and the reports and evidence of Dr Jansen – raises the hypothesis that the applicant experienced various specific incidents (as described in his witness statement set out in paragraph 11 above) in the course of his operational service in Vietnam from 30 April 1968 to 9 April 1969, one or more of which caused him to feel substantial distress and as a result of which he had contracted major depressive disorder by the date of his return to Australia immediately following the completion of his service in Vietnam, and that he has thereafter continued to suffer, and presently suffers, from that condition.
The SoP
33. As previously mentioned, there is in force a SoP determined under s 196B(2) of the Act in respect of depressive disorder.
Is the raised hypothesis a reasonable hypothesis?
34. In the Tribunal’s opinion the abovementioned raised hypothesis is consistent with the relevant SoP in that it contains the factor specified in para (b) of cl 5 of that SoP, and it is, therefore, a reasonable hypothesis.
For the purposes of s 120(1) of the Act, is the Tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s major depressive disorder is a war-caused disease?
35. In Byrnes v Repatriation Commission (1993) 177 CLR 564 the High Court said (at 571) that, if a reasonable hypothesis (within the meaning of s 120(3) of the Act) is established, the claim that a relevant injury or disease is war-caused will succeed unless:
“(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
36. In the present case, although the Tribunal has reservations about aspects of the applicant’s evidence regarding the abovementioned specific incidents referred to in his witness statement – in particular, his evidence regarding the degree of distress he felt in the second gunshots incident, the guard duty/dog incident, and the rubbish tip incident, which appears to the Tribunal to be characterised by hyperbole – the Tribunal, having regard to the whole of the evidence before it, including the report and evidence of Major Tilbrook, cannot be satisfied, beyond reasonable doubt, that any of those incidents did not in fact occur or that the applicant did not in fact experience the degree of distress in relation to each of those incidents that he claims to have experienced.
37. As regards the various abovementioned incidents referred to by the applicant, the Tribunal regards the casualties incidents as the most significant for present purposes. In the Tribunal’s opinion each of those alleged incidents involved an “identifiable occurrence” which, objectively, was of such a nature “as to evoke feelings of a particular kind in a person exposed to that occurrence” and which, subjectively, evoked “feelings of substantial distress” in the applicant: see White v Repatriation Commission (2004) 39 AAR 67 at 73. Accordingly, each of those alleged incidents involved the applicant’s “experiencing a severe psychosocial stressor”, within the meaning of cl 5(b) of the relevant SoP. As previously indicated, the Tribunal is not satisfied, beyond reasonable doubt, that any of those incidents, as described by the applicant, did not in fact occur.
38. Furthermore, the Tribunal is not satisfied, beyond reasonable doubt, that the applicant did not contract major depressive disorder within 2 years of his having experienced the abovementioned “severe psychosocial stressors”. The Tribunal, on the basis of Dr Jansen’s evidence, is in fact reasonably satisfied that the applicant had contracted major depressive disorder upon his return to Australia immediately following the completion of his service in Vietnam and that, accordingly, the clinical onset of his major depressive disorder occurred within 2 years of the commencement of his service in Vietnam.
39. Accordingly, none of the facts necessary to support the abovementioned reasonable hypothesis connecting the applicant’s major depressive disorder with the circumstances of his operational service in Vietnam is disproved beyond reasonable doubt; nor is there any fact, inconsistent with that reasonable hypothesis, whose truth is proved beyond reasonable doubt. It follows that, for the purposes of s 120(1) of the Act, the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s major depressive disorder is a war-caused disease.
Finding
40. In accordance with s 120(1) of the Act, the Tribunal finds that the applicant’s major depressive disorder is a war-caused disease, within the meaning of s 9 of the Act.
Is the applicant’s alcohol dependence a war-caused disease, within the meaning of s 9 of the Act?
41. There is a relevant SoP, determined by the Repatriation Medical Authority under s 196B of the Act, which has, at all material times, been in force, namely:
·Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998).
That SoP relevantly states:
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
…
8. For the purposes of this Statement of Principles:
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
…
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
…”
42. For the purpose of determining whether the applicant’s alcohol dependence is a war-caused disease, within the meaning of s 9 of the Act, the Tribunal will again proceed in accordance with the approach laid down in Deledio (above).
The raised hypothesis
43. The material before the Tribunal – in particular, the reports and evidence of Dr Jansen – raises the hypothesis that the applicant, by reason of his experiences in the course of his service in Vietnam, contracted major depressive disorder followed by alcohol abuse and, subsequently, alcohol dependence.
The SoP
44. As previously mentioned, there is in force a SoP determined under s 196B(2) of the Act in respect of alcohol dependence or alcohol abuse.
Is the raised hypothesis a reasonable hypothesis?
45. In the Tribunal’s opinion the abovementioned raised hypothesis is consistent with the relevant SoP in that it contains the factor specified in para (a) of cl 5 of that SoP – namely, that the applicant was suffering from major depressive disorder (a “psychiatric disorder”, within the meaning of cl 5(a)), which was itself connected with the circumstances of his operational service in Vietnam, at the time of the clinical onset of his alcohol dependence. That hypothesis is, therefore, a reasonable hypothesis.
For the purposes of s 120(1) of the Act, is the Tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s alcohol dependence is a war-caused disease?
46. Having regard to the reports and evidence of Dr Jansen, the Tribunal is reasonably satisfied that the applicant was suffering from major depressive disorder (which was itself war-caused) at the time of the clinical onset of his alcohol dependence. Certainly, there is no evidence before the Tribunal on the basis of which it could be satisfied, beyond reasonable doubt, that that was not the case. Although the applicant’s evidence was that, from about 3 months after arriving in Vietnam, his drinking “got worse” and eventually got to the point where he was drinking 24 cans plus spirits per day, he was unable to specify the time at which his drinking reached that level or any particular reason why it did so. The Tribunal accepts Dr Jansen’s opinion that the applicant’s alcohol abuse and alcohol dependence followed upon his depressive disorder, and, on the basis of Dr Jansen’s reports and evidence, the Tribunal is reasonably satisfied that the applicant’s alcohol dependence resulted from his major depressive disorder.
47. In short, none of the facts necessary to support the abovementioned reasonable hypothesis connecting the applicant’s alcohol dependence with the circumstances of his operational service in Vietnam is disproved beyond reasonable doubt; nor is there any fact, inconsistent with that reasonable hypothesis, whose truth is proved beyond reasonable doubt. It follows that, for the purposes of s 120(1) of the Act, the Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s alcohol dependence is a war-caused disease.
Finding
48. In accordance with s 120(1) of the Act, the Tribunal finds that the applicant’s alcohol dependence is a war-caused disease, within the meaning of s 9 of the Act.
Conclusion
49. The Tribunal concludes, therefore, that each of the applicant’s relevant psychiatric conditions, namely, major depressive disorder, and alcohol dependence, is a war-caused disease, within the meaning of s 9 of the Act. It is common ground that, pursuant to s 177(2)(a) of the Act, the earliest date of effect of these findings is 28 June 2001.
Decision
50. For the above reasons, the Tribunal sets aside the decision of the VRB dated 22 February 2005 and, in substitution therefor, decides that:
·the applicant does not suffer from PTSD;
·the applicant suffers from major depressive disorder, and alcohol dependence, and that each of those conditions is a war-caused disease, within the meaning of s 9 of the Act, with effect from 28 June 2001.
The matter is remitted to the respondent for a reassessment of the rate of the applicant’s disability pension on the basis of this decision.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: …........[Sgd Y Maker]…........
AssociateDate of Hearing 4 July 2006
Date of last Directions Hearing 23 January 2007
Date of Decision 9 February 2007
Counsel for the Applicant Mr R Grayden
Solicitor for the Applicant Hammond WorthingtonAdvocate for the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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