DECISION AND REASONS FOR DECISION [2009] AATA 813

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

72. As I am satisfied that the Applicant does not suffer from PTSD or any Anxiety condition, nor has any hypothesis been raised linking alcohol abuse with operational service, the decision under review is affirmed.

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VETERAN'S ENTITLEMENTS: Claim for Post Traumatic Stress Disorder - Not satisfied that Applicant has experienced a traumatic event - Diagnosis of Post Traumatic Stress Disorder not supported by evidence - Anxiety disorder rejected as not confirming to Statement of Principles.

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622

Repatriation Commission v Gosewinkle [1999] FCA 1273; (2000) 59 ALD 690

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

Repatriation Commission v Cornelius [2002] FCA 750

Lees v Repatriation Commission [2002] FCAFC 398

1. By application made the 10th day of April 2008, the Applicant sought review of a decision by the Respondent that the disease of Anxiety Disorder was not related to his operational service.
2. In his claim, which was received by the Department of Veteran's Affairs ("DVA") on 28 February 2005, the Applicant claimed a disability pension for the nominated disease of Post Traumatic Stress Disorder ("PTSD"). However, his general practitioner nominated as the diagnosed condition Depressive Anxiety Disorder with PTSD symptoms.
3. In a report dated 13 April 2005, psychiatrist Dr Delaforce rejected a diagnosis of PTSD but did diagnose "Anxiety Disorder not otherwise specified" but opined that he could not support the appropriate connection of that disorder to the circumstances of the Applicant's Vietnam service.
4. In these proceedings, the case for the Applicant was that he did suffer from a PTSD which had been caused by the events occurring during his service aboard HMAS Perth in Vietnamese waters.
5. As the relevant incidents giving rise to the Applicant's claim were alleged to have occurred whilst the Applicant was on operational service, as that term is defined in section 6 of the Veteran's Entitlements Act 1986 ( "the VEA"), the standard of proof in this matter is that mandated by subsections 120(1) and (3) of the VEA.
6. Subsections 120(1) and (3) of the VEA provide that any diseases suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to section 120A of the VEA, a hypothesis will not be a "reasonable hypothesis" unless it conforms to a so called Statement of Principle ("SoP") issued by the Repatriation Medical Authority.
7. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
8. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82. The so called 'Deledio Principles' are now so well known as not to require recapitulation here.
9. In this matter, two considerations were before the Tribunal. The first, namely, whether any illness suffered by the Applicant was war-caused is, as stated above, to be determined pursuant to subsections 120(1) and (3) of the VEA. The primary question here, however, is from what injury or disease, if any, does the Applicant suffer. That question is to be determined to the Tribunals "reasonable satisfaction" pursuant to subsection 120(4) of the VEA: See Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622.
10. As was pointed out in Repatriation Commission v Gosewinkle [1999] FCA 1273; (2000) 59 ALD 690 at 703, this Tribunal, in order to be satisfied a disease exists, must apply all of the diagnostic criteria as set out in the applicable SoP, (if one exists): See Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484 at 489 paragraph 16.
11. In this matter the relevant SoP's that were in force at the time the Repatriation Commission made its decision in this matter were Instrument No 3 of 1999 as amended by Instrument No 54 of 1999 for PTSD and Instrument No 1 of 2000 for Generalised Anxiety Disorder. The current instrument referring to PTSD is Instrument No 5 of 2008 and that relating to Anxiety Disorder is Instrument No 101 of 2007.
12. As Instruments No 5 of 2008 and 101 of 2007 are more favourable to the Applicant in this matter, they are the SoP's that are to be applied in these proceedings. See Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321.
13. In Instrument No 5 of 2008, the diagnostic criteria for PTSD require:

"(3)(b)(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 persons response involved intense fear, helplessness or horror."

1. Of the factors that must as a minimum exist before a reasonable hypothesis can be said to exist connecting a PTSD with the circumstances of a Veteran's relevant service, factors 6(a) and (b) read:

"(a) experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder; or

(b) experiencing a category 1B stressor before the clinical onset of post traumatic stress disorder."

1. The terms 'category 1A' and 'category 1B' stressor are defined in Instrument No 5 of 2008 as:

"(9) A 'category 1A stressor' means one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;

(b) being subject to a serious physical attack or assault including rape

and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped,

or being tortured.

A 'category 1B stressor' means one of the following severe traumatic events:

(a) being an eye witness to person being killed or critically injured:

(b) viewing corpses or critically injured casualties as an eye witness;

(c) being an eye witness to atrocities inflicted on another person or person;:

(d) killing or maiming a person; or

(e) being an eye witness to or participating in, the clearance of critically injured casualties."

1. For Anxiety Disorder, of the factors that must exist before the condition can be connected with service, factors 6(a)(ii) and (iii) read:

" (ii) experiencing a category 1A stressor within the five years before the clinical onset of the anxiety disorder; or

(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder;

(v) experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder."

1. The terms 'category 1A' and 'category 1B' stressor have the same meaning in Instrument No 5 of 2008. A category 2 stressor is defined as:

" One or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a) being socially isolated and unable to maintain friendships or family

relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

(b) experiencing a problem with a long-term relationship including: the

break up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;

(c) having concerns in the work or school environment including: on-going

disharmony with fellow work or school colleagues, perceived lack of social rapport within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

(d) experiencing serious legal issues including: being detained or held in

custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;

(e) having sever financial hardship including: loss of employment, long

periods or unemployment, foreclosure on a property, or bankruptcy;

(f) having a family member or significant other experience a major

(g) being a full-time caregiver to a family member or significant other with

a sever physical, mental or development disability.

1. Both factors 6(a)(ii) and (iii) and factor 6(a)(v) refer to the clinical onset of the Anxiety Disorder. The clinical onset of a disease can be said to be when the presence of those signs or symptoms of a disease which if observed by a clinician would warrant the conclusion that the patient suffered from a particular illness or disease first manifest themselves: See Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission [2002] FCAFC 398.
2. The Applicant gave evidence that he joined the Royal Australian Navy ("RAN") in February 1963. He was trained as an electronic technician looking after radar systems and gunnery systems.
3. During the course of his training, he became friends with another sailor who was performing the same duties - Ray Hunt.
4. By 1968 both the Applicant and Ray Hunt were Petty Officers and performing the same tasks, namely, being the Petty Officer in charge of missile engaging radar systems. Petty Officer Hunt was aboard HMAS Hobart and the Applicant was aboard its sister ship HMAS Perth.
5. On 17 June 1968, Petty Officer Hunt was killed when an American aircraft returning to its aircraft carrier fired upon HMAS Hobart.
6. The reason for the "friendly fire" upon Hobart was stated by the Applicant in Exhibit A3. He said:

" 3. While there were explanations for the incident the one we were informed of was as follows: during the early years of the war, losses of aircraft to surface to air missiles (SAMS) was inordinately high. It took until 1967 for the Americans to realise that the SAMS were in fact extremely crude in their tracking methods; they simply tracked and followed any transmission of IFF (Identification Friend or Foe), which equipment all allied operational unit carried and were supposed to use on all occasions.

4. When flights of aircraft were returning to their off shore "strike carriers" from operations, they would fly as low as possible to avoid being intercepted by SAMS. Another precaution some would take was to turn off their IFF (Identification Friend or Foe), with the intent to turn it back on again when they reached the shoreline. This was done to prevent Viet Cong SAMS locking onto and tracking them. The returning pilots were always highly excited and fully adrenaline-charged and would occasionally forget to return their IFF to active. This would mean that, to ships on the gun line, these aircraft would appear hostile. The ship's anti-aircraft missile system would light up the hostile aircraft with a missile engaged beam.

5. The aircraft would then undertake their own automatic evasion techniques. These techniques varied from types of aircraft and system types. They ranged from non-hostile, which would involve the aircraft automatically taking evasive action (quite problematic in itself, if you are the one in the middle of an otherwise orderly flight) to, at the other end of the scale, the aircraft automatically engaging the threat. At most times the gun line ships were around three miles off-shore and, at best, would detect these incoming threats at five miles, due to their low flying. Given that the aircraft would be flying at around 800 MPH, if action were taken, it was an automatic response.

6. Ray's action station was the O.I.C of the anti-aircraft missile system. On 17 June 1968 an American aircraft fired on the Hobart with three missile strikes. It was a classic air to sea strike, as the missiles disabled the ships' anti aircraft missile system leaving the ship vulnerable. The aircraft was finally warned off by gun fire. As the result of the attack two sailors were killed and a number injured. One of the dead was CPOWR Ray Hunt. The official explanation was that the aircraft mistakenly thought that the Hobart (at 5000 tonnes) was a helicopter. It was a doubly facile explanation as the North Vietnamese didn't have any helicopters! The reason that quickly went around the fleet, however, was that the American pilots were not using IFF and had enabled their automatic attack response to missile acquisition radars."

1. In September 1970, the Applicant was the OIC anti-aircraft missile systems aboard HMAS Perth when it joined the gun line off Vietnam. His action station aboard Perth was the same as the late Ray Hunt.
2. According to his evidence, the Applicant was terrified every time he took up his position as the CPO in charge of the anti-aircraft missile system. He worked a four hours on, four hours off roster and was in the radar room, a small aluminium room directly under two antenna discs. These antenna discs control the targeting and any missile that in turn targeted the radar dishes.
3. The threat of an aircraft firing on HMAS Perth was high as quite often aircraft flew over the vessel and if the radar did lock onto them the chances were that they would fire at the radar as an automatic response.
4. When the Applicant was on duty in the "radar bin" he felt particularly exposed for the reasons stated. Away from his action station he was no more fearful for his safety than anyone else on board.
5. Following his period of service in Vietnamese waters, the Applicant was posted to a shore station in Sydney, namely HMAS Kuttabul. At that time he was in a good relationship with his then wife, was living at home and had moderated his alcohol intake.
6. The Applicant left the RAN in February 1972. He had been informed that if he re-enlisted for a further six years that period would be spent at sea including as a crew member of HMAS Perth on her next deployment to Vietnamese waters. He did not re-engage as he wished to avoid further service and risk in Vietnamese waters.
7. Following his discharge from the RAN, the Applicant undertook teacher training in Victoria. He then became a teacher in electronics before moving into an administrative role.
8. In evidence the Applicant said:

" I was promoted quickly and rapidly through the system. I became involved as a specialist in electronics training, recognised nationally and internationally for work in that particular area. I was one of the youngest associate directors to be appointed to the then government funded TAFE college. I was part of the action undertaken by the Kennett government to shift TAFE colleges from being purely and simply State funded to autonomously (sic) in their own funding, creating their own, and we became a non-government organisation."

1. During the 1980's the Applicant and his wife began to drift apart. He was putting a lot of time into his work and his wife also considered that he drank too much, On more than one occasion, his wife accused him of treating her like one of his staff.
2. In 1985, a decision was made to move from Melbourne to Bendigo. This was to enable the Applicant and his wife to make "a fresh start".
3. During the period 1985 to 1990, the Applicant was Deputy Director of the Bendigo Regional Institute of TAFE. He also acted as Director when required.
4. In 1990 the Applicant went to the Philippines as part of an Australian aid project. His daughter remained in Australia but his wife and son accompanied him. After one year, the son was not coping with life in the Philippines and his wife elected to return to Australia with their son. The Applicant spent the second 12 months of his two year posting to the Philippines unaccompanied.
5. Prior to going to the Philippines, the Applicant consulted his then general practitioner, a Dr Erhardt, and discussed his marital difficulties with him. That medical practitioner suggested to the Applicant that he was suffering a degree of manic depression. When asked the cause, Dr Erhardt said to the Applicant:

" Its your situation. You've got to remove one or the other, work or your wife."

1. Following the Applicant's return from the Philippines, the Applicant and his wife separated and ultimately divorced. Prior to their separation, the Applicant and his wife sought counselling from the Vietnam Veteran's Counselling Service ("VVCS") in Bendigo. According to the Applicant it didn't seem to help.
2. Cross examined, the Applicant conceded that during this time in the early 1990's he was depressed as a result of his marriage break up and his children's reactions to it, in that they blamed him for the failure of the marriage.
3. The Applicants work situation was also changing during this period. In particular Institutes of TAFE underwent radical change and became autonomous from the Government. The Applicant had to re-apply for his own position on three separate occasions.
4. The nature of the Applicant's duties kept changing and, more importantly, the positions held by him had changed from permanent to contract. From 2000 onwards, the terms of his contract had been downgraded twice and the most recent offer in 2001 was one the Applicant felt compelled to refuse.
5. Asked in cross examination why he had resigned, the Applicant said it was because the job was intolerable.
6. The Applicant commenced a relationship with his now wife in 1995. When he decided to resign from the Bendigo TAFE, he and his wife moved to Nambucca Heads because of the warmer climate.
7. In late 2004 the relationship between the Applicant and his wife began to deteriorate due to his behaviour. What had started as verbal abuse threatened to degenerate into physical abuse and his wife gave him an ultimatum, that unless he did something in order to moderate his behaviour, she would leave him.
8. After receiving this ultimatum, the Applicant made contact with the VVCS. That service referred the Applicant to Ms Lynne Plummer, psychologist.
9. According to the notes of the Applicants now general practitioner Dr Lawler, Ms Plummer diagnosed a Depressive Anxiety Disorder which may be related with possible PTSD. Dr Lawler prescribed Aropax (an antidepressant) which the Applicant finds of material assistance.
10. In her report of 29 March 2005 to the Vietnam Veteran's Counselling Service at Lismore, Ms Plummer states:

" Wally's symptoms were consistent with a diagnosis of PTSD".

1. Currently, the relationship between the Applicant and his wife is good. He has involved himself in local activities. For the present, and temporarily, he is the President of the Nambucca Heads RSL branch, and he attends the local bowls club on Wednesday and Friday bowling if he feels fit enough, but otherwise just attending. He also has a small boat and fishes in the Nambucca River.
2. Following the lodging of his claim to have PTSD recognised as a war-caused disease with the DVA, the Applicant, at the request of the Respondent, attended upon psychiatrist Dr Delaforce for assessment and report.
3. In his report of 13 April 2005, Dr Delaforce made a diagnosis of Anxiety Disorder not otherwise specified but rejected any diagnosis of PTSD.
4. Dr Delaforce gave evidence in these proceedings and I found his evidence to be well considered and he was able to fully explain the reasoning behind his opinions.
5. In a second report dated 17 November 2008, Dr Delaforce had access to the clinical notes of Dr Peter Lawler, psychological records from the Department of Defence, T Documents (1-13), report of Dr Christopher Danesi dated 28 July 2008 and related biochemistry reports, statement from Gilbert Wallbank dated 28 August 2008.
6. In that report, after reviewing the material before him, Dr Delaforce states inter alia:

"the main finding from my current review of the documents is the very substantial inconsistent information reported by Mr Wallbank. The problem is so great that it makes providing an opinion about diagnosis of any mental disorder and a connection to his navy service untenable.

In my initial report I made a diagnosis of Anxiety Disorder Not Otherwise Specified...Now I could not support my 2005 diagnosis because the information is so inconsistent and I cannot merely just accept that the details he gave me are correct...

Basically then Mr Wallbank still has to substantiate he has a mental disorder because I cannot support such a diagnosis. Assuming he does then my opinion would be that he did not experience the required stressor because nothing particular happened during his operational service that was distinct from his normal but admittedly very stressful duties. Although I accept those duties were more stressful because of the related death of Ray Hunt that still does not support the presence of the nature of the required stressor according to a relevant Statement of Principles (SoP)."

1. In evidence, Dr Delaforce expanded upon the reasons for his opinion that the Applicant did not suffer from either a war-caused PTSD not an anxiety state in terms of Instrument No 101 of 2007.
2. At the outset, Dr Delaforce pointed out inconsistencies in the history obtained from the Applicant by Ms Plummer and his treating general practitioner.
3. More particularly, Dr Delaforce pointed out that Ms Plummer in her reports had not stated upon which diagnostic criteria she had relied in order to make the diagnosis of PTSD. A similar criticism applied to the report of Dr Holmes who appears not to expose the reasoning which led him to a diagnosis of PTSD.
4. The crux of Dr Delaforce's opinion was, however, that the Applicant had not experienced an event that amounted to either a Category 1A or Category 1B stressor. He pointed out the difference between the generalised apprehension a serviceman or woman feels in a combat zone as opposed to a specific event which could be categorised as a 1A or 1B stressor. In the Applicant's case there was no event as opposed to a fear of what might happen.
5. To my mind the most perceptive comment by Dr Delaforce occurred in cross examination. When asked about the Applicant being a workaholic and perhaps throwing himself into his work as a distraction from symptoms of psychiatric illness, he replied:

"He has done very well and he can proud with what he has achieved in his work. He's educated himself. He got to a very highly, prestigious position in his work, and I would point out that that would be very surprising for someone that, supposedly, has had PTSD coming since or soon after Vietnam. That would be very surprising. You don't usually get that. So I don't think here we can make any comment, accept that once you stop work, if after you throw yourself into work perhaps you - that can be a difficult time to fill in the time." (at pp 9-10)

1. Psychiatrist Dr Holmes wrote a report dated 18 July 2007 in which he opined that the Applicant suffered PTSD as a result of serving in Vietnam. Unfortunately Dr Holmes is now deceased, and as pointed out by Dr Delaforce, his report suffers from the same defect as that of Ms Plummer, a failure to expose the reasoning which led him to diagnose PTSD. This lack of reasoning must be contrasted to the evidence of Dr Delaforce.
2. Dr Danesi, psychiatrist, was of the opinion that the Applicant suffered from PTSD coupled with alcohol abuse. In evidence, he stated that the Applicant had experienced two stressors, one in Borneo when the Applicant was a crew member of the HMAS Yarra and that vessel encountered an Indonesian battleship in a river, the second stressor being the Vietnam experience(s).
3. I cannot accept Dr Danesi's acceptance of events aboard HMAS Yarra as constituting a severe stressor. In his report of 28 July 2008, Dr Danesi states:

"He said he wasn't particularly distressed by this."

In cross examination, the Applicant confirmed that the events aboard HMAS Yarra had not had any influence upon him.

1. Dr Danesi also referred to the Applicant experiencing recurrent distressing dreams of "the event". In cross examination, the Applicant was asked about dreams and stated that he did not have any recollection of any dreams associated with his service. The following exchange then took place:

" Q - And so if anyone was to suggest that you were having dreams about your service, how would that be possible?

A - I don't know. Who has suggested that?"

1. Upon being asked, the Applicant specifically denied experiencing flashbacks.
2. Although Dr Danesi stated that the Applicant made efforts to avoid activities, places or people that arouse recollections of the trauma, I have difficulty in accepting this diagnostic factor when the Applicant regularly attends and involves himself in the activities of his local RSL branch.
3. Cross examined, Dr Danesi agreed that the Applicant did not present as a person who was socially isolated. He also defined the traumatic event as being the occasions when an aircraft flew over or close to HMAS Hobart and there was a possibility that the IFF systems would be activated.
4. Both Instrument No 5 of 2008 and the diagnostic criteria for PTSD in DSM-IV require a traumatic event. In this Applicants case, the whole of the time the Applicant spent on duty as Petty Officer in charge of the anti-aircraft missile system cannot be regarded as an event.
5. As was stated by the Administrative Appeals Tribunal ("AAT") in a passage that was not dissented from by the Full Court on appeal, a traumatic event for the purposes of a diagnosis of PTSD "must be of some particular significance. It will not be sufficient to simply relate to some generalised anxiety within the context of a war zone": See Benjamin v Repatriation Commission supra at page 630.
6. Similar comments apply to the more specific incidents referred to by Dr Danesi, namely, the approach of an aircraft above or close to HMAS Hobart. The fact remains that for all the Applicant's forebodings, nothing happened. That is, there was no traumatic event and no stressor.
7. In trying to understand Dr Danesi's evidence, I find I agree with the criticisms of the Respondent, namely, that he did not seek to isolate and specifically address the diagnostic criteria for PTSD but rather rolled them up into a conflation of symptoms which he then proceeded to apply to the separate diagnostic criteria.
8. I find that the opinion of Dr Delaforce is more in accordance with the actual evidence in this matter. I accept his opinion that the Applicant does not suffer from any war-caused psychiatric disorder. In particular, he does not suffer from a PTSD.
9. I accept that during the late 1980's the Applicant did suffer from either Depression or some for of Anxiety. This was caused by the breakdown in his marriage and the alienation from his children. The clinical onset of this condition was well in excess of five years subsequent to the Applicant's naval service.
10. Likewise, although I accept the opinion of Dr Delaforce that the Applicant probably uses alcohol to excess, I agree with him that the evidence does not justify a finding that operational service had any causal relationship to excessive alcohol use. Further I find that the material before me is insufficient to raise any hypothesis connecting any condition of substance abuse (namely alcohol) with the Applicant's operational service.
11. As I am satisfied that the Applicant does now suffer from PTSD, or any Anxiety condition not has any hypothesis been raised linking alcohol abuse with operational service, the decision under review is affirmed.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

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Solicitor for the Applicant Mr P Jones, Veterans Advocacy Service

Solicitor for the Respondent Mr A Carter, Sparke Helmore Lawyers