Bennett and Repatriation Commission [1999] AATA 447 (23 June 1999)

Last Updated: 28 June 1999

DECISION AND REASONS FOR DECISION [1999] AATA 447

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/602

VETERANS' APPEALS DIVISION )

Re KENNETH THOMAS BENNETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date 23 June 1999

Place Brisbane

Decision The Tribunal decides that: (a) the decision under review is varied; (b) Post Traumatic Stress Disorder is a war-caused disability within the terms of s 9 of the Veterans' Entitlements Act 1986; and (c) the decision under review is otherwise affirmed.

Decision No 447/1999 (Sgd) K L Beddoe

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS :

Veterans' Entitlements Act 1986 s 9, 5D, 120

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)

1. By a decision notified on 1 May 1997 the applicant's claim for Post Traumatic Stress Disorder ("PTSD") and psychoactive substance abuse or dependence to be accepted disabilities was rejected by the respondent. A Veterans' Review Board subsequently affirmed that decision.

2. The applicant says the claimed conditions arose out of operational service in Vietnam.

3. Section 9 of the Veterans' Entitlements Act 1986 ("the Act") provides that an injury (or disease) suffered by a veteran shall be taken to be a war-caused injury (or disease) if, inter alia, the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.

4. "Injury" is defined in s 5D of the Act to mean any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a) a disease; or

(b) the aggravation of a physical or mental injury.

5. "Disease" is also defined in s 5D to mean:

(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;

but does not include:

(c) the aggravation of such an ailment, disorder, defect or morbid condition; or

(d) a temporary departure from:

(i) the normal physiological state; or

(ii) the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels)."

6. Section 5D(2) operates, so that a reference to the incapacity of a veteran from a war-caused injury or a war caused disease is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.

7. Subsections 120(1) and (3) of the Act apply in determining whether the claimed incapacity of a person from injury or disease relates to the operational service rendered by the veteran. That will in part depend on whether the material before the Tribunal raises a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.

8. An hypothesis raised on the material will not be a reasonable hypothesis unless the requirements of s 120A are satisfied, the original claim having been dated 26 September 1949 [sic] but lodged on about 28 October 1996.

9. At the hearing Mr Turnbull of counsel appeared for the applicant and Mr Allison represented the respondent Commission.

10. The Tribunal had before it a detailed statement by the applicant (Exhibit A) and a report by Dr Rogers, Consultant Psychiatrist (Exhibit B). Oral evidence was also given by the applicant and Dr Rogers.

11. Taking into account all the material before the Tribunal I make the following findings of fact:

(a) the applicant had operational service from 18 November 1968 to 25 November 1968 on HMAS DUCHESS while in Vietnamese waters;

(b) the applicant also had eligible defence service from 7 December 1972 to 28 August 1973;

(c) the operational service was in the general vicinity of Vung Tau;

(d) the applicant was a radar operative required to work in a small confined room on board HMAS DUCHESS doing radar maintenance work in which he experienced intense fear and helplessness because of his fear of attack, friendly or hostile;

(e) HMAS DUCHESS was performing escort duties for HMAS SYDNEY while that ship was in Vung Tau;

(f) The ships entered the Vung Tau harbour each day and retreated to open sea each night - the DUCHESS maintained a "closed up" mode while in Vung Tau harbour which required the applicant to be locked in his radar room, a fully enclosed small room above the water line but without a porthole;

(g) scare charges were released at irregular intervals by the ships while in harbour causing apprehension in the applicant as to whether the explosions were friendly or hostile;

(h) prior to his operational service the applicant was told by a priest of the loss of two friends on HMAS HOBART, while in Vietnamese waters, due to an attack on HMAS HOBART by a United States plane;

(i) the knowledge of these deaths had an adverse effect on the applicant while "closed up" in the Vung Tau area;

(j) the applicant resorted to excessive behaviour and consumption of alcohol while denying that he had a problem; and

(k) the applicant was discharged from the Navy on 28 August 1973 on the grounds that he was below naval psychological standard.

12. I make the following findings in relation to the medical evidence;

(a) a psychological assessment of the applicant in 1969 noted that he had felt "closed in" while serving on HMAS MELBOURNE;

(b) that assessment recommended discharge due to emotional unsuitability but discharge was not approved;

(c) in 1971 a consultant psychiatrist noted "phases of depression" but did not diagnose depression;

(d) in February 1972 a Medical Board diagnosed Depression and downgraded the applicant for "shore service only";

(e) medical opinion in 1972 described the depression as endogenous rather than reactive;

(f) a further Medical Board in September 1972 again diagnosed depression and downgraded the applicant;

(g) a further Medical Board in February 1973 confirmed the diagnosIs "Depression" but returned the applicant to full duties on the basis he had been "quite well" since last seen;

(h) a subsequent posting to HMAS MELBOURNE resulted in the applicant becoming very depressed and suffering a breakdown for which he was hospitalised and diagnosed with recurrent Endogenous Depression;

(i) the diagnosis recurrent Endogenous Depression was confirmed by Dr McGovern, psychiatrist, in a report dated 22 November 1973 to the respondent (Exhibit A);

(j) in January 1997, Dr Gibson, psychiatrist, diagnosed the applicant as having a primary psychiatric diagnosis of PTSD with comorbid psychiatric diagnosis of alcohol abuse and panic disorder - Dr Gibson described the applicant's problems as follows:

* on edge, easy startle, mood swings, anger, poor concentration and disturbed sleep

* socially withdrawn, avoidance of reminders (reunions, parades), loss of interest, feelings of emotional estrangement and foreshortened sense of the future

* nightmares, intrusive memories and occasional dissociative flashbacks related to his Vietnam service combined with traumatic experiences related to his current occupation

* panic episodes on a daily basis associated with some agoraphobic symptoms related to crowds, open spaces and leaving the house

* alcohol - heavy the last 2 months up to 18 stubbies in one sitting, binge pattern every 7-10 days. This has led to some marital difficulties and a reduced level of fitness, but he denies any problems related to work because of alcohol.

(k) by a report dated 21 February 1997 Dr Rigano reported to the respondent that the applicant "may meet the criteria for Post Traumatic Stress disorder, but that pre-existing panic disorder and comorbid substance abuse - alcohol, in conjunction with personality attributes, dominate the clinical picture";

(l) a report dated 12 September 1997 to the applicant's then advocate by Dr Rogers, who has seen the applicant on at least 15 occasions, opined that the applicant should be regarded as totally and permanently incapacitated and that the traumatic event was, by proxy, the attack on HMAS HOBART;

(m) in a further report dated 3 November 1998, Dr Rogers confirmed the diagnosis of PTSD but also diagnosed the symptoms as major depression, panic disorder with agoraphobia and generalised anxiety disorder, with continuing alcohol abuse (Exhibit B); and

(n) in his oral evidence Dr Rogers said that the incident in HMAS HOBART had sensitised the applicant for the situation in HMAS DUCHESS while at Vung Tau which became the critical factor in the change in the applicant's psychiatric condition.

consideration

13. Based on the evidence of Dr Rogers I understand the hypothesis relied on by the applicant is that the traumatic events on HMAS HOBART and related to the applicant by a priest sensitised the applicant to traumatic events experienced by him on HMAS DUCHESS while in Vietnamese waters. In that situation those latter events constituted extreme traumatic stressors.

14. Because of the operation of s 120A of the Act that hypothesis can only be accepted as a reasonable hypothesis if the applicant's circumstances fall within the criteria of the Statement of Principles relating to Post Traumatic Stress Disorder (Instrument 15/1994 and 225/1995). I am satisfied that the applicant experienced a stressor prior to the clinical onset of PTSD. In this regard I am satisfied that the clinical onset did not occur until some undetermined time after the applicant's service on HMAS DUCHESS. I am also satisfied, on the evidence that the stressors experienced while confined in the radar room at Vung Tau triggered the subsequent stressors.

15. The medical reports during the applicant's subsequent naval service wherein he was diagnosed with endogenous depression satisfy me that the applicant was in fact experiencing symptoms and effects of PTSD so as to bring him within the criteria for Post Traumatic Stress Disorder as set out in the Statement of Principles. That view is confirmed by the evidence of Dr Rogers.

16. As to the claim for substance abuse consequential on PTSD the evidence as to continuing substance abuse is equivocal. Even if I was satisfied that there is a continuing history of substance abuse I am not satisfied that it is other than an effect of the PTSD rather than a separate disability. I do not understand the medical evidence to have diagnosed substance abuse as a separate medical condition but rather an effect of the condition PTSD. In coming to that view I have taken into account the opinion of Dr Rigano who, unlike the other medical practitioners took the view that panic disorder and substance abuse had pre-dated the onset of PTSD. Given that I have found that not to be the case I cannot be satisfied that the substance abuse is other than an effect of PTSD and not a separate medical condition.

17. The decision under review will be varied so as to include a decision that PTSD is a war-caused disability within the terms of s 9 of the Act. The decision under review will otherwise be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed: .....................................................................................

Secretary

Date/s of Hearing 18 November 1998

Date of Decision 23 June 1999

Counsel for the Applicant Mr Turnbull

Solicitor for Applicant Williams Graham and Carman

Respondent Mr Allison