Bowd and Repatriation Commission [2011] AATA 59 (4 February 2011)

Last Updated: 4 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3956

VETERANS’ AFFAIRS DIVISION		)
	Re		RAYMOND BOWD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr Egon Fice, Senior Member Dr Kerry Breen, Member

Date 4 February 2011

Place Melbourne

Decision

The Tribunal affirms the decision made by the Veterans’ Review Board on 22 July 2009.

..........[sgd] Egon Fice...........
Senior Member

VETERANS’ AFFAIRS – Post Traumatic Stress Disorder – Vietnam – disability pension – traumatic event – associated with war service – standard of proof – operational service – diagnosis on the balance of probabilities – Statement of Principles – reasonable hypothesis – experiencing a server stressor – clinical onset – being confronted with an event – DSM-IV-TR – psychiatrist – generalised anxiety disorder – independent expert medical practitioner

Veterans’ Entitlements Act 1986 ss 120, 120(1), 120(4)

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Mines v Repatriation Commission [2004] FCA 1331; [2004] 86 ALD 62

National Justice Compani Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68

Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200

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

Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581

Repatriation Commission v Smith (1987) 15 FCR 327

Woodward and Another v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473

Statement of Principles – Post Traumatic Stress Disorder - Instrument No 5 of 2008

Statement of Principles – Post Traumatic Stress Disorder - Instrument No 3 of 1999 as amended by No 54 of 1999

4th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders

Diagnostic Criteria for 309.81 Posttraumatic Stress Disorder

Chambers 21st Century Dictionary

Ham, Paul ‘Vietnam: The Australian War’ (Harper Collins Publishers, 2004)

REASONS FOR DECISION

4 February 2011

Mr Egon Fice, Senior Member Dr Kerry Breen, Member

1. Mr Raymond Bowd was a National Serviceman having been conscripted into the Australian Army on 1 October 1969. He had operational service in South Vietnam between 15 February 1971 and 9 October 1971. He was discharged on 30 November 1971.
2. Mr Bowd made a number of applications to the Repatriation Commission (the Commission) for a disability pension which was granted. Subsequently, on 8 June 2007 he applied for a pension for incapacity arising from a urinary tract infection. The Commission disallowed that claim. On 22 June 2007, Mr Bowd sought a review of the Commission’s decision before the Veterans’ Review Board (the VRB). Prior to the VRB making a decision regarding that application, on 15 December 2008, Mr Bowd lodged a further claim for incapacity for Post Traumatic Stress Disorder (PTSD) and for an increase in the rate of pension for his previously accepted disabilities.
3. On 6 March 2009 the Commission accepted Mr Bowd’s application for an increase in the pension and increased his pension to 30 per cent of the general rate. However, the Commission denied his claim for PTSD. On 25 March 2009 Mr Bowd lodged an application with the VRB seeking a review of the decision relating to PTSD.
4. On 22 July 2009 the VRB rejected Mr Bowd’s claim based on urethral stricture (urinary tract infection); refused his claim based on PTSD and consented to the withdrawal of his application relating to the assessment of the rate of pension.
5. On 24 August 2009 Mr Bowd lodged an application with the Tribunal seeking a review of the VRB decision relating to PTSD and urethral stricture. However, prior to the commencement of the hearing of this matter, Mr Bowd withdrew his application for review of the decision relating to urethral stricture. Therefore, the only application before this Tribunal is that relating to PTSD.
6. The only matters which we are required to determine are:
   • (a) whether Mr Bowd suffers from PTSD; and
   • (b) if we find that Mr Bowd suffers from PTSD, whether that condition was war-caused as that expression is defined in the Veterans’ Entitlements Act 1986 (the VE Act).

DIAGNOSIS – PTSD

7. The process of determining whether a disease or injury is war-caused involves an antecedent decision about the disease or injury from which a veteran claims he or she suffers. The problem with cases involving PTSD is that the question whether that disease is suffered by the veteran is bound up with the question of connection with war service. A diagnosis of PTSD requires identification of a traumatic event which is of such a nature that it could give rise to the disease in question. As Gray J explained in Mines v Repatriation Commission [2004] FCA 1331; [2004] 86 ALD 62, in cases involving PTSD, the diagnosis involves two questions. The first is whether the person is suffering from symptoms which, if the traumatic event is identified, would result in a diagnosis of PTSD. The second is whether the traumatic event occurred.
8. Gray J also suggested that there might be more than one possible traumatic event and that there might be a question as to which event is responsible for the PTSD claimed. If any one of those possible traumatic events is not associated with a veteran's war service, the decision maker needs to resolve the question whether the symptoms result from the events associated with the veteran's war service, or with the other event or events.
9. Before outlining the two possible processes of reasoning suggested by Gray J in Mines case, one needs to understand the operation of s 120 of the VE Act dealing with standard of proof. Relevantly, s 120(1) of the VE Act provides:

120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
. . .

10. Section 120(4) of the VE Act provides:

. . .
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
. . .

11. Because the decision regarding diagnosis is distinct from the decision about whether the disease is connected to a veteran's operational service, the standard of proof which must be applied to the diagnosis is that set out in s 120(4) of the VE Act. In other words, we must decide the question of diagnosis to our reasonable satisfaction (see Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4) of the VE Act . . . decide the matter to its reasonable satisfaction, was comprehensively analysed by the Full Court of the Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:

Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. . . .

This means that we are required to decide the question of diagnosis on the balance of probabilities.

12. Gray J in Mines case stated that more than one process of reasoning was possible when determining the question regarding the diagnosis of PTSD. He said, at 71-72:

. . . The decision-maker might approach the problem by first considering whether, on the balance of probabilities, the traumatic event occurred as part of war service and whether it has resulted in the veteran suffering PTSD. If satisfied on the balance of probabilities as to these facts, the decision-maker would no doubt find that there was a reasonable hypothesis connecting the PTSD with the veteran’s operational service and that the hypothesis was sustained by reference to the relevant SoP and was not excluded beyond reasonable doubt. It seems impossible to assume that, if the decision-maker were reasonably satisfied on the balance of probabilities that a traumatic event experienced during operational service led to the PTSD, there could be anything other than a reasonable hypothesis, sustained by reference to the PTSD SoP, and not excluded beyond reasonable doubt. The steps required by Deledio [Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82] would be satisfied without difficulty. . . .

13. The alternative process of reasoning suggested by Gray J is to treat all questions of connection between operational service and PTSD, including questions that are part of the process of determining whether PTSD has been suffered by a veteran, on the reasonable hypothesis basis required by s 120(1) of the VE Act. According to his Honour, a decision-maker would only apply the balance of probabilities standard to a determination of what symptoms the veteran concerned suffered, and whether those symptoms were consistent with the finding of PTSD. The question of whether there was PTSD would be determined on the reasonable hypothesis basis, using the four steps referred to in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
14. Gray J said, despite what was said in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564, the Full Court of the Federal Court has consistently followed the first process of reasoning to which we have referred above. The process, he said at 73-74, was:

'The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.’

15. While we have no doubt that the process described by Gray J is correct, and in any event, we are bound to follow it, since his Honour decided Mines case, the Statement of Principles (SoP) dealing with PTSD has altered. The current SoP, which took effect from 9 January 2008, is Instrument No 5 of 2008. The significant difference between the current SoP and the SoP which was current at the time Gray J decided Mines case, lies in the factors which must exist before it can be said that a reasonable hypothesis has been raised connecting the disease with the circumstances of the person's relevant service. In the SoP which was current at the time of the Mines decision (Instrument No 3 of 1999 as amended by No 54 of 1999), one of the factors which had to exist was described as experiencing a severe stressor prior to the clinical onset of PTSD. The expression, experiencing a severe stressor, was defined in terms identical to Criterion A1 which is set out in DSM-IV-TR (4th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders) as follows:

A. The person has been exposed to a traumatic event in which both of the following were present:
1. the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
2. the person's response involved intense fear, helplessness, or horror.

16. However, in the current SoP, that factor is now described as experiencing a category 1A stressor before the clinical onset of PTSD or experiencing a category 1B stressor before the clinical onset of PTSD. The definitions of a category 1A stressor and a category 1B stressor are no longer consistent with Criterion A1 in DSM-IV-TR. A category 1A stressor involves experiencing a life threatening event but no longer includes being confronted with such an event. It includes being subject to a serious physical attack and being threatened with a weapon, being held captive, being kidnapped or being tortured; but there is no reference to events concerning persons other than the veteran. The definition of category 1B stressor includes being an eyewitness to a person being killed or critically injured; being an eyewitness to atrocities inflicted on another person or persons; being an eyewitness to or participating in the clearance of critically injured casualties; viewing corpses or critically injured casualties as an eyewitness; or killing or maiming a person. While some of the events described under the definition of a category 1B stressor could fit the description of being confronted with events involving death or serious injury, the effect of the definition is to significantly narrow the nature of events which fit the description.
17. The problem which we perceive exists under the current SoP concerning PTSD is the fact that Criterion A in DSM-IV-TR continues to refer to a person being confronted with an event that involved actual or threatened death or serious injury or threat to the physical integrity of self or others. However, to satisfy the definition of a category 1A stressor, a person must experience the events described under Criterion A. There is no reference to being confronted with any of those events. Under a category 1B stressor, there is a reference to being an eyewitness to events which might fall within the Criterion A description, as well as killing or maiming a person. There is no reference to being confronted with an event of the type described in Criterion A.
18. The difficulty we face is that the Full Court of the Federal Court in Woodward and Another v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 rejected the notion that being confronted with an event meant that the person had to be present in the sense that they either experienced or witnessed the event. The Court said, at 495:

The definition of "experiencing a severe stressor" has three elements that relate to a person's encounter with an event involving death -- the person must have "experienced, witnessed or [have been] confronted with an event that involved death ...". Plainly enough, although the elements may overlap in any particular situation, the definition will be satisfied if any one of them is present. As a matter of ordinary language, the field that the definition is intended to cover is bounded by the three different elements. It follows that for the purposes of the definition a person may be "confronted with" an event that he or she has neither experienced nor witnessed.
In any event, as a matter of ordinary usage to be "confronted" with something means to be brought face to face with it either physically or, perhaps more commonly, in the mind. If the thing being confronted is an event, usage does not require that the person be present at the event she or he "confronts". This is no less the case when the confronting event [sic] is one involving death or serious injury.

19. Therefore, while the diagnostic criteria set out in DSM-IV-TR might be met, thereby permitting a diagnosis of PTSD, when it comes to applying the factors which must be present before it can be said that a reasonable hypothesis has been raised connecting a claimant's PTSD with the circumstances of his or her relevant service, they may not be able to satisfy the category 1A or category 1B stressor definitions. For example, if a veteran was confronted with (but did not witness or experience) an event which involved a threat to the physical integrity of self or another person, while that could satisfy Criterion A of DSM-IV-TR, it would not fall within the category 1A or category 1B stressor definitions. If we are correct about that, what Gray J said in Mines case regarding the first process of possible reasoning may no longer apply. That is, it is no longer possible to assume that if we are reasonably satisfied on the balance of probabilities that a traumatic event said to have been confronted during operational service led to the PTSD, there will exist a reasonable hypothesis sustained by reference to the SoP. While this appears to be an anomaly created by the amended SoP No 5 of 2008, we must deal with it as best we can having regard to the processes outlined by Gray J in Mines case.
20. We also need to be mindful of what the Full Court said in Repatriation Commission v Budworth [2001] FCA 1421; (2001) 116 FCR 200 regarding the characterisation of the disease suffered by a veteran. The Full Court said, at 207-208:

. . . This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence . . . shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).

21. The SoP dealing with PTSD (No 5, 2008) states that for the purposes of the SoP, PTSD means a psychiatric condition meeting certain diagnostic criteria derived from DSM-IV-TR. The diagnostic criteria are then set out in full. We have already referred to Criterion A above. The remaining criteria are:

(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

22. Ms Ann McMahon of counsel, who appeared on behalf of Mr Bowd, reminded us in her closing submissions that the diagnostic criteria in DSM-IV-TR should not be used in a cookbook fashion. In fact, Chapter IV of DSM-IV-TR dealing with the evaluation process says this about diagnosis in case formulation:

The DSM classification and the specific diagnostic criteria are meant to serve as guidelines to be informed by clinical judgement in the categorisation of the patient’s condition(s) and are not meant to applied in a cookbook fashion.

23. The introduction to DSM-IV-TR also contains a number of caveats regarding the use of the diagnostic criteria set out in the manual. The introduction acknowledges that although the manual provides a classification of mental disorders, it admits that no definition adequately specifies precise boundaries for the concept of mental disorder. In fact, it states that:

The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. All medical conditions are defined on various levels of abstraction ... .

The introduction then states:

In DSM-IV, each of the mental disorders is conceptualised as a clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (eg, a painful symptom) or disability (ie, impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever its original cause, it must currently be considered a manifestation of behavioural, psychological or biological dysfunction in the individual.

24. By definition, PTSD requires a person to have been exposed to a traumatic event as is set out in Criterion A of DSM-IV-TR. The traumatic experiences recounted by Mr Bowd in his evidence, while rendering operational service in South Vietnam, were:
    • (a) a call out to the helipad at Nui Dat for the purpose of assisting in loading or guarding helicopters required to deliver ammunition to C and D Companies of 3 RAR which were in contact with enemy forces;
    • (b) becoming aware that Lieutenant John Wheeler and Private Paul Manning were killed in the confrontation with the enemy and being shown a damaged dog tag worn by Lieutenant Wheeler;
    • (c) becoming lost for about 10 minutes while on a clearing patrol at the Horseshoe Fire Support Base; and
    • (d) observing a young Vietnamese girl with horrific facial deformities.
25. Although, for the purposes of making a diagnosis, we are not concerned with whether the events referred to above in fact occurred, we do need to look in greater detail at those events because they need to satisfy Criterion A for the purposes of diagnosing PTSD. Furthermore, as will become immediately apparent, the accounts given by Mr Bowd of these events has varied from time to time. Again, without making any findings about which account should be accepted, we need to examine all of the accounts in order to determine whether they satisfy Criterion A.
26. Dr Barrie Kenny, a psychiatrist, examined Mr Bowd on 17 September 1999. It seems that this examination was in relation to an earlier application made to the Commission by Mr Bowd in respect of a claim for Generalised Anxiety Disorder (GAD). This claim was rejected by the Commission.
27. Dr Kenny provided a written report dated 20 September 1999. He recorded that he had not seen any other reports about Mr Bowd. In fact, it appears this was the first occasion on which Mr Bowd had seen a psychiatrist. Dr Kenny mentioned in his report that Mr Bowd told him he did not see psychiatrists or psychologists; that he did not feel the need to; and he did not take nerve tablets. It is also significant that this first examination by Dr Kenny preceded the severest phase of the urological problem which in fact led to Mr Bowd giving up work in 2008. This problem, in the opinion of two psychiatrists, contributed to Mr Bowd’s anxiety problems.
28. In the history recorded by Dr Kenny, he referred to Mr Bowd’s experiences in Vietnam including the following passage:

He said in the first week some of his group were “hit hard” and two were killed. He said he didn’t see any actual combat. He was on patrol, didn’t see firefights, wasn’t bombed or bombarded. He was scared a bit of the time but he was more always aware. He didn’t see any bodies. He said one friend was blown up but he didn’t see him. He said he had other friends from Geelong who were there and they were mutually supportive.

29. Dr Kenny said he asked Mr Bowd about any other traumatic experiences which he may have had while in Vietnam. The only experience recited by Mr Bowd was an occasion when he went to a fishing village with a couple of officers and he saw a very deformed child. He said that stood out in his mind. According to Dr Kenny, Mr Bowd said that the sight of the child choked me up. Mr Bowd said that in general terms, he was kept busy and his time there wasn’t all that bad. He didn’t drink alcohol when he went to South Vietnam but drank a fair bit towards the end of his tour and, after returning to Australia, has gone off it since and drinks socially only. There is no mention at all of the incident regarding the loading of helicopters at the helipad, seeing the dog tag of Lieutenant Wheeler or the finding of a bullet in his hut (an event to which he referred later).
30. After leaving the army, Mr Bowd told Dr Kenny that he bummed around for six months; he then got a job with International Harvester for one year following which he went into retail paint sales in a partnership with his wife. That partnership had been successful and he enjoyed it. He continued to have a good relationship with his wife and children. He had an interest in football and cars and was a reasonably sociable person. He saw himself as generally a happy person.
31. Dr Kenny concluded that in his opinion, there was no evidence that Mr Bowd had or has a significant underlying psychiatric, psychological or emotional problem. He had a good work record, owned his own business, had a good relationship with his wife and three children and a good range of interests and activities. Dr Kenny accepted that Mr Bowd felt on-edge some of the time and frightened occasionally while in Vietnam. However, apart from the grossly deformed child, he did not report anything else which really horrified him. Dr Kenny was of the opinion that Mr Bowd could not satisfy Criterion A for PTSD and in any event, he did not have any symptoms of PTSD. He did not abuse alcohol and he did not smoke tobacco. He did not present with any symptoms of anxiety associated with his army service. He concluded that Mr Bowd had no evidence whatsoever of any psychiatric or psychological disturbance and he could not therefore see him as having a war-caused psychiatric problem.
32. Ms McMahon referred us to the transcript of the hearing before the VRB on 1 August 2000 in respect of Mr Bowd’s first claim to the Commission. In that transcript, Mr De Vlieger, who was Mr Bowd’s advocate for the purposes of that hearing, explained that Mr Bowd told him in the course of being examined by Dr Carol Newlands, a psychiatrist, he told her he did not feel comfortable with Dr Kenny and did not express his true feelings. Dr Newlands examined Mr Bowd on 1 March 2000 and again on 15 March 2000. She prepared a written report dated 12 April 2000. In that report, Dr Newlands made no mention at all of Mr Bowd’s reaction to Dr Kenny, nor did she refer to having seen his report at all.
33. Following the VRB hearing on 1 August 2000, Mr Bowd was again referred to Dr Kenny who provided a second report dated 15 June 2001. Presumably, this was because Mr Bowd made or intended to make an application to this Tribunal in respect of the VRB decision.
34. The first thing that Dr Kenny recorded was that at the time he first saw Mr Bowd, Mr Bowd did not consider himself to have a psychiatric problem. However, at this stage, having gone through further assessments and having had his attention focused on problems he may have had in his Vietnam experiences, Mr Bowd told Dr Kenny that he was now not certain as to whether he had a psychiatric problem. He was of the view that his Vietnam experiences had a significant effect on him. Dr Kenny recorded that in general terms, Mr Bowd had no objection to the history which he provided in his first report.
35. Dr Kenny said that he examined some of the issues in more detail on the second occasion. With respect to the enemy action in which two members of D Company 3 RAR were killed, Mr Bowd told Dr Kenny that it drove home to him that Vietnam was a dangerous place. He also told Dr Kenny that one didn’t know who were enemy and who were not. Being on patrols made him feel on edge. He again mentioned the visit to the village where he saw the very deformed girl. He said he was horrified by that vision and that was one of the things which kept coming back into his mind. He also explained that being on piquet duty was rather frightening and that he had to be aware of everything which was occurring. He explained that a friend of his was killed in action. He said he had seen him only two days earlier and that it fell to him to identify his friend’s dog tags which were damaged by the explosion in which he had died. He said that all of those things hit home. He also said there were some good things about being there, including the camaraderie. He did not see any bodies and he did not see actual combat. He explained that he drank a fair bit while there but insisted he had only been a social drinker and not a heavy drinker since coming back from Vietnam. He said occasionally he would have more than he should when he drinks with friends.
36. Mr Bowd confirmed that at no stage had he had any treatment, any psychiatric or emotional problems nor had he had any medication. He coped well with his work and he considered himself to be a disciplinarian. He tended to avoid conflict at home and had some trouble communicating. He had a couple of cars in which he was interested but he did not bother going to sporting events as he used to do. He explained to Dr Kenny that he had a bout of gonorrhoea while in Vietnam but responded quickly to treatment. Generally speaking, he said he did not have bad dreams. He was more inclined to have dreams when he was stirred up about things that were going on in his life and that he only had an occasional dream about his Vietnam experiences. He was reluctant to be involved in Vietnam Veterans’ activities because they drink too much and reminisce about things he doesn’t want to reminisce about.
37. Mr Bowd said that he sometimes thinks about his experiences (presumably in Vietnam) wondering what it was for. Those experiences didn’t distract him although his tendency to think about them has become worse over the past few years. Dr Kenny explained that this was consistent with the fact that he was now enmeshed in the process of making claims to the Commission. He told Dr Kenny that his memory and concentration were good. As a rule, he did not watch war films but he recently watched the new film Pearl Harbour and thought it was very good.
38. Dr Kenny recorded that in the course of the interview, Mr Bowd presented in a fairly calm, relaxed and matter of fact way. He was emotionally responsive. He was also quite aware of the fact that he thinks more about his Vietnam experiences in the last couple of years. Dr Kenny also referred to Dr Newlands’ report of 12 April 2000 and the fact that having done the Davidson’s Structured Interview, she diagnosed him with PTSD.
39. Dr Kenny recorded that since he first saw Mr Bowd, he had become enmeshed in the assessment process and found that he was thinking more about his Vietnam experiences. Dr Kenny said that this was a pattern he saw very commonly. Dr Kenny accepted that there were difficulties in Mr Bowd’s life and that he had more dissatisfactions now than when he saw him on the first occasion. Nevertheless, he continued to function well in his life and was getting on well with his family, although admitting to some difficulties. He did not see himself as unhappy. He was less sociable than he was in past years. He explained that Mr Bowd sometimes thought about his experiences in Vietnam and particularly about the deformed girl. Those thoughts distracted him. Despite this, Dr Kenny was of the opinion that the stressors experienced by Mr Bowd were not to such an extent that he would consider them symptomatic of psychiatric disturbance. Dr Kenny agreed that the experiences recounted to him by Mr Bowd were anxiety provoking experiences. However, he was not of the view that they satisfied Criterion A for the development of PTSD. In fact, Dr Kenny was of the view that Mr Bowd did not satisfy the first and fundamental Criterion A. In addition, he was of the view that his symptoms were not significantly severe, numerous or pervasive to warrant psychiatric diagnosis.
40. Dr Kenny did not see Mr Bowd’s sleep problems as representing a psychiatric problem. He said he did not think his dreams were sufficiently frequent or clearly enough related to Vietnam to justify relating those to his Vietnam experiences. He also did not see Mr Bowd’s tendency to be a bit on edge, sometimes with occasional palpitations, sweaty hands and butterflies in the stomach, as sufficient to justify a diagnosis of anxiety disorder. He said he could not necessarily relate this to his Vietnam experience. He described Mr Bowd as having some personality traits that create some difficulty for him with minimal symptoms of anxiety and frustration in his life, but it would not be appropriate to make a psychiatric diagnosis of his presentation.
41. When Mr Bowd was asked in cross-examination if what Dr Kenny stated in his two reports was a fair account, Mr Bowd reluctantly said, if it was written, probably. When it was put to Mr Bowd that in neither of those reports was there a reference to the loading of ammunition at the helipad, Mr Bowd responded by saying he might not have been asked the question. He also said that he could not clearly recall but he had never been to a psychiatrist before. However this does not explain why he did not mention the event on the second occasion, by which time he had seen two psychiatrists.
42. Mr Bowd did say that on the second occasion he saw Dr Kenny, he was not as confident with him because he was a changed man. In our opinion, this was probably an astute observation because, from a reading of Dr Kenny’s second report, it is possible that he was irritated by the change he observed in Mr Bowd which he attributed to his becoming enmeshed in the assessment process. However, this mention of a change in Dr Kenny’s attitude to Mr Bowd is also open to the interpretation that Mr Bowd was comfortable when first interviewed in 1999. There is nothing in the history taken by Dr Kenny which would suggest Mr Bowd was reluctant to provide a full account of his Vietnam experiences. He was able to describe his emotional reaction to seeing a deformed child while in Vietnam therefore making it difficult for us to accept that he concealed other emotional reactions from Dr Kenny.
43. Dr Newlands took a detailed history from Mr Bowd some seven months after he first saw Dr Kenny. Mr Bowd told Dr Newlands that 3 RAR sent out patrols for familiarisation on about the third day after arrival at Nui Dat and that they lost three men on that day. He also told Dr Newlands that helicopters were flying in and out taking ammunition to the battle area, however he made no mention of the fact that he was called out to the helipad to assist in loading the helicopters. He did describe feeling anxiety and panic at Nui Dat and he said everyone felt that we were going to be overrun. He then apparently said: Everyone felt themselves to be on guard that night and for a few days later.
44. We had in evidence extracts from Mr Bowd’s diary which he kept while in Vietnam. His account of that incident appears to be different. His entry for Tuesday 2 March 1971 records being called out to the magazine at 10.30pm. A magazine is generally a fortified structure where ammunition and explosives are stored (weapons are usually stored at the armoury). It is frequently protected by a bunker. The location of the magazine was not identified and it was not necessarily at the helipad. Mr Bowd’s diary recorded that D Company was in an ambush and that about 40 men worked liked pigs loading magazines for various weapons so that they could be loaded onto the helicopters. The magazines referred to in this description are those which hold rounds of ammunition and clip onto a weapon. He recorded that they finished at roughly 12.30am although they stayed there all night and thought they saw movement on the Kapyong pad, which was a helipad adjacent to Luscombe airfield located in about the centre of Nui Dat base.
45. There is nothing in the diary to suggest, as does Mr Bowd in his written statement of evidence, that he was sent with five other men to the Australian helipad for the purpose of guarding it while helicopters transported supplies, such as ammunition, to men in the field. In his oral evidence Mr Bowd said that he was sent to the helipad for the purpose of loading ammunition and keeping guard. He said he was armed and had his rifle with him. In his evidence to the VRB on this application, Mr Bowd was asked whether he did any of the loading of the helicopters. He responded no and said that he simply helped unload or load ammunition. By that, we understood that he was loading magazines with rounds of ammunition as is stated in his diary note. He was not in fact involved in loading helicopters at the helipad. He nevertheless insisted that he was on guard around the helipad.
46. There is no mention of guarding the helipad at all in his diary note, nor is there any logic to the statement given that the helipad is the middle of a heavily fortified military base which had a perimeter some 13 kilometres in length. In a history taken by Dr Nigel Strauss, a psychiatrist, Dr Strauss recorded that Mr Bowd told him that he and others had to stay at the helipad all night in case further assistance was required. There is an entry in Mr Bowd’s diary on the following day, 3 March 1971 in which he has written: Alerted for piquet as they said we could possibly [be] attacked. To no avail. By that, we understood that Mr Bowd was alerted for further piquet duty because of a possible attack on the base but as the attack did not eventuate, that additional piquet duty was not required. There is clearly a difference between a fear of being overrun as described by Mr Bowd and the precautionary extra piquet duty required in the event of an attack being mounted against the base at Nui Dat.
47. The account of the events on the night of 2 March 1971 recorded by Dr Arthur Velakoulis, a psychiatrist, appear to be more graphic than any evidence given by Mr Bowd. Dr Velakoulis, in his report dated 2 November 2008, recorded the following in italics and bolded in his report by which we understood this was the verbatim account given by Mr Bowd. He said:

We got an alarm that our company was being overrun. They hit us hard. We lost four fellows on that night. Nobody knew what was going on or expected. There were helicopters coming in for reloading the fuel and ammunition. Everybody was on alert all night. I was down on the helipad and told to keep guard. I stayed up all night. It seemed like something out of an apocalypse. You didn’t know what to expect.
They had apparently sent a battalion down to attack us. I was extremely fearful. We didn’t know what to expect. It kept going for hours. They were almost at Nui Dat, the gunfire and mortar fire. There was chaos and fear. I wasn’t trained as a proper infantryman at Canungra. I didn’t do the courses and I felt unprepared.

48. In his evidence to the VRB in August 2000, there was no mention at all of the night Mr Bowd spent on the helipad. In his evidence given to the VRB in July 2009 he was asked if, during that particular night, anything untoward happened while he was at the helipad. Mr Bowd’s response was:

Oh, no. Well, someone came in. Someone came in injured but they took them virtually straight out. No, we were just all on alert. We didn’t really know what we were – what it was about. We weren’t informed greatly of what was happening at the time.

Later Mr Bowd described that it was only on the following morning that he found out what had happened. He repeated that he was alert, wondering what was going on and there wasn’t much information passed down to him. He referred to the fact that someone told him that they could be overrun and when asked who that was, he simply said: Oh, someone. When one of the choppers came in there was sought of like second hand information. He then agreed to the suggestion that it was a rumour. He made no reference to hearing gunfire or mortar explosions.

49. In his evidence-in-chief, Mr Bowd was asked whether it was noisy at the helipad. His response was that the choppers were coming in, and he could hear gunshots, and mortar thumps going on. He also said that the sirens were on at the base. However, in his written statement of 20 August 2009 he said:

The noise from the helicopters meant that I was unable to hear whether there was any noise from the discharge of weapons. I was terrified that our position was vulnerable and that our lives were at risk.

50. The second incident referred to by Dr Newlands was, as she put it, when a soldier he knew well was killed. This was a reference to the death of Lieutenant Wheeler. She recorded Mr Bowd as having told her how his dog tags were mangled and that only the name Wheeler was evident. She said that Mr Bowd had known Lieutenant Wheeler pretty well and was somewhat shaken at how little was left of him and the effect it had on the metal dog tag. Mr Bowd’s expressed close relationship with Lieutenant Wheeler was not mentioned at all by Dr Kenny. In his written statement, Mr Bowd said that he knew Lieutenant Wheeler very well having spoken regularly with him, even while in Australia. He considered himself to be a friend of Lieutenant Wheeler and he had a close personal relationship, regarding him as influential in his life. He said that they had a common interest in sport and cars. They drank alcohol together socially. He said that his duties as a Batman required him to mingle with the officers.
51. Dr Velakoulis described Mr Bowd as expressing intense distress at seeing Lieutenant Wheeler’s dog tag. He said: he was a good acquaintance.
52. In the August 2000 transcript of the proceeding before the VRB, Mr Bowd described having met Lieutenant Wheeler socially in Adelaide a couple of times. He described having been to dinner with him at the 2IC of the battalion’s house. He also described having met Lieutenant Wheeler through sport, in fact football. This was despite the fact that Lieutenant Wheeler played rugby and Mr Bowd played Australian Rules football. When asked how often he saw Lieutenant Wheeler, he replied: I would have spoken to him probably at least once a week ... . He said those conversations varied from five minutes up to 10 or 15 minutes. When it was put to him that Lieutenant Wheeler was more an acquaintance rather than a friend, Mr Bowd said: Well, yes. Mr Bowd agreed that he knew Lieutenant Wheeler had been killed before he saw the dog tag. He said he thought he saw the dog tag within a day or two following his death.
53. In his evidence before the VRB in July 2009, Mr Bowd said that he probably saw Lieutenant Wheeler everyday and that he got to know him personally. He said he knew Lieutenant Wheeler for about 10 months. Mr Bowd also agreed that he did not write anything about the viewing of Lieutenant Wheeler’s dog tag in his diary. Mr Bowd’s evidence was that he still had thoughts about his death quite often.
54. Dr Newlands reported that when she asked Mr Bowd what symptoms he felt might be related to his experiences in Vietnam, he explained that he believed he had gone into a bit of a shell, in that he did not mix much socially. He also explained he hesitated a great deal, particularly in situations where there was some danger or some sort of failure attached to any action he might take. He explained himself to be short tempered, though not violent, and was aware of the strain that puts on his family. He also said he thought often about what it meant to go to Vietnam or whether it was a good or bad thing.
55. Under specific questioning, Dr Newlands recorded that Mr Bowd acknowledged that he did use alcohol as a remedy. She said he only tends to drink when he meets together with his group of Veterans’ and that would be a couple of times a year. At other times, he did not drink.
56. Mr Bowd apparently acknowledged broken sleep with regard to his irritability and strictness as a parent to his children. He described his mood as pretty average. He apparently said that when he returned from Vietnam, he took a year off, because he just could not fit in. That statement is also contrary previous evidence given by Mr Bowd regarding being unsettled for the first six months.
57. Mr Bowd said he was able to concentrate well during working hours and was able to maintain his business. He said he avoided violent films although again, this contradicts his statement to Dr Kenny in 2001 where he said he watched the film Pearl Harbour. That film plainly contains violence. He described his memory as usually alright.
58. Mr Bowd told Dr Newlands that he had some recurrent intrusive recollections or thoughts that came in bursts, possibly half a dozen times a year. Overall, he was of the view that the instances were fairly mild and did not tend to bother him much.
59. He described having nightmares, about once a month. He said these were particularly evident if he had something on his mind at the time. He also said he had at times scenes of Vietnam and recognising people in them, but more often an awareness of being there rather than anything specific that happened while he was there.
60. He said that if he had been exposed to an event reminding him of his time in Vietnam, he said he might feel somewhat sick. Otherwise, he said it was a fairly mild response and not frequent. He said he tended to be always very alert and also rather jumpy, for example, if a car were to backfire. He might have what he called a memory flash of being in Vietnam. This was also the case if a helicopter flew overhead. He described his overall recall of his experiences in Vietnam as very complete.
61. Dr Newlands was apparently not told about Mr Bowd finding a stray bullet in his tent.
62. When asked to describe his worst memories of Vietnam, Mr Bowd said that on the second night he was there, they heard Hanoi Rose on Vietnamese radio warning the troops of 3 RAR that they would be hit hard. He also described the incident of the second night on Vietnam soil (although it was in fact a little later than two days after arrival) being the night when D Company was attacked and two of its members were killed. He said it finally hit him that the war was real. He also described the sight of the dog tags belonging to Lieutenant Wheeler and the disfigured girl he saw in Vietnam as being things he recalled quite vividly.
63. Dr Newlands said: I feel that he shows the symptoms of Post Traumatic Stress Disorder. Dr Newlands said he satisfied Criteria [sic] A for this condition. He was in a war zone and confronted with the death of a friend. He was also on patrol at times (although she did not describe the experience of being lost on patrol described by Mr Bowd on other occasions) and while he did not see any major conflicts, he was on clearing patrols. Although not out with the company which was attacked (on the night of 2 March 1971), he felt anxiety and panic at base as helicopters took off with ammunition. He described everyone being concerned that they were about to be overrun by the Vietcong and that everyone was tense and on guard for some days later.
64. She described his psychological reactivity as feeling a bit sick at times and thus he reached the requirement for re-experiencing an event. She also described Mr Bowd as satisfying Criteria [sic] C of persistent avoidance in many ways. She described him not talking about events, making sure he is always busy and avoiding activities which remind him of those events. She also described his change of attitude to life where he now avoids anything which may have any hassles, preferring his own company and doing his own thing.
65. Dr Newlands also referred to Criteria [sic] D being the persistent symptom of increased arousal. She nevertheless described his memory and concentration as okay. She then stated that Mr Bowd met the requirements for the other categories and said I feel [this]... would be most reasonably considered as the suffering from Post Traumatic Stress Disorder.
66. Dr Velakoulis has been Mr Bowd’s treating psychiatrist since June 2008. He also provided a written report dated 2 November 2008 which he said was made in his capacity as an independent specialist. Dr Velakoulis estimated that he had seen Mr Bowd on at least 10 occasions in the course of treating him since 26 June 2008. We have already set out above the events that occurred on the night of 2 March 1971 as given by Mr Bowd and recorded by Dr Velakoulis. Dr Velakoulis then said Mr Bowd described an intense sense of fear and life threat during that episode. He said his anxiety was heightened by his lack of infantry training during his time at Canungra. This is of course to be contrasted with the histories taken by the other psychiatrists regarding this event.
67. Mr Bowd also recounted the event when he was patrolling around the fire support base Horseshoe and he became lost. He described that event in the following way: We did a patrol. It was long grass. I got lost and put my hat on my gun. I must have panicked. There was some fear.
68. Mr Bowd made a diary entry on 8 July 1971 in which he referred to being lost. The diary entry records: Done clearing patrol in grass six foot got lost. Following that entry is a sketch of a rifle with a hat sitting on top of the barrel and the words Ha Ha. Quite plainly, there seems to be, at least on the face of it, a very big difference between what Dr Velakoulis recorded and Mr Bowd's diary entry.
69. The words Ha Ha seem to indicate that he found the episode somewhat amusing. However, in his evidence-in-chief, Mr Bowd said when he lost visual contact with other members of the patrol, he stayed put. He then put his hat on the end of his rifle barrel and lifted it above the level of grass because he thought it was best not to call out. When asked how he felt about that incident, he said he felt useless and under strain because I was absolutely lost. As to the use of the expression Ha Ha in the diary entry, Mr Bowd said that it was simply an expression he used. He said it was his way of expressing the fact that he was under duress or pressure. He denied he considered the episode to be a joke. In his written statement, Mr Bowd said that during the period he was lost, he was terrified to be on his own. He said he feared he would have to continue the patrol on his own and that he might detonate a mine or come across enemy forces. Dr Strauss recorded that Mr Bowd told him he became anxious and upset at being lost.
70. As we have already mentioned above, Mr Bowd also described to Dr Velakoulis seeing the dog tag of Lieutenant Wheeler and seeing the deformed Vietnamese girl. According to Dr Velakoulis, Mr Bowd described intermittent day recollections of these incidents occurring periodically. Apparently Mr Bowd said there was mild associated distress but he denied it was excessive. Dr Velakoulis said there was no evidence to suggest dissociative episodes or flashbacks. He nevertheless indicated that Mr Bowd experienced a degree of psychological and physical reactivity when exposed to reminders of his Vietnam service. Apparently he described reasonable levels of distress when serving Vietnam Veteran customers in his store, ANZAC day ceremonies and Long Tan day ceremonies as well as helicopters. He also described symptoms of avoidance. He said Mr Bowd avoided socialising with Vietnam Veterans even though in other evidence he indicated that he occasionally had a drink with them. He also stated that he avoided television and films related to war and disliked violent shows despite the fact that he quite enjoyed the film Pearl Harbour. Dr Velakoulis said there was no evidence of emotional numbing. He did however believe there were hyper-arousal symptoms and that Mr Bowd suffered an exaggerated startle response and at times was hyper-alert.
71. Mr Bowd also described to Dr Velakoulis an intense escalation in his anxiety associated with his chronic urinary tract symptoms. This is the first occasion on which he appears to have mentioned this problem to any psychiatrist. He said that he had recurrent concerns about urinary incontinence and the need for ongoing surgical intervention. Dr Velakoulis also referred to Mr Bowd suffering from mild depressive symptoms over the years but those have not been severe.
72. On his return from Vietnam, Mr Bowd apparently told Dr Velakoulis that his alcohol intake escalated further and remained high from 1972 until approximately 2001. This is a vastly different statement to those Mr Bowd has previously made about his drinking. Dr Velakoulis's clinical notes for 4 August 2008 indicate Mr Bowd telling him that on return from Vietnam, for about 12 months, he was drinking 10 to 12 standard drinks per day as well as binge drinking on weekends. He apparently told Dr Velakoulis that his intake decreased over the past 7 to 8 years primarily because of his escalating urinary symptoms. He currently drinks 6 to 8 standard drinks on weekend days only. Mr Bowd denied any physical forensic sequelae associated with his high level of alcohol usage. Dr Velakoulis also recorded that Mr Bowd takes no regular medication despite the fact that the clinical notes from the Geelong City Medical Clinic record at least two prescribed medications.
73. Dr Velakoulis noted that Mr Bowd told him that following his discharge from the Army, he partied for three months with alcohol excess. After that, he went on to work as a painter and decorator in a retail outlet with Dulux. In 1978 he became self employed as a paint retailer which was continuing at the time of Dr Velakoulis's report. He described the job as enjoyable without excess difficulties and he was currently coping relatively well with it. He suffered from periods of fatigue and occasional irritability with customers, but he continued to work successfully for at least 50 hours per week. He was hoping to retire in the next 4 or 5 years. He described his marriage as pretty good. He described a reasonable relationship with his children but at times said there were tensions between him and his wife. He had a small social network of 2 to 3 very good friends but was not particularly a social fellow and did not mix well. He described becoming anxious in crowded situations. Dr Velakoulis also recorded that his recreational life was somewhat limited but in addition to his anxiety, which he said related to his PTSD symptoms, he suffered from high anxiety related to his urinary symptoms. Dr Velakoulis did not explain how these two sources of anxiety could be distinguished.
74. Dr Velakoulis was of the opinion that Mr Bowd met the diagnostic criteria in DSM–IV for PTSD. He described it as being of a mild severity. He put that down to an overwhelming sense of threat throughout Mr Bowd's deployment in Vietnam with periodic incidents which could be perceived as life threatening. He described Mr Bowd's receiving the news of injury and death of his comrades as resulting in him being quite distressed. He described his PTSD symptoms as having been evident since the early 1970s and that they fluctuated in severity over the years, possibly increasing mildly with age.
75. Dr Velakoulis was also of the view that Mr Bowd met the criteria for alcohol dependence in full remission.
76. As far as Mr Bowd's chronic urinary tract symptoms and anxiety and PTSD are concerned, he said the relationship between those was complex and probably circular. Despite any problems Mr Bowd experienced, Dr Velakoulis was of the opinion that he was nevertheless capable of performing his regular work duties as a self employed paint retailer for more than 38 hours per week. In fact, he described Mr Bowd as coping relatively well with 50 hours per week of work at that time. There was no evidence that his work capacity was deteriorating in the acute or long term. He was of the view that mild impact on Mr Bowd's current work capacity was related 50% to his PTSD and 50% to the sequelae of his urethral stricture. He was of the view that successful urological surgery was likely to result in moderate clinical gains regarding his psychological condition.
77. Dr Strauss provided a written report dated 25 May 2010. He interviewed Mr Bowd on that day.
78. According to Dr Strauss, Mr Bowd told him that after leaving the Army, he did not work for 6 months. He said that with a group of 3 or 4 Veterans, he drank heavily for 6 months and they enjoyed themselves. He then worked with his veteran friends for 4 to 6 months. After a period of working with International Harvester, he went back to interior decorating where he ran his own business until late 2008, for some 29 years. When he was asked why he stopped working he said he had a few medical problems, particularly relating to his urinary functioning. He said this problem worsened in the 4 years before he stopped work. He had a major operation on his urinary tract in May 2009. Prior to that, he had severe frequency which restricted his level of activity and independence. He said that was a major reason why he stopped working. In fact he had 4 operations before the major operation. Mr Bowd apparently told Dr Strauss that another reason why he sold his business was that he was approaching the age of 60 years.
79. Dr Strauss recorded that following the major operation on his urinary tract, Mr Bowd could not lift any heavy objects for months but could now do housework slowly. He did not do the gardening. His wife worked full time in Melbourne. He did not see many friends and he lived a circumscribed life because he did not like going out much because of his urinary problems. He explained he did not mix well with friends.
80. Mr Bowd apparently told Dr Strauss that his alcohol consumption increased several months after he got to Vietnam, largely because of peer pressure. He now considered himself to be a social drinker. He said that for a number of years he drank quite heavily but in recent years, his consumption has reduced. Dr Strauss said that Mr Bowd gave a rather vague and confusing account of how much alcohol he drinks. Dr Strauss formed the impression that he did not drink excessive amounts of alcohol.
81. Mr Bowd told Dr Strauss that he had been married for 32 years and had a good relationship with his wife. He had three adult children. He apparently has had problems with his driver's licence and at the time of seeing Dr Strauss, he did not have a licence. No reasons were offered why that was the case.
82. Of some interest is the fact that Mr Bowd told Dr Strauss that before he came back from Vietnam, he signed on for an extended 3 month period because he said he was on a good wicket. In cross-examination Mr Bowd said that he was conscripted and that he had no choice as to whether he was sent to Vietnam. While of course this was not the case (see Vietnam: The Australian War by Paul Ham Harper Collins, 2004 at 170-171) that does not matter for these purposes. Mr Bowd agreed it did not worry him to go to Vietnam and he was attracted by the pay offered for service in the Army. He had friends who were also conscripted and they went to Vietnam. Mr Bowd also said that in addition to there being no choice, more people were killed on the roads in Victoria than were killed in Vietnam. He was not particularly concerned. He also said that the inducement to sign on for a further 3 months was the possibility of promotion and more money. He also said he might have stayed longer in Vietnam but the war ended and all troops were sent home.
83. Mr Bowd told Dr Strauss that within a few days of his arrival at Nui Dat, soldiers (presumably from 3 RAR) had contact with the enemy and that he was sent out to the helipad with 8 or so others to assist in loading helicopters with ammunition. He described that as being a busy frightening time and there was a good deal of activity. He said that he and others had to stay at the helipad all night in case further assistance was required. There was no mention of guarding the helipad as described to others. Mr Bowd told Dr Strauss that on the following day, he found out that 3 of his colleagues were dead and 1 of them he knew quite well. He did not see any of the wounded or the dead. He said that a few days later he saw some possessions from the dead men and this upset him. He said it made him very aware that he was in a war zone and he knew what the risks were.
84. Dr Strauss recorded Mr Bowd as telling him he did not drink excessive amounts of alcohol for some months while in Vietnam but eventually he did start to drink more, largely because of peer pressure. He said that while in Vietnam, his girlfriend in Australia left him for someone else and this upset him.
85. Mr Bowd told Dr Strauss that on one occasion he went to a fire support base and he was with a group of others, presumably on patrol, and for about 5 or 10 minutes he was lost in long grass and had to put his gun up above his head with his helmet on it. He said he became anxious and upset although he was near the base.
86. Mr Bowd also described seeing the young girl who was badly deformed. He said he had never forgotten that and it was upsetting. He said the major effect of that event was sadness.
87. Mr Bowd also described an occasion at night when he was in the hut and there were some interpreters in the next hut (also described as a tent). He described a round going off in the next hut and everyone in Mr Bowd's hut ducking. He said that when he was cleaning up on the following day, he found a bullet. He still has the bullet. This incident is not mentioned at all in Mr Bowd's written statement of evidence although he referred to it in his oral evidence. In cross-examination he said he heard a gun discharge and later found the round in his tent the following day. He agreed that the weapon was not discharged inside the tent. In a diary note dated 17 June 1971, Mr Bowd recorded: Having coffee a round came through the hut. Big panic but we were all cleared’. There is also another diary entry which refers to a round going off. On 2 March 1971 Mr Bowd recorded: Whilst cleaning some leaves up a live round got mixed with it & went up. ...Hell ducked & got out of the way. It is unclear which event Mr Bowd was referring to. His only response to finding the bullet was that recorded by Dr Velakoulis. He said: You panic.
88. As to his return to Australia, Mr Bowd apparently told Dr Strauss that he did not like going on marches and he thought that Australian Troops should not have been in Vietnam. He does go to the dawn service to see friends but he does not march. He does not like war movies and he then explained to Dr Strauss that he saw the movie Apocalypse Now and that it was full of crap and not real. Again this is contrary to what he has said about war movies and violence in films to others.
89. He told Dr Strauss he did not mix well and he was less confident particularly because of his urinary problems. He explained that his urinary problems greatly affected his sleep but that is now better because his urinary problems are under some control. He described becoming anxious at times but said his dreams were non specific. He said if he had contact with his old Vietnam Veteran colleagues, he might dream about Vietnam. Nevertheless, he said his dreams were non specific. He denied having flashbacks. He described being occasionally irritable but that he got on well with his wife. He said he did not startle easily and that only occasionally did he become depressed. He said he was not tearful or suicidal. He described being sent to see Dr Velakoulis by the Veterans' Advocate. He also described not taking medication.
90. Dr Strauss said he was not convinced Mr Bowd had developed PTSD. He said that although Mr Bowd had some upsetting experiences in Vietnam, they did not constitute experiences which would satisfy the criteria for a diagnosis of PTSD. Despite those experiences, he seemed to have coped with his work in Vietnam and was never exposed to any direct combat himself. Although Mr Bowd may have been frightened at times, Dr Strauss said he could not reach the conclusion that this left him with a life long psychiatric illness. He said this was confirmed by the fact that he had only seen a psychiatrist for treatment in recent years. Dr Strauss also said that because Mr Bowd volunteered to sign on for extended service as a Batman, that indicated he was not overwhelmed or particularly frightened in the latter period of his time in Vietnam. He was content to stay there for a longer period of time.
91. Dr Strauss noted that in more recent years, as observed by Dr Velakoulis, Mr Bowd had not been left with a significant alcohol problem. Dr Strauss also commented about the fact that Mr Bowd was sent to Dr Velakoulis by his advocate and not by a treating doctor. It also appeared to Dr Strauss that Mr Bowd had not received active treatment from Dr Velakoulis apart from psychotherapy. Dr Velakoulis had shown Mr Bowd how to relax and Dr Strauss accepted that he probably needed this assistance.
92. Dr Strauss was of the opinion that Mr Bowd's personal life experiences were more significant in relation to his anxiety symptoms rather than his service experience. In particular, Dr Strauss referred to Mr Bowd's severe urinary problems for a number of years which, in his opinion, stopped him from working. That affected his confidence and also his desire to socialise.
93. In his opinion, Mr Bowd did not have significant dreams or flashbacks. He was not convinced that Mr Bowd had a fear of war movies as he admitted to seeing Apocalypse Now. He told Dr Strauss he was not particularly jumpy. Dr Strauss also explained that Mr Bowd had worked effectively and satisfactorily for many years, raised a family without any need for psychiatric treatment and the only reason he stopped working was that he was approaching the age of 60 and had severe urinary problems. In conclusion, Dr Strauss was of the opinion that Mr Bowd was not suffering from a diagnosable psychiatric illness although he was prone to anxiety and that did affect his confidence. Dr Strauss was of the opinion that Mr Bowd did not meet the criteria in the SoPs for a PTSD. It is unclear what Dr Strauss meant by that. Nevertheless, he was of the opinion that Mr Bowd had no incapacity for employment on psychiatric grounds. He was not suffering from a service related psychiatric condition. He did not require any psychotropic medication and he did not require long term psychiatric or psychological treatment.
94. While something needs to be said about whether Mr Bowd was exposed to a traumatic event of the kind which would satisfy Criterion A of DSM-IV-TR, there is one aspect of this case where all of the psychiatrists who have examined Mr Bowd are not in serious disagreement. This is in relation to Criterion F of DSM-IV-TR which provides:

F. The disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.

95. As the introduction to DSM-IV-TR states, the manual deals with mental disorders. However, the authors of the manual accept that the concept of mental disorder, like any other concepts in medicine and science, lacks a consistent operational definition that covers all situations. Nevertheless, the introduction to the manual adopts the definition of mental disorder that was included in prior editions of the manual. The manual refers to the fact that each of the mental disorders is conceptualised as a clinically significant behavioural or psychological syndrome and that it is associated with present distress, disability or a significantly increased risk of suffering death, pain, disability or an important loss of freedom. It must be a manifestation of a behavioural, psychological, or biological dysfunction in the individual.
96. Leaving aside for the moment any associated present distress, which has been described by all psychiatrists as mild, it is difficult to find disagreement about the level of Mr Bowd's dysfunction or distress in his social, occupational or other important areas of functioning. Dr Kenny described Mr Bowd as having a good work record, a good relationship with his wife and children and a good range of interest and activities. Of course, this was in 1999. Therefore, it is reasonable to say that if there was any deterioration in any of those areas of functioning, it occurred after 1999 and therefore is highly unlikely to be associated with events which took place in 1971.
97. In 2000, Dr Newlands recorded nothing which might be described as clinically significant in important areas of functioning. She recorded some break in his sleep patterns due to prostate problems but nevertheless following sleep he would feel refreshed and able to go on. He had normal appetite and he described his mood as pretty average. He described being able to concentrate well during working hours and able to maintain his business. Although he described some flashbacks, he said they were fairly mild and did not tend to bother him much. Although he described nightmares, and at times he described seeing scenes of Vietnam, they were not about anything specific that happened in Vietnam. Although he described feeling somewhat sick when being reminded of his time in Vietnam, he said this was a fairly mild response, and not terribly frequent.
98. Dr Newlands described Mr Bowd's hobbies and interests to include classical cars and sports. When Dr Newlands described his family situation, she made no comment about any adverse interaction with his wife and children. She did note he told her that he was short tempered and that put some strain on his family. Nevertheless, he indicated he tended to avoid confrontation. In our opinion, this could not be described as a clinically significant behavioural or psychological syndrome or pattern. Mr Bowd also told Dr Newlands that he only tended to drink when he met together with his group of veterans which would be a couple of times per year. He described them having a chat, a laugh and a talk over the past. At other times, he described himself as not being a drinker. Again, this is not the description one would attach to a person who displays impairment in the social area of functioning.
99. Dr Kenny, in his 2001 report, again repeated the fact that up until that time, Mr Bowd had not required any treatment for psychiatric or emotional problems. Dr Kenny described Mr Bowd’s functioning in important areas as normal. He did mention the fact that Mr Bowd was now thinking more about his Vietnam experiences, wondering whether it was worthwhile and that this had become worse over the past couple of years. He described this as being consistent with the fact that Mr Bowd was now enmeshed in the veterans' claim process. In our opinion, that is a logical conclusion to draw. In fact, as the evidence discloses, as Mr Bowd has become further enmeshed in this process, his descriptions of events in Vietnam have become significantly more florid; and events which were not mentioned at all in his early consultations with psychiatrists, were now being described. Although Dr Kenny described Mr Bowd on the second occasion as expressing more dissatisfaction than on his first consultation some two years previously, he nevertheless concluded that Mr Bowd functioned well in life, and generally sees himself as getting on well with his family although admitting to some difficulties. He did not see himself as unhappy although he was probably less sociable than he used to be in years past. Dr Kenny concluded that Mr Bowd's symptoms were not significantly severe, numerous or pervasive to warrant a psychiatric diagnosis.
100. Dr Velakoulis's report of 2008 causes us some difficulty. In his oral evidence, he described having provided that report as an independent specialist. However, as Dr Velakoulis stated in his report, he was also Mr Bowd's treating psychiatrist since June 2008.
101. At the outset we should make it clear that we accept that Dr Velakoulis can properly give evidence as an independent expert despite the fact that he is also the treating medical practitioner. This is despite the common law principles dealing with expert witnesses, which are generally said to have their foundation in what was set by Creswell J in National Justice Compani Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, at 81. Those principles have frequently been adopted by various courts as rules of conduct and they include:
     • (a) Expert evidence presented to the court should be, and should be seen to be, independent product of the expert uninfluenced as to form or content by the exigencies of litigation;
     • (b) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise; and
     • (c) An expert witness should never assume the role of an advocate.
102. The difficulty which may arise with the treating practitioner also providing an independent expert report is the fact that the medical practitioner will, at the same time, have a primary ethical duty to his or her patient and also a duty to assist the court impartially. There is a risk, even if the treating doctor is aware of his or her duty to a Court or Tribunal, that any evidence which strays into the expert field, rather than being a factual account of how a diagnosis was arrived at and how the patient has been treated, will be biased (subconsciously or otherwise) in favour of the patient. This risk will be compounded particularly in psychiatric care because of the intense need not to give evidence in front of the patient that could undermine the confidence the patient has in their treating psychiatrist.
103. The difficulties inherent with being a treating specialist doctor witness are heightened in instances where the diagnosis of PTSD is in question, because the treating doctor is obliged, in the application of the criteria set out in DSM-IV-TR, to provide a report which canvasses issues which are, in many respects, in the domain of the decision maker. In this case, Dr Velakoulis' involvement in the care of Mr Bowd is further compounded by his declared major clinical interest and clinical workload being in PTSD sufferers and his concession that funding for the care of Mr Bowd is dependent upon him making a diagnosis such that the treatment costs of it will be met by the Department of Veterans' Affairs. In fact, in the course of questioning by the Tribunal, it was clear that Dr Velakoulis was experiencing considerable difficulty in separating his role as a treating doctor witness from the approach he might take if he was to be asked questions as an independent expert witness. To further compound matters, Dr Velakoulis was asked to provide a written report at the request of Mr Richard J Embleton, a voluntary advocate at Geelong Veterans' Welfare Centre. Although not particularly significant, it does undermine the sense of independence Dr Velakoulis brought to bear when he prepared his report. We were not provided with the usual letter of instruction given to an expert upon a request being made for a report.
104. Our concerns about the usefulness of Dr Velakoulis's report were raised by the matters we refer to below.
105. In his written report, Dr Velakoulis used bolded italics with quotation marks to highlight statements purportedly made by Mr Bowd in regard to the events he experienced in Vietnam. In his oral evidence, Dr Velakoulis said that those words came verbatim from his handwritten notes taken at interview. Having subsequently been provided with a copy of Dr Velakoulis' handwritten notes, and comparing what he wrote in his report with those notes, we have found that the passages in his report are not verbatim. For example, where he quotes: They were almost at Nui Dat, the gunfire and mortar fire, his notes read It was a click out of Nui Dat, the gunfire + mortar fire. There are also some other small examples and while they might not seem significant, they do suggest, for example, that the Nui Dat base was being attacked, when it was not. In our opinion, it is potentially misleading to record what Dr Velakoulis did as direct quotes without any further explanation.
106. We are also concerned by the way in which the purported statements of Mr Bowd were expressed. For example, regarding the incident which he said occurred at the helipad, Dr Velakoulis recorded Mr Bowd describing himself as being extremely fearful. To that, Dr Velakoulis added his own commentary stating that: The veteran describes an intense sense of fear and life threat during this episode . . . As to the incident referred to by Mr Bowd when on a clearing patrol and becoming lost, Dr Velakoulis recorded: I must have panicked. There was some fear. Regarding the finding of the bullet in the tent incident, Dr Velakoulis recorded: One night a round went off and fired into my hut. I found the bullet in my tent. You panic.
107. Without reading the reports of interviews by Dr Kenny and Dr Newlands, and without having heard the oral testimony of Mr Bowd, the responses recorded by Dr Velakoulis could indeed be taken as evidence that Mr Bowd had experienced three very frightening and life threatening events when in Vietnam. However, other evidence and his oral evidence before the Tribunal does not support that interpretation. In his words to the Tribunal and in his diary record of the helipad event, we could discern no evidence of a sense of intense fear. Similarly, he was unable to verbalise any real sense of intense danger over the lost on patrol in long grass incident, and his explanation for the diary entry about this event, which concludes with the words Ha Ha, was not convincing. Regarding the bullet which he found in his tent, in oral evidence it was clear that the bullet was found on the following day and we could not discern an account of his reactions that suggested intense fear or other emotions.
108. Dr Velakoulis also recorded another incident which was not recounted to any of the other psychiatrists who examined him where he said a colleague picked up a mortar grenade and shook it. Any person with basic knowledge of military equipment (such as Mr Bowd) would understand that a mortar and a grenade are two different kinds of explosive devices. Nevertheless, Dr Velakoulis then recorded that whatever it was, detonated and blew off his colleague's hand. With great respect, anyone who understands the power of either of those explosive devices would have difficulty with that statement.
109. It is also significant that Dr Velakoulis' report has nothing to say about Mr Bowd's evidence of a generally good level of social and employment functioning for many years following his service in the Army. This is despite the fact that he recorded Mr Bowd describing his job as enjoyable without excess difficulties and he was currently coping relatively well. He also recorded that Mr Bowd continued to work successfully for at least 50 hours per week. Despite that, by means which are not at all clear from his report, Dr Velakoulis arrived at the conclusion that Mr Bowd had impairment in one or more important areas of functioning. In fact, under the heading Final Diagnostic Assessment and Summary, Dr Velakoulis makes no reference at all to Mr Bowd's good marriage and relationship with his children. Furthermore, Dr Velakoulis' history of and conclusion about Mr Bowd's use of alcohol was inconsistent with Mr Bowd's oral evidence.
110. In summary, while Dr Velakoulis can provide independent expert evidence while at the same time being the treating practitioner of Mr Bowd, the problems associated with successfully adopting both roles are readily apparent in his report. We attach very little weight to it.
111. Dr Strauss' report does take into account any impairment suffered by Mr Bowd in important areas of functioning. Dr Strauss reported that Mr Bowd worked effectively and satisfactorily for many years and he raised a family without any need for psychiatric treatment. He described Mr Bowd as stating he was irritable but not often, and that he got on well with his wife. Mr Bowd did report reduced social functioning but that was in more recent years since his urinary symptoms became significant. He became increasingly embarrassed and concerned about those problems and that affected his confidence. That is a reasonable explanation for Mr Bowd preferring not to go out and socialise but rather to stay at home. Despite that, Dr Strauss described Mr Bowd as remaining reasonably active on a daily basis despite his urinary problems. Dr Strauss concluded that Mr Bowd did not meet the diagnostic criteria for a diagnosis of PTSD. In fact, he was of the view that Mr Bowd did not require any long term psychiatric or psychosocial treatment.
112. The evidence, in our opinion, overwhelmingly points to the fact that Mr Bowd does not have a mental disorder which is clinically significant. There was no evidence that his mental condition causes clinically significant distress or impairment in social, occupational or other important areas of functioning. In fact the opposite is apparent from the evidence. He has coped very well following his return from Vietnam in social, occupational and other areas of functioning. He cannot therefore meet the diagnostic criteria in Criterion F of DSM-IV-TR.
113. While our findings regarding Criterion F are sufficient to dispose of Mr Bowd’s claim, a brief examination of the elements of Criterion A also results in the same conclusion. The elements required to satisfy Criterion A are twofold: The first is to have experienced, witnessed or having been confronted with a particular level of serious event involving death, serious injury or a threat to the physical integrity of self or others. The second element requires a particular form of response to that event involving intense fear, helplessness or horror. This analysis poses some difficulties because of Mr Bowd’s differing accounts of the events relied on. In Mr Bowd’s statement of facts and contentions, he has relied on four events which were described as discrete stressors he experienced while in Vietnam. They were:
     • (a) the helipad incident;
     • (b) the death of Lieutenant Wheeler;
     • (c) becoming lost while conducting a clearing patrol; and
     • (d) the observation of a Vietnamese girl with serious facial deformities.
114. However, at the hearing of this matter, Mr Bowd made reference to hearing radio transmissions from Hanoi Rose about the fact that 3 RAR, which had just arrived in Vietnam, was to be hit hard. We did not understand that to be an event relied on as a stressor. Mr Bowd also described the event where he found a bullet in his tent. This incident is referred to by Dr Velakoulis but not by any other psychiatrist. He described the event as a round going off and fired into the tent in which he occupied. He said he found the bullet in his tent although, in cross-examination, he said he found the bullet on the following day. Although Dr Velakoulis described Mr Bowd’s reaction to that as you panic, in his oral evidence he did not describe his reaction to that event at all. While Dr Velakoulis referred to Mr Bowd describing the potential for life threat, there is no evidence at all that Mr Bowd was in the tent at the time of the discharge. In fact, if one were to accept what he wrote in his diary on 2 March 1971, then he was not. If Mr Bowd was referring to his diary entry on 17 June 1971, he may have been.
115. Although Mr Bowd in his written statement and in the statement of facts and contentions filed on his behalf mentioned seeing a Vietnamese girl with facial deformities, that did not seem to be part of the submissions made by Ms McMahon on his behalf at the conclusion of the hearing. That may be because he described the sight of her as deeply upsetting. That response does not appear to satisfy the requirement of Criterion A of DSM-IV-TR. He also described that incident to Dr Kenny and said that its effect was that it choked me up. That also does not seem to satisfy Criterion A.
116. As for the loading of ammunition into magazines for loading onto helicopters, that event was not mentioned when Mr Bowd was first examined by Dr Kenny in 1999. He did mention the fact that helicopters were flying in and out taking ammunition to the battle area on the night that D Company of 3 RAR lost two men (which he described as three men). He said everyone felt that we going to be overrun and everyone felt themselves to be on guard that night and for a few days later. Again, we note the difference between what Mr Bowd now says was his duty at the helipad and what he said to Dr Newlands. The fact that they felt themselves to be on guard that night is quite different to the fact that they were ordered to the helipad to stand guard in the event that there was an attack on the base. There may well have been an anxious moment during that night when he described the soldiers there thinking they saw movement on the Kapyong pad, but it was someone who was lost. He described those present as grabbing grenades and bullets; presumably to defend themselves if that became necessary. However, there is no description in Mr Bowd’s diary note as to his reaction to that event. He told Dr Newlands he felt anxiety and panic which was evident at the base because of the activity of helicopters flying in and out. He then described his feelings as the message hit home I think. Dr Newlands described this event as bringing home to each of the soldiers that the war was a reality.
117. While Dr Velakoulis described Mr Bowd’s reaction to the helipad event as an intense sense of fear and life threat, in his oral evidence, Mr Bowd was not so forthcoming. In fact, despite the best efforts of Ms McMahon to elicit a stronger response from him in the course of his examination-in-chief, she finally had to suggest to him that he felt threatened and he simply agreed. A stronger statement made by Mr Bowd was that he didn’t know how explain it and he simply mentioned there was stress because the soldiers were not told what was happening. Curiously, when Ms McMahon asked him if it was noisy, Mr Bowd said there were choppers coming in, he could hear gun shots and the mortar thump going on. This is of course completely contradictory to what he said in his written statement. There he said: the noise from the helicopters meant that I was unable to hear whether there was any noise from the discharge of weapons. In his written statement, he said he was terrified that his position was vulnerable and that his life was at risk. However, we did not get any such response from Mr Bowd in the course of oral examination.
118. While we can readily accept that this incident, whichever version might be correct, was certainly stressful and quite likely frightening at the time, we cannot accept that Mr Bowd’s response involved intense fear, helplessness or horror, or anything approaching that level of emotional disturbance. Furthermore, we are not satisfied that the event was one which involved the threat of death or serious injury or a threat to the physical integrity of himself or others. While certainly Mr Bowd may have perceived the level of risk of harm to have risen markedly, particularly as there may have been rumours about whether the base was to be attacked or overrun, that does not, in our opinion, satisfy the meaning of the word threat. According to Chambers 21st Century Dictionary, threat means:
     1. a warning that one is going to or might hurt or punish someone. 2. the sign that something dangerous or unpleasant is or maybe about to happen. 3. a source of danger.

The word is usually used to describe a warning that something unpleasant or dangerous is likely to happen. That, in our opinion, is different to an increase in the risk that something unpleasant or dangerous might occur.

119. Furthermore, Dr Strauss described Mr Bowd as telling him that it was a busy frightening time and there was a good deal of activity. According to Dr Strauss. Mr Bowd said he was made blatantly aware that he was in a war zone and what the risks were. Dr Strauss accepted that Mr Bowd felt on edge in Vietnam and frightened occasionally but he did not tell Dr Strauss that he saw anything that really horrified him. Dr Strauss was of the view that Mr Bowd did not meet the criteria in the SoP for PTSD.
120. In our opinion, the evidence does not disclose that this event involved threatened death or serious injury or a threat to the physical integrity of self or others and Mr Bowd’s response to this incident did not involve intense fear, helplessness or horror. Accordingly, we find that the helipad incident does not satisfy Criterion A of DSM-IV-TR.
121. The second event which we understood was relied on by Mr Bowd was the death of Lieutenant Wheeler. In his diary on 3 March 1971 Mr Bowd referred to the death of Lieutenant Wheeler and Mr Paul Manning. He also recorded the wounding of a Mr Strickland. He did not recall his response to the news that Lieutenant Wheeler had been killed.
122. In his written statement Mr Bowd said that he knew Lieutenant Wheeler very well and that he had a close personal relationship and regarded him as influential in his life. He made no mention at all of his reaction to hearing the news of his death on 3 March 1971. However, he said that after he was shown the damaged dog tag worn by Lieutenant Wheeler, the sight of it was devastating and brought home Lieutenant Wheeler’s death in concrete terms. Again, we find that description does not satisfy the second element in Criterion A of DSM-IV-TR.
123. Mr Bowd recounted Lieutenant Wheeler’s death to Dr Kenny when he was examined in 1999. He did not make any statement about his relationship with Lieutenant Wheeler or his reaction to hearing of his death. This is in contrast to Mr Bowd describing his emotional reaction to seeing the deformed Vietnamese girl. Dr Kenny also described Mr Bowd as matter-of-fact and not overtly distressed, depressed or anxious. He also said there was not the slightest evidence at interview of any psychiatric or emotional or psychological disturbance.
124. Dr Newlands recorded that Mr Bowd described the event as a soldier, who he knew well, being killed. She described him as stating being somewhat shaken at how little was left of Lieutenant Wheeler, having explained to Dr Newlands that he was blown to smithereens. Of course, Mr Bowd did not see Lieutenant Wheeler’s body and therefore did not know its condition. Again, being somewhat shaken does not satisfy the second limb of Criterion A. He did not experience flashbacks or nightmares about this particular incident.
125. On the second occasion Dr Kenny interviewed Mr Bowd, he apparently told Dr Kenny that the death of two members of 3 RAR drove home to him that it was a dangerous place. Dr Kenny also described Mr Bowd as being fairly calm and relaxed in a matter-of-fact way. He also described him as being emotionally responsive. The descriptions given to Dr Kenny on this occasion do not satisfy the second limb of Criterion A of DSM-IV-TR.
126. According to Dr Velakoulis, Mr Bowd described intense distress in seeing Lieutenant Wheeler’s dog tag. He then provided this apparent quotation:

I was in Battalion Headquarters and I saw Wheeler’s dog tag. It hit home. He was a good acquaintance. He lost his life within a few days of getting to Vietnam.

According to Dr Velakoulis, Mr Bowd described a sense of distress regarding the loss and also a sense of threat to his own safety.

127. According to Dr Strauss, after finding out that three of his colleagues were dead, one of whom he knew quite well, he said that this upset him. He also apparently said he was blatantly aware that he was in a war zone and he knew what the risks were.
128. In his evidence-in-chief Mr Bowd described that he had a close relationship with Lieutenant Wheeler despite the fact that in his evidence before the VRB in August 2000 he agreed that Lieutenant Wheeler was more of an acquaintance rather than a friend. Also, at that time, when asked about his reaction to the death of Lieutenant Wheeler, he said it was a shock and just unbelievable. He described this as occurring when he was first told of Lieutenant Wheeler’s death before he saw the dog tags. In his evidence-in-chief, when asked about his reaction to seeing the dog tags, he said: dumbfounded – taken aback – shell shocked. He was then asked what his emotional response was, and Mr Bowd said: shows how vulnerable you are – devastating effect – lost, can’t do anything about it – not experienced anything like it – shattering experience.
129. In our opinion, this incident regarding the death of Lieutenant Wheeler does not satisfy the second limb of Criterion A of DSM-IV-TR. That is whether we accept that he had a personal relationship with Lieutenant Wheeler or whether he was an acquaintance.
130. The third incident which Mr Bowd described as a traumatic event was him being lost while on clearing patrol. In his written statement, he described his reaction as being terrified at being on his own. He said he feared he would have to continue on his own and that he might detonate a mine or come across enemy forces.
131. In his evidence-in-chief, when he described putting his hat on his rifle so that others could locate him, he was asked how he felt. His response was: useless – under strain – I guess I was absolutely lost. When asked why he wrote the words Ha Ha in his diary, he explained that this was an expression which he used or his way of expressing his feelings when he was under duress or pressure. He denied it was a joke. In cross-examination, Mr Bowd agreed that the patrol walked in line abreast around the perimeter. The soldiers were about 20 feet or more apart. When it was put to Mr Bowd that he was at all times aware of the direction of the base, and that he could have turned and walked towards the perimeter, he said: I didn’t think of that. He agreed he was not criticised for his actions in putting his hat onto his rifle barrel holding it in the air.
132. Mr Bowd did not mention this incident to Dr Kenny in 1999. He did not mention this incident to Dr Newlands in April 2000 or to Dr Kenny on his second consultation in June 2001. He did describe the incident to Dr Velakoulis where he said he got lost, put his hat on his gun and that he must have panicked. Dr Velakoulis recorded him as saying: there was some fear. Dr Velakoulis also recorded that there was a degree of anger within his unit as a result of his actions of placing his hat on top of his gun, as it put them all at risk. This of course was contrary to his oral evidence before us. Regardless, we find that Mr Bowd’s response to this event does not satisfy the second limb of Criterion A in DSM-IV-TR.
133. Having carefully considered all of the evidence relating to the events described by Mr Bowd which he regarded as traumatic while on operational service in South Vietnam, and having examined his response to those events, we must agree with the opinions of Dr Kenny and Dr Strauss that Mr Bowd does not suffer from PTSD. We have taken some care to analyse all of the relevant evidence and have been careful to look for evidence of a clinically significant behavioural or psychological syndrome or pattern associated with distress or disability. On all these counts, Mr Bowd cannot satisfy the diagnostic criteria for PTSD set out in DSM-IV-TR. Accordingly, we find that Mr Bowd does not suffer from PTSD.

CONCLUSION

134. In our opinion Mr Bowd does not suffer from PTSD nor does he have any other significant psychiatric conditions. We accept that he may have experienced some anxiety as a consequence of his urinary problems but that since his operations, he has had a degree of relief. Having found that Mr Bowd does not have a clinically significant psychological or psychiatric condition, his application to this Tribunal cannot succeed.
135. The decision made by the VRB on 22 July 2009 rejecting Mr Bowd’s claim for compensation as a result of PTSD was correct. We affirm that decision.
     

I certify that the one hundred and thirty five [135] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Senior Member

Dr Kerry Breen, Member

Signed: .........[sgd] Elise Montalto...................................

Associate

Date/s of Hearing 12 & 13 October 2010

Date of Decision 4 February 2011

Counsel for the Applicant Ms A. McMahon

Solicitor for the Applicant Williams Winter

Counsel for the Respondent Mr G. Purcell

Solicitor for the Respondent Department of Veterans’ Affairs, Advocacy Section