Olsen and Repatriation Commission [2015] AATA 119 (4 March 2015)

Last Updated: 4 March 2015

[2015] AATA 119





Division GENERAL ADMINISTRATIVE DIVISION File Number(s) 2013/4246 Re Norman Olsen



APPLICANT And Repatriation Commission



RESPONDENT

DECISION

Tribunal Dr M Denovan, Member



Date 4 March 2015 Place Brisbane

The Tribunal affirms the decision under review.

...........................[Sgd].............................................



Dr M Denovan, Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligibility for pension – posttraumatic stress disorder – PTSD – major depression – antisocial personality disorder – generalised anxiety disorder – operational service – whether conditions related to service – no reasonable hypothesis connecting conditions with service - decision under review affirmed.





LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 120, 120A, 196B

CASES

Besson v Repatriation Commission [2014] FCA 881

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; (1993) 30 ALD 1

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517

Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Ford v Repatriation Commission [2001] AATA 602

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1

Johnston v Commonwealth [1982] HCA 54; (1982) 150 CLR 331

Lees v Repatriation Commission [2002] FCAFC 398

Martin and Repatriation Commission [2014] AATA 600

Re Charles Ernest Gilbert v Repatriation Commission [1989] FCA 31

Repatriation Commission v Bawden [2012] FCAFC 176; (2012) 206 FCR 296

Repatriation Commission v Bendy [1989] FCA 170; (1989) 18 ALD 144

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



Repatriation Commission v Law [1980] FCA 92; (1980) 31 ALR 140



Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107



Trigg and Repatriation Commission (1990) 20 ALD 194

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders



(4th ed., Washington, DC, 1994).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders



(5th ed, Washington, DC 2013)

Statement of Principles concerning Post Traumatic Stress Disorder, Instrument No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked)

Statement of Principles concerning Post Traumatic Stress Disorder, Instrument No. 82 of 2014

Statement of Principles concerning Generalised Anxiety Disorder, Instrument No 5 of 2008, as amended

Statement of Principles concerning Alcohol Use Disorder, Instrument No. 1 of 2009, as amended

Statement of Principles concerning Personality Disorder SOP No. 70 of 2008, as amended by SOPs No. 49 of 2009

REASONS FOR DECISION





Dr M Denovan, Member











4 March 2015





INTRODUCTION

On 12 May 2010 Mr Olsen made a claim for Disability Pension for disabilities that had not yet been accepted as service related, being posttraumatic stress disorder (“PTSD”), alcohol dependence and alcohol abuse. Mr Olsen also made a claim for an increase in Disability Pension for previously accepted injuries. At the time he lodged his claim he was in receipt of 100% of the general rate of pension. On 10 May 2011 the Repatriation Commission decided to refuse Mr Olsen’s claim. The Veterans’ Review Board affirmed that decision on 28 February 2013, and on 19 August 2013 Mr Olsen applied to the Administrative Appeals Tribunal for review. Mr Olsen has been reviewed by a number of psychiatrists and he has received treatment from some of those doctors. The earliest psychiatric report in evidence is dated 2001. He has been variously diagnosed with generalised anxiety disorder (“GAD”), alcohol abuse disorder (“AAD”), antisocial personality disorder, PTSD and major depressive disorder (“MDD”). Mr Olsen disputes the diagnosis of antisocial personality disorder and there is no contention that the condition, should it exist, is related to Mr Olsen’s service. The contention is that Mr Olsen currently suffers from PTSD, AAD and MDD, and that all of these conditions are causally associated with his service in Vietnam. Mr Olsen claims to have experienced a number of stressful events during his service in Vietnam, during which he feared for his life. Mr O’Reilly for the respondent accepts the diagnosis of AAD, however he contends that Mr Olsen does not have PTSD or MDD. The respondent says that Mr Olsen suffers from the additional diagnoses of GAD and antisocial personality disorder and that he did not experience any of the traumatic events he claims to have experienced; rather the respondent contends Mr Olsen’s psychiatric conditions are not related to his military service. The question for me to determine, with reference to the relevant Statement of Principles (“SOPs”), is whether Mr Olsen suffers from any psychiatric illnesses or injuries causally related to his eligible service.

LEGISLATION

Under s 9(1)(b) of the Veterans’ Entitlement Act 1986 (Cth) (“the Act”) an injury or disease is taken to be war-caused if it arose out of, or was attributable to, any eligible war service rendered by the applicant. For issues of causation and operational service, the standard of proof is set out in ss 120(1) and 120(3) of the Act. The Tribunal shall determine that the injury or disease is war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120A of the Act requires that consideration be given to any relevant SOP that has been published by the Repatriation Medical Authority (“RMA”). The relevant SOPs in this case are: Posttraumatic Stress Disorder, SOP No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked); and SOP No. 82 of 2014 (date of effect 22 September 2014).

Posttraumatic Stress Disorder, SOP No. 5 of 2008 (revoked) as amended by No. 19 of 2014 (revoked); and SOP No. 82 of 2014 (date of effect 22 September 2014). Alcohol Use Disorder, SOP No. 1 of 2009 as amended by No. 29 of 2014.

Alcohol Use Disorder, SOP No. 1 of 2009 as amended by No. 29 of 2014. Anxiety Disorder, SOP No. 101 of 2007 as amended by No. 42 of 2010 and No. 15 of 2011.

Anxiety Disorder, SOP No. 101 of 2007 as amended by No. 42 of 2010 and No. 15 of 2011. Personality Disorder, SOP No. 70 of 2008, as amended by SOPs No. 49 of 2009. After Mr Olsen made his claim, the RMA revoked the SOP for Posttraumatic Stress Disorder No. 5 of 2008, and the SOP amendment No. 19 of 2014, and replaced it with SOP No. 82 of 2014, with the date of effect being 22 September 2014. In circumstances such as these, the applicant is to be given the benefit of the most favourable SOP. If the collection of relevant symptoms points to more than one illness, injury or disease, or a condition not raised by the parties, the Tribunal is obliged to consider such issues even in the absence of being requested to do so. As identified in Grant v Repatriation Commission,[1] in the exercise of its inquisitorial responsibilities, the Tribunal is not limited to the case articulated by an applicant.[2]

Mr Olsen’s Evidence

In the claim that initiated this application, Mr Olsen referred to an incident when a serviceman was killed under the wheel of a trailer, and also to the death of a ‘significant other’, a close friend named Jimmy who is said died in Vietnam in 1969. He also stated that he was the personal driver for CO Major Overstead, and was in constant fear that he would drive over a land mine and “die for nothing like my friend Jimmy.”[3] After lodging his claim, Mr Olsen provided a number of written statements in which he gave details of other incidents, which he claims, are causally related to his psychiatric conditions. These can be summarised as follows. On the first day of his tour of Vietnam, he witnessed the death of an Australian soldier. Mr Olsen claims he was waiting outside of an American canteen at an air base. He described witnessing the serviceman falling under the wheel of a trailer, killing him. The second incident occurred in Vietnam when Sergeant McCaughan took him on a familiarisation course. Following Sergeant McCaughan’s directions, they ended up on a hill and came under fire. On his return to the vehicle Mr Olsen engaged in one on one combat with a Vietnamese man who had been hiding behind a rock. The third incident occurred when he went to a bar with his friend, serviceman David Nuttall. Mr Olsen had a dispute with the barman, and ended up locked in the bar with 12 armed Vietnamese nationals who attacked him. The assault continued in a lane outside of the bar and Mr Olsen claims his arm was injured during the altercation. During his service, Mr Olsen was assigned to deliver dispatches by Caribou aircraft. This led to a fourth incident when the pilot was flying so low that their aircraft almost hit the tops of trees. The plane was hit by small arms fire; Mr Olsen thought the plane would crash and he would die. In addition to these incidents, Mr Olsen was involved in a number of violent brawls during his service in Vietnam. On one occasion he was so upset he forcibly damaged his military weapon. Mr Olsen has provided lengthy and very specific details of these events in his written evidence, and also in his oral evidence at hearing. Although Mr Olsen has provided lengthy details of a number of incidents, the events relied upon by psychiatrists that have diagnosed PTSD include firstly the death of the soldier on the first day of Mr Olsen’s service, and secondly the Hong Kong bar attack. Dr Gelb identified that Mr Olsen began abusing alcohol after the incident in which Mr Olsen claimed he and Sgt McCaughan were shot at. I will therefore provide a summary of Mr Olsen’s evidence in relation to these events. Mr Olsen’s evidence in relation to all events is detailed in his written evidence, and can be read in the transcripts of the hearing. I will not repeat here the details of events not identified by psychiatrists as causally related to his psychiatric conditions.

Death of Australian Serviceman

Mr Olsen provided a very lengthy account of how he came to be standing outside the American PX Store on 14 April 1971. That account included details of conversations he had that morning, and his memory of incidentals such as how hungry he felt and the changes he observed in the weather that day. I include in these reasons the verbatim testimony of Mr Olsen, as recorded in the transcript of the hearing. I do this to provide the reader of these reasons with an example of the extensive detail of incidental matters that Mr Olsen provides when he speaks.

When I got there it was probably - you know, it was somewhere around like 3.30. I know this now after a lot of - yes, it was around 3.30 because after reading reports. But straightaway as I got to the PX I heard a bang and I looked up and three soldiers hurried out. The bang was the door knocking up against the wooden wall. And I could see that these three people as they passed me they were - I could smell the liquor on them. They passed right by me. I had to just sort of make sure that they didn't walk right over the top of me because they were sort of - they were highly intoxicated. And I watched them try to get in the back of the vehicle. Two got in easily and - the three then got in easily, sorry. Anyway, and I'm probably going into too much detail, but before these three had reached the Land Rover bang, the door bangs again. Out comes this other fellow and he runs straight into me. Within three seconds he collided heavily into me so that stopped him from running. Then he spoke to me about - I think he said, "Move" but he didn't say "Move" until almost right on me. It's like he didn't see me. And I tried to step back. But anyway I stepped back. I should have stepped forward. I stepped back and he collided into me - because I had my heavy kit bag in my hand, carrying it. Anyway, I watched and within seconds - well, I watched the others, they had just got into the vehicle and then he made his way to the vehicle and they all got in the vehicle. Now this vehicle, this Land Rover that was stationary had a horse float trailer attached. Now the vehicle immediately began to move off when I saw this soldier stand up. This soldier, it was the soldier that had bumped into me. He stood up at the back of the vehicle and the next thing he just fell straight down and went beneath the rear of the Land Rover and the trailer and he was run over by the horse float.

Fight commencing in Hong Kong Bar

Mr Olsen gave the following account in a written statement attached to his 2010 claim. He had been at a bar for approximately one hour when he became involved in a fight with a gang of one dozen Vietnamese armed with weapons. Mr Olsen had to force his way out as he was being hit around the head and body. He stated that he was fearful and thought he would be killed. He was driven back to the guardhouse at West Gate and his arm, which had been hit by a broken brick thrown by the attackers, was later placed in a cast and sling. Mr Olsen provided a somewhat different account of the incident to the Tribunal. He had not been drinking. He left work and accompanied by his friend Dave Nuttall, he got a bus into town and walked into the Hong Kong bar. He ordered one drink, and handed the waitress a large denomination note, a mistake, but it was May 1971, he was new, and did not know better. After drinking the one drink he had ordered, he approached the girl for his change, she referred him to the barman. The bar man yelled out to his (the barman’s) mates, and attempted to strike Mr Olsen. Mr Olsen responded by hitting the barman with an open hand, “it must have been a good shot because he was (knocked) out. His head hit the wall behind the bar because it was only a narrow little space, but he’s already signaled to his mates upstairs, who I didn’t know there was people there.” Mr Olsen turned around and saw 12 Vietnamese coming down the stairs; they were armed with batons that had spiked two-inch balls attached to the ends. Two picked up the unconscious barman and took him upstairs. The others went to the front door and locked it. Mr Olsen sat down next to Mr Nuttall. Two American soldiers were also in the bar, and now locked in with Mr Nuttall and the applicant. The Vietnamese started to warm up, and flex their weapons. Mr Nuttall began to cry. To Mr Olsen’s relief, the Vietnamese let Mr Nuttall and two American soldiers out of the front door, and he was left alone in the bar with the 12 armed Vietnamese. The leader was the only one who was unarmed, he did a full body slam, he pulled his knees up, and all Mr Olsen did was step back, and the Vietnamese’s own force brought him down onto the table. Mr Olsen did not hit the leader, because he was unarmed, and Mr Olsen does not want to hit men who are unarmed. The Vietnamese leader’s fingers became embedded in the table and he crawled away up the stairs. The rest of the Vietnamese came at Mr Olsen “and the noise they were making, like crazed lunatics. Screaming and yelling.” Mr Olsen was getting hit all over his body; he kept his hands over his crotch. Mr Olsen moved as fast as he could, his plan was not to get involved, he was on the move all the time, and made glancing blows at the Vietnamese. Mr Olsen was getting hit in the back. Within ten seconds, three of the Vietnamese were out cold. Mr Olsen only got one full on blow, it landed between his shoulder blades, and the rest of his injuries were superficial. Two of the Vietnamese moved to the door. Mr Olsen kept his composure and tried to move as fast as he could. Two Vietnamese men moved together like Siamese twins, they both lunged at Mr Olsen together. Mr Olsen saw his chance, he just moved back and leaned right into them and they came down really hard. Now there were only two Vietnamese that remained standing. They let Mr Olsen out the front door. They were scared and did not want to



re-engage him. In this particular account of Mr Olsen’s, he said he got out of the bar and met Mr Nuttall, who was out the front. Mr Olsen said that Mr Nuttall then left to catch a bus. Mr Olsen said when the Vietnamese caught up with him he grabbed a chair to put over his head for defence. He did not realise the military police were now present. He charged at one of the military police thinking he was one of the Vietnamese. The Vietnamese assailants dispersed when the military police arrived. Mr Olsen was taken to hospital where he was treated for an injury to his elbow. He was unable to continue in his role as driver for the CO due to that injury.

Shooting at the top of a hill with Sgt McCaughan

Mr Olsen provided the following account of this event at the hearing. It was May 1971; he was driving Sgt McCaughan back to camp one afternoon when Sgt McCaughan directed him to drive up a track towards the top of a hill. About 100 metres up the hill, Mr Olsen and Sgt McCaughan stopped, and walked a further 100 metres. Just before reaching the top of the hill rifle shots rang out and they could hear Vietnamese yelling from not far in front of them. Mr Olsen and Sgt McCaughan hit the deck instantly and retreated to a position where they could return fire. Mr Olsen saw the scrub in front of him cut to pieces by the shooting. Mr Olsen said he was terrified; he lost sight of Sgt McCaughan because the scrub was so dense, and he used his last rifle magazine. Mr Olsen tried to yell but nothing came out of his mouth because of his sheer terror. Mr Olsen ran back in the direction of the vehicle when he came upon a one-meter tall boulder, behind which a Vietnamese was kneeling. The Vietnamese fired towards Mr Olsen with his rifle at his hip. At the same moment Mr Olsen smashed the Vietnamese man’s head with his rifle and bludgeoned him to the ground. He hit the man in the face with his rifle and as soon as he subdued the man, he ran off. He reached the vehicle as Sgt McCaughan was getting into the driver’s side. They drove back down the track and onto the beach road and escaped. Mr Olsen felt nauseated and in shock. Sgt McCaughan wrote his report that night and allowed Mr Olsen to write his report the following morning. Following this incident, Mr Olsen claims he took up drinking and smoking heavily.

Medical Reports

Dr Kenny 2001

Psychiatrist Dr Barrie Kenny reviewed Mr Olsen on 12 September 2001, at the request of the Respondent in relation to an earlier claim made. Dr Kenny did not consider Mr Olsen had PTSD. Dr Kenny said Mr Olsen referred to the incident when the gang of Vietnamese attacked him and Mr Nuttall, and Mr Olsen reported he saw a fellow being run over with a truck. Dr Kenny did not consider Mr Olsen had symptoms of PTSD associated with those events. In that report Dr Kenny records Mr Olsen as saying he smoked and drank and used drugs in Vietnam, because he was tense and anxious all the time he was there. He said much of the time he was there “he was in a haze on dope.” Mr Olsen described his experience in Vietnam to Dr Kenny as “really very general”, he described being very apprehensive and in fear of driving over mines. Mr Olsen described not liking being in Vietnam because life was cheap, and he was on edge all the time. Mr Olsen told Dr Kenny he had dreams about things that did not happen.

Dr Gelb 2006

Dr Gelb examined Mr Olsen in 2006 on one occasion, at the request of the respondent, after an earlier claim was lodged for pension and treatment of psychiatric conditions. Dr Gelb mentioned in his report a number of incidents Mr Olsen said occurred in Vietnam. Dr Gelb did not identify the event or events that he thought caused Mr Olsen’s psychiatric conditions. He said that Mr Olsen reported drinking heavily from the time he was fired at when he escorted Sgt McCaughan up a hill. Dr Gelb stated that Mr Olsen experienced a number of seriously traumatic events during his service in Vietnam, and returned home with PTSD. Mr Olsen told Dr Gelb that he was constantly on the lookout for buried mines when he was driving in Vietnam, and this led to him feeling anxious and stressed at the end of each day. Dr Gelb noted Mr Olsen said he was attacked by the Vietnamese gang in the bar, and was shot at when he was in a plane. Mr Olsen described a rocket attack that occurred in his final month in Vietnam. He said he was horrified by the attack and lived in fear of being overrun by the Vietnamese. There was no mention of the traumatic experiences that occurred on the first day on his tour of Vietnam in Dr Gelb’s report.

Dr Whittington 2010

Consultant psychiatrist Dr Whittington provided 2 reports dated 10 June 2010 and 8 August 2012. Dr Whittington said Mr Olsen was referred to him on 15 February 2010, and he first saw him on 8 March 2010. Mr Whittington is currently Mr Olsen’s treating psychiatrist. In his first report, Dr Whittington provided a diagnosis of PTSD and identified the brawl in the Vietnamese pub as the primary source of Mr Olsen’s trauma. Dr Whittington said that other events such as witnessing the death of the serviceman have caused his recurring nightmares and years of disturbed sleep. Dr Whittington said Mr Olsen also suffers from heavy alcohol dependence. In his later report, Dr Whittington said Mr Olsen now has a clear recollection of the traumatic events that occurred in Vietnam. Dr Whittington commented that the most interesting aspect of Mr Olsen’s presentation is the fact that he gives in minute detail a chronology of events that he had supressed for 20 years. In the second report, and in his oral evidence, Dr Whittington said that the critical event was the witnessing of the death of the serviceman on Mr Olsen’s first day of service in Vietnam.

Dr Can

Dr Can provided a report and gave evidence at the hearing by telephone. Dr Can has been involved in treating Mr Olsen. Dr Can saw Mr Olsen twice in his private practice. Mr Olsen was admitted under the care of Dr Can for detoxification of alcohol and control of his anxiety and mood symptoms. Dr Can stated Mr Olsen was referred to him with a diagnosis of PTSD. Dr Can concurred with that diagnosis, and identified witnessing the death of the Australian soldier as the principal event that was the cause of Mr Olsen’s PTSD. Dr Can identified other incidents, which he described as “relevant”. These included being shot at whilst in an aircraft, being fired upon when up on a hill, coming under rocket fire whilst he was asleep, the bar incident when he was attacked by a group of Vietnamese, a car accident that occurred whilst he was in the army, but not in Vietnam and an assault that happened in 1973, in Australia. At the hearing, Dr Can opined Mr Olsen developed the condition as a result of witnessing the death of the Australian soldier. Dr Can did not recall the specific details of the other incidents when he was questioned at the hearing, and he opined that the rocket fire incident was capable of causing PTSD.

Dr Ng

Dr Ng provided a report dated 12 November 2013 after reviewing documents sent to him from the respondent and examining the applicant. According to Dr Ng’s report, Mr Olsen spoke of the incident when an Australian serviceman was killed, and of being shot at by a Vietnamese person when his truck broke down. He was travelling with Sargent McCaughan at the time. Mr Olsen said he got a job at an upholstery factory when he returned from Vietnam, but was fired after he assaulted another employee. He then operated his own upholstery business for 20 years. He was in and out of work after he closed his upholstery business in 1997. He closed the business due to family conflict. Dr Ng stated that Mr Olsen would gloss over some aspects whilst trying to recount other events in minute detail. Dr Ng observed Mr Olsen appeared to lack many social cues and stated that overall it was a difficult assessment. He said Mr Olsen gave a very disjointed account of himself. He noted Mr Olsen’s mood to be of anger and anxiety. After reviewing all of the medical material, Dr Ng concluded that it appeared that over the years Mr Olsen’s symptomatology had been attributed by him to one or more events in Vietnam, with varying degrees of salience and significance, without ever having any true consistency. Dr Ng said that when one avenue was closed off, Mr Olsen attempted to attribute his symptoms to another event in Vietnam. Dr Ng noted that for a man who claims to have been in fear in Vietnam, he talks quite boastfully about punching and assaulting people. Dr Ng opined that there is a strong possibility that Mr Olsen has an antisocial personality disorder, as he clearly fails to conform to social norms at times, and has gross impulsivity and marked irritability and aggressiveness. He appears to lack remorse and to be indifferent to events where he had perpetuated violence. Dr Ng stated that unfortunately, people with antisocial personality disorder tend to deceive and distort accounts.

CONSIDERATION

In Repatriation Commission v Deledio,[4] the Full Court of the Federal Court set out a four-step process of analysis to determine whether a reasonable hypothesis connecting operational service and a claimed condition exists. However, prior to commencing that process, the Tribunal must make a finding on the balance of probabilities, whether it is satisfied that the symptoms constitute an injury or disease.

What psychiatric conditions does Mr Olsen suffer from?

Dr Can and Dr Whittington have both provided a diagnosis of PTSD. Dr Gelb, who saw the applicant in 2006, also provided a diagnosis of PTSD. Dr Gelb was not called to give evidence at the hearing. Psychiatrists Dr Kenny and Dr Ng do not believe Mr Olsen has PTSD. Dr Kenny was not called to give evidence. Dr Ng gave evidence by telephone during the hearing. In order to be satisfied on the balance of probabilities that Mr Olsen suffers from PTSD, I must be satisfied on the balance of probabilities that the actual or threatened death, serious injury or sexual violence, said to have caused the condition in fact occurred, before the diagnosis of PTSD can be accepted. This is because exposure to actual or threat of death, serious injury or sexual violence, is necessary for a diagnosis of PTSD at a medical level. I must also be satisfied that Mr Olsen has symptoms that relate specifically to that traumatic event, as per the definition of PTSD in DSM IV and/or DSMV. Dr Can said he relied on DSM V, and Dr Whittington said he relied on both DSM IV and V, observing there was considerable overlap between the two. Symptoms necessary for a diagnosis of PTSD include, but are not limited to, presence of intrusive symptoms relating to the traumatic event, such as memories, flashbacks, dreams, persistent avoidance symptoms such as avoidance of thoughts, feelings memories or events associated with the traumatic event and negative alterations of cognition or mood associated with the traumatic event. In my role as decision maker, I must not put on a white coat when assessing the symptomatology that is to be done by a specialist psychiatrist. My role is to decide if the appropriately qualified specialist has observed signs and/or symptoms of all of the diagnostic criteria, and that those symptoms all relate to an event or events that, on the balance of probabilities, have occurred. Before I conclude the veteran has a diagnosis of PTSD, I must be satisfied on balance that Mr Olsen experienced an incident involving threatened death, or serious injury or serious violence, and that he satisfies the diagnostic criteria of either DSM IV or DSM V. After examining all of the evidence, I have decided, the opinion of Dr Ng is more accurate and reliable than that of Drs Can and Whittington. I have concluded that Mr Olsen has a sincere belief that his psychiatric illness/s are due to his experiences in Vietnam, however he is an unreliable witness, and he was not exposed to the events the diagnosis of PTSD relies upon. I therefore find that on balance, Mr Olsen suffers from generalised anxiety disorder, antisocial personality disorder, and alcohol misuse. I do not accept that Mr Olsen has PTSD, or MDD. My reasons for these findings are as follows:

Dr Ng’s evidence is preferable to that of Dr Can and Dr Whittington

Dr Ng opined that, as treating psychiatrists, Drs Can and Whittington were less objective than he. I agree. This is not always the case, but as a rule, treating psychiatrists must develop a therapeutic relationship with their patients, and part of that relationship is a degree of trust in the information being given to them. If a doctor was to question the truth of the information relayed to them, the patient may not develop trust in the doctor. Dr Whittington explained that when he first saw Mr Olsen, the diagnosis of PTSD was already made. He proceeded to treat Mr Olsen on that basis and did not question the diagnosis. During the hearing, Dr Can also agreed that the diagnosis of PTSD has been made prior to Mr Olsen being referred to him. I gained the impression at the hearing that neither Dr Whittington nor Dr Can ever question the need to confirm the diagnosis of PTSD, and accepted it was correct. Both doctors Can and Whittington accepted the history provided to them by Mr Olsen and agreed that, as treating psychiatrists, it was not part of their role to question or to confirm the facts given to them by Mr Olsen. I do not accept Mr Olsen was exposed to the various stressors relied upon by the psychiatrists who diagnosed PTSD, and find that the both Dr Can and Dr Whittington have reached their diagnoses on the basis of accounts of events that did not happen. Unlike Mr Olsen’s treating psychiatrist, Dr Ng was paid to provide an objective opinion, without the need to maintain or develop a therapeutic relationship with Mr Olsen. Dr Ng was also in a better position to assess Mr Olsen than the other two treating psychiatrists, as he had more information, and was able to provide an assessment of Mr Olsen after considering the different accounts Mr Olsen has provided of the various events. Dr Ng was also able to take into account the information provided in the Writeway reports. This was also the case for Dr Gelb who concluded Mr Olsen had PTSD. Dr Gelb was not called to give evidence. I assume he did not have access to other material, and relied only on the material provided to him by Mr Olsen. Even Mr Olsen admits that since seeing Dr Gelb, his memory of the events he claims distressed him has changed and he has modified his account of those events. As I have concluded the information provided by Mr Olsen is unreliable, I can therefore place no reliance on the diagnosis provided by Dr Gelb. Dr Ng observed inconsistences in the accounts of the traumatic events given by Mr Olsen over time. Dr Ng said that he took into account all possibilities, including the possibility that the information in the Writeway reports was incorrect. He said even so, his opinion would not alter. This is because he did not simply rely on the information in the Writeway reports. He also assessed the previous accounts provided by Mr Olsen, Mr Olsen’s affect and state of mind, and Mr Olsen’s complete history, including details of his personal history that led Dr Ng to conclude his primary problem was an underlying antisocial personality disorder. Consistent with the opinion of Dr Ng was that of Dr Kenny. Dr Kenny also provided the diagnosis of personality disorder. According to Dr Kenny’s report, Mr Olsen described a number of incidents which were consistent with a diagnosis of antisocial personality disorder. Mr Olsen said he was confined to barracks on one occasion and on another he had field punishment. Mr Olsen told Dr Kenny he poked a billiard cue under a mate’s backside, the mate retaliated, and Mr Olsen assaulted him. Mr Olsen told Dr Kenny there were other incidents, the details of which he could not recall, and that he did not think of Vietnam except the assault. Mr Olsen told Dr Kenny he was “booted out” of the army after a verbal altercation between himself and a man who was critical of his wife. Dr Kenny made the following observation:

He had a rather strange, off hand manner. He talked lightly, also with some amusement, about the traumatic experiences, he couldn’t see anything wrong with ‘biffing the Corporal” that led to him being “booted out of the Army”. He was really very difficult to keep the subject in hand....It was certainly difficult to get a coherent history from him.

Dr Kenny observed that Mr Olsen glossed over the problems he had whilst he was in the army, and did not seem to accept any responsibility for them, he saw himself as having been victimized. Dr Kenny stated that he had considerable difficulty accepting the reliability of this man’s history and presentation in the interview. Dr Kenny opined that Mr Olsen has significant personality problems and chronic GAD. Mr Olsen’s history is consistent with a diagnosis of antisocial personality disorder, the diagnosis of Dr Kenny and Dr Ng. He described incidents in which he got into trouble with the military police, and gave a history of violent incidents after Vietnam, that included incidents against family members, including his father and his daughter’s boyfriend, property damage, speeding offences and alcohol misuse. Mr Olsen spoke of having to have to pay for a replacement gun and being charged with an offence, after he bent the barrel of a machine gun when he smashed it against a doorway. He said he wanted to return to Australia early but was too embarrassed to admit that he was scared out of his mind. Mr Olsen told Dr Gelb that he had many fights with soldiers whilst in Vietnam, and he lost friends because of his violent behaviour and out of control drinking. The unit records indicate Mr Olsen was involved in a large number of violent incidents, many of which he was charged for. In his written report, Dr Ng opined Mr Olsen has antisocial personality disorder, chronic GAD, and alcohol abuse disorder.

I am not reasonably satisfied Mr Olsen was exposed to the stressors upon which the diagnosis of PTSD relies

The inconsistencies is the various accounts given by Mr Olsen to the Tribunal, and those given in his previous accounts as well as in the historical documents, plus the manner in which his account of events has evolved in unison with the Writway reports and other evidence, leads me to conclude Mr Olsen did not experience any of the stressors he describes. I will briefly address each stressor identified as potentially causal. Firstly, the death of the Australian soldier on Mr Olsen’s first day of service. Despite Mr Olsen having no memory of this event for 40 years, and also accepting that his earliest account of this event contained inconsistencies, he insists that his present version of events is correct, and that the accounts given by the contemporaneous witnesses are wrong. He contends that the contemporaneous witnesses were intoxicated at the time, and he was not. Mr Olsen’s version of events was initially questioned by the respondent, on the basis that he would not have been present at the time of the accident. The Repatriation Commission initially said, in error, that Mr Olsen arrived on 13 , not 14 of the month. That was corrected, however it was said that Mr Olsen arrived in the morning, and would not have been in the vicinity of the accident by the afternoon. In response to that argument, Mr Olsen has provided a very lengthy explanation as to why he was there and what he did in the time leading up to the accident. The respondent now accepts Mr Olsen may have been in the vicinity of the accident, however it is not accepted that he witnessed the accident personally. There is no doubt there was a death of an Australian soldier in a road accident on that day. I agree with the respondent when it is contended that Mr Olsen most likely heard about the incident soon after he arrived. The account given by Mr Olsen at the hearing varied significantly when compared to Mr Olsen’s previous written accounts of the incident. Also significant is when Mr Olsen first mentioned the incident. It was only after an earlier claim for pension and treatment of psychiatric conditions was rejected in 2006. In response to the rejection, Mr Olsen identified the death of the serviceman as an additional event that distressed him. The event is not noted in either of the reports of Dr Kenny or Dr Gelb. Mr Olsen claims he raised the event with Dr Kenny, and was ridiculed. He claims Dr Kenny made him feel so ashamed of having felt bad about the incident that he did not mention it to Dr Gelb. That does not explain why he was prepared to provide details of the event to the Repatriation Commission when his claim was rejected. Mr Olsen did not present as a man who is easily intimidated. I think it more likely the case that Mr Olsen was fishing for events that would advance his claim. Writeway included in its report records from the Military police.[5] These indicate L/Cpl Salzman was fatally injured in a motor vehicle accident that occurred at approximately 3.25pm on 14 April 1971. L/Cpl Salzman did not die at the site of the accident. He was transported to hospital and died soon after. There are a number of witness statements included in the Writeway report. These witness statements were taken on the day of the accident, and others on the following day. Mr Olsen’s accounts of the event are inconsistent with the witnesses on a number of important details, including the speed the vehicle was travelling, (consistently reported by contemporaneous witnesses to be between 10 and 25 km) and how far the vehicle travelled prior to the accident. Of significance is the account given by the driver of the vehicle, who said he swerved to avoid collision with a forklift, which came out in front of him. Mr Olsen insists no forklift was present and the driver did not swerve. After the hearing commenced Mr O’Neill attempted to tender witness statements from approximately 12 former servicemen. Mr O’Reilly appropriately objected to this evidence, having no time to prepare. Many of the statements were of no relevance. I gave permission for some statements to go into evidence, provided those who were attesting to the statements were provided for cross-examination. A number of former servicemen were called to give evidence in support of Mr Olsen’s claim that he was in the vicinity of the US service club around the time of the known incident in which L/Cpl Salman was fatally injured. The gist of the testimony of these former servicemen was that Mr Olsen was indeed collected late from the site of the accident, at approximately 5.15pm on the day of the accident. Evidence was given by Mr Ray Stevens that he was the serviceman sent to collect Mr Olsen, and he recalled Mr Olsen talking of the death he had just witnessed. I found the evidence of Mr Stevens unconvincing, and placed no weight on it. Mr Stevens contradicted himself in his own evidence, and became irritable and uncooperative when these inconsistencies were draw to his attention. I found it very convenient, and most unlikely that Mr Stevens could remember the details of a conversation he had with Mr Olsen yet he was unable to recall details of events that would have been more memorable such the month during which he himself arrived in Vietnam. I had difficulty accepting his evidence as credible due to the abrupt change in his demeanour when questioned. In any case, I would not have placed any weight on his evidence. I accept Mr O’Reilly’s submission that no weight be placed on the evidence of any of the former servicemen witnesses Mr O’Neill called to give support of Mr Olsen’s claim. This is because of the contemptuous conduct of Mr O’Neill during the hearing. In brief, during a recess, Mr Nuttall, one of the witnesses called by Mr O’Neill was instructed not to speak to either Mr Olsen or Mr O’Neill. I specifically instructed the witness to refrain from doing so as I was concerned Mr O’Neill was putting words in the mouths of the witnesses based on the testimonies of those servicemen he had already called. When Mr Nuttall was recalled after recess, he informed the tribunal that in defiance of my directions Mr O’Neill had phoned him and tried to coerce testimony from him. Mr O’Neill’s conduct distressed Mr Nuttall. Mr O’Neill’s conduct brings into question the credibility of the testimony of the witnesses he has called. The respondent has had no opportunity to investigate the statements of these witnesses, as Mr O’Neill only advised he was calling these persons as witnesses after the hearing commenced. For these reasons, with the exception of Mr Nuttall, who demonstrated candour to the tribunal, the testimony of the servicemen witnesses will be given no weight. I stress however, that even if I had placed weight on the evidence of those servicemen called, my decision would not differ. I would still find that Mr Olsen was not confronted with the death of L/Cpl Salzman. This is because none of the servicemen called saw Mr Olsen at the incident. Mr Olsen has a tendency to tell lengthy stories that include him playing a leading role in dramatic incidents. Even if Mr Olsen told Mr Stevens he witnessed the accident, I do not accept that is evidence of the fact. At the highest, they said he spoke of the incident after it happened. The contemporaneous military police notes indicate which servicemen gave statements, and note the presence of other servicemen who did not wish to make statements. If Mr Olsen had been a witness, I would have expected his name to have been mentioned as one who was present in the military police records. I do not accept Mr Olsen’s explanation for why he was not asked to give a statement (Mr Olsen claimed that he collapsed and remained unconscious for several hours and was unconscious after witnessing the event, and not available to give a statement). Mr Olsen’s accounts of the incident are inconsistent with each other, and it appears over time that he has refined his account to include more details after the Writeway report provided details of the incident. For example, the account Mr Olsen ‘s account of the incident only included details of the weather on the day of the incident, after the Writeway report included descriptions of the weather on the day of the incident. Previously, Mr Olsen had not commented on the weather. Mr Olsen’s current account is inconsistent with many of the contemporaneous accounts. For example, Mr Olsen describes the deceased’s head as “flat as a pancake”, this being most unlikely, as the soldier did not die until after he was taken to hospital. I conclude that Mr Olsen has placed himself at the event years later, when he was attempting to find an explanation for his mental ill-health. I realise that a person can be present at an event and be wrong about the particulars they recall occurred at an event. I do not accept that is what has happened in Mr Olsen’s case. I think it likely he has used information gathered by the hearsay of others and historical records, as well as his imagination, to write himself into the circumstances surrounding the unfortunate death of L/Cpl Salman. In relation to the shots on the hill with Sargent McCaughan, Writeway performed extensive investigations and interviewed several servicemen present in Vietnam around the time Mr Olsen claims this incident occurred. According to investigations carried out by Writeway historians, there was a South Vietnamese rifle range in the area identified by Mr Olsen. Writeway concluded that the incident claimed is completely out of context of security incidents noted in the Vung Tau area throughout the entire period of Australian involvement. There is no record of any incident similar to that claimed by Mr Olsen either in the files of Mr Olsen’s unit or headquarter files, or the files of the military police or other agencies such as 1st Australian Field hospital. None of the officers who would have been expected to hear of such an incident recall mention of it, either officially or unofficially. Writeway identified an official record of three shots being fired, followed by two bursts of automatic fire, on 13 July 1971, in the region of the South Vietnamese military area. Mr Olsen, during cross examination agreed that was likely the same shots that he heard. He now accepts he had the date wrong. Mr Olsen offered no explanation as to why there was no report filed by Sgt McCaughan (now deceased) in the official records. Mr Olsen now accepts the fire he heard was in the context of training, and he was not being personally fired on or in any danger at the time. This does not explain Mr Olsen’s very lengthy and detailed account of the Vietnamese soldier he claims was hiding behind a boulder and his account of bludgeoning him with his weapon. In relation to the Hong Kong Bar incident, The account Mr Olsen gave conjured up images of a scene out of a Jackie Chan or Bruce Lee movie, Mr Olsen playing the role of the super hero. It is totally incredulous. I prefer the evidence of Mr Nuttell who was also present. He did not accept the account of the incident provided by Mr Olsen. He agreed that Mr Olsen and himself were involved in some altercation, and later that night, the Vietnamese from the Hong Kong bar caught up with them. The event, as described by Mr Nuttell, was not of the nature of the type of event that could be described as involving a threat of the type in the definition of PTSD. In summary I am not satisfied on balance that Mr Olsen experienced the stressful incidents upon which the diagnosis of PTSD is based.

Mr Olsen is an unreliable witness

Mr Olsen readily accepts that he has changed the accounts of the incidents he relies upon on many occasions. Mr Olsen accepts that there are many inconsistencies in the various accounts he has given over time. Mr Olsen claims that over time, and with the help of therapy from his psychiatrists, he has been able to remember more details of the traumatic incidents. At the hearing he told me that now he has received treatment from Dr Whittington and Dr Can, his memory has improved to the extent that he now has an accurate memory of exactly what happened in all of the incidents. He said his memories are now clear, and he assured me he would not be changing his account of events in the future. Mr Olsen attributes responsibility for the inconsistencies and inaccuracies in his earlier accounts of the incidents to his illness. He told me that his mind is now clear, and the version of events he provided at the hearing is definitely the correct account. Mr Olsen told me he had no memory of any of the incidents he now relies upon for approximately 40 years. It is only in the last 10 years, he said, that he has had any memory of any of the incidents. Mr Olsen said he has spent a tremendous amount of time trying hard to recall what happened to him in Vietnam. He said he has used a lot of paper writing what he can remember down. He said that he himself has thrown many of his written accounts out in frustration. Dr Kenny stated in his report that he had difficulty accepting the history given to him by Mr Olsen. Dr Ng also questioned the legitimacy of the accounts of events provided by Mr Olsen. Dr Whittington said that Mr Olsen’s inability to remember events for 40 years was, in part, due to alcohol. It was pointed out to Dr Whittington that the definition of PTSD includes the symptom of dissociative amnesia not due to other factors such as alcohol [emphasis added]. Dr Whittington back tracked, but did not offer any explanation that would explain Mr Olsen’s total lack of memory for 40 years. Dr Whittington said that due to alcohol and to the need to suppress memories to cope, memories come back like pieces of a puzzle. The memories are only patches at first, but over time, the complete memory of the event is present. Dr Whittington said that as Mr Olsen developed a capacity to cope with the trauma he gradually remembered more and more of the details of the traumatic events, until when he was well enough, he was able to recall the details of the traumatic event in its entirety. Dr Can was unaware that Mr Olsen did not recall any details of the traumatic events for some 40 years. Dr Can agreed with the analogy of PTSD being like a picture puzzle. He said that people may recall parts of the trauma more than other parts at first, and some parts may be missing, and their memory of the incident is only patchy. Dr Can said he did not get the impression Mr Olsen only had a patchy memory of the incident. He proposed a similar hypothesis put forward by Dr Whittington, in that Mr Olsen may have been repressing his memory because he was unable to deal with the trauma, and that as he became more capable of coping, he recalled more and more details of the trauma over time. The trouble with the explanation put forward for Mr Olsen’s changing accounts of the stressors, is that Mr does not claim to have patchy memories of the trauma over the last few years. Rather, he has given tremendously detailed accounts of the trauma, and then over time, he has changed many of the very specific and intricate details of the events he describes. Very often, the changes he makes in the accounts correspond in time with more factual evidence becoming available, such as the Writeway reports. The inconsistencies in his evidence over time cannot be reconciled by the explanation of evolving details of trauma put forward by Dr Can and Dr Whittington. I think the best and most generous interpretation of the evidence is in view of the explanation for Mr Olsen’s evolving accounts of the stressors he claims to have experienced which was provided by Dr Ng. Dr Ng said:

One likely hypothesis (and I do note that it was described by Dr Barrie Kenny) is that Mr Olsen does have some anxiety symptoms and has attributed them to events in Vietnam. If these events actually did not occur, that attribution of those symptoms to such events could be labelled as deception or fabrication. Alternatively, Mr Olsen may have unconsciously attributed his anxiety symptoms to those events. A third possibility is that, over time, Mr Olsen has fantasised or authored stories and events that explain his anxiety symptoms, and now he himself genuinely believes these fictional accounts.





At the hearing Mr Olsen was at times persuasive, and I gained the impression Mr Olsen was convinced he had a psychiatric problem as a result of his time in Vietnam. Although I think he is sincere in that belief, I am a not persuaded the events, as he described at the hearing, happened as he claims. I am not convinced even Mr Olsen believes the events occurred as he reports. I do not accept Mr Olsen’s explanation for the inconsistencies in his own evidence. Dr Ng’s hypothesis explains Mr Olsen’s behaviour and I accept it to be more likely than not. I find Mr Olsen suffers from anxiety symptoms, and in looking for an external cause of these symptoms, he engages in considerable contemplation about his experience in Vietnam. Over time he has come to believe he was exposed to stressful events in Vietnam, even if he cannot recall the exact details. I believe he does try very hard to recall details of his service in Vietnam. Unfortunately, when Mr Olsen cannot recall the exact details, he reports that he was present at events he either read about or heard of from other servicemen. In his oral evidence, Mr Olsen often used expressions such as “I was horrified”, or he was a “significant other”. Mr Olsen’s use of these expressions often lacked context with the description he was giving of events, and I concluded someone, perhaps his representative, coached him to use expressions included in the relevant SoPs. I also gained the impression that Mr Olsen felt that by adding a large amount of irrelevant details in his descriptions, he would add validity to his claims. Many times the detail was suspiciously similar to that included in historical reports, for example, Mr Olsen described the weather in Vietnam on his first day. Reference to the weather was also included in the historical report. Mr O’Neill, on the applicant’s behalf, contends that Mr Olsen may at times have mixed up a dream he had with some of the real events he experienced. That is why, he contends, Mr Olsen remembers striking a Vietnamese man on the head when he was at the range with Sargent McCaughan. Mr O’Neill claims this part of Mr Olsen’s recollection was just a dream. The trouble with this explanation is that there is no way of knowing which, if any, of Mr Olsen’s memories are real, and which are his dreams. It is not insignificant, and perhaps points to some degree of insight, that Mr Olsen himself commented to Dr Kenny that he “dreams of things that never happened”. Mr Olsen’s evidence often appeared to have been rehearsed. Mr O’Neill’s suggestion opens up the possibility that all of Mr Olsen’s memories are actually dreams or fantasies. The inconsistencies in Mr Olsen’s evidence are not limited to comparison of what he said at the hearing with statements he had made previously. During the hearing Mr Olsen spoke at length about an incident where he broke his issued weapon whilst in Vietnam. Mr Olsen has also provided several written accounts of this event. At the hearing, he initially said that he was in bed when a chap came into his room. Mr Olsen had been asleep, he said he was likely having “flashbacks” during his sleep; when he suddenly awoke. He was disorientated and thought they were on another stand to, or alert, where they ran around the unit. Mr Olsen grabbed his machine gun and the chap ran out of the room. Mr Olsen, gun in hand, chased after him. Because of the misunderstanding, Mr Olsen returned to his room and “had a meltdown”. The fellow had thought Mr Olsen was chasing him with the intention to shoot him. On the second day of the hearing. Mr Olsen gave a totally different account of the same incident. Mr Olsen said it has just come to him, and he now remembered why he damaged the weapon. It was, he said because he wanted to incapacitate the weapon, to make it “un-fireable”. He had been making plans about revenging the incident that commenced in the Hong Kong bar. Mr Olsen said he had been “practicing reloading [his gun] to see how fast he could get down to because there’s a lot of them in there and I had three bags, about 102 rounds. I was going to empty it in about 50 seconds”. He then realised this was not a good idea, so he damaged his weapon so he could not use it. The same morning, about one hour later, in response to the question “why did you bust up the weapon?” Mr Olsen seemed to have forgotten his newly acquired memory, and reverted to his older account of the incident. He replied:

Because someone had come to my bed and I was having the effects of – what do you call it, arousal? Mr Olsen said the person at the end of the bed asked him if he was ok, and “I quickly grabbed my machine gun and ran off and I ran after him. We ran around the unit and then I came back to the hut. Because I thought something was going on, some rocket attack or something. So, then I come back to the unit but then I went into full-flown mental meltdown and I bashed the barrel of the gun on the door frame and then I stepped back into the middle of the room and the magazine was already off the weapon.

At the time, of the incident Mr Olsen was taken for psychiatric assessment. The contemporaneous medical records indicate Mr Olsen told the interviewer that he was born with a violent temper and has always had it. At the hearing Mr Olsen denied this. I conclude that like many of the other events Mr Olsen has referred to, he really does not remember the details of the events. In his description of all the events he expressed much anger, however apart from what appeared to be rehearsed statements, he expressed no concern, fear or distress. Rather, he appeared quite boastful when he described many of the events. I think it likely that in his desire to make sense of his past, Mr Olsen draws conclusions that make sense to him at the time. Those conclusions about this incident, and all the others Mr Olsen refers to, amount to conjecture and hypotheses. They are not genuine recollections.

Is there a connection between Mr Olsen’s psychiatric conditions and his service in Vietnam?



Alcohol abuse/dependence disorder

All doctors who have examined Mr Olsen have opined he suffered from either alcohol abuse or alcohol dependence or both. Dr Ng said it was hard to put a date on the clinical onset of alcohol abuse; the condition was often comorbid with the other psychiatric conditions Mr Olsen had, including personality disorder. Mr Olsen’s service may have played a factor in his alcohol abuse disorder, but this was not the exclusive cause. Dr Can and Dr Whittington both opined that the cause of this condition is Mr Olsen’s military service, and his PTSD. Dr Ng indicated the condition could have been aggravated by Mr Olsen’s military service. The relevant factors for Alcohol Use Disorder in SOP No. 1 of 2009, as amended by No. 29 of 2014 are as follows:

6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service is:



(a) Having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or



(b) Experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence of alcohol abuse;



having a clinically significant psychiatric condition at the time of "a category 1B stressor" means one of the following severe traumatic



events:

(a) being an eyewitness to a person being killed or critically injured;

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

(c) being an eyewitness to atrocities inflicted on another person or

persons;

(d) killing or maiming a person; or

(e) being an eyewitness to or participating in, the clearance of

critically injured casualties;

the clinical worsening of alcohol dependence or alcohol abuse; or

(h) experiencing a category 1A stressor within the five years before

the clinical worsening of alcohol dependence or alcohol abuse; or

(i) experiencing a category 1B stressor within the five years before

the clinical worsening of alcohol dependence or alcohol abuse; or

...



9. For the purposes of this Statement of Principles:



"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;



"a category 1A stressor" means one or more of the following severe traumatic events:



(a) experiencing a life-threatening event;



(b) being subject to a serious physical attack or assault including rape and sexual molestation; or



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





On the basis of the medical evidence before me, I find factor 6(b) in the SOP is raised. This does not equate with a finding that there is a reasonable hypothesis. East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517, is authority for the principle that for a hypothesis to be reasonable, it must be more than a possibility, not fanciful or unreal, or too remote or tenuous and must be consistent with the known facts. I am mindful that it is the veteran’s perception of the event and not the event itself that must be assessed. In Boarder v Repatriation Commission (No 2) [6] the Federal Court of Australia said:

The perception will be reasonable if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of and did convey [a threat].

There are two very important things to note about this principle, as it applied to this case. When considering the perception of the veteran of the event, it is usual that the perception is that which occurred at the time, or in the immediate aftermath of the event. Mr Olsen now perceives his life was endangered when these events he describes occurred in Vietnam. Mr Olsen did not recall any of the events for 40 years. Even if I accepted the events occurred as Mr Olsen claims, and I have made it clear that I do not, it would be very difficult in these circumstances for a decision maker to be reasonably satisfied about how Mr Olsen perceived these events. Secondly, the view that is to be considered is that of a reasonable person in the veteran’s position. Unfortunately, Mr Olsen was suffering from antisocial personality disorder, and his perspective is altered and not in line with reasonable thinking, due to the consequences of that disorder. Mr Olsen’s perception of the event is not that of a reasonable person. Rather, his perception is gilded by his personality disorder, and his need to find a reason for his constant anxiety. Although Mr Olsen claims to have experienced several events that in his mind were life-threatening events, including being threatened with a weapon, there is nothing before the Tribunal that points to Mr Olsen having experienced such events. The Full Court of the Federal Court of Australia in Repatriation Commission v Bawden[7] said:

One should be slow to attribute to the legislature an intention that incapacity from an alleged illness which the decision maker does not accept occurred at all is nevertheless compensable because it cannot be proven beyond reasonable doubt that it did not occur.

Antisocial Personality Disorder

The relevant factors for Personality Disorder, in SOP No. 70 of 2008, as amended by SOPs No. 49 of 2009 are as follows:

(e) experiencing a category 1A stressor within the two years before the clinical worsening of personality disorder; or



(f) experiencing a category 1B stressor within the one year before the clinical worsening of personality disorder; or







"a category 1A stressor" means one or more of the following severe traumatic events: (a) experiencing a life-threatening event; (b) being subject to a serious physical attack or assault including rape and sexual molestation; or (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured; "a category 1B stressor" means one of the following severe traumatic events: (a) being an eyewitness to a person being killed or critically injured; (b) viewing corpses or critically injured casualties as an eyewitness; (c) being an eyewitness to atrocities inflicted on another person or persons; (d) killing or maiming a person; or (e) being an eyewitness to or participating in, the clearance of critically injured casualties;

According to Dr Ng, Mr Olsen likely had a personality disorder prior to going to Vietnam. Although Dr Ng indicated Mr Olsen’s personality disorder may have worsened as a result of his military service, there is no material that points to Mr Olsen having experienced a category 1A or 1B stressor within the required period prior to the clinical worsening.

General Anxiety Disorder

The relevant factors for Anxiety Disorder, in SOP No. 101 of 2007, as amended by SOPs No. 42 of 2010 and No. 15 of 2011 are as follows:

6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:



(... (c) experiencing a category 1A stressor within the five years before the clinical worsening of anxiety disorder; or



(d) experiencing a category 1B stressor within the five years before the clinical worsening of anxiety disorder; or







9. For the purposes of this Statement of Principles:



"a category 1A stressor" means one or more of the following severe traumatic events:



(a) experiencing a life-threatening event;



(b) being subject to a serious physical attack or assault including rape and sexual molestation; or



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



"a category 1B stressor" means one of the following severe traumatic events: (a) being an eyewitness to a person being killed or critically injured; (b) viewing corpses or critically injured casualties as an eyewitness; (c) being an eyewitness to atrocities inflicted on another person or persons; (d) killing or maiming a person; or (e) being an eyewitness to or participating in, the clearance of critically injured casualties;

Dr Ng said Mr Olsen’s anxiety disorder was due to constitutional factors, and military service may have worsened the condition, but it did not cause it. Dr Ng said GAD is a multifactorial condition. In his oral evidence, Dr Ng opined Mr Olsen’s GAD had a clinical onset in approximately 1990 when he first sought help. There is no material that points to Mr Olsen having been exposed to a category 1A or I B stressor, and no material pointing to Mr Olsen’s anxiety disorder having worsened within 5 years of the claimed stressors. Therefore there is no reasonable hypothesis connecting Mr Olsen’s generalised anxiety disorder with his military service.

DECISION

The decision under review is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

.............................[Sgd]...........................................



Associate

Dated 4 March 2015

Date(s) of hearing



16 and 17 October 2014;



21 November 2014 Advocate for the Applicant Mr B O'Neill Advocate for the Respondent Mr T O'Reilly, Department of Veterans' Affairs

[1] [1999] FCA 1629; (1999) 57 ALD 1.

[2] Ibid 6.

[3] Exhibit 1, p 33.

[4] [1998] FCA 391; (1998) 83 FCR 82.

[5]T documents, p. 61.

[6] [2010] FCA 1430 [67].

[7][2012] FCAFC 176; (2012) 206 FCR 296 [49].