Allan and Repatriation Commission

[2005] AATA 526

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2003/756

VETERANS’ APPEALS DIVISION		)
Re		MARCEL ALLAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date6 June 2005

PlaceBrisbane

Decision I am satisfied the applicant suffers from an anxiety disorder and alcohol dependence. I accept those conditions are related to his war service in Vietnam. The decision under review is set aside. The date of effect is 28 May 2002.

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

SENIOR MEMBER  

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war-caused injury during operational service – diagnosis of psychiatric conditions in issue – post-traumatic stress disorder – anxiety disorder – alcohol dependence or abuse – date of onset – applicant suffered a severe psychosocial stressor – applicant suffers from anxiety disorder and alcohol dependence – the applicant’s conditions are attributable to his eligible service – decision under review is set aside.

Veterans’ Entitlements Act 1986, s 120

Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

6 June 2005  Senior Member B J McCabe

introduction

1.      This is an application for review of a decision of the Repatriation Commission.  On 20 November 2002 a delegate of the Repatriation Commission refused the applicant’s claim that post traumatic stress disorder (PTSD) and alcohol dependence or abuse were related to his war service.  On 17 June 2003 the Veterans’ Review Board affirmed that decision.

2.      The Tribunal heard the matter in Townsville on 14 July 2004.  The applicant was represented by Mr Honchin of counsel.  The respondent was represented by Mr Stoner, a departmental advocate.

3.      After hearing all of the evidence on that occasion, I had doubts about the diagnosis of PTSD. Consistent with the decision of the Full Court in Benjamin v Repatriation Commission (2001) 70 ALD 622, I asked the parties to obtain further medical advice. The parties did so, and the hearing resumed in Townsville on 10 March 2005. Mr Honchin and Mr Stoner made additional submissions.

4.      For reasons I will explain, I am satisfied Mr Allan suffers from a compensable service-related condition.

material before the tribunal

5. The Tribunal was provided with the documents compiled pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”). The following documents were also tendered into evidence:

·Statement of the applicant dated 29 November 2003 (exhibit 2);

·Report of Dr Mulholland dated 30 March 2004 (exhibit 3);

·Two historical reports of Writeway Research, one written by Lt Col Warren Barsley (Retd) dated 7 July 2004, the other by John Tilbrook dated 3 July 2004 (exhibit 4);

·Statement of Ian Laurie dated 4 June 2004 (exhibit 5);

·Statement of Melville Knispel dated 5 July 2004 (exhibit 6);

·Undated statement of Lt Col Hugh Conant (exhibit 7);

·Report of Dr Likely dated 24 November 2004 (exhibit 8);

·Report of Dr Likely dated 6 January 2005 (exhibit 9);

·Report of Dr Athey dated 21 December 2004 (exhibit 10);

·Report of Dr Mulholland dated 1 February 2005 (exhibit 11).

6.      At the first hearing the applicant gave evidence in person. Mr Knispell and Mr Tillbrook gave evidence by phone. No witnesses were called at the second hearing.

The factual background

7.      The applicant rendered operational service with the Australian Army in Vietnam from 12 July 1967 to 12 March 1968.  He served as a cook at the Australian Army base in Vung Tau.

8.      Mr Allan says he developed a psychiatric condition and a drinking problem as a result of several incidents he experienced while on operational service in Vietnam.  For the sake of convenience I have called them the mistaken identity incident, the firing on the wire incident, the friendly fire incident and the general stressors. I will describe each incident in general terms below before considering the medical evidence as to diagnosis and applying the steps laid down in s 120 of the Veterans’ Entitlements Act 1986.

The “mistaken identity” incident

9.      The applicant says he was preparing a midday meal in the kitchen area.  He was working alone with four South Vietnamese women in a kitchen within the Vung Tau base.

10.     From the kitchen area he observed the arrival of a vehicle.  Two South Vietnamese police officers stepped out of the vehicle and entered the kitchen.  He said they appeared agitated and angry.  One officer brandished a large calibre pistol in the direction of the applicant while the officers spoke Vietnamese in agitated voices to one of the kitchen-hands.

11.     The applicant heard his name mentioned.  He assumed the police were looking for another cook.  Apparently the other cook had been having an affair with the wife of one of the officers, who had now come to exact revenge.  The applicant was fearful the police officers would mistake him for the other cook.

12.     The applicant says he feared for his life while the gun was being brandished by the police officers.

The “firing on the wire” incident

13.     The applicant says the second incident occurred around Chinese New Year.  The troops were warned the enemy might attack during that period and were consequently on a high state of alert.  He says he was manning a sand-bagged gun post on the perimeter of the military police area within the compound along with another soldier whom he did not know.

14.     About four hours into the piquet, the applicant says they saw something moving near the perimeter. They called out warnings but received no response.  Suddenly the fence exploded in noise, and they began firing.  The applicant believes he may have fired five to seven rounds from his gun.  He is not sure how many rounds his colleague expended.

15.     Some moments after they began firing they received an order over the radio to cease firing.  The applicant understood a patrol was sent out to investigate the area.

16.     The applicant recalls he did not make a report of the incident, but believed his trench-mate was responsible for doing so.  The next morning the applicant says military police told him he had actually shot a number of monkeys.

The “friendly fire” incident

17.     The “friendly fire” incident arose out of the “firing on the wire” incident. The applicant says he learned an Australian serviceman who was absent without leave was shot in the leg about 20 minutes after the firing on the wire incident.  The soldier was supposedly shot by someone other than the applicant.  However the applicant is convinced he and his trench-mate may have shot the soldier, and he feels guilty as a result.

General stressors

18.     The applicant also says he experienced a number of general stressors during service.  He accompanied the military police in their escort of convoys travelling between Vung Tau and Nui Dat.  He says these “convoy patrols” were stressful, and there was a general level of concern about safety.  He says he saw prisoners of war, who looked demoralised and depressed.  This distressed him, as the conditions in which they were being kept were “cruel and unnecessary”.

19.     The applicant says the mistaken identity incident and the firing on the wire incident were the most serious incidents.

The Law

20. In resolving these matters, the first step is to identify the type of disease suffered by the veteran. The Tribunal is required to decide a diagnosis to its reasonable satisfaction: s 120(4) Veterans’ Entitlements Act 1986 (the Act).

21. The Tribunal must then apply s 120 of the Act in its assessment of the claim. That requires the Tribunal to follow the steps identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. 

·Firstly, is there a hypothesis connecting the veteran’s injury with the circumstances of his or her war service? 

·Secondly, does a Statement of Principles (SoP) exist in relation to the claimed condition? 

·The third step of Deledio requires the Tribunal to assess whether the facts as stated by the applicant “fit” the SoP without making ultimate findings of fact.  If the applicant’s story is consistent with the SoP, the hypothesis is deemed reasonable. 

·The injury will be considered war-caused unless the respondent can prove a fact inconsistent with the hypothesis, or disprove a necessary fact in the applicant’s story, beyond a reasonable doubt.  This fact-finding exercise is the fourth step in the Deledio process.

diagnosis

22. In a report dated 27 September 2002 (ff73-85 T4 of the T-documents) Dr Athey diagnoses the applicant with PTSD and alcohol dependence. Dr Athey noted in his report dated 21 December 2004 that the alcohol dependence condition had been brought under control.

23. In a report dated 25 February 2003 (ff108-109 T4 of the T-documents) Dr Likely agrees with the diagnoses of Dr Athey.

24.     In a report dated 30 March 2004 (exhibit 3) Dr Mulholland diagnoses the applicant with PTSD and alcohol dependence.  He says the applicant’s PTSD has been accentuated in recent years since he found out about the Australian soldier who was wounded (i.e. the friendly fire incident).

25.     A diagnosis of PTSD requires that the applicant experience a “severe stressor”. That expression is defined in DSM-IV (the Diagnostic and Statistical Manual of Mental Disorders) and reproduced in the statement of principles relating to PTSD. I am not satisfied any of the events described by the applicant amounts to a severe stressor. A person in the position of the applicant with the applicant’s background and experience would undoubtedly find the events stressful, but it is difficult to see how they could be regarded as severe stressors.

26.     I told the parties of my concerns about the diagnosis and gave them the opportunity to seek further medical evidence. The hearing was reconvened in Townsville on 10 March 2005 to hear submissions on the additional documentary evidence obtained. Dr Mulholland agreed on reflection that anxiety disorder was a better diagnosis given the doubts about the severity of the stressors. Dr Likely said he preferred a diagnosis of PTSD but accepted that a diagnosis of anxiety disorder could properly be made. Dr Athey insisted the diagnosis of PTSD was the appropriate diagnosis in the circumstances.

27.     After hearing the medical evidence and considering the definition of severe stressor, I am reasonably satisfied the appropriate diagnosis is anxiety disorder. I am particularly impressed with the evidence of Dr Mulholland who (notwithstanding the fact he was called by the respondent) gave an obviously independent assessment of the applicant. I therefore do not propose to further consider the claim in respect of PTSD.

28.     I am also satisfied from the medical evidence that the diagnosis of alcohol dependence is properly made.

Deledio step #1: the applicant’s hypothesis  

29.     Is there a hypothesis connecting the applicant’s injuries with the circumstances of his service?  The applicant says he experienced stress which triggered a psychiatric condition and caused him to drink – which led to alcohol abuse and dependence– during the course of his operational service. He identified a number of events in particular that generated stress which I have already described. I am satisfied the applicant has identified material that points to a causal connection between his condition and his service.

Deledio step #2: what are the relevant statements of principle?

30.     The next step is to identify the relevant statements of principle (SoP). The first is No 1 of 2000, which relates to anxiety disorder. Factor 5(a)(ii) refers to the applicant “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.” The expression severe psychosocial stressor is defined in paragraph 8 in the following terms:

“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

31.      Instrument 76 of 1998 deals with alcohol abuse or dependence.  The alcohol abuse SoP relevantly provides:

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

(a) suffering from a psychiatric disorder at the time of the clinical onset of

alcohol dependence or alcohol abuse;

(b) experiencing a severe stressor within the two years immediately before

the clinical onset of alcohol dependence or alcohol abuse

32.     The expression experiencing a severe stressor is defined as meaning (at paragraph 8):

…the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s , physical integrity.

In the setting of service in the Defence Forces, or other service where the Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

33.     If the applicant can establish he was suffering from a war-caused anxiety disorder at the time of the onset of his alcohol abuse condition, he will not need to establish the incidents qualified as severe stressors for the purposes of the alcohol abuse SoP.

Deledio step #3: can the raised facts fit the templates in the statements of principle?

34.     I will deal firstly with the question of whether or not the incidents described above are capable of qualifying as severe stressors within the meaning of the SoP relating to alcohol abuse.

35.     Is the mistaken identity incident a severe stressor?  The applicant says he was fearful during the incident, and truly believed his life was in danger.  I have some doubt whether an ordinary soldier in his position with his experience would have such a strong reaction, however: he was located in the midst of the Australian base amongst the military police officers for whom he cooked, and with whom he socialised with daily. It is hard to believe that a person in that position with that experience would have felt himself vulnerable to the two local policemen who invaded the kitchen. I also note that when the danger passed he continued with the routine of preparing a midday meal.  He says he only discussed the incident with other personnel when he served the meal some time later.  This is not a reaction of “intense fear, helplessness or horror”.  I do not think the incident qualifies as a severe stressor for the purposes of the SoP.

36.     Is the firing on the wire incident a severe stressor?  The applicant says he heard a loud rattling on the wire and saw some movement.  He fired in the direction of the rattling (about 5-7 rounds).  “Some moments” later he was instructed over the radio to cease firing.  The incident happened very quickly, and any fright on the part of the applicant would have been fleeting.  The applicant quickly became aware the base was not being attacked by the enemy. I do not think the incident can be characterised as (a perceived) “engagement with the enemy.” The applicant experienced a momentary fright or shock.  I do not think the event was of sufficient intensity to warrant classification as a severe stressor.

37.     Is the friendly fire incident a severe stressor?  If the ‘event’ is characterised as the applicant accidentally shooting another Australian soldier, it could qualify as a severe stressor – except the applicant only learned an Australian soldier had been shot long after the incident occurred.  When the incident took place he did not experience the requisite feelings of “intense fear, helplessness or horror” because he did not know it had occurred.

38.     What if the ‘event’ was the moment the applicant discovered another Australian had been shot that night and assumed he (the applicant) was responsible?  That cannot be a severe stressor.  When the applicant discovered another Australian had been shot the event – and the danger to the other Australian – had long passed.  The event does not involve actual or threat of death or serious injury to the other Australian soldier.  The soldier was already injured and was safe (in hospital, presumably) when this ‘event’ – i.e. the applicant’s discovery of the facts – occurred. It follows the incident does not qualify as a severe stressor.

39.     The general stressors are not severe stressors either.  It is doubtful whether stress experienced while on patrols generally is an ‘event’.  If nothing untoward actually happened on patrol, mere stressful feelings fall short of the high threshold mandated in the definition of “experiencing a severe stressor”.  Feelings of stress and general concerns about the safety of the patrol cannot be called feelings of “intense fear, helplessness or horror”.  When the applicant saw prisoners of war he recalled he thought the conditions in which they were kept were cruel and unnecessary.  Merely viewing prisoners of war does not qualify as a severe stressor.  The applicant also lacked the requisite reaction of “intense fear, helplessness or horror”.

40.     It follows the applicant must establish he experienced a severe psychosocial stressor for the purposes of the SoP relating to anxiety disorder if he is to have any chance of succeeding in his claims in respect of anxiety disorder and alcohol abuse.

41.     I am prepared to accept the mistaken identity incident might qualify as a severe psychosocial stressor, even if it does not qualify as a severe stressor. While the event as described by the applicant is not as conventional as the examples included in the definition of severe psychosocial stressor, I am satisfied that being in trouble with the police – especially police the applicant believed to be corrupt and murderous who had mistaken him for someone else – would give rise to the sort of emotional disturbance and distress contemplated by the SoP. 

42.     I do not accept that any of the other incidents described by the applicant could qualify as severe psychosocial stressors. They were undoubtedly stressful, but I do not see how they would have engendered the kind of stress contemplated by the SoP.

43.     It remains to consider whether the onset of the applicant’s anxiety condition occurred within two years of experiencing the severe psychosocial stressor. In other words, was the anxiety condition able to be diagnosed as such by March 1970? I note in this regard that the Tribunal should not make a finding of clinical onset unless “all of the symptoms of the disease [can] be shown within the two year period”: Youngnickel v Repatriation Commission[2004] FCA 1691 per Bennett J at paragraph 31.

44.     The applicant gave evidence that he slept in the lounge-room, experienced nightmares and hyper-arousal. Dr Likely suggested (at T documents, p 108) the applicant had been experiencing symptoms since his return from Vietnam – which occurred within the two year time frame. Dr Mulholland’s report of 30 March 2004 recorded details of an interview with Mrs Allan suggesting that problems may not have manifested themselves until a few years into the marriage. The marriage occurred in 1971. 

45.     I accept the applicant’s evidence of symptoms emerging upon his return from Vietnam which Dr Likely appears to believe sustain a diagnosis of anxiety disorder. It follows I accept the onset of the anxiety condition occurred prior to March 1970, within two years of experiencing the severe psychosocial stressor.

46.     The evidence as to the date of onset of the alcohol dependence condition must also be considered. The SoP requires relevantly that the applicant suffer from a psychiatric condition at the date of onset of the alcohol abuse or dependence condition. The applicant says he started to drink heavily in Vietnam, and that he drank in order to control the symptoms of his anxiety condition. Dr Mulholland accepted in his report of 30 March 2004 that the condition probably had its genesis in Vietnam, although in that report he attributed the emergence of alcohol abuse and dependence to boredom. In any event, the evidence is clear enough: the applicant was suffering from a psychiatric condition when his alcohol dependence condition took hold. In all likelihood the applicant’s maladaptive pattern of alcohol use commenced about the same time as the anxiety condition developed, although dependence may have taken some time to develop.

deledio step #4

47.     The applicant gave evidence at the hearing. He struck me as a truthful man. I note the evidence of Mr Kinspel suggesting it was unusual for local police officers to be given access to the military police compound without an Australian escort. While the evidence of their unfettered access on this occasion is surprising, I am persuaded by the applicant’s account. I accept the mistaken identity incident occurred as the applicant described.

conclusion

48.     I am satisfied the applicant suffers from an anxiety disorder and alcohol dependence. I accept those conditions are related to his war service in Vietnam. The decision under review is set aside. The earliest date of effect is 28 May 2002.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Dates of Hearing  14 July 2004, Townsville.
  27 October 2004, by phone.
  10 March 2005, Townsville.
Date of Decision  6 June 2005

The applicant was represented by Mr Honchin of counsel.

The respondent was represented by Mr Stoner, a departmental advocate.