Allum and Repatriation Commission
[2003] AATA 1081
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1081
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1747
VETERANS' APPEALS DIVISION ) Re EDWARD MORRIS ALLUM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M D Allen, Senior Member Date17 October 2003
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely THAT the applicant is entitled to pension for the war caused diseases of anxiety disorder, alcohol dependence, hypertension, ischaemic heart disease, congestive cardiac failure and gastro-oesophageal reflux disease as and from the 7th of September 2000.
THIS matter is remitted to the Repatriation Commission in order that it can assess the rate of pension to be paid for incapacity occasioned to the Applicant by all war-caused injuries and diseases suffered by him.
.......(Sgn)..M D Allen…
Senior Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2001/1747
)
GENERAL ADMINISTRATIVE DIVISION )
Re
EDWARD MORRIS ALLUM
Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM TO DECISION
Tribunal Senior Member M D Allen
Date 18 November 2003
Place Sydney
Decision Pursuant to section 43AA of the Administrative Appeals Tribunal
Act 1975, the decision of the Tribunal dated 17 October 2003 is
amended as follows:1.on the covering page of the decision, the date “7th of September 2000” be changed to “7th of December 2000”.
..........................................
M D ALLEN
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - whether anxiety state contributed to by operational service - separation from terminally ill wife - alcohol dependence found to exist on clinical grounds
Veterans' Entitlements Act 1986 s6C, 120, 120A
Repatriation Commission v Hancock [2003] FCA 711
Benjamin v Repatriation Commission 70 ALD 622
Repatriation Commission v Smith 15 FCR 327
REASONS FOR DECISION
17 October 2003 Mr M D Allen, Senior Member 1. By application made the 16th day of November 2001 the Applicant sought review of a determination by the Respondent as affirmed by a Veterans' Review Board that the conditions described as "hypertension, ischaemic heart disease, gastro-oesophageal reflux disease, anxiety disorder and congestive cardiac failure" were not war-caused.
2. As the Applicant had operational service as that term is defined in section 6C of the Veterans' Entitlements Act 1986 as amended (VEA) the standard of proof in this matter is prescribed by subsections 120(1) and (3) VEA namely, that the Tribunal shall determine that the injuries or diseases suffered by the Applicant were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
3. The Tribunal will deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the injuries or diseases suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s120A VEA a hypothesis will not be a "reasonable hypothesis" unless if conforms to so-called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
4. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
5. The manner in which the Tribunal must approach its task where a SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97 namely:
"1. The Tribunal must consider all the material which is before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact-finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s196B (2) or (11).
3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with "template" to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s196B (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
6. Notwithstanding the manner in which the Tribunal is required to approach this matter as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant. See Repatriation Commission v Hancock [2003] FCA 711. In making this finding the standard of proof is that of to the Tribunals' "reasonable satisfaction" and in which the SoP regime established by s196B VEA has no part to play - see Benjamin v Repatriation Commission 70 ALD 622.
7. Apart from the other diseases the subject of this application to the Respondent, the Applicant in these proceedings submitted that he suffered from an anxiety state and alcohol dependence or alcohol abuse.
8. The Respondent for its part stated in its Statement of Contentions (Exhibit R1) at paragraph 13:
"If the Tribunal finds that the Applicant suffers war caused alcohol dependence, the Respondent concedes the other disabilities claimed."
From the material before me as contained in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975, plus the various medical reports, that concession is properly made.
9. At the outset I am satisfied on the civil standard of proof (see Repatriation Commission v Smith 15 FCR 327) that the Applicant suffers both an anxiety state and alcohol dependence.
10. Dr Lambeth, psychiatrist, in his original report of 16 July 2002 (Exhibit A4) opined that the Applicant did not meet the criteria for substance abuse or substance dependence in volume IV of the Diagnostic and Statistical Manual (DSM IV). In his oral evidence after being appraised of the history taken by Dr Harding Burns, an expert in alcohol related disorders, he modified his opinion and agreed that as withdrawal symptoms had been described by Dr Harding Burns, then the Applicant met the DSM criteria and that he would now make the diagnosis of alcohol dependence.
11. Dr Harding Burns in his report of 24 October 2002 (Exhibit A3) states at page 8:
"Mr Allum has been drinking at a harmful level since his service in Vietnam. The DUI in 1971 is a social indicator of harmful drinking. The continuation of harmful drinking, and the development of dependence has been set in train by the circumstances of his service in Vietnam, and the events around his wife's illness and death."
12. Although in her report of 27 March 2002 (Exhibit R6) Dr Lisa Brown, psychiatrist, opined that the Applicant did not meet the SoP criteria for alcohol dependence, in cross-examination she stated that the Applicant's pattern of sweating at night, waking and needing a drink of alcohol to get back to sleep is indicative of withdrawal symptoms. Similarly the Applicant's drinking in the morning is indicative of withdrawal. More importantly however, she conceded that if she were making a clinical diagnosis for the purposes of treatment, the Applicant did have an alcohol abuse (problem).
13. The only expert not to agree that the Applicant has the condition of either alcohol abuse or alcohol dependence is Professor Mattick, a psychologist.
14. I totally reject Professor Mattick's opinion. As Dr Harding Burns points out in his report, the Applicant cannot recall a drink-free day since his wife's funeral in 1975. He has been drinking at a harmful level since his service in South Vietnam.. Currently the Applicant drinks 90 standard drinks a week or, according to the Applicant's own evidence to the Tribunal, he drinks two four-litre casks of wine a week plus another couple of bottles of wine plus beer. He has his first drink of the day at around 9.30am or 10 am and wakes during the night and has more beer, which enables him to go back to sleep. I find it difficult to see how anyone could say that the Applicant is not alcohol dependent or abusing alcohol given this level of consumption.
15. In any event the three medical practitioners who have given evidence all agree that the Applicant is, as a matter of clinical judgement, suffering from alcohol abuse (Dr Brown) or alcohol dependence (Drs Lambeth and Harding Burns).
16. On 10 April 2001 Dr Frank Lumley, psychiatrist, examined the Applicant on behalf of the Respondent. His report dated that day is at document T11. In that report Dr Lumley states:
"In My Opinion he is suffering from a Generalised Anxiety Disorder which has been with him probably from the days when he was in the army particularly caused by the separation from his sick wife when he was serving in Vietnam."
17. Dr Lambeth opined that the Applicant had an anxiety disorder prior to going to South Vietnam because of his wife's illness but that disorder was exacerbated by going to South Vietnam.
18. I consider Dr Lambeth particularly well qualified to comment in this matter. His curriculum vitae as stated in evidence is that apart from the formal qualifications as a psychiatrist, he is a Wing Commander in the Royal Australian Airforce Specialist Reserve and a Staff Officer Grade I in the Directorate of Mental Health, which has recently been established in Defence Headquarters at Canberra. He attends Canberra on a weekly basis for either one or two days a week were he is involved in writing policy for the defence force on issues of mental health. He has in the past been a conjoint senior lecturer in psychiatry at the University of Newcastle and a member of the Mental Health Review Tribunal of New South Wales, apart from being a practising psychiatrist.
19. Dr Brown did not consider that the Applicant had an anxiety disorder but that he did suffer from a pathological grief reaction. Of this condition Dr Brown says:
"…pathological grief reaction is a psychiatric condition not recognised by the DSM IV but one which is often ascribed clinically and widely recognised in the psychiatric literature."
Dr Brown went on to state:
"The separation from his wife during operational service is probably best viewed as one of the contributing factors, if not the major or sole one, but as an aetiological contributor of a lesser but still relevant nature."
20. Unfortunately Dr Brown's opinion was not put to Dr Lambeth. Given the evidence in this matter particularly regarding the Applicant's very obvious attachment to and concern regarding his wife, there is much to be said for Dr Brown's opinion but on balance I accept the evidence of Drs Lumley and Lambeth that the condition was an anxiety disorder, although I am strengthened in this opinion by the recognition by Dr Brown that separation from his wife was a contributing cause to the psychiatric illness suffered by the Applicant.
21. At the time the Respondent made its original decision in this matter, the SoP for Generalised Anxiety Disorder was Instrument No 1 of 2000, and that Instrument is still current. Although alcohol abuse, alcohol dependence was not considered by the Respondent at the time of the primary decision, Instrument No 76 of 1998 was and is still current.
22. The Applicant's evidence was that he was born in the United Kingdom. After national service in the British Army including service in Suez and Germany he migrated to Australia at age 26.
23. After completing national service he was a moderate drinker of alcohol drinking about three pints of beer in a pub on two nights a week. At the time of migrating to Australia he was engaged and his fiance joined him and they were married in Australia. He joined the Australian Regular Army in November 1961 and was initially posted to the Royal Australian Signal Corps. Later after his wife's illness had been diagnosed he transferred to the Australian Army Service Corps as a clerk.
24. Initially the Applicant was a moderate drinker of alcohol. He and his wife did not socialise a great deal, as both wanted to see Australia. If they went out for dinner on a Saturday night they would share a bottle of wine.
25. Early in 1963 the Applicant's wife was diagnosed with Hodgkins disease. The Applicant was at this time still in Signal Corps but posted to Melbourne where his wife was receiving treatment at the Peter McCallum Clinic. He then obtained a corps transfer and also a compassionate posting to Central Army Records Office, which was in the Melbourne Central Business District. This enabled him to take his wife to the Peter McCallum Clinic and generally attend to her.
26. In early 1969 the Applicant, who by that time had attained the rank of sergeant, was informed by his Corps Directorate at Army Head Quarters Canberra that he was one of the few remaining senior NCO's physically fit who had not been to Vietnam. The implication clearly being it was his time to go. He discussed this with his wife and it was decided that he should take the posting.
27. That the Applicant as a career soldier would take the posting is to me quite understandable. Although the Applicant said that he could have refused the posting and if so his refusal would be "forgotten without prejudice", he was clearly aware that by not having gone to South Vietnam it would count against him in his career as it would be a service experience that he lacked. There is also the very commendable attitude of the Applicant and his wife that as the Army had been very fair to them then they should reciprocate and the Applicant take the posting.
28. Unfortunately the Applicant experienced considerable anxiety in being in South Vietnam and absent from his terminally ill wife. In his evidence the Applicant put it thus:
"Well, before I went to Vietnam my wife had had radium treatment quite extensively and she had got to the stage where she couldn't have any more radium treatment but she did go on with chemotherapy for some time after and I realised that things weren't any better but whilst I was home in my compassionate posting I was able to look after her needs, take her to the clinic, bring her home, make sure she was okay and then if everything was fine I'd go back to work but if she was crook, then I'd stay with her and do what I could for her. When I went to Vietnam I was two days away from anything like that.
Question: What does that mean?
Answer: Well, it meant there was a lot of worry.
Question: You started to say something: you were two days away and that put a whole new complex on the system. What do you mean precisely?
Answer: Well, I was I virtually might as well have not been there. She might as well have been single."
And in his statement (Exhibit A2) at paragraph 8 the Applicant said:
"I felt that I left her for dead."
29. Cross-examined the Applicant conceded that when he was posted to South Vietnam in April 1969 his wife had for a period joined her father in England and this was an arrangement with which he was comfortable.
30. The Applicant's posting was to a cash office at the Australian Logistics Support Group at Vung Tau. The Applicant did not see any combat but did experience concerns as to whether the base would be subject to mortar attack. At times he had to collate and forward to Australia the kits of deceased servicemen and this he found distressing although he did not witness any major stressful events.
31. Whilst in South Vietnam the Applicant began to drink heavily. He would have three cans of beer before lunch, and then in the course of the evening another 12 to 14 cans of beer.
32. When the Applicant returned from South Vietnam he was posted to Townsville and he and his wife thought that the warmer climate would be better for her health. During this period the Applicant virtually did not drink alcohol as he was occupied in carrying for his wife.
33. The Applicant stated that after return from South Vietnam the desire to drink was still there but he regarded the care of his wife as too important to indulge. He sublimated his desire for alcohol by activity, for example he would wash his car two or three times just for something to do or find something else to do just to keep from being inactive and wanting to drink.
34. Whilst in Townsville the Army unit to which the Applicant had been posted was warned for service in South Vietnam and the Applicant was told he was to accompany that unit. He therefore resigned from the Army. I note that the Applicant told Dr Brown that if single he would have stayed in the Army however, he wanted to spend as much time as possible with his wife.
35. Although the Applicant said in evidence that in the period after return from South Vietnam to when his wife died his alcohol consumption was virtually nil he did tell Dr Harding Burns that he was at this time drinking three cans of beer a day. In 1971 or 1972 after leaving Townsville and the Army the Applicant was convicted of driving under the influence of alcohol and lost his licence for 12 months, which is consistent with his still drinking alcohol in this period.
36. After the death of his wife 1975 the Applicant began to drink more heavily and is now, as I have previously found, alcohol dependent.
37. In his report of 16 July 2002 Dr Lambeth opined that the Applicant suffers from a generalised anxiety disorder, and that he suffered a severe psychosocial stressor within the two years immediately before the clinical onset of that anxiety disorder. At page 5 of his report Dr Lambeth states:
"That psychosocial stressor was the illness with respect to his wife. She had Hodgkin's disease; this necessitated a compassionate posting to Melbourne. That in itself would most certainly have led, and in my opinion, did lead to the onset of his anxiety disorder. Thus far, the anxiety disorder appears to be completely related to the difficulties he had in dealing with his wife's illness, which may well have been considered terminal at that time. However, he was then sent to Vietnam. This was another psychosocial stressor, as he was separated from his wife (despite the fact that he had been give a compassionate posting so that he could assist her) and was sent to Vietnam, where his anxiety grew daily. I believe this was a psychosocial stressor and would satisfy the criteria found in Paragraph 5(v) of the Statements of Principles. Another psychosocial stressor adding to the anxiety, but in my opinion a minor one was the stress at dealing with the effects of dead and wounded soldiers.
…
In summary, therefore, I believe that he has a Generalised Anxiety Disorder. I believe that that Generalised Anxiety Disorder, which is certainly moderate in intensity, and was present in Vietnam, was more probably than not exacerbated by his service in Vietnam, necessitating separation from his wife who had an illness (a form of cancer of the blood) which required regular treatment and which was likely be terminal and, in fact, finally was terminal. I think that this psychosocial stressor indicates that there was an identifiable occurrence evoking feelings of substantial distress in Mr Allum, and falling under the heading for the serious injury of a close relative, with ultimate loss due to separation by being in South Vietnam."
38. Dr Lambeth in evidence in chief expanded upon comments in his report regarding the sending of the Applicant to South Vietnam an event, which he stated, would not happen today. He said:
"The military is generally fairly cognisant of circumstances surrounding a members life. Certainly in these days there is no way that we would send this person to Vietnam. If you remember, he had been already granted a compassionate posting because of his wife's illness. This indicates to me that the military were well aware of his wife's illness. It indicates to me that they should have been aware that this was liable to cause deterioration in any possible anxiety condition. Today, we would certainly not send such a person overseas. At times of war, I recognised that one changes the rules a little but I am surprised that even they did so, having given him a compassionate posting already."
39. Dr Lambeth was then asked:
"Does what you have said presuppose that it is a generally accepted fact that separation in circumstances like those of Mr and Mrs Allum's are liable to lead to an anxiety disorder of some sort?"
Answer:
"Oh yes, I think this would be seen as a significant factor for an anxiety disorder."
Asked regarding the Applicant's appeared acquiescence in being posted to South Vietnam Dr Lambeth stated:
"He was a man who was a career soldier. Career soldiers don’t usually complain, they try and take on the chin…He is not the sort of person who pushes himself."
40. The reduction in the Applicant's drinking after return from South Vietnam was also dealt with by Dr Lambeth, he stated:
"Now, the whole basis of, for instance, the AA program is that you cannot say I am not an alcoholic, you must always say I am an alcoholic, ie, I am dependent. I may not be drinking and it is not required that you be drinking in order to be found to be dependent. It's required that you have been drinking, of course. So that, yes, you can still be dependent, despite the fact that you are not drinking at that period of time."
41. As mentioned previously in these reasons, Dr Lumley, psychiatrist, in his report to the Respondent dated 10 April 2001 opined that the Applicant suffered a generalised anxiety disorder particularly caused by separation from his sick wife when he was in South Vietnam.
42. Dr Harding Burns in his report of 24 October 2002 states that the Applicant had been drinking at a harmful level since his service in Vietnam and that the continuation of harmful drinking and developed dependence had been set in train by the circumstance of his service in Vietnam and the events around his wife's illness and death. He also stated:
"…the circumstances of his wife's illness and death, and Mr Allum's military service provided the setting during which he developed the pattern of harmful drinking which persisted after his discharge, and has led to alcohol dependence. It is possible to hypothesise a causal relationship between these circumstances and Mr Allum's present situation…"
43. Dr Brown states at page 13 of her report of 27 March 2002:
"However, if the diagnosis of generalised anxiety disorder is dropped, and that of a pathological grief reaction substituted, there is then the issue of whether Mr Allum has experienced a severe psychosocial stressor within the two years immediately before the clinical onset of this condition. In this situation, the serious injury of a relative and/or experiencing separation is of obvious relevance. Certainly, Mr Allum's escalation of alcohol abuse during the separation would tend to suggest that there was a psychological link between his behaviour and the stressors at home, however he would not appear to meet criteria for alcohol abuse or generalised anxiety disorder at this time. His anxiety and worry about his wife's condition would still, in my opinion, not meet full criteria for GAD but his alcohol usage would rather reflect a way of dealing with an understandable level of anxiety."
Dr Brown continued at page 14 of her report:
"The separation from his wife during operational service is probably best viewed as one of the contributing factors, if not the major or sole one, but as an aetiological contributor of a lesser but still relevant nature.
As such, a reasonable hypothesis linking the separation and his eventual psychiatric condition might be made on this basis, as long as this stressor is understood to be less significant in overall causation than the loss of his wife itself."
44. The above material clearly raises facts which point to an hypothesis that the Applicant's anxiety disorder was materially contributed to by his service in South Vietnam and that whilst in South Vietnam as a means of coping with his anxiety caused by separation from his wife he developed a pattern of harmful drinking amounting to alcohol dependence.
45. I have not referred to the report of Professor Mattick as although he gives a contrary opinion I regard the opinions of the specialist medical practitioners referred to above as not only raising a hypothesis but being the preferable expert opinions in any event.
46. Factor 5(a)(v) of Instrument No 1 of 2000 reads:
"Experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder."
"Severe psychosocial stressor" is defined in the said Instrument as meaning an "identifiable occurrence that evokes feelings of substantial distress for example experiencing a loss such as divorce or separation". This either caused (Dr Lumley) or aggravated an existing (Dr Lambeth) anxiety disorder.
47. In this matter it is clear that the Applicant experienced a severe psychosocial stressor by being separated from his terminally ill wife by being posted to South Vietnam, plus his fears for her while he was there.
48. In passing I note that the Veterans' Review Board in its reasons for decision said:
"Thus the medical evidence before the Board is that the Veterans' generalised anxiety disorder was caused by the separation from his sick wife when he was serving in Vietnam.
Regrettably separation from a loved one is not a factor in the Statement of Principles."
I agree separation is not a factor but it is a severe psychosocial stressor, which is a factor - see the definitions in the relevant SoP's.
49. As a result of the severe psychosocial stressor the Applicant took refuge in alcohol. Factors 5(a) and (b) of Instrument No 76 of 1998 read:
"…
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;…"
Here it is clear that not only did the Applicant suffer a severe psychosocial stressor but also suffered a psychiatric disorder namely an anxiety state at the time of the onset of his alcohol dependence, which was established by the time of his return from South Vietnam. As pointed out by Dr Lambeth periods of abstinence, if such there were, does not mean a person is not still alcohol dependent.
50. There is nothing in the material before me which in any way negatives the "facts" upon which the hypothesis are based beyond reasonable doubt.
51. The decision under review is therefore set aside and the Tribunal substitutes in lieu thereof its decision namely, that the Applicant is entitled to pension for the war-caused diseases of anxiety disorder, alcohol dependence, hypertension, ischaemic heart disease, congestive cardiac failure, gastro-oesophageal reflux disease, as and from the 7th day of December 2000. The matter is remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases suffered by the Applicant.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member
Signed: S. Griffiths .......................................................................................
AssociateDate/s of Hearing 24 June 2003, 1 July 2003, 19 September 2003
Date of Decision 17 October 2003
Solicitor for the Applicant Ms J Buss
Solicitor for the Respondent Mr S Modder
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