Anderson and Repatriation Commission

[2004] AATA 950

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 950

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/360

VETERANS' APPEALS DIVISION		)
Re		GRAEME ANDERSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date14 September 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)....................

K L Beddoe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – post-traumatic stress disorder, anxiety disorder and alcohol dependence or abuse – Tribunal not satisfied that applicant suffers from these conditions – decision affirmed

Veterans’ Entitlements Act 1986 s 9

REASONS FOR DECISION

14 September 2004   Senior Member KL Beddoe           

1. The respondent refused the applicant’s claim to have anxiety disorder, alcohol dependence or abuse and hypertension accepted as war caused disabilities within the terms of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).

2.      On review by the Veterans’ Review Board, the claim for hypertension was withdrawn and the Board affirmed the decision in relation to anxiety disorder and alcohol dependence or abuse. The applicant then made a valid application for review in this Tribunal.

3. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits.  Oral evidence was given by the applicant, Dr Carter and Dr Wainwright.

4.      The applicant was born on 6 August 1950, enlisted in the Australian Army on 11 September 1967 and was discharged on 11 September 1970.  The only relevant service is his operational service as a Lance Corporal in 104 Signal Squadron and located in the Task Force Signal Centre. 

5.      The Signal Centre was located in a building dug into the ground and surrounded by sand bagging with firing positions, designed to guard against possible attack by mortar or artillery fire.  On several occasions the area was subject to incoming fire according to Dr Carter’s history.

6.      Duties were not confined to the Signal Centre where he was a keyboard Cipher operator. After about three weeks in South Vietnam the applicant was assigned to an overnight protection party at a village for the purpose of protecting medical personnel treating villagers. Apparently the perceived threat was from Viet Cong forces which may have been within the village.

7.      The protection force at the village compromised a number of Australian and South Vietnam Army troops who established defensive positions around the perimeter of the village (Dat Do).

8.      After dark there was firing of flares and ammunition by the South Vietnam Army personnel resulting in the Australians being on high alert for an enemy attack which did not materialise.

9.      The applicant says that he started saying his goodbyes to his family and panic and anxiety started to take over along with a feeling of helplessness and loneliness.   He says he only recovered from this experience after he returned to Nui Dat.  He did not see any Viet Cong.

10.     The applicant also relates his experiences in the Signal Centre at Nui Dat as a course of sleeplessness and despair because of almost daily transmission of death and wounded notices relating to Australian soldiers, albeit soldiers that he did not know personally.

11.     He also relates seeing dead Viet Cong fighters beside the road near Baria.  In Vung Tau the applicant unwittingly got involved in a bar fight with the result that South Vietnam Army personnel and military police were involved in restoring order.

12.     Apparently to get his own back the applicant (and others) assaulted civilians while the applicant (and others) were being transported back to Nui Dat.  One consequence was that the applicant was demoted from Lance Corporal to Private and the applicant became angry with his superiors, fell into conflict with them on several occasions which resulted in further punishments. Because of this, the applicant says he experienced hatred, helplessness and anxiety.

13.     While on protection party duties at the village of Binh Ba the applicant says a drunken South Vietnam Army soldier poked his rifle in the applicant’s face.  Nothing happened to injure the applicant but he was apprehensive that he would be shot.  That would seem to be unlikely given that the applicant was in the company of other Australians at the time (in positions one metre apart on the edge of the village).

14.     Notwithstanding these experiences and the applicant’s expressed reaction to them, an officer offered the applicant promotion to Corporal if he signed on for a further period.  He refused the offer and says he was discriminated against because of his refusal which he had apparently expressed in no uncertain terms.

15.     The applicant engaged in heavy consumption of alcohol in South Vietnam when he was not working.  He has continued to abuse alcohol since leaving the Army.  His regular drinking of beer commenced, he says, in December 1967 that is after joining the Army but two years before posting to South Vietnam.  He says that his consumption increased in February 1970 to four to six cans of beer “when able” due to peer pressure and stress and by August 1970 had increased to six to eight per day because of stress. 

16.     In March 2000 (T4/18), he said that he was drinking eight to ten glasses of beer per day.  However, in his statement dated 17 June 2003 (Exhibit A), he says that his drinking after his time in South Vietnam increased to three or four times the consumption before going to South Vietnam.

17.     In his oral evidence the applicant said he now drinks twelve cans of beer, with wine and whiskey each night.

18.     Since leaving the Army the applicant had regular employment mainly as an air-conditioning installer. It seems this employment was project based so that he worked for different employers (or perhaps was a sub-contractor). The applicant said that he sometimes lost work because of his alcohol abuse and insubordination which he attributed to his Army service. It is my understanding that the applicant is no longer employed.

Medical Evidence

19.     Dr Katz, consultant psychiatrist, made a report to the Department of Veterans’ Affairs dated 20 April 2000 (T4/31-34).  He saw the applicant on 30 March 2000.  The applicant says the consultation lasted about fifteen minutes because there was an argument as to who was responsible for Dr Katz’ fee.  Given the way the report is addressed it is likely it was requested by the department.

20.     It is apparent from the report that Dr Katz took a detailed history albeit that the applicant contends that some details of the history are wrong. The applicant told Dr Wainwright he attended Dr Katz on a regular basis for treatment.

21.     Dr Katz diagnosed Alcohol Dependency and Generalised Anxiety Disorder which he attributed to the service in South Vietnam. 

22.     Dr Carter, a consultant psychiatrist, made a report dated 10 January 2003 addressed to the Veterans’ Advocacy Service Australia.  Dr Carter says she first saw the applicant on 23 January 2003 on referral from a general practitioner and had seen him, in all, on five occasions.  Dr Carter’s clinical notes (Exhibit 6) reveal that she saw the applicant on the following dates:

23 January 2003
28 January 2003
14 February 2003
5 March 2003

7 August 2003

23.     The copy of the report before the Tribunal has an impressed exhibit stamp which shows it was an exhibit before the Veterans’ Review Board on 18 March 2003.  I assume Dr Carter’s report should have been dated 10 March 2003 and she had then only had four consultations with the applicant.  I also assume that she made a report to the general practitioner which has not been produced to the Tribunal.

24.     Dr Carter gives a detailed history, consistent but expansive, of her clinical notes and generally consistent, but not as to detail, with the applicant’s evidence except that while she refers to Dr Katz’ report, she makes no mention of the use of alcohol in either her report or her clinical notes to that time. The clinical notes for 7 August 2003 (that is after the application for review in this Tribunal) do refer to alcohol consumption and are the prelude to the report dated 11 August 2003 (Exhibit C) which was prepared for the applicant’s counsel in these proceedings. 

25.     Dr Carter says the applicant was exposed to traumatic events where he was exposed to risk of death or serious injury and where he was exposed to the death of others.  She argues that factor 5(a) of the Statement of Principles is satisfied.

26.     Dr Carter was of the opinion that the anxiety symptoms were concomitant of his post traumatic stress disorder. She says Dr Katz came to a different view because he did not have some of the traumas explained to him.

27.     In her further report dated 11 August 2003 (Exhibit C), Dr Carter said she agreed with Dr Katz that the applicant had generalised anxiety disorder but he also had the criteria for post traumatic stress disorder. 

28.     She then reports that the applicant had a flashback to the rifle in the face incident in South Vietnam when looking at Dr Carter’s business card.  There is no explanation for this in the report and there is no explanation of it in the clinical notes (Exhibit 6).  In her oral evidence she said the applicant could have repressed the incident at the first consultation and the business card incident is recorded as occurring at the second consultation.

29.     The second report discusses the use of alcohol and medications by the applicant. She concludes that the diagnosis should be post traumatic stress disorder, generalised anxiety disorder and alcohol dependence.  The conclusion about alcohol dependence is based on reported consumption and not on medical grounds. 

30.     I also note that the applicant’s report of the rifle in the face incident has been elevated by Dr Carter to a loaded rifle although the applicant does not say the rifle was loaded.  I accept that he would not have known one way or the other.

31.     The applicant told Dr Wainwright that he attends Dr Carter regularly for half hour or now quarter hour consultations (as at June 2003). Dr Carter has not prescribed medication. 

32.     Exhibits 2, 3, and 4 are reports by Dr Wainwright, psychiatrist, dated respectively 16 June 2003, 1 July 2003 and 13 October 2003.  Exhibit 5 is a handwritten transcript by Dr Wainwright of his consultation on 11 June 2003 with the applicant.  His extensive history is generally consistent with other material before the Tribunal. 

33.     Dr Wainwright’s opinion is the applicant does not have post traumatic stress disorder because the events described as having occurred during operational service in South Vietnam do not represent Criterion A events.

34.     In his report (Exhibit 2), Dr Wainwright also says that the applicant does not have an anxiety disorder albeit he may have been anxious from time to time.

35.     In relation to the use of alcohol, Dr Wainwright says that the history of alcohol intake is not consistent with blood screening results.  Also the applicant’s mental state examination showed him to be alert and oriented while he remained cheerful throughout his consultation with Dr Wainwright.

36.     Dr Wainwright referred to personality issues and expressed the view that his treatment was not consistent with a psychiatric disorder.

37.     The subsequent reports affirmed Dr Wainwright’s view that the applicant does not suffer a psychiatric condition.  He noted that the applicant only sought psychiatric treatment after making his initial claim on the respondent and that the treatment since received is not consistent with a requirement of such treatment – he is merely receiving assistance with his interpersonal difficulties.

38.     In his oral evidence Dr Wainwright said the applicant’s demotion while in South Vietnam was his worst experience there.

39.     I am satisfied that of the three specialists only Dr Wainwright has done a complete and objective examination of the applicant.  For this reason I should give more weight to his report in resolving the differences in the expert opinions.

40.     On the basis of Dr Wainwright’s written reports and oral evidence, I am satisfied, on the balance of probabilities, that the applicant does not suffer from conditions of post traumatic stress disorder, generalised anxiety disorder, alcohol dependence or alcohol abuse.

41.     The decision under review will be affirmed.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  5 March 2004
Date of Decision  14 September 2004
For the Applicant  Mrs B Nicoll, Counsel
For the Respondent                  Mr M Smith, Departmental Advocate