Antony and Repatriation Commission
[2008] AATA 269
•4 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 269
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600235
VETERANS' APPEALS DIVISION ) Re ALEC ANTONY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell Date4 April 2008
PlacePerth
Decision The decision under review is set aside, and in substitution I find that
(1) the conditions of post traumatic stress disorder, alcohol dependence (in remission) and rheumatoid arthritis are war caused diseases/injuries; and
(2) Mr Antony is entitled to be paid a disability pension at the Special Rate of pension; and
(3) the date of effect is 4 May 2003.
.............[sgd Dr J Campbell].............
Member
CATCHWORDS
Veterans Entitlements – Claim for Post Traumatic Stress Disorder – Claim for Right and left knee damage – Issue of what conditions can be considered relevant to claim made – Claim for Special Rate – date of effect.
LEGISLATION
Veterans Entitlements Act 1986, section 17, 18, 19, 20, 24
Repatriation Commission v Deledio (1998) 83 FCR 82
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) FCAFC 424
Repatriation Commission v Budworth (2001) 116 FCR 287
Benjamin v Repatriation Commission (2001) FCA 1879
Grant v Repatriation Commission (1999) FCA 1629
REASONS FOR DECISION
4 April 2008 Dr J D Campbell 1. Mr Antony was born in 1944. Mr Antony served in the Australian Regular Army between 1961 and 1982. Mr Antony had a period of operational service, when serving in Vietnam between 18 March 1970 and 18 March 1971 as a Corporal driver with the headquarters unit in Saigon. Mr Antony had a period of eligible defence service between 7 December 1972 and 1 February 1982.
2. Mr Antony lodged notice of an informal claim in relation to left and right knee injuries and Post Traumatic Stress Disorder (PTSD) with the Respondent on 4 August 2003. On 10 November 2003 Mr Antony lodged a formal claim with the Respondent in which he sort to have PTSD and left and right knee damage accepted as war cause disabilities.
3. On 12 January 2004 a Repatriation Commission delegate requested the Departmental Medical Officer to review the extensive clinical notes on files and provide a diagnosis for the veteran’s claimed conditions relating to his left and right knees and psychiatric symptomology.
4. On 28 January 2004 the Departmental Medical officer advised the delegate in the following terms.
(a)Diagnosis of right and left knees
(i)Sero negative rheumatoid arthritis, with symptoms suggested to be present in the right knee by 1982.
(ii)Patello femoral arthritis
(b)Diagnosis of PTSD
(i)PTSD
(ii)Alcohol Abuse.
5. On 13 February 2004, an x-ray of both knees was reported by the radiologist
“There are no changes to suggest the presence of RA but there are minor degenerative changes at both knee joints, including each patello femoral compartment.”
6. On 6 April 2004 the Repatriation Commission determined that Mr Antony’s osteoarthritis of both knees was a service related disability, while PTSD, alcohol dependence or alcohol abuse and rheumatoid arthritis were disabilities not related to service.
7. On 4 April 2006 the Veterans’ Review Board varied the decision of the Repatriation Commission in relation to alcohol dependence and alcohol abuse. By amending the diagnosis to alcohol dependence. The Veterans’ Review Board affirmed the earlier Repatriation Commission decision that PTSD, alcohol dependence and rheumatoid arthritis were neither war or defence caused disabilities.
8. The relevant issues in this matter are
(a)What is the date of effect, if Mr Antony is successful in his claim?
(b)What are the current diagnoses for the conditions claimed by Mr Antony, namely left and right knee damage and post traumatic stress disorder.
(c)If rheumatoid arthritis is considered to be an applicable diagnosis, does Mr Antony have to lodge a separate claim to seek entitlement for such?
(d)Are the nominated conditions war and/or defence cause disabilities?
(e)Is Mr Antony entitled to the payment of disability pension at the special rate?
9. For reasons nominated later in this decision, I conclude, that.
(a)the date of effect is 4 May 2003.
(b)the diagnoses of conditions suffered by Mr Antony in response to his claim are.
(i)Post Traumatic Stress Disorder
(ii)Alcohol Dependence (in remission)
(iii)Rheumatoid Arthritis; and
(iv)Osteoarthritis both knees (accepted condition)
(c)the condition of rheumatoid arthritis can be considered in context of the current claim.
(d)the three nominated conditions of PTSD, alcohol dependence (in remission) and rheumatoid arthritis are war caused disabilities arising from war caused injuries and/ or diseases.
(e)Mr Antony qualifies for the payment of disability pension at the special rate with the date of effect being 4 May 2003.
Background
10. Mr Antony is currently in receipt of disability pension at 100% of the General Rate for the accepted disabilities of
· Tenosynovitis
· Hiatus Hernia
· Bronchial Asthma
· Lumbar Spondylosis
· UlcerativeOesophagitis
· Bilateral Sensori-neural Hearing Loss
· Bilateral Tinnitus
· Osteoarthritis Affecting Both Knees
11. Currently Mr Antony has had claims denied by the Repatriation Commission for the following disabilities
· Osteoarthosis left ankle
· Damage to right knee
· Obesity
· Sleep Apnoea
· Diabetes Mellitus
· Depressive Disorder
· Generalised Anxiety Disorder
· Post Traumatic Stress Disorder
Consideration and Findings
12. I note that Mr Antony has made a number of claims over many years to the Repatriation Commission seeking acceptance for numerous disabilities to be considered as war and/or defence caused. In so doing it is evident that the Repatriation Commission has amassed a number of files on Mr Antony’s various disabilities over time. I further note that he has been successful in many of his claims.
Date of Effect
13. I note Mr Antony lodged an informal claim with the Respondent on 4 August 2003, while the necessary formal claim was not lodged until 10 November 2003. I further note that there is not written material in evidence before me that would indicate that Mr Antony at the time of lodging his formal claim had been notified in writing that it would be necessary for him to make the claim in accordance with the appropriate form or within three months of having been so notified.
14. In such circumstances and pursuant to section 20 of the Act (grant of claim of pension) and section 21 of the Act (increase in pension claim), the appropriate outcome is that the date of effect pursuant to the two nominated sections is a date not earlier than three months before the date of lodgement of the non conforming (informal) claim. In the circumstances of the matter I note that both parties concede that the date of effect is 4 May 2003 and I do so find.
Diagnoses of Conditions Applicable to Claim
15. The statutory framework nominated in sections 17 and18 of the Act, requires that the Secretary shall cause an investigation to be made into the matters to which the claim or application relates. Upon the completion of such investigation the Secretary shall submit the claim to the Repatriation Commission for its consideration and determination together with any evidence furnished by the claimant and together with any documents relevant to the claim obtained in the course of the investigation initiated by the Secretary.
16. This I observe is the process followed in this matter with the outcome being a determination by the Repatriation Commission that the appropriate medical diagnoses for the claimed conditions being:-
· post traumatic stress disorder
· alcohol dependence or alcohol abuse
· osteoarthritis effecting both knees
· rheumatoid arthritis
17. I further note the list of records/documents/statements/reports considered by the Repatriation Commission. I acknowledge, in turn that all such material is in evidence before me, together with additional material to which I shall refer where relevant as I consider each diagnostic condition nominated.
18. In addressing the diagnosis of each condition applicable to the claim, I am mindful that my first task is to establish a diagnosis for the current symptomology experienced by Mr Antony. I am aware that such findings are to be made on grounds of reasonable satisfaction pursuant to section 120(4) of the Act. (Repatriation Commission v Budworth (2001) 116 FCR 287 followed).
19. In addressing Mr Antony’s psychiatric symptomology as presented at time of claim and continuing to exist, I am mindful of Mr Antony’s presentation of his mental heath symptoms and that of his alcohol consumption over time. Further I note that the significant amount of material before me that relates to assessment and evaluation of Mr Antony’s psychiatric condition.
20. During his oral evidence Mr Antony, as he has done, except during his consultation with Dr Mander in 1996, in interview with all psychiatrists/psychologists thereafter detailed circumstances experienced during his period of operational service which caused him variously to experience feelings of shock, horror, terror and being in fear of his life. Such circumstances included the episodic collection of coffins containing deceased Australian soldiers (including one sergeant acquaintance) from the American Army Morgue Unit, transporting them on a truck and loading them onto a plane for repatriation to Australia. Further experiences detailed, included the incident with a Vietnamese Policeman (white mouse) which hedescribed as the most significant event. During this event a confrontation with the policeman involved an order to stop, the policeman moving to draw his weapon and Mr Antony seizing his own weapon from the seat beside him, pointing it at the policeman and demanding he surrender his weapon to Mr Antony – which he did and which weapon Mr Antony later gave to the Vietnamese Military Policeman at the entry gate to the Free World Building (HQIAFV). Mr Antony also described an incident where he was confronted with a large load of ply wood dropping onto a Vietnamese cyclist, when the securing ropes on a loaded truck gave way.
21. Further in his oral evidence Mr Antony detailed his alcohol consumption history over time. Commencing as a social drinker, his alcohol consumption increased to one half to one bottle of Bacardi rum per day (40oz bottle) after the white mouse incident. On return to Australia, he was unable to afford Bacardi, and reverted to drinking 10 standard cans of beer each day after work. In late 1971, Mr Antony admits to teaching a civilian acquaintence how to drive various army vehicles while under the influence. Mr Antony stated that he was charged with many offences as a result of that escapade and transferred out of that unit. Mr Antony detailed in the new unit a period in which he experienced an episode of work induced anxiety in 1975 and he was referred to Dr Ellison, a psychiatrist.
22. Mr Antony detailed that on subsequent transfer to Sydney around 1976, hecontinued to drink eight to nine cans of beer and a half bottle of brandy each night, with the brandy consumption increasing to one bottle per night over time. This continued for many years after leaving the army and it was only after undertaking an in-patient alcohol program at Hollywood Hospital in 2002, that Mr Antony has been able to reduce his intake to two cans of beer a week.
23. Further I note Mr Antony acknowledged that his drinking may have effected his Army career and that in 1982 when discharged, he still retained the rank of corporal, which he had held for many years. Further Mr Antony was particular that in 1996 when he saw Dr Mander, a consulting psychiatrist, for the first time, he did not mention any of his Vietnam experiences to Dr Mander. Mr Antony stated that he was told not to do so by an advocate, but in any event was unable to open up with Dr Mander, despite consuming some alcohol prior to the consultation. Mr Antony remains angry with Dr Mander over the misreporting of material including the death of his young son, when indeed that was not the case.
24. I have examined the many psychiatric and psychological opinions and diagnoses available in this matter. These include those of Dr Ellison (1975) – anxiety state; Dr Mander (1996) – Depression with alcohol a major factor; Dr McCarthy (1998) – Generalised Anxiety Disorder, probable past major depression, alcohol dependence, no PTSD due to absence of re-experiencing; Dr Kay (2000) – Adjustment Disorder, later becoming an anxiety disorder, alcohol abuse; Ms Sceales (2003) – Post Traumatic Stress Disorder; Dr Chiu (2003) – post traumatic stress disorder; Dr Kay (2003) – post traumatic stress disorder, alcohol abuse; Dr Risbey (2004) – Post Traumatic Stress Disorder, alcohol dependence; Dr Cole (2006) – Chronic Post Traumatic Stress disorder; Dr Mander (2007) – Post Traumatic Stress Disorder.
25. In oral evidence Dr Cole confirmed his diagnoses of post traumatic stress disorder with a further diagnosis of alcohol dependence (in remission). Similarly Dr Kaye, the treating psychiatrist since July 2000, confirmed the diagnosis as chronic post traumatic stress disorder, with a few depressive symptoms and a further diagnosis of alcohol dependence in remission. In his oral evidence Dr Mander acknowledged that this was now a preponderance of anxiety symptoms consistent with a diagnosis of post traumatic stress disorder. Dr Mander also considers Mr Antony to be suffering from alcohol dependence (in remission).
26. A detailed examination of the psychiatric and psychological reports does indicate an evolving clinical history – a circumstance in the psychiatrists’ view not being uncommon. I would further note that since 1998 the clinical history as detailed in the various reports by the doctors is consistent with what Mr Antony recounted during the hearing. An exception was that Dr McCarthy did not note Mr Antony re-experiencing the stressful circumstances, a situation explained by Mr Antony on the grounds that he was not asked.
27. Following such a detailed examination of so many opinions I am more than satisfied that Mr Antony suffers from both post traumatic stress disorder and alcohol dependence (in remission). In so finding I am mindful of the diagnostic criteria nominated in DSM-1V-TR and the report of Dr Cole that details Mr Antony’s symptomolgy against such criteria for both diagnostic entities.
28. In addressing Mr Antony’s second element, namely right and left knee damage, as evidenced by his complaints of knee pain and his use of a knee brace to help control his symptoms. I note that Mr Antony experiences on occasions more difficulty with the right as opposed to the left knee, with pain in the knees preventing him from walking more than 250 meters.
29. X-rays of the knees taken in 2004 demonstrate radiological changes consistent with minor degenerative change in both knee joints consistent with a diagnoses of right and left knee osteoarthritis, a diagnoses noted by Assoc. Professor Stephen Hall, a consultant rheumatologist in his report of 20 November 2006. This condition and its diagnosis has been accepted by the Repatriation Commission.
30. In turning to a review of all the material I note a long clinical history of recurrent migratory joint pains commencing in June 1979 – a condition for which he was hospitalised. I note that in June, August and September 1979, military medical records note complaints of pain in both knees as the reporting symptom (T4,P 55, 58, 59, 60). At that time Mr Antony is noted as having tested negative for rheumatoid factor with nevertheless the Army Consultant Physician (Dr Booker) considering Mr Antony to be suffering from sero negative rheumatoid arthritis. I observe that Mr Antony made a claim with the Repatriation Commission in 1982, with a minute dated 30 July 1982 noting “that the claims for polyarthritis and rheumatoid arthritis are covered by the service related disability ‘Tenosynovitis’ and the new diagnosis ‘lumbar spondylosis’. (T37 P215).
31. In a report dated 14 July 1995, Dr Harper, a consultant physician detailed Mr Antony’s many complaints before particularising his muscular skeletal symptomatology which indicated a complaint of his left knee feeling weak and giving way. Dr Harper noted that x-rays of both hands and wrists showed significant erosive disease consistent with a diagnosis of sero positive erosive psoriatic arthritis with some evidence of degenerative join disease. Dr Harper commenced medication with gold injections while maintaining his salazopyrine medication (T12 P102). Dr Harper repeated her diagnosis in further letters on 21 August and 29 September 1995 (T12 P105, 106).
32. In a report dated 7 June 1996, (T21 P147) Dr Edelman, a consultant rheumatologist considered Mr Antony’s inflammatory arthritis and his sero negative rheumatoid arthritis to be congruent conditions. In an earlier report dated 23 November 1995 (T23 P223), Dr Edelman confirms his opinion made in 1992 that the appropriate diagnoses was sero negative rheumatoid arthritis, the sero negative having been noted in Army Records in 1978/79.
33. I note the report of Associate Professor Hall, a consultant rheumatologist dated 20 November 2006, (Exh A4). Professor Hall considers that the ‘tenosynovitis’ was the first manifestation of what has been more appropriately diagnosed as rheumatoid arthritis. Dr Hall notes that diagnostic convention equates sero positive for rheumatoid factor with rheumatoid arthritis and sero negative with psoriatic arthritis, with the actual arthritic changes being the same in the two conditions.
34. In a further report dated 18 January 2007 (Exh A5), Professor Hall, in noting the report of Dr Harper, and assuming that Mr Antony is sero positive as noted by Dr Harper, commented on clear evidence linking heavy smoking to sero positive rheumatoid arthritis.
35. In oral evidence Professor Hall noted that Mr Antony had radiological evidence of erosive change in the joints of the hands and wrist consistent with a diagnosis of rheumatoid arthritis. As regards to the knee joint Professor Hall considered that the radiological changes demonstrated on x-ray in 2004 were consistent with a diagnosis of osteoarthritis. Professor Hall stated that he could see no radiological evidence of rheumatoid arthritis in the knee joints, and that when active rheumatoid arthritis causes initially microscopic changes in the synovium of the joint. Professor Hall considered that the rheumatoid arthritis was not active at this stage, and when active both degenerative osteoarthritis and rheumatoid arthritis can coexist in the one joint.
36. Professor Hall further commented that once sero positive rheumatoid arthritis is demonstrated, convention amongst rheumatologists predicates that irrespective of later conversion to a sero negative status the rheumatoid arthritis is always considered to remain sero positive. Professor Hall stated that such conversions often occur, and particularly once rheumatoid drug therapy has been undertaken.
37. Having considered all the material, I conclude on the balance of probabilities that Mr Antony suffers from rheumatoid arthritis. In so finding I rely upon the opinions of Drs Booker, Harper, Edelman and Hall.
38. Mr Ponnuthurai, the Departmental advocate, strongly contended that as there was no radiological evidence of erosive change consistent with rheumatoid arthritis, in the knee joints, any consideration of rheumatoid arthritis in areas of the body other than the knees as regards attributability to service is not permissible. In so stating Mr Ponnuthurai contended that the absence of radiological evidence indicative of rheumatoid arthritis disease is determinative in concluding that Mr Antony does not suffer from rheumatoid arthritis affecting his knees. Mr Ponnuthurai contended that the Tribunal was limited in scope to answering the claim made.
39. While I can understand the nature of such a contention, I find the making of such a contention so late in the day inconsistent with the earlier investigation of the Secretary and the consideration and determination made by the Repatriation Commission. Further it would appear to me that it is the very antithesis of the beneficial intent of the legislation both inherent and noted in the Veterans’ Entitlement Act.
40. Furthermore I note the contention is borne of a false assumption, namely the absence of erosive change in a joint means an absence of rheumatoid arthritis. Professor Hall was specific in detailing that both osteoarthritis and rheumatoid arthritis can coexist in the same joint. Professor Hall also indicated that early changes indicative of rheumatoid arthritis in a joint are of a microscopic nature in the synovial lining of the joint. Professor Hall believed that Mr Antony’s rheumatoid arthritic process was inactive at this time (2007), and when active, as a systemic disease, often causes radiological changes in the small bones and joints of the hands, wrists and feet, before affecting the larger joints to the same degree.
41. I observe that back in 1979, the systemic rheumatic process, however named, did involve both knee joints. Further I note determinations made in 1982 by the Repatriation Commission. Such determinations appear to reflect the Commission’s intention to acknowledge the beneficial notice of the legislation, when claims for polyarthirtis and rheumatoid arthritis were considered to be covered by the service related disability of ‘tenosynovitis’ and the new diagnosis ‘ Lumbar Spondylosis’(Exh A9).
42. More importantly I note the decisions of the Full Federal Court in GrantvRepatriationCommission [1999] FCA 1629 and in BenjaminvRepatriationCommission [2001] FCA 1879. In the matter of Grant v Repatriation Commission it was held that
“The AAT in concluding a review was entitled to be guided by the issues that the two parties choose to put before it and to have regard to the case put. At the same time the AAT was required to determine the substantive issues raised by the material, and, in doing so, was obliged not to limit its determination to the case made by an applicant if the evidence and material which is accepted or did not reject, raised an issue not put forward by the Applicant.”
43. In the subsequent matter of Benjamin v Repatriation Commission, the Full Federal Court concluded, when answering the question of whether in characterising conditions, must the decision maker limit the determination to the claim made.
“The process was inquisitorial, which meant that the Tribunal was not obliged to limit its inquiry to the case raised by the Applicant, if the evidence and material raised a case on a basis not claimed by the Applicant.
44. Both the cases referred to indicate the role the Tribunal should play in determining or characterising the conditions that arise from the claim and the material presented in evidence. In the circumstances of the matter to hand the material and evidence before the Tribunal does raise the issue of rheumatoid arthritis. In so stating, there is much material indicating that Mr Antony has had continued but episodic difficulty with rheumatoid arthritis since 1979. Further I note and particularly in terms of fairness to the Respondent, the issue of rheumatoid arthritis in response to the current claim was nominated as part of the Secretary’s investigations as to what conditions existed in answer to the claim, with the rheumatoid arthritis condition subject to consideration and determination by the Repatriation Commission in their primary decision. I see no reason for altering their consideration of the rheumatoid arthritis condition, nor am I convinced that any significant merits rest with the arguments placed before me that the condition of rheumatoid arthritis should be the subject of a further separate claim.
Relationship to Service
45. In the issue of causal connection to service, I am guided both by section 120(3) and 120(1) and the principles laid down in Repatriation Commission v Deledio (1998) 83 FCR 82. I shall deal with each of the conditions in turn.
A. Post Traumatic Stress Disorder
(1)Following a careful examination of all the material in evidence before me, I consider that such material points to a hypothesis connecting Mr Antony’s conditions of post traumatic stress disorder with his period of operational service in Vietnam between 18 March 1970 and 18 March 1971. In particular the material points to three incidents, namely the confrontation with the Vietnamese Policeman (‘white mouse’ episode), the collection of, transportation to and loading of coffins containing deceased Australian soldiers on planes for repatriation to Australia, and the load of plywood cascading from a truck onto a following Vietnamese cyclist. The material also points to Mr Antony’s reactions to each of the circumstances and indeed feelings of feeling terrible, shock, terror and horror.
(2)I note that there is relevant Statement of Principles (SoP) concerning Post Traumatic Stress Disorder,namely Instrument No. 5 of 2008 As this SoP was to take effect from 9 January 2008, opportunity was given to both parties to consider the content and make submissions.I note that both parties did make brief submissions,with the final submission being received on 28 February 2008.
(3)(a)In forming an opinion as to whether the hypothesis is reasonable, I observe and note that the material points to each aspect of the diagnostic criteria nominated in paragraph 3(b) of the nominated SoP. Such material is noted to be contained within the evidence of Mr Antony, the opinion of Dr Cole, Psychiatrist of 8 November 2006 and confirmed in his oral evidence, the opinion of Dr Mander given in oral evidence during the hearing and the opinions of , Dr Chiu (psychiatrist) in 2003, Dr Kay (psychiatrist) in 2003 and Dr Risbey (psychiatrist) in 2004.
(b)Further in forming an opinion as to whether the hypothesis is reasonable, there must be material pointing to Mr Antony experiencing a category 1A or a category 1B stressor prior to the clinical onset of post traumatic stress disorder. I again note the definition of “a category 1A and category 1B stressor” as contained in the nominated SoP , namely.
“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
(c)In his evidence, and in many of the psychiatric reports before me, with the notable exception of Dr Mander’s earlier report in 1996, Mr Antony had detailed circumstances of these incidents occurring during his period of operational service. These incidents have been described earlier in this decision. I acknowledge that Mr Antony expresses his belief that the “white mouse” incident was the most serious of the three events experienced. I also note that Dr Ellison’s notes recorded in 1975 are concerned with the problems confronting Mr Antony at that time, while making no mention of past experiences, relevant to my consideration in this matter.
(d)Having examined all the material, and having considered all such material in the context of the relevant SoP, namely Instrument No.5 of2008, my opinion is that the hypothesis postulated and pointed to by the material is a reasonable hypothesis. In so stating it is my opinion that there is material pointing to all the necessary diagnostic criteria for a diagnoses of post traumatic stress disorder, together with material pointing to Mr Antony experiencing “a category 1A stressor” and/or “a category 1B stressor”,namely experiencing a life threatening event (white mouse incident),being threatened with a weapon (white mouse incident ) and/or being an eyewitness to a person being killed or critically injured( the cyclist incident) or viewing corpses (the morgue and coffin transportation circumstances), prior to the clinical onset of post traumatic stress disorder, with such material being consistent with that nominated in the relevant SoP.
(4)(a)In considering whether I am satisfied beyond reasonable doubt that Mr Antony’s post traumatic stress disorder was not war caused, the Respondent contended that the incidents raised as constituting a category 1A and/or 1B stressor were not of such a nature as to constitute such: that they were nominated as such by Mr Antony late in his clinical history, as was his re-experiencing of such traumatic events. I note again the available evidence including the historian’s report. In relation to the latter report, I express some reservations in that the author, Lt Colonel Barsley, while not present in Vietnam at the period in question, draws conclusions from reports and responses from other officers that may or may not have been in Vietnam for some or all of the nominated period, and who may or may not have had any knowledge of Mr Antony and/or the circumstances with which he was confronted.
(b)While Mr Antony’s description of his confrontation with the Vietnamese Policeman was questioned in depth by the Respondent, I note that Mr Antony maintained his version of events. I also note that Mr Antony’s description received limited support from the historian’s report which described the carrying of unauthorised firearms, while prohibited, did occur. Further I note the comment from the same report
“he was a very brave person to threaten a White Mouse”
This would in part render some support to Mr Antony’s description as to his nominated feelings as a consequence of the confrontation. This is further reinforced by the further statement from the same historical report
“If a driver disarmed a White Mice all I can say is that he is lucky to be alive”.
(c)Similarly Mr Antony’s description of his visit to the US mortuary at Tan Son Nhut to collect coffins containing deceased Australian soldiers, transport and load them onto aircraft for repatriation to Australia, while questioned in some aspect by the historical report (degree of entry and altitude of US Morgue attendants) appears not to be in dispute as to a task he may have done,nor is there particular material which would permit me to make a finding beyond reasonable doubt that Mr Antony did not view corpses when attending for collection at the morgue.
(d)More importantly in considering all of the material, I am mindful that Mr Antony had an anxiety disorder diagnosed by Dr Ellison, a psychiatrist, in 1975. I note that further interactions with psychiatrists did not occur until 1996, when Dr Mander diagnosed depression, followed by Dr Kay in 2000 (Anxiety Disorder) and then Ms Seales, Dr Chiu, Dr Risbey, Dr Kay, Dr Cole and Dr Mander all diagnosing Post Traumatic Stress Disorder.
(e)While I note the earlier diagnosis referred to anxiety disorders, and that Post Traumatic Stress Disorder also falls within such a class of disorders, the view of five psychiatrist is that Mr Antony suffers from post traumatic stress disorder. I have accepted such a diagnosis on the balance of probabilities. In so doing I have considered and found that Mr Antony did experience or was confronted with events that involved actual or threatened death or serious injury and that Mr Antony’s response was one of fear, terror and horror. In reaching such a finding I had heard Mr Antony’s evidence and read and/or listened to the psychiatric opinions in evidence. Further by virtue of the events described that led to a diagnosis of post traumatic stress disorder, it is evident that such events (‘white mouse incident”, coffin collections(viewing corpses) and the Vietnamese cyclist incident) are of such a nature as to fall within the ambit of experiencing a category 1A and/or 1B stressor as defined by the SoP Instrument No.5 of 2008
(f)In summary, having assessed all the material, I am not satisfied beyond reasonable doubt, that the factual foundation for the hypothesis is disproved or negated by an inconsistent fact. In such circumstances I conclude that Mr Antony’s post traumatic stress disorder is a war caused disease.
B. Alcohol Dependence (in Remission)
(1)Following a careful examination of all the material in evidence, I consider that such material points to a hypothesis connecting Mr Antony’s condition of Alcohol Dependence (in remission) with his period of operational service in Vietnam. In particular the material points to three incidents (“white mouse episode”, “collection of coffins” and “Vietnamese cyclist incident”) and Mr Antony’s response to such incidents. The material also points to Mr Antony’s alcohol consumption history over time and his increase in alcohol intake subsequent to the “White Mouse” incident.The material also points to Mr Antony suffering from a clinically significant psychiatric disease at the time of onset of alcohol dependence.
(2)I note that there is a relevant Statement of Principles (SoP), concerning alcohol dependence or alcohol abuse, namely Instrument No.17 of 2008,which takes effect from 5 March 2008. By virtue of the promulgation of this SoP,,both parties were canvassed as to whether they wished to provide further submissions on this issue. I note the response from the respondent dated 7 March 2008,in which the respondent concedes that the condition of alcohol dependence (in remission) is war caused if indeed the condition of PTSD is found to be a war caused disease,as factor 6(a) of the SoP is relevant.I agree and conclude that a hypothesis postulating the existence of a clinically significant psychiatric disease( PTSD) at the time of the clinical onset of Mr Antony Alcohol Dependance is a reasonable hypothesis.
(3)(a)In forming an opinion as to whether the hypothesis nominated is a reasonable hypothesis, I observe that there is material pointing to the diagnostic criteria nominated in paragraph 3(b) of the nominated SoP, namely tolerance, increase in amounts consumed,reduced social, occupational and recreational activities, and the amount of time spent in activities to obtain or use of alcohol. I note that the opinions Drs McCathy, Mander, Kay, Risbey, Chiu and Cole and Ms Seales all point to a problem with alcohol use by Mr Antony. Further I note the material points to Mr Antony suffering from alcohol dependence as evidenced by the opinions of Drs Kay, Cole and Mander:- the “in remission” being a consequence of relative abstinence from alcohol following a period of hospitalisation in 2002. Finally I note that there is material pointing to Mr Antony experiencing a category 1A/ category 1B stressor within five years before the clinical onset of alcohol dependence or alcohol abuse. In so stating I observe that the definition of “a category 1A and 1B stressor” is of a similar nature with what was defined earlier when discussing post traumatic stress disorder, with the same incidents being involved.
(b)I note that factor 6(b) and factor 6(c) of SoP Instrument No 17 of 2008
“experiencing a category 1A stressor ( 6(b)) and a category 1 B stressor (6(c) ) within the five years immediately before the clinical onset of alcohol dependence or alcohol abuse”
(c)I have already detailed, when discussing post traumatic stress disorder, the material which points to Mr Antony experiencing a category 1A and/or1B stressor. I see no need to repeat such material because of the close similiarity between the stressor definitions.
(d)Having examined all the material, and having considered all such material in the context of the relevant SoP, namely Instrument no 17 of 2008 concerning alcohol dependence and alcohol abuse, I am satisfied that the hypothesis postulated and pointed to by the material is a reasonable hypothesis. In so stating it is my opinion that there is material pointing to all the necessary diagnostic criteria for a diagnosis of alcohol dependence (in remission), together with material pointing to Mr Antony experiencing a category 1A and/or a category 1B stressor within five years immediately before the clinical onset of alcohol dependence or alcohol abuse. I observe that such material is congruent with that nominated in factors 6(b),(c) and para 3(b) of SoP instrument No 17 0f 2008
(4)(a)In considering whether I am satisfied beyond reasonable doubt that Mr Antony’s alcohol dependence (in remission) was not war caused, the considerations and issues raised by the Respondent in relation to the issue of post traumatic stress disorder remain relevant. It is not my intention to repeat my analysis of those issues, for the analysis remains unchanged.
(b)In such circumstances and for both hyptheses that I have determined to be reasonable hypotheses oin this issue and having assessed all the material I am not satisfied beyond reasonable doubt, that the factual circumstances of either hypothesis is disproved or negated by an inconsistent fact. Indeed the diagnosis of alcohol dependence within five years of experiencing the nominated stressor remains undisturbed as a consequence of my findings that Mr Antony did experience a category 1A /1B stressor. In such circumstance I conclude that Mr Antony’s alcohol dependence (in remission) is a war caused disease.
Rheumatoid Arthritis:
(1)(a)Earlier I have detailed much of the material which led to Mr Antony’s right and left knee conditions receiving a dual diagnosis, namely osteoarthrosis both knees and rheumatoid arthritis. While the first condition has been accepted as war caused, the second condition was not accepted, as there was no defined factor within the then SoP concerning rheumatoid arthritis linking Rheumatoid Arthritis with Mr Antony’s service.
(b)In addressing the material, I observe that there is material pointing to Mr Antony suffering from sero positive rheumatoid arthritis: further there is material pointing to migratory joint pains, including the knee joints requiring hospitalisation and investigation as far back as 1979 with a diagnosis of sero negative rheumatoid arthritis being made at that time. I also observe that there is material pointing to Mr Antony commencing to smoke prior to his operational service in March 1970 at the rate of one packet (20) every two days and increasing his smoking habit to two packets of 30 every day during his operational service – a habit he continued until he ceased smoking in 1983.
(c)The hypothesis postulated and pointed to after careful examination of the material is that Mr Antony increased his smoking habit as a consequence to his operational service in Vietnam in 1970 from 10 cigarettes a day to 50-60 cigarettes a day. Further in 1995 he was diagnosed with a sero positive erosive arthritis in the small joints of his hand and wrists, consistent with a diagnosis of sero positive rheumatoid arthritis, with a war caused increase in smoking contributing to the development of the rheumatoid arthritis.
(d)An alternate hypothesis postulated links a war caused increase in smoking to 50-60 cigarettes a day in the period mid 1970 to 1983, at which time he ceased and the clinical worsening of his rheumatoid arthritis in 1995, this being a time at which Mr Antony ceased work on account of disabling hand and wrist symptomatology.
(e) I acknowledge that both hypothesis are pointed to by the material.I accept the need to consider both hypotheses by virtue of the confusion created by the material pointing to both the sero negative status of rheumatoid arthritis (Dr Booker, Dr Edelman) and a sero positive status in 1995 (Dr Harper, Professor Hall), together with Professor Hall’s further commentary on reversion to a negative status once anti rheumatoid treatment has commenced, and allowing for the reverted states to still be referred to as sero positive rheumatoid arthritis.
(2)The relevant Statement of Principle (SoP) is Instrument No 32 of 2004 concerning rheumatoid arthritis.
(3)(a)In addressing the issue of whether one, other of both hypothesis are reasonable, the factors relied upon are factor 5(a) and (e). These relevant factors and definition of sero positive rheumatoid arthritis are detailed.
(b)For sero positive rheumatoid arthritis only, smoking at least five cigarettes per day, or the equivalent thereof in other tobacco products, for at least fifteen years before the clinical onset of rheumatoid arthritis, and where smoking has ceased, the clinical onset has occurred within twenty years of cessation.
Sero positive rheumatoid arthritis means rheumatoid arthritis accompanied by serological evidence of an elevated level of rheumatoid factor
(c)Smoking at least fifteen pack years of cigarettes, on the equivalent thereof in other tobacco products, before the clinical worsen ing of rheumatoid arthritis.
(d)In considering the first hypothesis I observe that there is material pointing to the sero positive status of the rheumatoid arthritis (Dr Harper’s reports in 1995 and Professor Hall’s opinion relying upon Dr Harper’s report of July 1995,which nominates a high rheumatoid factor reading of 165 (T12 P102). Further there is material pointing to a significant increase in Mr Antony’s smoking habit during his period of operational service in 1970/71 and continuing to cessation of smoking in 1983. Such material points towards commencement of smoking prior to operational service, with his increased smoking habit as a consequence of his operational service making a contribution towards the 15 year, five cigarettes a day nominated amount.
(4)Subsequent to a careful examination of all the material, and having considered it within the context of SOP Instrument No 32 or 2004, I am satisfied that the hypothesis postulated linking sero positive rheumatoid arthritis with smoking of at least 5 cigarettes a day for 15 years prior to the onset of rheumatoid arthritis is a reasonable hypothesis. In so stating I observe that such material is congruent with that nominated factor in 5(a) of SoP Instrument No 32 or 2004.
(5)In considering whether I am satisfied beyond reasonable doubt that Mr Antony’s sero positive rheumatoid arthritis was not war caused, I am mindful that in 1979 in the army records, the rheumatoid arthritis was considered to be seronegative. Dr Edelman in his two reports covering the years 1992 to 1995 seems to rely upon the earlier army finding when defining the sero negative status. In 1995 Dr Harper’s reports continually refer to a sero positive status, with Professor Hall relying on that report in defining his position. I am unable to take this issue any further in light of the material before me.
(6)I also note that Mr Antony’s quantity of cigarettes smoked post his operational service was the subject of questions in the light of medical records indicating Mr Antony had reported smoking only 20 cigarettes a day in 1976, 1979 and 1979. I note Mr Antony’s response was to admit to underreporting of such quantities, in response to the environment in which such questions were asked (hospital, doctor). Further I am satisfied that Mr Antony’s war service increased smoking habit did make more than a minimal contribution to the quantity of cigarettes smoked between 1970 and 1979.
(7)In such circumstances and having assessed all the material before me I am not satisfied beyond reasonable doubt that the factual hypothesis is disproved or negated by an inconsistent fact. In so finding, I am mindful of the confusion created by the variance in reporting on the rheumatoid serological status but I remain of the opinion that the sero positive status has not been disproved beyond reasonable doubt.
(8)(a)In addressing the second hypothesis I note that the material relating to his cigarette smoking remains unchanged. Further I note that a diagnosis of sero negative arthritis was made in 1979, after which the material does not point to a particularly active rheumatoid process until the period 1992 to 1995, at which time the material points to a clinical worsening of the condition as outlined by Mr Antony and which prevented Mr Antony from continuing to work in 1995. The clinical worsening is pointed to in the opinions of Dr Edelman (difficulties with hand, wrist and shoulder movement, and erosive changes in joints of hands and wrist) and Dr Harper (similar symptamology and clinical findings), with all reports being in 1995.
(b)Subsequent to a careful examination of all the material and having considered such material in the context of factor 5(e) of SoP Instrument No 32 of 2004, I am satified that the hypothesis postulated, linking Mr Antony’s smoking habit (with the increase in his smoking habit from 10 cigarettes to 50 to 60 cigarettes being a war caused increase as a consequence of his operational service in 1970/71 in Sth Vietnam) with the clinical worsening of his rheumatoid arthritis in 1995, is a reasonable hypothesis. In so stating I acknowledge that the material points to Mr Antony smoking a minimum of 2-3 pack years per year post his operational service until he ceased smoking in 1983, to a clinical onset of rheumatoid arthritis in 1979 and a clinical worsenong in 1995. I observe that such material is congruent with that nominated in factor 5(e) of SoP Instrument No 32of 2004.
(9)(a)In considering whether I am satisfied beyond reasonable doubt that Mr Antony’s rheumatoid arthritis was not war caused, I am mindful of the earlier analysis of his smoking habits and the comments and opinions rendered by Drs Edelman, Harper and Professor Hall in relation to Mr Antony’s rheumatoid arthritis. In such circumstances and having assessed all the material presented in this matter. I am not satisfied beyond reasonable doubt that the factual circumstances of the hypothesis are disproved or negated by an inconsistent fact.
(b)Consequence to the analysis undertaken, I am satisfied that Mr Antony does succeed and that his condition of rheumatoid arthritis is a war caused disease.
Special Rate
46. Section 24 of the Veteran’s Entitlements’ Act 1986 defines the circumstances that must be met for a veteran to receive payment of a disability pension at the Special Rate. Mr Antony lodged his formal claim on 10 November 2003, at which time he was 59 years of age. Mr Antony’s list of accepted disabilities have already been detailed earlier in this decision, and to this list must be added the war caused diseases/injuries found to exist as a consequence of his claim. These included post Traumatic Stress Disorder, alcohol dependence (in remission) and rheumatoid arthritis.
47. Further in a statement dated 19 July 2007 (Exhibit A2) and confirmed in oral evidence, Mr Antony detailed his employment circumstance since leaving the Army in 1982. I note that between 1982 and 1989, Mr Antony worked as a labourer and in the security industry, with frequent changes of jobs related to his irritability, attitude and argumentativeness with employers. Mr Antony details that he worked as a self-employed individual undertaking courier work and truck escorts between 1989 and 1995. Mr Antony details a major increase in arthritic symptoms in the mid nineties, which led to cessation of work activities at that time on the advice of a rheumatologist Mr Antony stated that at the time he ceased work in 1995 he was earning in the order of $50,000 per year.
48. I note that at the time of lodging his claim in 2003 Mr Antony had been in receipt of a disability pension at the 100% rate for some years, thereby satisfying section 24(1)(a) of the Act.
49. In relation to section 24(1)(b), I would observe that the type of remunerative work that Mr Antony was qualified to undertake by virtue of his experiences and training was that of a driver, security guard or labourer. In turning to the issue raised by section 24(1)(b) of the Act, I am satisfied that Mr Antony was at the date of claim lodgement incapacitated to undertake remunerative work for periods aggregating no more than eight hours per week on account of his accepted war caused diseases/injuries alone. In support of such a finding and that the incapacity to work for periods aggregating no more than eight hours per week , I note and rely upon the opinion of Dr Ker, a specialist in rehabilitation Medicine dated 13 October 1995, the determination by the Reparation Commission dated 30 January 1996 that Mr Antony was permanently incapacitated for work pursuant to section 37 of the Act. More importantly and in respect of continuance of the stated situation, I note the report of Dr Daly of 25 August 2005 (T4 P258), Mr Antony’s treating practitioner, the report of Dr McCarthy, consultant psychiatrist, of 18 August 1998 (T44 P265) (effectively unemployable because of anxiety and alcohol dependence); the report of Dr Kay, consultant psychiatrist of 17 July 2000 (T44 P271) (“I agree entirely with Dr McCarthy’s assessment”); Dr Kay’s assessment of 14 October 2003 (T44 P279) (Mr Antony is clearly incapable of any type of work…current incapacity for work is permanent and it is solely due to his PTSD and complications thereof); Dr Risbey, a consultant psychiatrist, in his report of 19 August 2004, (T51 P335) (It is my opinion that his subsequent entry into the workforce has been and continues to be prevented by chronic post traumatic stress disorder alone.); and finally Dr Cole, consultant psychiatrist, in a report dated 8 November 2006, in which he assesses the veteran as unable to work because of his psychiatric condition (Exhibit A3 – Garp Assessment).
50. In addressing section 24(1)(c), I am mindful of the Full Federal Court’s decision in Flentjar v Repatriation Commission (1997) 48 ALD 1 in which the issues arising from consideration of 24(1)(c) are addressed.
51. In this matter I have already detailed the nature of the remunerative work that the veteran was undertaking and would be capable of undertaking pursuant to his training and experience, were it not for his disabilities suffered. Such remunerative activities included driver, security guard and labourer.
52. Further I am satisfied that Mr Antony’s war caused diseases/injuries prevent him from continuing to undertake such work. In so finding I am mindful of the many medical reports and opinions, expressed in paragraph 49 of this decision.
53. In addressing whether the war caused diseases/injuries are the only factors preventing Mr Antony from undertaking remunerative work, I note that he has had type II diabetes for many years (later seventies/early eighties), that such diabetes was not insulin dependent and was treated with oral hypoglycaemic agents. Further I note, while there has been significant weight variation overtime, Mr Antony’s diabetes has never prevented him from undertaking remunerative work. Similarly I note a history of sleep disorders, either associated with his psychiatric condition or his alcohol dependence (in remission) condition. Again I have no evidence before me that indicates that such a sleep disorder condition prevented or does prevent Mr Antony from undertaking remunerative work. In summary finding I conclude that Mr Antony’s war caused injuries/diseases alone are the only factors preventing Mr Antony from undertaking remunerative work as nominated.
54. In considering the issue as to whether Mr Antony, by reason of being presented from continuing to undertake such remunerative work, has suffered a loss of wages, salary or earnings on his own account that he would not be suffering if he were free of that incapacity, the factual evidence is straight forward. In so stating the material before me indicates that Mr Antony was earning in the order of $50,000 per annum as a self employed driver when those earnings ceased because he was prevented and continues to be prevented from undertaking such relevant remunerative work, thereby suffering a loss of earnings, which he would not have, if he were free of his war caused incapacities. I note that the Respondent conceded this issued at the hearing.
55. With the findings that I have made, I conclude that Mr Antony is entitled to payment of disability pension at the Special Rate, with date effect of being 4 May 2003.
Determination
56. The decision under review is set aside, and in substitution I find that
(1) the conditions of post traumatic stress disorder, alcohol dependence (in remission) and rheumatoid arthritis are war caused diseases/injuries; and
(2) Mr Antony is entitled to be paid a disability pension at the Special Rate of pension; and
(3) the date of effect is 4 May 2003.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: ......[sgd Mr J Lim].....................
AssociateDate/s of Hearing 6 & 7 December 2007
Date of Decision 4 April 2008
Counsel for the Applicant Mr D De Marchi
Solicitor for the Applicant De Marchi & Associates
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent Department of Veterans' Affairs
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