Atkinson and Repatriation Commission
[2002] AATA 491
•21 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 491
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/63
VETERANS' APPEALS DIVISION )
Re GREGORY ATKINSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier IRW Brumfield, Member
Date21 June 2002
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgnd)
Brigadier IRW Brumfield
Member
CATCHWORDS
VETERANS' AFFAIRS - whether the conditions substance abuse or dependence and generalised anxiety are war-caused.
Veterans' Entitlements Act 1986 ss 9, 120 120A, 120B, 196B
Repatriation Commission v Gorton (2000) 65 ALD 609
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvany and Repatriation Commission [2000] AATA 535
Howe v Repatriation Commission (1999) 59 ALD 309
Jehns and Repatriation Commission [2000] AATA 484
Re Cranage and Repatriation Commission [2000] AATA 1119
Repatriation Commission v Olsen [2002] FCA 12
Re Doust and Repatriation Commssion [2001] AATA 81
Hill v Repatriation Commission [2001] FCA 1775
O'Neill v Repatriation Commission [2001] FCA 1492
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
21 June 2002 Brigadier IRW Brumfield, Member
This is an application by Gregory Atkinson for review of that part of a decision by the Repatriation Commission which rejected the applicant's claim for pension which determined, inter alia, that psychoactive substance abuse or dependence was not war-caused and assessed pension at 90% of the General Rate. On 19 October 1999 the Veterans' Review Board varied the decision by adding the diagnosis of generalised anxiety and affirmed the decision as varied.
The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documents which were tendered as exhibits.
For the Applicant
Exhibit A1 Letter from Mr M Smith, Department of Veterans' Affairs dated
26 November 2001 to Messrs Streeting Haney, Lawyers
Exhibit A2 Report of Dr Peter Mulholland dated 19 November 2001
For the Respondent
Exhibit R1 Report of Dr William Kingswell dated 3 December 2000
The method of proceeding in this matter, as set out in Exhibit A1, was agreed between the parties and the applicant gave oral evidence.
The applicant was born on 14 August 1946 and served in the Australian Army from 19 April 1967 until his discharge on 18 March 1969, after completion of his National Service obligation. He rendered operational service from 6 December 1968 to 10 January 1969 and from 10 February 1969 to 15 March 1969.
The applicant ceased work on 20 October 1997 and was in receipt of a 90% disability pension. He is also in receipt of a disability support pension.
Standard of ProofThe provisions of subsections 120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act") apply to the applicant's periods of operational service. That requires that a reasonable hypothesis be raised connecting the applicant's conditions with his operational service that is not dispelled beyond reasonable doubt. As the application was lodged after 1 June 1994, the Tribunal is required to apply relevant Statements of Principle ("SoP") in determining whether the hypothesis is reasonable. The decisions reached by the Federal Court in Repatriation Commission v Keeley [2000] FCA 532, Repatriation Commission v Gorton (2000) 65 ALD 609 and O'Neill v Repatriation Commission [2001] FCA 1492 provide guidance to the Tribunal in applying the relevant SoPs in this matter.
The provisions of s 120(4) of the Veterans' Entitlements Act apply in relation to assessment of pension.
Issues and Legislative Framework
The principal issue to be decided is whether the applicant's alcoholism is causally related to his operational service. Section 70 of the Veterans' Entitlements Act relevantly provides:
"70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
…
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member; …"
Section 120 of the Act provides as follows:
"(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1)… in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Section 120A(3) of the Act provides as follows:
"(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2)…
(b) …
that upholds the hypothesis."The applicant's claim was lodged on 3 November 1997 and the Tribunal therefore has to determine the matter pursuant to s 120A of the Veterans' Entitlements Act 1986.
The relevant SoP in this matter is:
Alcohol dependence or alcohol abuse: Instrument No 76 of 1998
However, there was an earlier SoP applying at the time of the claim and, following the decision of Repatriation Commission v Gorton (supra), the Tribunal may need to consider:
Psychoactive substance abuse or dependence: Instrument No 5 of 1994
Similarly, if it becomes necessary to determine the claim in respect of generalised anxiety, then SoPs Instrument No 1 of 2000 and Instrument No 48 of 1994, as amended by No 275 of 1995, would apply.
Evidence
The applicant gave oral evidence. He covered the period from his enlistment to include his two periods of operational service when posted to AS John Monash. Each trip involved sailing to Vung Tau to deliver stores. He was an engineering member of the crew. He mentioned his association with his Platoon Corporal, John Pearce, during his recruit training. He was keen to meet up with Corporal Pearce when he arrived on 19 December 1968 at Vung Tau and enquired at the first opportunity as to his whereabouts only to be told that Corporal Pearce had been killed in action. His informant told him that Corporal Pearce had been "splattered". He said that he was absolutely devastated by the news. He was not made aware that Corporal Pearce had been killed six months earlier and that he did not learn of this until 1998. On getting this news, he returned to his ship, "had a bit of a weep and probably proceeded to load up with alcohol".
The next morning, which would have been 20 December, at about 8 am he was sent in an open truck from the wharf where his ship was tied up. He said that he rode as armed escort in the back of the truck which was to pick up supplies from an American PX or Base Exchange. The truck and driver were provided by another Australian unit and another member of the ship's crew carrying the Stores Manifest rode in the cab.
He said he was armed with an F1 Machine Carbine with which he had little experience and in which he reposed little confidence. He did not know if the weapon was loaded, the magazine was loaded or the weapon was cocked. He did not know whether the safety catch was applied or a round was in the chamber.
The truck with its passengers was driven through the town and out into some "Heavy Foliage". He had been told that there had been some enemy activity "fairly close to the area". He became frightened during the fifteen minute trip to the base exchange, which was located at the Vung Tau airfield and was "shaking petrified". At this point his recollection ceased. He remembers nothing of the trip, the loading, unloading and return to the wharf. The next thing he remembers is that he was back on board in the ship's mess.
He said that he did not leave the ship again but that, having discharged its cargo, the ship was moved into the harbour about 300 metres from the wharf.
The next night the crew were reduced to one crew member on deck and one crew member, the applicant, on engine room watch. The skipper and the rest of the crew had gone ashore on leave for the day. After dark he heard "this bang, bang, bang". He initially thought that the ship was being mined but on reaching the deck, the watch informed him of the American practice of dropping underwater charges to deter mining.
With regard to his drinking habit, he said that during and after recruit training he drank socially and did not get drunk. He thinks he got "fairly loaded" the night of the day he learned of Corporal Pearce's demise "which wouldn't have helped clarity the next day" (the day of the truck trip).
After these three incidents he began to drink heavily.
Under cross-examination the applicant's attention was directed to his service documents (T4) and agreed that his ship was in Vung Tau during daylight hours on 19 December and remained until the night of 21 December. He agreed that he would have gone ashore about three hours after docking. He learned the news of Corporal Pearce, had a few drinks and worked his allotted watches.
With regard to the truck trip, he repeated his earlier evidence that he had no recollection of the trip from the time the truck entered the heavily foliaged area. When asked when he regained his recollection, he stated that he could not recall the time he regained his composure. When asked what and where he had been told about enemy activity in the area, he said that he "gained the information from some other person that there had been vehicles under attack in close vicinity to the area we were in".
When asked about his drinking habit he restated his earlier evidence that he was consuming 16 cans of beer a day after the "Vietnam experience". When pressed he stated that he probably reached sixteen cans a day a couple of weeks after learning of Corporal Pearce's death and that it got worse over time. He was "just drinking alcohol to say sane", that there was no ration on Army ships and that when off watch for eight hours he would drink for six hours and sleep for two. His superiors did not care what he did.
In respect to questions from the Tribunal, the applicant stated that he did not maintain contact with Corporal Pearce after recruit training but asked "as you travelled around" or if he met any of his old platoon because many of them were around Sydney. He never sought an address to get in touch with him.
He said that when he left his ship in Vung Tau he was dressed in civilian clothes and began his search for information of Corporal Pearce. He did not actually get into town. He found out from an Australian soldier working on the wharf that Corporal Pearce had been "splattered". He made no effort to find out the circumstances of Corporal Pearce's death. He did not know that Corporal Pearce had been killed in action in May 1968 and had not seen any report of casualties around that time.
With regard to the truck trip, he thought that the trip took about fifteen minutes. He was not sure whether anyone else was in the tray of the truck with him. "There was one of our guys and an RAASC driver in the cab" and he was in the back. There was little or no activity as they proceeded through the outskirts of Vung Tau towards the airfield. He did not remember what the country was like except that it was "mangrovey like". He started the trip standing up in the tray of the truck, behind the cab but dropped down on reaching the foliaged area.
He was not told much about Vung Tau before he arrived but earlier he had said that some of the crew had been there on a previous trip. He said that it was a port and that there was enemy activity in the area. He learned this information on arrival in Vung Tau. When asked why he was not in uniform when leaving the ship, he said that he "guessed that he was on leave". His shipmates who went on leave reported to him on such things as "well – go to this bar or go to that bar", "the food is good here but it's crook there", "just general information".
Other EvidenceThe other evidence before the Tribunal came from the s 37 documents, including reports from Dr Freed, the applicant's treating psychiatrist and reports from two psychiatrists, Dr Kingswell (Exhibit R1) and Dr Mulholland (Exhibit A2).
There is no basic difference in the history given to each doctor. Dr Freed noted, however, that "his story came out in dribs and drabs over a period". In relation to his psychiatric condition there is some difference of opinion.
Dr Freed
"Currently he suffers from generalised anxiety due to substance related anxiety disorder." (November 1998)
and
"He suffers from substance abuse learned during his war service. Secondary to this he has substance caused depression." (May 1998)
Dr Mulholland
"Mr Greg Atkinson is co-morbid for two psychiatric conditions namely:-
· chronic alcoholism (chronic psychoactive substance-alcohol abuse/dependence)
· chronic depression (chronic dysthymic disorder)."
Dr Kingswell
"Mr Atkinson is a 54 year old man with a history of alcohol dependence (DSM-IV: 303.90), with onset after his experience in Vietnam in late 1968 and early 1969. Mr Atkinson continues to satisfy the criteria for alcohol abuse (DSM-IV: 305.00) although this is clearly not to the extent of altering haematological or biochemical parameters. I am not of the view that a diagnosis of anxiety disorder is warranted. I do not believe that a diagnosis of generalised anxiety disorder can be made in the setting of significant alcohol abuse and dependence. I would agree with Dr Freed's earlier conceptualisation of the case. Dr Freed noted in his reports of May and November 1998 that Mr Atkinson's anxiety symptoms were a consequence of his alcoholism, not visa versa."
Both Drs Kingswell and Mulholland agree with Dr Freed that alcohol abuse preceded any other diagnosis of a psychiatric disorder. Both Drs Kingswell and Mulholland make the point that whilst the applicant may have experienced considerable subjective anxiety, it remains for the Tribunal to determine whether the experience or experiences encountered constitute stressful events.
Both psychiatrists are highly regarded and their opinions require careful consideration but whereas Drs Mulholland and Kingswell had reported on the applicant after studying the material sent to them and then interviewed him, once in the case of Dr Kingswell and twice in the case of Dr Mulholland, Dr Freed has been the treating psychiatrist since 1997 and his reports, covering a long period, must carry more weight than those of his colleagues.
Having said that, there are points of agreement between the psychiatrists and each provides additional contributions. These include:
Dr Mulholland - Present Psychiatric Treatment
"8.1 He is on the antidepressant Aurorix 300mg x 1 twice per day.
8.2He usually sees psychiatrist Dr Alan Freed approximately once every 3 months. He reported that latterly he has 'lost confidence' in Dr Freed. This is an unfortunate byproduct of treating psychiatrists becoming involved in their patient's legal proceedings. The RANZCP wants treating psychiatrists to be kept out of legal proceedings. The issue is that Dr Freed does not agree entirely with Gregory Atkinson's wishes that Dr Freed act as an uncritical advocate of Mr Atkinson's case and hence Mr Atkinson has 'lost confidence' in Dr Freed. At the present time he is unsure whether he will continue with Dr Freed or not.
8.3I told him that he should be involved with a psychiatrist on an ongoing basis and he should make his mind up quickly one way or the other whether he [wished] to continue being involved with Dr Freed or not.
Opinion
….21.10In summary I see this man as having 2 psychiatric conditions namely chronic alcoholism and chronic depression. The chronic alcoholism grew out of his military experiences and in particular the convoy escort matter while the chronic depression is secondary to chronic alcoholism. He is also a physically unwell man with severe emphysema and cancer. The combination of his physical and psychological conditions is such that he is not capable of working the requisite aggregate 8 hours per week and even if psychiatric factors were considered alone it would have to be marginal as to whether he could do that work mainly because of ongoing active chronic alcoholism."
Dr Kingswell
"Mental State Examination:
Mr Atkinson presented as noted. Mr Atkinson was not obviously anxious in interview and did not startle. His affect (observable expression of emotional tone) was reactive and appropriate. His mood was neither depressed nor elated.
Mr Atkinson's successive ideas were coherently linked in a logical fashion. He did not have evidence of formal thought disorder. Mr Atkinson did not describe any particularly preoccupying worries. He was realistically concerned about his limited financial resources. He had some understandable concerns about his failing health. No abnormal concerns such as delusional ideas or suicidal plan or intent was evident.
Mr Atkinson did not describe perceptual disturbance. He described 'bad dreams' as noted but did not complain of other intrusive reliving experiences.
Mr Atkinson was alert and well orientated in time, place and person. His immediate recall was intact, as was his short and long term memory. His concentration and attention was unimpaired. His educational and occupational history together with his presentation in interview is consistent with an intellect in the average range.
Mr Atkinson's insight was well preserved. He had a clear understanding of the negative impact that his drinking has had on his life. His judgement is less well preserved. He continues to drink at a hazardous level.
Investigations:
I ordered a number of routine tests including full blood count, liver function tests, carbohydrate deficient transferrin and urine drug screen. The full blood count, liver function tests and urine drug screen were all returned normal. The result of the carbohydrate deficient transferrin has not been returned.
Conclusions
Mr Atkinson is a 54 year old man with a history of alcohol dependence (DSM-IV: 303.90), with onset after his experience in Vietnam in late 1968 and early 1969. Mr Atkinson continues to satisfy the criteria for alcohol abuse (DSM-IV: 305.00) although this is clearly not to the extent of altering haematological or biochemical parameters. I am not of the view that a diagnosis of anxiety disorder is warranted. I do not believe that a diagnosis of generalised anxiety disorder can be made in the setting of significant alcohol abuse and dependence. I would agree with Dr Freed's earlier conceptualisation of the case. Dr Freed noted in his reports of May and November 1998 that Mr Atkinson's anxiety symptoms were a consequence of his alcoholism, not visa versa.
Dr Freed's most recent report of 4 August 2000 does not, in my view, present any new evidence to support a diagnosis of generalised anxiety disorder predating the onset of Mr Atkinson's alcohol dependence. He has presented a history similar to that obtained by myself from Mr Atkinson. The history is of Mr Atkinson experiencing acute symptoms of anxiety arising from a situation he confronted in Vung Tau. As described by Dr Freed, it is only in the setting of continue alcohol dependence that Mr Atkinson has developed an anxious demeanour characterised by his poor capacity to cope with:'any pressure of any sort, whether it be a shortage of money, responsibility of marriage, business pressure'.
The relevant Statement of Principles, as I understand it is Instrument Number 5 of 1994. Mr Atkinson's psychoactive substance abuse can be related to his operational service if he can raise a reasonable hypothesis connecting that psychoactive substance abuse to experiencing a stressful event prior to the clinical onset of the disorder. Mr Atkinson's description of the stressful events are well documented elsewhere. It is ultimately a question for the Tribunal as to whether they consider Mr Atkinson's experiences to constitute a stressful event. In my view Mr Atkinson clearly experienced considerable subjective anxiety. No actual confrontation occurred. In a man without premorbid vulnerability, it is not an experience that I would expect to be plausibly connected with lifelong substance abuse and anxiety. It should be noted that alcohol abuse often has its beginnings in late adolescence and early adulthood and is a common disorder.
Mr Atkinson's continued reliance on alcohol contributes to his overall social and occupational incapacity and I have completed the appropriate worksheets as I believe they apply.
Mr Atkinson has accumulated a number of serious medical conditions including emphysema and carcinoma of the ureter. The likelihood of him re-training at age 54 for clerical duties I expect is negligible. I think Mr Atkinson is probably totally and permanently incapacitated for remunerative employment. The opinion of an occupational physician would no doubt clarify matters."
Dr Freed's reports of 5 March and 3 November 1998 are more in the nature of a response to a patient's treating local medical officer and answers to DVA questionnaire and the Tribunal must take this into account when assessing the material provided.
The Tribunal now finds it necessary to define the appropriate diagnosis for the conditions claimed by the applicant.
The reports by Dr Freed make it clear that the applicant suffers from alcohol abuse. Dr Freed arrived at this diagnosis in his report of 7 May 1998. He also provided a diagnosis of what he calls generalised anxiety.
As seen above, Dr Mulholland has a different diagnosis for both these conditions but as he was not called to give evidence no further clarification can be made and whilst Dr Kingswell appears to be closer to Dr Freed in his diagnosis he, too, was not available to clarify his position.
The Tribunal will follow the diagnosis of the treating psychiatrist Dr Freed and finds that the applicant is suffering from alcohol abuse (psychoactive substance abuse or dependence) and generalised anxiety.
From the s 37 documents (the "T" Documents), several other points arose, in particular, Folio 63 which was a Statutory Declaration made by the applicant on 12 May 1990. Here it appears that the most important event during his first stay in Vung Tau was learning of the death of Corporal Pearce. The other two events, and in particular the truck trip to the American PX, are in the background. The applicant states that on learning of Corporal Pearce's death he began to drink heavily to cope. His service records at Folios 2–4 disclose minor infractions but no mention of disciplinary action for drunkenness during the totality of his service which is remarkable in the light of his alleged heavy drinking and remaining in an alcoholic daze for the rest of his service.
Submissions and ConsiderationIn making submissions for the applicant, Counsel drew the Tribunal's attention to the decision in Repatriation Commission v Delidio (1998) 83 FCR 82 and the steps to be followed in reaching a decision. These steps are:
"1. The Tribunal must consider all the material which is before it and determine whether that material points to a 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 an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 the 'template' to be found in the SoP. The hypothesis raised before it 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 ss 196B(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." (Tribunal's emphasis)
It was submitted that it was common ground that the applicant had psychoactive substance abuse. In was submitted that in looking at SoP No 76 of 1998 that Factor 5(b) was important.
The applicant's Counsel referred to a report of Dr Freed that had not been placed before the Tribunal by consent of the parties. It was mentioned in Dr Kingswell's report. The Tribunal has decided to disregard the mention. It was submitted that the material before the Tribunal raised an hypothesis that connected the applicant's alcohol abuse with his operation service, that both Drs Freed and Mulholland supported that view and that the applicant had experienced severe stressors at least in relation to hearing the news of his friend's death and the truck drive to the American Exchange. It was submitted that the applicant satisfied SoP No 78 of 1998 and that he also satisfied SoP No 5 of 1994.
To assist the Tribunal, the matter of Hill v Repatriation Commission [2001] FCA 1775 was raised and the submission made that the applicant had not had his credibility challenged and that if the Tribunal found that alcohol abuse was war-caused then the matter of pension would also be settled.
For the respondent, it was submitted that:
If the Tribunal found that the applicant's alcohol abuse was connected to his service, then it would follow that pension at the Special Rate would be payable.
The applicant did not suffer a severe stressor in any of the three events under review.
The applicant does not satisfy the requirements of the relevant SoPs.
The main issue to be resolved is whether the applicant's alcohol abuse is causally related to his operational service but before proceeding to do this it must be determined whether or not there are relevant SoPs covering this condition.
At the time of the claim, SoP Instrument No 5 of 1994, Psychoactive Substance Abuse or Dependence, applied. By the time of the hearing this had been superseded by SoP Instrument No 76 of 1998, Alcohol Dependence or Alcohol Abuse.
As set out above, and following the decision in Repatriation Commission v Gorton (supra), the current SoP must be considered first. The SoP provides for a connection with service when the evidence shows that service was responsible for the person experiencing a severe stressor within the two years immediately before the onset of alcohol abuse or dependence. The definition of "experiencing a severe stressor" in this SoP is given as meaning that the person suffers:
"(i) threat of a serious injury;
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence."
Hence, the Tribunal must keep before it the decision in O'Neill v Repatriation Commission [2001] FCA 1492 and in particular paragraph 10:
"It is open to the Tribunal to reject the evidence of the applicant or others that the alleged feelings were not experienced. It is also open to the Tribunal to find whatever feelings were experienced they did not amount to the required anxiety or stress. Finally, it is open to the Tribunal to determine that the circumstances did not amount to an occurrence within the meaning of the definition. Beyond considering these matters there is no other or further function required to be performed by the Tribunal in applying the SoPs."
From all the material before it, the Tribunal finds that the applicant cannot satisfy the requirements of SoP No 76 of 1998 and turns to the earlier SoP No 5 of 1994.
SoP No 5 of 1994 provides for the possibility of a connection with eligible service where that service was responsible for the person:
"experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence and maintaining the abuse or dependence post-service."
"Stressful event" is defined as meaning:
"An incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were subjective symptoms of increased stress."
There have been a number of interpretations of this definition. In Re Doust and Repatriation Commission [2001] AATA 81. The Tribunal stated:
"79. The Tribunal considers that the Respondent's interpretation of the definition of 'stressful event' is overly restrictive and cannot be sustained. If it had been intended that the external stimuli noted in the Statement of Principles was of a severity of a combat experience, then that should have been made explicit. As it was, the Statement of Principles gave but one example '(such as combat)', and therefore it is not open to the Tribunal to restrict the interpretation of the definition in the way suggested by the Respondent.
80. By reference to the New Shorter Oxford English Dictionary, 1993 Edition, the Tribunal notes that external means '…consisting of outward acts or observances…of a thing presented in sense-perception: (regarded as) existing independently of the mind perceiving it…'. The word stimuli is the pleural of stimulus. When used psychologically it means 'any change or event which excites a nerve impulse and gives rise to a response or reaction…'. While combat is a relevant example of external stimuli, the term is not confined to stimuli of that severity. In the context of the definition in the Statement of Principles the external stimuli must result in psychological stress associated with 'subjective symptoms of increased stress'. The Tribunal interprets that there is an essential subjectivity in this definition, that is, that the Veteran must react to the external stimuli by the development of increased stress that is essentially an internal reaction manifested by external signs and symptoms. It is necessary that the external stimuli be related to an incident in the Veteran's war service that resulted in his psychological stress causing him to manifest signs and symptoms of increased stress. The Tribunal will follow this reasoning in determining this matter."
In Re Budworth and Repatriation Commission [2000] AATA 127 the Tribunal stated:
"4. The applicant applied for a review of the decision of 3 November 1989 to assess his service-related incapacity at 80% of the general rate. That application came before the Veterans' Review Board on 4 April 1995. After a review of the then available psychiatric evidence and factual evidence relating particularly to the exploding body incident, the Board concluded that the basis for the Commission's decision to grant the applicant special rate was because it considered that a combination of chronic airways limitation, coronary atherosclerosis and PTSD satisfied the requirements of section 24. The Board dissented from this and took the view that Mr Budworth had not been prevented from continuing to undertake remunerative work by reason of service-related incapacity alone at any time during the period under review. For this reason, they decided that Mr Budworth's pension should be assessed at nil with effect from 10 January 1988 and at 90% of the general rate with effect from 18 October 1992.
5. This decision was arrived at principally on the basis that the Board assessed Mr Budworth's psychiatric disability from PTSD with chronic pain syndrome as nil. The basis of the decision was that he was not, and could not have been, suffering from that disease as the incident (the exploding body) which was said to have caused the trauma had not taken place.
….9. The applicant saw operational service in the Royal Australian Navy on board H.M.A.S. Sydney and H.M.A.S. Melbourne as follows:
(a) 27 May 1965 to 26 June 1965 (HMAS Sydney);
(b) 25 April 1966 to 6 May 1966 (HMAS Melbourne);
(c) 25 May 1966 to 9 June 1966 (HMAS Melbourne);
(d) 14 February 1972 to 12 March 1972 (HMAS Sydney); and
(e) 1 November 1972 to 18 December 1972 (HMAS Sydney).10. His eligible defence service is from 19 December 1972 until 22 September 1977.
11. The issues are to be determined, accordingly, either with reference to subsections 120(1) and (3) in the case of operational service or to subsection (4) in the case of defence service. Statements of Principles referred to in section 120A do not apply as the claim was lodged prior to 1 June 1994.
12. The applicant was born on 7 September 1947 and was an only child. An incident occurred when he was aged 8 or 9 which continues to cause him distress. He had put his schoolbag down in the hallway, contrary to repeated instructions not to do so. His mother tripped over it, injured her head and suffered a cerebral haemorrhage. The applicant was alone in the house with his mother at the time and had to run for assistance. Mr Budworth was extremely upset at the calling of the ambulance and at her subsequent death, for which he continues to feel guilty. After that incident, his grades at school deteriorated. He said that after her death 'my life was pretty vacant'. He missed a vital member of the family as well as carrying the burden of perceived responsibility for her death."
In Re Cranage and Repatriation Commission [2000] AATA 1119, the Tribunal said:
"I am satisfied that the words 'an incident in which there were external stimuli' should be interpreted objectively… The language contemplates an event (an incident) which actually occurred from which there was 'external stimuli'. The nature of the incident is suggested by the definition as being 'combat'.
The Tribunal prefers the approach taken in the Budworth and Cranage cases.
The applicant relies on the same three events to satisfy Factor 5(c) of SoP No 4 of 1994, namely:
being informed, upon arrival in Vung Tau, that his platoon corporal during recruit training, Corporal Pearce, had been killed in action;
travelling, as an armed escort, in an open truck from the wharf at Vung Tau to collect supplies from an American PX store; and
being on board AS "John Monash" in Vung Tau Harbour at night whilst "scare" charges were being dropped in the water nearby.
Whilst the applicant's reactions may have been as described in evidence, there is not in any of the events any external stimuli that would rise to the level needed by the definition in Factor 5(c) of SoP No 4 of 1994 - that of "such as combat". Thus, a reasonable hypothesis is not available to apply to the SoP template and therefore the Tribunal must determine that the claim for acceptance of alcohol abuse or dependence must fail.
Turning now to the condition of generalised anxiety, which was accepted earlier by the Tribunal as the correct diagnosis. This condition is regarded as a sequel to alcohol abuse and as the claim for that condition has failed, the Tribunal will not take any further the claim for acceptance of generalised anxiety.
AssessmentThe applicant sought review of the Commission's decision to increase his pension to 90% of the General Rate with effect from 3 August 1997. The matter remaining for the Tribunal to consider is eligibility for either the Special Rate (s 24) or the Intermediate Rate (s 23).
Section 24 of the Act provides:
"(1) This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d)section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
(2A) This section applies to a veteran if:
(a)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(b)the veteran had turned 65 before the claim or application was made; and
(c)paragraphs (1)(a) and (1)(b) apply to the veteran; and
(d)the veteran is, because of incapacity from war-caused injury or war-caused disease or both, alone, prevented from continuing to undertake the remunerative work (last paid work) that the veteran was last undertaking before he or she made the claim or application; and
(e)because the veteran is so prevented from undertaking his or her last paid work, the veteran is suffering a loss of salary or wages, or of earnings on his or her own account, that he or she would not be suffering if he or she were free from that incapacity; and
(f)the veteran was undertaking his or her last paid work after the veteran had turned 65; and
(g)when the veteran stopped undertaking his or her last paid work, the veteran:
(i)if he or she was then working as an employee of another person – had been working for that person, or for that person and any predecessor or predecessors of that person; or
(ii)if he or she was then working on his or her own account in any profession, trade, employment, vocation or calling – had been so working in that profession, trade, employment, vocation or calling;
for a continuous period of at least 10 years that began before the veteran turned 65; and
(h) section 25 does not apply to the veteran.
(2B)For the purposes of paragraph (2A)(e), a veteran who is incapacitated from war-caused injury or war-caused disease or both, is not taken to be suffering a loss of salary or wages, or of earnings on his or her own account, because of that incapacity if:
(a)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(b)the veteran is incapacitated, or prevented from engaging in remunerative work for some other reason.
(3)This section also applies to a veteran who has been blinded in both eyes as a result of war-caused injury or war-caused disease, or both.
(4)Subject to subsection (5), the rate at which pension is payable to a veteran to whom his section applies is $571.70 per fortnight.
(5)If section 115D applies to a veteran, the rate at which pension is payable to the veteran is the amount specified in subsection (4) less the pension reduction amount worked out under that section."
Medical reports from all the specialists contributing show that the applicant's non-accepted conditions of alcohol abuse and generalised anxiety played a major role in the difficulties experienced whilst at work and when seeking gainful employment.
Therefore, the Tribunal cannot be reasonably satisfied that the applicant meets the requirements of s 24 of the Veterans' Entitlements Act. For the same reasons, the Tribunal cannot be reasonably satisfied that the applicant meets the requirements of s 23.
Accordingly, the Tribunal affirms the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier IRW Brumfield, Member
Signed: Sarah Oliver
AssociateDate of Hearing 23 April 2002
Date of Decision 21 June 2002
Counsel for the Applicant Mr J McGhee
Solicitor for the Applicant Ms C Haney, Streeting Haney, Lawyers
Counsel for the Respondent Mr J Stoner, Departmental Advocate
8
0