Baker and Repatriation Commission
[2007] AATA 1370
•28 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1370
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1447
VETERANS APPEALS DIVISION ) Re JOHN BAKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M D Allen, Senior Member
Dr J D Campbell, Member
Mr S Frost, MemberDate28 May 2007
PlaceSydney
Decision The decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, viz. THAT the Applicant, JOHN GRAHAME BAKER, is entitled to pension for incapacity occasioned by the war-caused diseases of Dysthemic Disorder and Irritable Bowel Syndrome as and from the 26th day of October 2004.
AND THAT this matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for incapacity caused by all war-caused injuries and diseases suffered by the Applicant.
..................[sgd]...................
M D Allen
Presiding Member
CATCHWORDS
VETERANS AFFAIRS – application for review of decision revoking earlier decision accepting generalised anxiety order, alcohol abuse, irritable bowel syndrome as war caused – diagnostic protocol requires psychiatric condition be diagnosed by psychiatrist – evidentiary validity of diagnosis – opinion as to aetiology of disease - decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975
Veterans’ Entitlements Act 1986, sections 120 and 120A
Administrative Decisions (Judicial Review) Act 1977
Statement of Principles, Instrument No 17 of 2007 and Instrument No 58 of 1998CASES
Repatriation Commission v Delidio (1998) 49 ALD 193Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cornelius [2002] FCA 750REASONS FOR DECISION
28 May 2007 M D Allen, Senior Member
Dr J D Campbell, MemberMr S Frost, Member
REASONS
1. By application made the 14th day of November 2005 the Applicant sought review of a decision that revoked an earlier decision that had accepted the conditions of Generalised Anxiety Disorder, Alcohol Abuse and Irritable Bowel Syndrome as being war-caused.
2.
The purported ground for the revocation of the entitlement was that the diagnoses of Generalised Anxiety Disorder and Alcohol Abuse were made by a
Dr Graham who, apart from being a Medical Practitioner, is a Psychotherapist. According to the delegate of the Respondent who made the decision under review the “Diagnostic Protocol” requires a psychiatric condition to be diagnosed by a psychiatrist.
3. The so called “Diagnostic Protocol” is not included in the documents prepared for the Administrative Appeals Tribunal (the ‘Tribunal’) pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the so called protocol is not referred to or defined in the Veterans’ Entitlements Act 1986. That the delegate purported to rely upon some form of Departmental Policy which forms a gloss upon the statute as opposed to what Parliament enacted renders the decision totally misconceived. It is unfortunate for the Applicant, that the decision was not challenged under the provisions of the Administrative Decisions (Judicial Review) Act 1977.
4. The matter now having come before this Tribunal, it is the task of the Tribunal to make the best or preferable decision on the material made available to it. That being said we are in no doubt as to the qualifications of Dr Graham and the evidentiary validity of the diagnosis he made, and the opinion as to the aetiology of the disease which he formed.
5. There is no dispute that the Applicant had ‘operational service’ as that term is defined in s 6C VEA. That being so, the standard of proof in this matter is that mandated by ss 120(1) and (3) VEA.
6. Subsections 120(1) and (3) VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles (SoP) issued by the Repatriation Medical Authority.
7. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
8. The manner in which the Tribunal must approach its task where a SoP exists was explained by the Full Court of the Federal Court in Repatriation Commission v Delidio (1988) 49 ALD193. The so-called Delidio principles are now so well-known as not to require capitulation here.
9. Notwithstanding the manner in which the Tribunal is required to approach its task as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant; see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof is that of the Tribunals’ “reasonable satisfaction” and in which the SoP regime established by section 196B VEA has no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622.
10. Reports have been obtained from Drs Lambeth, Dinnen and Morris, all psychiatrists, in addition to the report of Dr Graham, psychotherapist. In assessing Dr Graham’s opinion we note, as pointed out by Dr Dinnen, his qualifications include Fellowship of the Australian College of Psychological Medicine and a post graduate Master’s Degree in psychology from the University of New South Wales. Not being bound by any Departmental protocols but able to apply the evidence; we find that Dr Graham’s qualifications are such as to qualify him as an expert in illnesses of the mind.
11. Dr Graham opined that the Applicant suffered from a Generalised Anxiety Disorder and Alcohol Abuse. Drs Lambeth, Dinnen and Morris diagnosed a Dysthyemic Disorder, although Dr Morris opined that the Applicant also had a General Anxiety Disorder, whereas Dr Dinnen noted “features of anxiety associated with the dysthemic disorder”. Dr Morris also in evidence agreed with the diagnosis of Alcohol Abuse, whereas Dr Dinnen regarded the Applicant’s Alcohol Abuse since service in Vietnam as part of the dysthemic disorder.
12. What seems clear to us is that the consensus of most of the medical practitioners who have examined the Applicant is that he suffers from a Dysthemic Disorder with elements of Anxiety and Alcohol Abuse. We note that the Respondent, very properly, concedes that the Applicant’s Irritable Bowel Syndrome is a consequence of his Alcohol Abuse.
13. The only psychiatrist who did not diagnose a psychiatric illness was Dr White. Dr White is sceptical of the diagnosis of Post Traumatic Stress Disorder (‘PTSD’) and considers the condition to be over-diagnosed. He opined that the Applicant did not fulfil the criteria for a Generalised Anxiety Disorder or any other psychiatric disorder. Dr White’s opinion is so at odds with all other medical opinion in this matter that we can put no credence in it at all.
14. The Applicant gave evidence of a series of events whilst in South Vietnam which operated as stressors. His evidence was that he was an unwilling and resentful conscript who after recruit training was allocated to Signal Corps and after Corps Training was posted to 110 Signal Squadron and stationed at the Australian Logistics Base (‘IALSG’) Vung Tau.
15. The Applicant was at Vung Tau during the Tet Offensive of 1968. This was a time of high alert and nerves were on edge. During that time he went to the unit orderly room to report gunfire outside the unit perimeter. The orderly room was in darkness and as he entered the duty sergeant cocked his weapon and pointed it at him. The sergeant sounded confused and panic stricken and threatened to shoot. The Applicant began to shout “don’t shoot” over and over and eventually the sergeant relaxed. He then showed his weapon to the Applicant who noticed that there was a round in the breach and the safety catch was off.
16. This incident caused the Applicant to become anxious and he noticed that he was shaking. Immediately afterwards he returned to his position on the perimeter and watched a vehicle randomly firing. The Applicant said it took a long time for him to get over this incident, and as a result he began to drink heavily, and on a daily basis. His drinking developed to such a degree that on one occasion whilst on duty at night as duty signaller he was unable to carry out his duty which involved making signal contact with HMAS Sydney.
17. The Applicant developed a habit of drinking heavily even when not on duty and after a “Dear John” letter from his fiancée also developed a habit of frequenting the brothels of Dung Tau.
18. Other incidents contributed to the Applicant’s perception of death being imminent and of his having no control over his circumstances. These included:
i.a friend from Corps Training who was killed at Nui Dat as a result of an accident;
ii.a fellow member of 110 Signal Squadron who was in the same barracks hut as him, being shot at by a South Vietnamese civil policeman (white mouse) and suffering a superficial wound to the neck;
iii.whilst attached to an Australian Army vessel for a voyage to Camh Ranh Bay having his personal weapon stolen and later having to give evidence at the Court Martial of the soldier who stole his weapon;
iv.being sent to a United States Fire Support Base named Bear-Cat and being unable to properly fortify his position although the Fire Support Base had come under rocket attack;
v.witnessing a “race riot” between black and white US troops at the US base at Long Binh. Also with others of his unit being pressured by American troops to hand to them their personal weapons whilst that base was under attack; and
vi.witnessing the ill-treatment of Australian troops at the Military Correctional compound at Vung Tau.
19. As the Applicant stated the events were such that he got to the stage where he felt numb and nothing seemed to matter. He took refuge in alcohol and with prostitutes which led him to regard sex as being detached from emotion.
20. On return to Australia he found he could not relate to previous friends or his parents. He found relief in working night shift which meant being largely on his own, and in drinking alcohol and smoking marijuana. He also deliberately sought out and began an affair with his former fiancée who by that time had married.
21. In 1975 he consulted a general practitioner because he found he was worrying about matters a lot and was edgy all of the time and nervous. That general practitioner prescribed valium. The Applicant’s first reference for psychiatric evaluation was when he received advice from the Vietnam Veterans’ Association and his general practitioner referred him to psychiatrist Dr Lambeth.
22. At the conclusion of the first day’s hearing in this matter, the Tribunal requested that further information be sought regarding incidents referred to by the Applicant in the course of his evidence. A researcher’s report was obtained and became exhibit R7.
23. Following that report we are satisfied that the incident the Applicant deposed to when he was threatened by a sergeant with a loaded rifle during the Tet offensive did occur. We are strengthened in this conclusion by the failure of the former sergeant concerned to cooperate with the researcher Mr O’Keefe.
24. The incident when a fellow signaller was shot by a white mouse is corroborated by statements from the former officer commanding, and executive officer respectively of 110 Signal Squadron. Likewise the Applicant’s evidence of the position of the court martial hut at Vung Tau is correct and his recounting of the evidence he was required to give is what one would expect to be led by the prosecution in a case involving the theft of his personal weapon.
25. Although the report of the death of a signaller he had attended a course with was exaggerated, rumours abound in war and if, as we accept, the Applicant regarded the report of the death and its cause (a misfire incident) as true we accept that he could have had feelings of distress and apprehension.
26. As to a vehicle firing at an old French fort just outside the 1ALSG perimeter during the Tet Offensive, we have no reason not to accept the Applicant’s evidence.
27. The current SoP for Dysthemic Disorder is Instrument No 17 of 2007. If the Applicant cannot succeed in establishing his claim pursuant to that SoP then the Tribunal must consider whether the facts raised conform to the SoP that was in force at the time the Respondent made its decision in this matter. At that time the relevant Instrument was No 58 of 1998.
28. A diagnosis of Dysthemic Disorder in terms of Instrument No 17 of 2007 requires very specific diagnostic criteria and as pointed out in Repatriation Commission v Gosewinckel (1999) 59 ALD 690, an hypothesis connecting a disease with war-service will only be reasonable if the material that raises it will include all of the essential elements prescribed by the SoP.
29. Instrument No 17 of 2007 was gazetted after Drs Dinnen and Morris gave their evidence on 10 October 2006 but before the Tribunal hearing was resumed on 2 May 2007. The specific diagnostic criteria in the SoP were therefore not addressed by either psychiatrist although, both being practising psychiatrists, gave as their clinical judgment that the Applicant was suffering from a Dysthemic Disorder. Both doctors had recourse to Instrument No 58 of 1998 and we find that whereas we are not in the position, given the evidence before us, to make a determination in favour of the Applicant pursuant to Instrument No 17 of 2007, we can proceed to consider the material and Instrument No 58 of 1998.
30. That is not to say however that the latter Instrument cannot be taken into account in considering the earlier Instrument. Instrument No 58 of 1998 requires as a factor raising a reasonable hypothesis, the experiencing of a severe psycho-social stressor within the two years immediately before the clinical onset of depressive disorder. Severe psycho-social stressor is defined in clause eight of the Instrument as:
i.Psycho-social stressor
“Means an identifiable occurrence that evokes feelings of substantial distress in an individual; for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), sever illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
Being threatened with a rifle obviously constitutes an assault and therefore fits within the definition above. In Instrument No 17 of 2007 reference is made to a category 1A stressor as a causative factor. Included as an example of a category 1A stressor in the definition clause of the Instrument and defined as a “severe traumatic event” is the occurrence of “being threatened with a weapon”. We find that if being threatened with a weapon can be classed as a severe traumatic event, then it can be said in terms of Instrument No 58 of 1998 to be a severe psycho-social stressor.
31. We are satisfied that the Applicant did experience a series of stressful events and in particular being threatened with a loaded rifle by an obviously panicked non-commissioned officer constitutes a severe psycho-social stressor as that term is defined in Instrument No 58 of 1998.
32. To our mind, the real issue in this matter is the date of the clinical onset of the Applicant’s Dysthemic Disorder. As was pointed out in Repatriation Commission v Cornelius [2002] FCA 750, a disease has its clinical onset either when a person becomes aware of some sign or symptom which enables a medical practitioner to say the disease was present at that time, or when a finding is made on investigation which is indicative to a medical practitioner of the disease being present. Dr Dinnen’s opinion is that the clinical onset of the Applicant’s dysthemic disorder was when he was still in South Vietnam. Likewise Dr Dinnen was of the opinion that the Applicant’s behaviour with respect to his heavy drinking and relationship with his ex-fiancee when he returned from South Vietnam was in keeping with a serious psychiatric illness at that time, and which in his opinion has continued to date.
33. Cross-examined Dr Dinnen agreed that his opinion and that of Dr Morris were similar except that they disagreed as to the time of clinical onset. Dr Morris in evidence agreed with this summation.
34. An issue which arose with regard to Dr Dinnen’s evidence was that although referred to Dr Lambeth by the Vietnam Veterans’ Association, there was no recounting of allegedly traumatic events during his service by the Applicant to that psychiatrist and some time before psychotherapist Dr Graham was able to explore the effects upon the Applicant of his service in South Vietnam. As Dr Dinnen explained it is entirely consistent with psychiatric illness that an unconscious or subconscious suppression of matters most relevant to that psychiatric illness occurs. As Dr Dinnen stated the exposure of such matters is “really the stuff of psychotherapy”.
35.
We note that Dr Graham’s opinion was that the Applicant had a Generalised Anxiety Disorder which was caused by his Vietnam service, plus he would clearly fulfil all of the criteria for a chronic post-traumatic stress disorder for the past 30 years, except for the re-experiencing of trauma through thoughts and dreams. Dr Morris who examined the Applicant for the Respondent also opined that the Applicant fulfilled criteria A of the diagnosis of PTSD but did not have enough frequency or severity of
re-experiencing symptoms to fulfil criteria B of the diagnosis.
36. In the course of his evidence, Dr Morris stated that the Applicant started drinking alcohol heavily as a means of self-medicating his emotional stress while in South Vietnam and had drunk alcohol excessively ever since. In his reports he concluded that the Applicant at times would have fulfilled the Diagnostic and Statistical Manual, diagnostic criteria for Alcohol Abuse or even Alcohol Dependence. In cross-examination he opined that upon his return from South Vietnam the Applicant did fulfil the diagnostic criteria for Alcohol Abuse but currently does not do so, although that is a “line ball” decision and currently the Applicant was very close to fulfilling the criteria.
37. Cross examined Dr Morris conceded that there was certainly evidence of emotional distress while the Applicant was in South Vietnam and after.
38. Dr Lambeth in a report to the Applicant’s general practitioner stated that he could not find that the Applicant’s Dysthemia was Vietnam related. Dr Lambeth however had referred the Applicant to his colleague Dr Graham for psychotherapy and it was Dr Graham’s opinion that the Applicant’s psychiatric illness dated back to his time in South Vietnam.
39. We are more persuaded by Dr Dinnen’s evidence that the Applicant’s Dysthemic Disorder manifested itself whilst in South Vietnam. This is further evidenced by the Applicant’s behaviour on his return to Australia. As agreed by both Dr Dinnen and Dr Morris their views as to diagnosis are much the same and Dr Morris concedes that there is evidence of emotional distress while the Applicant was in South Vietnam.
40. Dr Graham also places the onset of illness as being whilst on service in South Vietnam. Dr Lambeth cannot implicate Vietnam service but we prefer the opinions of Dr Graham as Dr Lambeth referred the Applicant to that doctor for further treatment and it is apparent that Dr Graham established a great rapport with the Applicant and he revealed matters to Dr Graham that were not disclosed to Dr Lambeth. This in many ways is to be expected as psychotherapy depends upon establishing a rapport with the patient.
41. As to Dr White as he considers, contrary to the opinion of all his colleagues, that the Applicant does not suffer from a psychiatric illness, he obviously cannot offer any comment regarding clinical onset.
42. We are satisfied that the Applicant did experience at least one severe psycho-logical stressor whilst in South Vietnam, namely the incident when he was threatened with a loaded rifle and we are further satisfied for the reasons outlined above that he developed a dysthemic disorder within the two years following that incident. Therefore a hypothesis exists connecting the Applicant’s dysthemic disorder with his war-service. This hypothesis is a reasonable one as it conforms to a SoP.
43. We are further satisfied that the facts on which the hypotheses is based had not been negatived beyond reasonable doubt. The decision under review is therefore set aside and the Tribunal substitutes in lieu thereof its decision namely that the Applicant’s dysthemic disorder is a war-caused disease.
44. The respondent has conceded that if the Applicant’s Dysthemic Disorder is found to be war-caused then his Irritable Bowel Syndrome is also war-caused. We find that this concession is properly made.
45. We also find that the Applicant’s heavy alcohol intake whilst not currently amounting to alcohol abuse as a separate diagnostic entity, although at previous times it did, is part and parcel of his Dysthemic Disorder and its effects upon him are to be taken into account when assessing the rate at which pension is to be paid.
46. This matter is therefore remitted to the Respondent in order that it might assess the rate at which pension is to be paid for incapacity arising from all war-caused injuries and diseases suffered by the Applicant. The date of effect of the Tribunal’s decision is as and from 26 October 2004.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of M D Allen, Senior Member; Dr J D Campbell, Member and Mr S Frost, Member
Signed: [sgd] ……Mwela Kapapa........
Associate
Dates of Hearing 10 October 2006 & 2 May 2007
Date of Decision 28 May 2007
Counsel for the Applicant Ms E WoodSolicitor for the Applicant Veterans’ Advocacy Service, Legal Aid Commission of New South Wales
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Department of Veterans’ Affairs, Advocacy Section
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