Bodsworth and Repatriation Commission
[2008] AATA 169
•28 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 169
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601102
VETERANS' APPEALS DIVISION ) Re RAYMOND BRUCE BODSWORTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B.H. Pascoe, Senior Member Date28 February 2008
PlaceMelbourne
Decision The Tribunal varies the decision under review to the extent of finding that the applicant’s conditions of alcohol dependence or alcohol abuse and generalised anxiety disorder were war-caused within the meaning of the Veterans’ Entitlements Act 1986 and remits the matter to the respondent for assessment of the rate of pension payable.
(sgd) B.H. Pascoe
Senior Member
VETERANS’ ENTITLEMENTS – alcohol dependence or alcohol abuse – generalised anxiety disorder – sever stressor – severe psychosocial stressor – category 1B stressor – witnessing casualties or casualty clearance – clinical onset
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
28 February 2008 Mr B.H. Pascoe, Senior Member 1. This is an application to review a decision of the respondent of 12 April 2002 which refused a claim by the applicant, Mr R. Bodsworth, for disability pension in respect of claimed war-caused conditions of alcohol dependence/abuse, asthma and sleep problems/anxiety. Further claim in respect of neurodermatitis, cholinergic urticaria and chronic obstructive airways disease were also refused but the decision in relation to these conditions was set aside by the Veterans’ Review Board (VRB) on 12 September 2006.
2. At the hearing Mr Bodsworth was represented by Mr G. Chancellor of counsel. The respondent was represented by Mr R. Douglass, an advocate with the Department of Veterans’ Affairs on the first day of hearing at Shepparton and by Mr G. Purcell at the resumed hearing in Melbourne. Evidence was given by Mr Bodsworth, another veteran, Mr G. Walters, two psychiatrists. Dr C. Percival and Dr N. Strauss, and Colonel H. Conant on behalf of Writeway Research Service. The claim in relation to asthma was not pursued at the hearing with the applicant seeking to claim conditions of alcohol abuse or dependence and post traumatic stress disorder (PTSD) or alternatively, generalised anxiety disorder (GAD) as war-caused conditions.
3. Mr Bodsworth served in Vietnam from 13 August 1970 to 29 July 1971. His unit was the 2nd Advanced Ordnance Depot located at Vung Tau. he said that, prior to enlistment in the Army at the age of 21 years, he had been an apprenticed jockey. In order to maintain his fitness and weight he said that his then alcohol consumption was one or two glass of beer per week.
4. In his statement prepared for the hearing, Mr Bodsworth listed the following incidents:
For most of my service in Vietnam I was based at Vung Tau near to the hospital. On numerous occasions I witnessed helicopters landing at the hospital and being unloaded. I saw people who had been wounded taken into the hospital and I also saw body bags which contained casualties. I found these experiences upsetting. Ever since my service in Vietnam I have found that the noise of helicopters triggers my memory of these events. During my service in Vietnam I found that the noise of approaching helicopters would upset me.
Early in my tour of Vietnam whilst based at Vung Tau some of the Vietnamese women who helped out at the base were sitting in a shipping container having a rest break. One of my fellow soldiers as a joke locked them in the container and another soldier moved the container with a forklift. I witnessed this. When the container was eventually unlocked one of the women was bleeding and had miscarried. The joke turned very sour and I was distressed by this event.
On one occasion when I was off duty I visited the beach near Vung Tau. I came across the body of a Vietnamese person on the water’s edge. There were others who were attending to the body at the time. I remember that the body was bloated and there was a bad smell. I felt sick and left the scene.
Over a period of a few weeks whilst I was based at Vung Tau I was required to guard Vietnamese prisoners of war. During this period I mainly guarded female POWs. Some of the POWs were badly wounded and the sight of these wounds was upsetting to me. The Veterans’ Review Board has recorded that this duty was conducted at Nui Dat but I believe that to be a mistake and my recollection is that I undertook these duties at Vung Tau.
Another stressful incident which occurred to me whilst I was a Vung Tau was when about 4 or 5 of us ran from a taxi which we had hired without paying the fare. The taxi driver fired a shot at us which scared me. We escaped by running through the cemetery.
…
One of my duties during my tour of Vietnam involved cleaning out APCs. I remember an incident towards the end of my tour when I was at Nui Dat and when I recovered and cleaned out one APC which contained body matter. The APC had been damaged in an explosion. There was evidence of blood, flesh and other body matter (including what I believed was an amputated finger). The experience was upsetting but I tried to block it from my memory.
5. In his oral evidence, Mr Bodsworth said that on occasions as a result of disciplinary measures, he was put on guard duty at the gate next to the hospital which was some 50 metres from the helipad. He said that when stretchers were unloaded he would wonder if he knew the person and had a sick feeling that one of ours had been injured. He said that he heard that a Gerry Lyon a bomb disposal expert, whom he had met several times at the club on base, had been blown up and the thought that one of the bags unloaded may have contained his body was upsetting.
6. Mr Bodsworth maintained that drinking was his method of coping with the distress caused by the impact of the war. He said that alcohol was cheap and easy to get with no restriction on quantity at Vung Tau. Regularly he drank 12-18 cans of beer per night. He acknowledged that a factor in the heavy drinking was there was little else to do, there was peer pressure to join others in drinking and alcohol was readily available. He said that he continued to consume excessive amounts of alcohol on return from Vietnam. Apart from a brief period of abstinence he has continued his excessive consumption to this day. Mr Bodsworth said that currently it is normal for him to have his first can of beer by 10.00am and to have consumed some 10 cans by the end of the day.
7. Mr Walters served at Vung Tau for a few months at the same time as Mr Bodsworth. He said that he saw Mr Bodsworth regularly at the club and was aware that he was a heavy drinker. Mr Walters gave similar evidence of being close enough to see helicopters arriving with wounded and dead. While they were not close enough to identify any casualties they saw deceased taken direct to the morgue. Mr Walters was aware that Mr Bodsworth had been disciplined on occasions resulting in guard duty on the main gate which he believed was some 20 metres from the morgue. Mr Walters confirmed also the duty of guarding seriously wounded prisoners. He recalled Mr Bodsworth’s name being mentioned as one involved in an incident when a taxi driver fired a shot but did not himself, witness the incident.
8. A statement from Ms C. Sholz was tendered on behalf of the applicant but she was not called to give evidence or cross examination. Her statement said that she had known Mr Bodsworth since teenage years as a fit confident and popular apprentice jockey. She was not aware of his drinking alcohol prior to service in Vietnam. She said that, on return from Vietnam, he was a remarkably different person. He lacked confidence, was morose, depressed and moody and quickly gained a reputation in the district for being a heavy drinker and not looking after himself. He had trouble holding down employment positions. She said that he avoided any discussions of his army service.
9. Mr Bodsworth was examined by Dr B. Kenny, a consultant psychiatrist on 18 April 2000. Dr Kenny readily accepted that he suffered from alcohol abuse/dependence but could not relate the condition to stressors experienced in Vietnam. He did not see him as having the symptoms of PTSD and was uncertain as to whether his experiences were consistent with Criterion A for the development of PTSD. In March 1998 another consultant psychiatrist, Dr Douglas, made a diagnosis of Alcohol Abuse Syndrome but was unable to make a diagnosis of PTSD.
10. Mr Bodsworth was interview by Dr L.J. Whitaker, a consultant psychiatrist in November 2000 and again in January and February 2001. Again Dr Whitaker had no difficulty in diagnosing alcohol dependence. He concluded, also, that Mr Bodsworth suffered from chronic PTSD. In concluding his report which was dated 18 January 2001 although it referred to interviews on 17 January 2001 and 21 February 2001, Dr Whitaker said:
Final DSM-IV-TR Diagnosis
Although I had initial uncertainty whether Mr Bodsworth’s military experiences really amounted to Criterion A for PTSD, after 3 interviews and much more observation which make it quite obvious that Mr Bodsworth is suffering from the clinical syndrome of PTSD as reflected in Criteria B, C and D, I infer that his military service did in fact amount to Criterion A. As stated above it is my opinion that as rapport develops further traumatic experiences in Vietnam will probably be disclosed. A careful review of his whole life history failed to relieve any other traumatic life experiences even remotely approaching Criterion A in intensity. I regard this depression as part of his PTSD (as occurs in about half of the chronic cases).
Conclusion
“Chronic PTSD with Substance Dependence (Alcohol)”.
11. Mr Bodsworth was examined by another psychiatrist, Dr L.J. Percival on29 May 2006. Dr Percival noted that Mr Bodsworth was very difficult and reluctant to provide information about his experiences in Vietnam. Dr Percival had the reports of the three other psychiatrists and relied particularly on that provided by Dr Whitaker who was well known to him. He said that he saw no point in returning to the detail covered by Dr Whitaker who had seen Mr Bodsworth on several occasions. Dr Percival preferred a diagnosis of PTSD but accepted that there were problems with satisfying Criteria A of such diagnosis. He was of the opinion that GAD would be a second order diagnosis but it would not explain the other symptoms which Mr Bodsworth had. He said that, in his opinion, there was a clinical as opposed to a legal diagnosis of PTSD. Again he had no difficulty in diagnosing alcohol abuse/dependence.
12. The final psychiatrist who examined Mr Bodsworth was Dr N. Strauss. The examination was on 26 April 2007 and Dr Strauss provided a report to the respondent dated 30 April 2007. His views were summarised in that report as:
It is extremely difficult to make a diagnosis in this case because Mr Bodsworth is a poor historian, his recollection of events in Vietnam is vague and it is noted that he has told various doctors various stories, and his ability to describe symptoms is limited.
I am not convinced that this man has a post traumatic stress disorder. He does not present with any significant nightmares or flashbacks and there is some doubt as to the stressors that he experienced in Vietnam.
I can accept that he may have suffered a severe psycho-social stressor in Vietnam but there is no certainty. There is more certainty about the fact that he does not describe symptoms suggestive of a post traumatic stress disorder.
On the other hand I do accept that this man may have some form of anxiety disorder which has been with him since his time in Vietnam. I accept that he began to drink heavily in Vietnam and I accept that there is a strong probability that he had some frightening and upsetting experiences there. With this in mind I believe that the most appropriate diagnosis in this case is a generalised anxiety disorder. I believe that this man has been prone to worry and anxiety on the balance of probabilities for a number of years since his time in the services and at times he suffers from restlessness and has difficulty concentrating and is easily fatigued.
I believe that he is prone to tension and that is why he has developed a substance abuse disorder which I believe began when he was in Vietnam.
I should emphasise that it is difficult to be absolute or certain in this case. He is a poor historian as stated and his symptoms are vague and his experiences in Vietnam are also vague in their description but on the balance of probabilities I accept that he has developed a generalised anxiety disorder probably because of his time in Vietnam but I cannot be any more certain than this.
Probably this man meets the relevant factors in the Statements of Principles for a generalised anxiety disorder and a substance abuse disorder both of which began while he was in Vietnam.
In his oral evidence, Dr Strauss said that he was not satisfied that Dr Whitaker had made a clear diagnosis of PTSD. He had difficulty with the argument adopted by Dr Percival that Mr Bodsworth was denying symptoms to himself and others.
13. Mr Bodsworth had operational service in Vietnam from 13 August 1970 to 29 July 1971. Section 120(1) of the Veterans’ Entitlement Act 1986 (the Act) provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s 120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act.
14. Each of the relevant SoPs set out the factors, one of which relate to the veteran’s service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.
15. In the decision in Repatriation Commission V Deledio (1998) 49 ALD 193 the Full Court of the Federal Court set out the four-step process which a decision maker should follow. These four steps are:
1.whether the material points to a hypothesis connecting the injury, disease or death with the circumstance of the particular service rendered by the veteran;
2.whether there is in force an SoP;
3.whether the hypothesis is reasonable under the terms of the SoP; and
4.whether, on the facts determined from the material before the decision maker there can be satisfaction beyond reasonable doubt that the incapacity or death was not war-caused. It is only in this fourth step that fact finding arises.
16. The initial matter to be determined is the correct diagnosis of a claimed injury or disease. It is quite clear from the evidence that Mr Bodsworth suffers from alcohol abuse and dependence. In relation to PTSD both Dr Whitaker and Dr Percival believed that he suffered from this condition. However Dr Whitaker could only infer that he satisfied the criteria for PTSD. Dr Percival clearly had reservations but relied on the opinion of Dr Whitaker. In the ultimate, I prefer the opinion of Dr Strauss who had the benefit of both interviewing Mr Bodsworth and having before him the opinion of all psychiatrists who had examined Mr Bodsworth over the preceding seven years. Dr Strauss was firm that he did not satisfy the diagnostic criteria for PTSD but accepted that the more appropriate diagnosis was GAD which agreed with Dr Percival’s alternative diagnosis. Consequently, I am satisfied on the balance of probabilities that GAD is an appropriate diagnosis of Mr Bodsworth’s condition.
17. The relevant SoPs are:
·Instrument No 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
·Instrument No 1 of 2000 concerning Anxiety Disorder
·Instrument No 101 of 2007 concerning Anxiety Disorder.
The two latter instruments are relevant as Mr Bodsworth is entitled to the benefit of the most favourable SoP in force at the date of his application, 15 September 2001, or the date of the hearing which was completed on 28 November 2007.
18. The material presented by Mr Bodsworth points to a hypothesis connecting his alcohol abuse and dependence and GAD with the stressors of service in Vietnam listed in his statement. As indicated above there is in force SoPs concerning conditions. The hypothesis is reasonable under the terms of the SoPs to the extent that it can be said that Mr Bodsworth experienced a severe stressor, in the matter of alcohol dependence or abuse, or a severe psychosocial stressor in the matter of GAD, within the two years immediately before the clinical onset of the conditions.
19. The SoP concerning Alcohol Dependence or Alcohol Abuse contains the following definition:
“experiencing a sever stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
The events said to have satisfied this definition were the observations from a distance of casualties being unloaded from helicopters, the cleaning of APC’s with evidence of casualties, the guarding of enemy casualties, the sighting of a body of a Vietnamese in the water and being shot at by a taxi driver. I am reluctant to accept the last of these as a threat of serious injury or death. Accounts of the incident have varied, the only common thread being a failure to pay a taxi fare, and I am unable to accept that there was fear, helplessness or horror. In relation to the other four events, I accept the evidence of Mr Bodsworth. While the observations of casualties arriving by helicopter were from a distance, I have no doubt that Mr Bodsworth was in no doubt that they were casualties even though they could not be readily identified from his observation point. I accept his evidence of finding evidence of casualties in his short period at Nui Dat and the observations of enemy casualties in hospital. While I accept his evidence of observing the body in the water, there is nothing to suggest that the death was a war casualty.
20. The definition requires the event to be one which might evoke intense fear, helplessness or horror. On balance, I am satisfied that the events related by Mr Bodsworth satisfy the requirement for helplessness and horror. While he described the event as upsetting I am prepared, on the balance of probabilities, that his evidence of the events satisfies the definition. In addition, I am satisfied that the severe stressors were within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
21. In relation to the claim for GAD, Instrument No 1 of 2000 provides a factor which must as a minimum exist as:
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.
“Severe psychosocial stressor” is defined as:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury or a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
The only event which occurred to Mr Bodsworth relevant to this definition was his allegation of being shot at by a taxi driver. As indicated earlier, I have reservations about the evidence of being shot at but am satisfied on the evidence of Mr Bodsworth and Mr Walters that the incident did not evoke feelings of substantial distress in Mr Bodsworth. On the evidence no other factor under this SoP is satisfied.
22. Instrument 101 of 2007 includes Factors under paragraph 6(a)(ii), (iii) and (v) of experiencing a category 1A or category 1B stressor within the five years or a category 2 stressor within the one year before the clinical onset of anxiety disorder. Within the definitions of these stressors. I am satisfied that Mr Bodsworth did not experience either a category 1A or category 2 stressor. The remaining stressor is defined as:
“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;
For the same reasons as outlined in relation to the claim for alcohol dependence or alcohol abuse. I cannot be satisfied beyond reasonable doubt that Mr Bodsworth did not experience the viewing of injured casualties or being an eyewitness to the clearance of critically injured casualties. I accept, also, on the evidence that the clinical onset of GAD was within the five years of these experiences.
23. It follows from the foregoing that the decision under review should be varied to the extent that the conditions of alcohol dependence or alcohol abuse and generalised anxiety disorder were war-caused. The matter should be remitted to the respondent for assessment of the rate of pension to be paid.
I certify that the twenty-three (23) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior MemberSigned: Dianne Eva
Clerk
Dates of Hearing 27 August 2007 & 28 November 2007
Date of Decision 28 February 2008
Counsel for the Applicant Mr G. Chancellor
Solicitor for the Applicant Williams Winter SolicitorsAdvocates for the Respondent Mr R. Douglass & Mr G. Purcell, Department of Veterans' Affairs
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