Brady and Repatriation Commission
[2010] AATA 346
•10 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 346
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: V 200500446
VETERANS' APPEALS DIVISION ) Re William Brady Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President
Miss E A Shanahan, MemberDate10 May 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
........(sgd G L McDonald)....
Deputy President
CATCHWORDS –remittal from Federal Court of Australia - general order that case be reheard - Tribunal not restricted to grounds advanced in the appeal - status of ‘observations’ by the Federal Court Vietnam veteran – claim for pension - various conditions - whether veteran suffered alcohol abuse or alcohol dependence - whether veteran suffered alcohol induced peripheral neuropathy - anxiety disorder - whether reasonable hypothesis - whether facts establish beyond reasonable doubt that hypothesis reasonable – decision affirmed.
Administrative Appeals Tribunal Act 1975 ss 37 and 44(4) and (5)
Veterans’ Entitlements Act 1986 ss 7(1)(a), 9, 9(1)(a), 9(1)(b), 9(1)(e)(ii), 13(1), 119(1)(h)(i), 119(1)(h)(ii), 120(1) and (3) and 120A
Briginshaw v Briginshaw [1938] 60 CLR 336
Meehan and Repatriation Commission [2003] AATA 429
Meehan v Repatriation Commission [2003] FCA 1371
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Brady [2007] FCA 1087
REASONS FOR DECISION
10 May 2010 Mr G L McDonald, Deputy President
Miss E A Shanahan, Member1. The applicant, who served in the Australian Army in Vietnam, lodged a claim, dated 28 February 2004, to be paid a pension under the Veterans’ Entitlements Act 1986 (the Act). The conditions upon which he relied were generalised anxiety disorder,[1] Post Traumatic Stress Disorder (“PTSD”) and a deterioration of his hearing loss.[2] While no apparent claim for alcohol abuse was made the delegate of respondent decided to reject anxiety depression, PTSD and alcohol abuse.[3] Other conditions including increased hearing loss were accepted. Since alcohol abuse has been included in all subsequent considerations of the applicant’s claim it ought to be considered in this review. The Veteran’s Review Board affirmed the decision of the delegate but amended the claim for anxiety/depression to “anxiety disorder with co-morbid depression …”[4] From that decision the applicant appealed to the AAT (the first AAT review).
[1] Expressed by his medical practitioner, Dr P. Nice, on the form as ‘anxiety and depression’ (the first AAT review, Exhibit A at p 19).
[2] Exhibit R1, Appeal Book, pp 97-98 and 100.
[3] Exhibit R1, Appeal Book, pp 117-118.
[4] Exhibit R1, Appeal Book, p 23.
2. In the first AAT review, the Tribunal determined that the applicant did not suffer PTSD, but he did suffer from a generalised anxiety disorder and alcohol dependence or abuse and was entitled to be paid a pension. The respondent appealed to the Federal Court. The Federal Court decided that the Tribunal had erred in finding that the applicant suffered alcohol abuse or dependence on the basis that the conditions were mutually exclusive and that evidence, which was not before the Tribunal, was required as to whether any alcohol related disease is or was present at a particular time. The Court allowed the appeal and set aside the Tribunal’s decision and proceeded to determine whether it was appropriate for the Court to substitute its own decision or remit the case for further hearing before the Tribunal. The Court ultimately decided that remittal was the appropriate course. However, in determining to remit the case, the Court did not state that the appeal was allowed and remitted with the hearing to be restricted to which, if either, of the two alcohol related conditions applied, as it is empowered to under s 44(4) and (5) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It merely stated that the case was to be reheard. (Repatriation Commission v Brady[5]) There was no cross appeal lodged against the first Tribunal’s determination that the applicant did not suffer PTSD. The Court only noted that finding of the Tribunal in its consideration of the appeal.[6] It is the decision of the Court which is determinative of the future course the Tribunal is to take with respect to a review when the appeal is allowed and remitted for rehearing. A rehearing in the Tribunal is by way of a de novo hearing. In the absence of an order to the contrary from the Court, the Tribunal, when conducting a rehearing, is not restricted to a consideration of only those grounds advanced by a successful appellant in a Federal Court appeal.
[5] [2007] FCA 1087 at [38] per Gordon J.
[6] [2007] FCA 1087 at [3] per Gordon J.
3. In any event the Court proceeded to make what it described as “observations” in respect of two further grounds of appeal vis:
(a)that the Tribunal had confused the conditions of ‘anxiety disorder not otherwise specified’ and ‘generalised anxiety disorder’ when considering the Statement of Principles to be applied to the applicant’s claimed anxiety condition;[7] and
(b)that there was little or no evidence to support a finding that the ‘generalised anxiety disorder’ was war-caused.[8]
[7] [2007] FCA 1087 at [40] per Gordon J.
[8] [2007] FCA 1087 at [41] per Gordon J.
While they were stated to be “observations” by the Court[9] and that findings were unnecessary, the Court proceeded, at least in respect of (b), to set aside and remit that “aspect of the decision” for further hearing.[10]
[9] [2007] FCA 1087 at [39] per Gordon J.
[10] [2007] FCA 1087 at [42] per Gordon J.
The Hearing
4. At the hearing the applicant was represented by Mr Andrew Larkin. The respondent was represented by Ms Jane Macdonnell. The Tribunal had before it the documents filed for the purposes of satisfying s 37 of the AAT Act (“T documents”), the Appeal Book prepared for the Federal Court appeal[11] and other exhibits tendered during the hearing.
[11] Exhibit R1.
Applicant’s Background
5. The applicant was born in 1947 and spent his childhood in Colac, a Victorian country town. The applicant qualified as an automotive electrician before he was initially conscripted into the Royal Australian Navy in 1968.[12]
[12] Exhibit A1, para 1.
6. In 1969 he joined the Royal Australian Army undertaking training at Puckapunyal for 10 weeks, then at Bandiana for 10 to 12 weeks before being posted to 3 Base Workshop in Melbourne. During his training he underwent a two week period of jungle training in Canungra, Queensland.[13] In June 1969, while stationed at Bandiana, the applicant accompanied by some other recruits drove to Albury to a hotel. After leaving the hotel that evening the applicant was seen by a police patrol to be relieving himself by the car in a laneway. He was charged, detained in custody overnight, convicted of indecent exposure and sentenced to a non-custodial sentence the next day.[14] In February 1970, while at home on leave, the applicant was charged and convicted of driving under the influence of alcohol and his driver’s licence was suspended for a period of one year.[15]
[13] Exhibit A1, paras 2 to 3.
[14] Transcript, p 104.
[15] Transcript, pp 15-16.
7. Between April and December 1970 the applicant served in Vietnam. The applicant was posted to Vung Tau in Vietnam. He said it was at this time that he began drinking regularly, apart from approximately one evening a week when he was required to undertake patrol duty.[16]
[16] Exhibit A1, para 9.
8. The applicant left South Vietnam on 12 December 1970 and returned to Australia in January 1971.[17]
[17] Exhibit A1, paras 2 and 13.
9. After his discharge in January 1971 he returned to live with his parents at Colac. He did not pursue returning to his former employer where a job had been kept open for him, because he felt he lacked the confidence to undertake the work and he said he was not ready to have contact with people and telephones.[18]
[18] Transcript, p 28.
10. On returning to Colac the applicant sought the return of his driver’s licence. The police opposed his application because they had seen him drinking in hotels. The magistrate delayed him regaining it for a further period of three months.
11. In approximately July 1971 he commenced working initially as a mower driver and subsequently as a maintenance worker at a nearby abattoir. He remained in that employment until the abattoir closed approximately a year later.
12. In October 1971 he married. He knew his wife prior to undertaking his military service and they had corresponded while he was in Vietnam. There are three children of the marriage born between 1972 and 1976.
13. In late 1972 or early 1973, after the closure of the abattoir, the applicant secured a seasonal job picking greens at a location two hours drive from Colac.
14. In 1986 he was again convicted of driving his car under the influence of alcohol.[19]
[19] Transcript, p 31.
15. In 1993 the work as a picker ceased and the applicant returned to Colac. In partnership with another he commenced work as an auto-electrician, operating the business where he had undertaken his apprenticeship. Between 1993 and 2006, the applicant stated that his involvement in the business lessened as he was spending more and more time drinking.[20] He claimed that his concentration dropped and in 2002 or 2003 another mechanic was engaged to undertake the work which the applicant would ordinarily have been expected to do. In 2006 the applicant sold his share in the business to his partner. The applicant has not worked since.[21]
[20] Transcript, p 120.
[21] Exhibit A1, paras 27 and 28.
The legislation
16. Section 13(1) of the Act relevantly provides that when a veteran is incapacitated by a war caused injury or a war caused disease the Commonwealth is liable to pay him/her a pension.
17. This review concerns a veteran who claimed to have contracted war caused diseases. Section 9 of the Act relevantly provides that such a disease shall be taken to be war caused if it was:
· contracted by the veteran while rendering operational service [22] or
· the disease arose out of or was attributable to any eligible war service[23] or
· was contracted before the commencement of the veteran’s period of eligible war service and was contributed to in a material degree or aggravated by the veteran’s war service [24]
[22] Section 9(1)(a) of the Act.
[23] Section 9(1)(b) of the Act.
[24] Section 9(1)(e)(ii) of the Act.
It is accepted that the applicant had operational service by virtue of his service in the Australian Army in the Vietnam War, and that as a result he is taken to have rendered eligible war service.[25]
[25] Section 7(1)(a) of the Act.
18. Section 120(1) and (3) of the Act relevantly provides:
(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) or (2) 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.
19. Section 120A of the Act provides that when a veteran has rendered operational service and claims a pension after 1 June 1994, and the Repatriation Medical Authority has determined a Statement of Principles (SOP) in respect of a disease, then a hypothesis connecting the disease to the service rendered is reasonable only if that SOP upholds the hypothesis.
Medical Evidence
20. The first step is to establish the relevant medical symptoms exhibited by the applicant that may point to what medical conditions from which he suffers. This is to be undertaken by reference to ordinary medical diagnostic principle. The standard of proof is the balance of probabilities. It is necessary in this case to determine whether the applicant has an alcohol related condition, the date of its onset, whether he suffers from a depressive or anxiety disorder and whether he suffers PTSD. To undertake this, it is necessary to have regard to the medical evidence. Additionally, and particularly in the determination of the onset of any of the applicant’s conditions, it is relevant to consider what the applicant and other witnesses say or observed.
21. The veteran’s evidence concerning his alcohol intake, in the period prior to going to Vietnam, is that once he turned 18 he occasionally had beer after playing sport and the occasional drink at dances or parties.[26] After joining the Army, but before his eligible service, he said that access to alcohol was limited. It was the veteran’s evidence that he commenced drinking heavily after he arrived in Vietnam. The pattern of his pre–Vietnam drinking was confirmed by his wife in her evidence given at the first Tribunal hearing, who at that time was part of a group (including the veteran) who socialised together[27]. The Tribunal notes that the applicant was charged with a drink-driving offence, arrested and charged for wilful exposure after drinking alcohol in a hotel with other servicemen when stationed at Bandiana. The Tribunal is satisfied that the evidence of the veteran and his wife is not reliable on this issue. The fact that the applicant was apprehended on two alcohol related offences prior to going to Vietnam is highly suggestive of alcohol abuse.[28]
[26] Exhibit A1, para 4.
[27] Exhibit R1, Appeal Book, pp 201 et seq.
[28] Diagnostic and Statistical Manual of Mental Disorders, 4th ed (American Psychiatric Association; Washington, D.C., 1994) (hereafter, DSM-IVTM) at p 183.
Dr Nice
22. The applicant has been seen by a great number of doctors. Dr P.J. Nice was the applicant’s general medical practitioner from 1983 to 1994. Dr Nice noted the applicant’s history as involving light alcohol consumption prior to going to Vietnam, but that he drank heavily while in Vietnam, “... always in mess drinking”[29]; a pattern which continued for the first two years after his return. The doctor opined that the applicant suffered post traumatic stress disorder with “anxiety and social avoidance, lowered mood and alcohol abuse as the symptoms.”[30] Depression was diagnosed in 1994 at which time anti-depressant medication was commenced, and the applicant was referred to a psychiatrist (Dr C. Newlands) for assistance.[31]
[29] Exhibit R1, Appeal Book, p 345.
[30] Exhibit R1, Appeal Book, p 273.
[31] Exhibit R1, Appeal Book, p 273.
23. Dr Nice makes no mention in his clinical notes of the presence of any stressor or stressors, which are necessary to support a diagnosis of PTSD. When giving his oral evidence, Dr Nice was not asked if the veteran had ever told him of the existence of any stressor. If the veteran had mentioned a stressor, which may account for the veteran showing signs of PTSD symptoms, then it is more likely than not that Dr Nice would have taken a note of it. The Tribunal is satisfied that the veteran did not tell Dr Nice of any stressor.
24. Dr Nice diagnosed the veteran as suffering alcohol induced peripheral neuropathy in May 1990.[32]. Dr Nice notes the veteran as telling him that he wanted to volunteer for a further tour of duty in Vietnam, but he did not follow this up as it would have required him to enlist for three years and he was not prepared to commit for that length of time.[33]
[32] Id.
[33] Exhibit R1, Appeal Book, p 278; and Transcript p 394.
Dr Newlands
25. Dr Newlands saw the applicant on four occasions, the first time being 22 September 2004 after he was referred by Dr Nice. Dr Newlands provided a report to the veteran’s then advocate dated 20 January 2005.[34] Dr Newlands recorded the applicant telling her about an incident in which the applicant and two other Australian servicemen, with the consent of their superior officer, accompanied a United States of America (American) helicopter mission. The applicant and those Australian soldiers accompanying him were not part of any authorised manoeuvre, rather they accompanied the Americans for, what Dr Newlands described as, a ‘look see’.[35] The helicopter was to deliver supplies to fire support bases. Dr Newlands describes being told by the applicant that while in flight the helicopter came under enemy fire from the ground. She reports being told that:
“… suddenly, Mr. Brady became aware of the helicopter “bobbing from side to side”. He was aware too, that the door gunners were blazing away. He described the helicopter as being hit around the loading bay area. He felt the helicopter was going down, and he thought it was about to crash. Indeed, he thought he would die. However, he later learnt, that the pilot was heading downwards, as a defence manoeuvre.
He had recently been discussing this incident with some of the Australians who had been in that helicopter ride, and he stated that it had come to light, that as the craft had put down, they called for assistance, and 2 helicopter gun ships responded. One took the 3 Australians to a U.S. base, and they had to wait there for some hours, because a storm had come in. They were then taken by helicopter to Vung Tau.
Mr. Brady stated that the whole episode had “absolutely frightened the hell out of me”[36].”
[34] Exhibit R1, Appeal Book, p 122.
[35] Exhibit R1, Appeal Book, p 125.
[36] Id.
In these reasons, this episode is referred to as ’the helicopter incident’.
26. The veteran told Dr Newlands that he dreamt of the helicopter incident about once a month and that in the dream the helicopter crashed.[37] The applicant also told Dr Newlands that he rarely drank alcohol before going to Vietnam and that his consumption increased whilst in Vietnam[38].
[37] Exhibit R1, Appeal Book, p 125; and Transcript, p 348.
[38] Exhibit R1, Appeal Book, p 126.
27. A stressor mentioned by Dr Newlands, but which has not been relied on in the presentation of the applicant’s review in this proceeding, was that the veteran saw wounded and dead persons transferred from helicopters to the hospital at Vung Tau[39].
[39] Id.
28. Dr Newlands concluded, on the basis of his heavy drinking during and since his return from Vietnam, that the veteran had an alcohol abuse syndrome and that he suffered a generalised anxiety disorder since the helicopter incident.[40]
[40] Exhibit R1, Appeal Book, p 128.
29. In order to prepare her report of 25 February 2008[41], Dr Newlands had the applicant confirm his previously given history with her. Dr Newlands concluded that while she had previously diagnosed a generalised anxiety disorder, since he stopped working, was under less pressure and was receiving medication, the applicant now suffered from an anxiety disorder not otherwise specified. The doctor based her finding on acceptance of the helicopter incident as being the stressor, which gave rise to the anxiety condition, and that it had existed since the time that incident occurred.[42] In her oral evidence, Dr Newlands confirmed her opinion that the veteran suffered alcohol abuse[43] and that the condition had been present since the veteran was in Vietnam.[44]
[41] Exhibit A4.
[42] Transcript, p 346.
[43] Exhibit A4.
[44] Transcript, p 347.
30. Dr Newlands was cross examined on the basis that the veteran’s symptoms were more consistent with alcohol dependence than abuse. The cross examination seemed to leave Dr Newlands less sure about her diagnosis of abuse, but the Tribunal is unable to conclude that Dr Newlands changed her opinion. The doctor rightly pointed out that the distinctions demanded in determining the symptomology were often open to different interpretations, which made definitive diagnosis of alcohol related conditions difficult.
Dr van der Linden
31. Dr M. van der Linden is a psychiatrist who first examined the applicant in February 1997 and again in 2004. He provided reports dated 21 February 1997[45] and 3 May 2004[46] to the respondent. The doctor’s clinical notes for each consultation were also before the Tribunal.[47] At the time he completed the 2004 report, Dr van der Linden had not realised that he had seen the applicant on a previous occasion in 1997.[48]
[45] Exhibit R1, Appeal Book, p 349.
[46] Exhibit R1, Appeal Book, p 109.
[47] Exhibit R1, Appeal Book, pp 345-348 and 329-337 respectively.
[48] Transcript, p 475.
32. There is no mention in either the clinical notes or the report of the first consultation of the helicopter incident. Dr van der Linden, who has extensive experience in interviewing and assessing veterans, stated he always asks if the veteran has experienced any stressors while on service. In this case, the only incident relayed by the applicant concerned an Australian soldier who the applicant claimed was high on drugs while in possession of a rifle.[49] The applicant stated to Dr van der Linden that he coped well in Vietnam.[50] No mention was made of the helicopter incident to Dr van der Linden during the 1997 interview.
[49] Transcript, p 480.
[50] Transcript, p 457.
33. The clinical notes relating to the 1997 report and that report record the applicant as saying that he coped well while in Vietnam despite embarking on heavy drinking. In his first report Dr van der Linden opined that the applicant suffered alcohol abuse, but he could find no ‘significant’ evidence of anxiety or depression which he confirmed in his oral evidence.[51] In 1997 the veteran told Dr van der Linden that he did not drink heavily prior to going to Vietnam.[52] However in 2004. the doctor reports the veteran as saying that he was a weekend binge drinker before going to Vietnam.[53] The veteran told Dr van der Linden in 2004 that he binge drank on weekends; that he had been convicted of driving under the influence prior to going to Vietnam and that he had lost his [driver’s] licence; and that he drank very heavily from the time he was in Vietnam but he was not intoxicated more than 50% of the time.[54] Dr van der Linden opined that the applicant suffered alcohol abuse prior to the period of his military service in Vietnam, and he suffered alcohol dependence after his military service until he reduced his alcohol consumption, at which time the doctor considered that the diagnosis of alcohol abuse would again be appropriate.
[51] Exhibit R1, Appeal Book, p 350; and Transcript, p 459.
[52] Exhibit R1, Appeal Book, p 346.
[53] Exhibit R1, Appeal Book, p 111.
[54] Exhibit R1, Appeal Book, p 109.
34. The veteran described the circumstances surrounding the helicopter incident to Dr van der Linden only in the second interview in 2004. The doctor reported the applicant as saying that while the incident was very scary he did not think he would die.[55] The veteran is also reported as telling the doctor that he witnessed wounded and deceased soldiers being offloaded at the hospital or the morgue, which were located within eyesight of his workshop where he was engaged in working for most of the time that he was stationed at Vung Tau. Dr van der Linden reports in 2004 that while he was in Vietnam the veteran felt that he had coped well. The veteran is reported as telling Dr van der Linden that he enjoyed his time in Vietnam and that he contemplated volunteering for another tour, but he decided not to as he was not prepared to sign up for a term as long as three years.[56]
[55] Exhibit R1, Appeal Book, p 331.
[56] Exhibit R1, Appeal Book, p 339.
35. In his 2004 report, while Dr van der Linden noted the veteran as being ”chronically apprehensive and anxious, especially when having to do his picket and beach patrols”[57] the doctor did not diagnose any apparent anxiety, depression or PTSD conditions.
[57] Exhibit R1, Appeal Book, p 109.
Dr Seabridge
36. Dr C. Seabridge is a psychiatrist with extensive experience in assessing veteran’s conditions having examined over 1500 veterans in the course of his practice.[58] Dr Seabridge first interviewed the veteran on 1 May 2006 and prepared a report for the applicant’s solicitors dated 22 May 2006.[59] At that time Dr Seabridge had reports from Drs N. Strauss, van der Linden and Newlands as well as Dr Nice’s clinical notes. While the veteran acknowledged to Dr Seabridge his pre-Vietnam conviction for an alcohol related offence of indecent behaviour, he described himself as not having an alcohol problem prior to going to Vietnam. In particular he denied losing his motor driver’s licence for drink driving.[60] The veteran claimed to have commenced heavy drinking while in Vietnam, a pattern which continued after his discharge. Dr Seabridge concluded that the applicant suffered alcohol abuse rather than dependence,[61] a view which he maintained despite lengthy cross examination aimed at him changing his opinion. In fact, Dr Seabridge stated that it was unusual for anyone under the age of 45 to 50 years to be alcohol dependent, as it was a condition which developed over a longer period of time.
[58] Transcript, p 283.
[59] Exhibit R1, Appeal Book, p 229.
[60] Exhibit R1, Appeal Book, p 230.
[61] Transcript, pp 298-300.
37. Dr Seabridge reports the veteran describing the circumstances surrounding the helicopter incident. While he discounted the likelihood of a diagnosis of PTSD, Dr Seabridge opined that the applicant suffered “anxiety disorder, not otherwise specified.”[62]
[62] Exhibit R1, Appeal Book, p 231.
38. A further report dated 7 February 2008[63] was prepared after Dr Seabridge saw the applicant on a second occasion on 21 January 2008. Dr Seabridge reiterated his view that the applicant’s drinking pattern “completely changed” as the result of his experiences in Vietnam from that of a casual drinker before to one of high consumption of alcohol.[64] Dr Seabridge however modified his view of the applicant abusing alcohol to one of “abuse in partial remission”, because of the applicant’s subsequent reduced alcohol intake.
[63] Exhibit A8.
[64] Exhibit A8, p 1.
39. Dr Seabridge disagreed with Dr Strauss’ diagnosis (examined below) that the veteran’s alcohol intake gave rise to his anxiety condition. Dr Seabridge opined that the reverse was more usually the case, that is, that alcohol abuse was a method of self treatment of an anxiety disorder.[65] Dr Seabridge disagreed that the applicant suffered a generalised anxiety disorder (because he did not meet the criteria of excessive apprehension expectation occurring on more days than not nor did he suffer difficulty controlling worry).[66] Rather, the doctor opined that the veteran suffered anxiety disorder not otherwise specified. In his oral evidence, Dr Seabridge gave it as his experience that veterans commonly did not discuss with their family details of their war experiences.[67] In the evidence he gave to the first hearing, Dr Seabridge thought inconsistencies in the veteran’s account may have been due to alcohol related brain damage [68]
[65] Transcript, pp 287-288.
[66] Necessary symptoms of generalised anxiety disorder are set out in DSM-IVTM, pp 435-436.
[67] Transcript, p 283.
[68] Exhibit R1, Appeal Book, pp 194-195.
Dr Walton
40. Dr L. Walton is a psychiatrist. He first examined the applicant on 14 January 2008 and provided a report dated 11 March 2008[69] to the respondent’s solicitor. Dr Walton, amongst other material, had access to the reports of Drs Nice, Strauss, Seabridge, van der Linden and Newlands at the time he examined and reported on the veteran’s condition. The applicant is recorded in that report as saying that, prior to going to Vietnam, he consumed “two or three beers after football matches”, but that his drinking escalated when he went to Vietnam and more particularly so following the helicopter incident.[70] Dr Walton diagnosed alcohol abuse/dependence and mixed anxiety disorder.
[69] Exhibit R20.
[70] Exhibit R20, p 2.
41. Dr Walton raised the possibility that the applicant may have incurred alcohol related brain injury. He also thought that, from the history provided to him by the applicant, he was likely to have had a maladaptive pattern of alcohol abuse prior to the helicopter incident (the Tribunal notes this as not being the same as him having a such a maladjustment in the period prior to going to Vietnam, but Dr Walton accepted the latter as being the case in his cross examination[71]). Dr Walton opined that the pattern was more indicative of alcohol dependency rather than alcohol abuse.[72] However he reported that if the veteran was not found to have alcohol dependence then he met the criteria for alcohol abuse. Dr Walton accepted that, ”at a minimum there was a clinical worsening in relation to alcohol intake in 1970”.[73]
[71] Transcript, p 409.
[72] Exhibit R20, p 7.
[73] Id.
42. Dr Walton opined that, while it was not free of difficulty, the clinical onset of the applicant’s anxiety condition commenced in 1970, it was related to the helicopter incident and that it pre-existed the worsening of his substance abuse. Dr Walton accepted that it was more than likely that the applicant’s anxiety arose as the result of the helicopter incident than as the result of any alcohol maladaptive pattern. Dr Walton opined that the veteran’s anxiety would be more likely to have aggravated his alcohol abuse than vice-versa. Dr Walton in his report accepted Dr Seabridge’s diagnosis of anxiety disorder not otherwise specified.
43. Dr Walton agreed that the neuropsychological finding of brain damage through excessive alcohol intake would affect the applicant in understanding the changes which had occurred in the motor industry and would have made it more difficult for him to resume his career as an automotive engineer.[74] Dr Walton opined that the two components – emotional problems with anxiety on the one hand and cognitive difficulties (from alcohol dependency) on the other- were likely to have inter-reacted to aggravate each other and contributed to the applicant’s inability to cope with operating his automotive business.[75]
[74] Transcript, p 418.
[75] Transcript, p 421.
Dr Strauss
44. Dr Strauss examined the applicant on behalf of the respondent on 22 November 2005 and provided a written report of the same date.[76] As with Dr Seabridge, Dr Strauss gave oral evidence at both the first AAT review and this hearing. In his report, Dr Strauss opined that the veteran was a vulnerable individual who began to drink heavily in Vietnam, because of peer group pressure and the ready availability of alcohol.[77] The veteran told Dr Strauss that his heavy drinking commenced prior to the helicopter incident. While Dr Strauss opined that there was a temporal connection between the veteran’s alcohol disorder and his presence in Vietnam, he did not believe that the helicopter incident constituted a severe stressor resulting in the applicant suffering any psychiatric disorder within two years immediately before the clinical onset of his alcohol disorder. Any anxiety and depression suffered by the applicant stemmed from, and was secondary to, his alcohol disorder.
[76] Exhibit R1, Appeal Book, p 309.
[77] Exhibit R1, Appeal Book, p 315.
45. It was somewhat unclear from Dr Strauss’ report whether he concluded that the applicant suffered from alcohol abuse or alcohol dependence. In his oral evidence to this Tribunal, Dr Strauss agreed that he had used the term ’alcohol abuse’ as an umbrella term, rather than in the way in which the term was defined in the DSM-IVTM.[78] It became apparent that the applicant had not mentioned to Dr Strauss that he had committed any alcohol related offences prior to going to Vietnam[79] However Dr Strauss agreed that if there were such incidents then a retrospective diagnosis of alcohol dependence could be considered. He maintained that it was difficult to determine a diagnosis as the result of the variation in the applicant’s recall of events. Dr Strauss said that he was more comfortable with a diagnosis that the applicant suffers alcohol dependence, even if in abeyance, than a diagnosis of alcohol abuse.
[78] Transcript, p 494.
[79] Transcript, p 495.
46. Dr Strauss stated that if the applicant had such an unpleasant time in Vietnam he would have been less likely to have considered seeking an extended term.[80] He did not think that the helicopter incident provoked a psychiatric reaction in the applicant. He also opined that the comment by one of the doctors that the applicant’s behavioural change over the five year period prior to his examination was significant, in that it was indicative of events occurring subsequent to the applicant’s war service and unrelated to that service which may explain the applicant’s subsequent behavioural pattern. This was also related to a cognitive defect which had developed.
[80] Transcript, p 502.
Tribunal’s Request For Neurological Examination
47. As the result of inconsistencies noted in the applicant’s answers to questions on successive days, the diagnosis of alcohol induced peripheral neuropathy made by Dr Nice and the possibility of there being alcohol related brain damage mentioned by Dr Seabridge, the Tribunal requested that the respondent obtain a neuropsychological examination and a neurology opinion to determine if there was clinical evidence to support the applicant as suffering alcohol induced peripheral neuropathy and a cognitive defect.
48. Dr L. Delaney, a neuropsychologist, conducted the neuropsychological testing and interviewed both the applicant and his wife. Dr Delaney found that the applicant’s memory functioning was impaired, unreliable and was consistent with alcohol brain related injury. The psychologist also noted that executive dysfunction (involving reasoning, problem solving, and planning) was not found. This did not, however, mean that it was not present and that presence may be explained by the effects of alcohol related brain injury, mood disorder and intoxication or by a combination of these three factors.[81]
[81] Exhibit R18.
Associate Professor Chambers
49. Associate Professor B. Chambers, a consultant neurologist, reported, after speaking with Dr Delaney and examining his report, as well as examining the veteran, that the veteran probably suffered peripheral neuropathy and confirmed the presence of alcohol memory related impairment, but he was not satisfied that there was evidence of related executive impairment.[82] The Tribunal accepts the evidence of Dr Delaney and Associate Professor Chambers that the veteran suffers alcohol induced peripheral neuropathy and a cognitive defect and, as a result of the latter, his recall of events may be inconsistent.
[82] Exhibit R19.
The Findings on the Medical Evidence
50. The only medical practitioner to diagnose PTSD was the applicant’s general medical practitioner. In the absence of any support from any of the psychiatrists who subsequently examined the applicant, the Tribunal is satisfied that the applicant does not suffer from PTSD.
51. Despite the evidence of Dr Strauss and the less certain evidence of Dr Walton, the Tribunal accepts the preponderance of the medical opinion that the applicant suffers alcohol abuse, even if now it is in partial remission. The Tribunal is conscious that there are factors which suggest that the veteran suffered alcohol dependence. One such, and it is not the only one, is contained in Dr van der Linden’s notes made at the time of 1997 consultation, which refers to “some shakes...” that may be indicative of the veteran suffering withdrawal symptoms.[83] Other factors are indicative of alcohol abuse, for example the applicant’s pre‑Vietnam brushes with the law for two alcohol related offences[84] and are criteria pointing to substance abuse.[85] There is some difficulty in determining the facts upon which a certain diagnosis can be based, because of the unreliable nature of the veteran’s evidence. This difficulty is compounded by the applicant telling different versions to the examining doctors of when he commenced drinking alcohol to excess.
[83] Being one of the factors nominated in DSM-IVTM, p 181 for substance dependence.
[84] Driving with an alcohol level above the prescribed minimum and urinating in public after a session at a hotel.
[85] DSM-IVTM, p 183.
Alcohol Abuse or Dependence
52. However what evidence is before the Tribunal leaves it satisfied that the criteria required to be present to sustain a finding of alcohol abuse are more readily fulfilled than those relating to a finding of dependence. The relevant factors are the:
· alcohol abuse;
· recurrent substance abuse resulting in the veteran being unable to fulfil major social obligations (for example, fulfil family responsibilities) ;
· driving motor vehicles when intoxicated;
· recurrent legal related problems associated with alcohol; and
· continued substance use despite persistent interpersonal problems.
In relation to alcohol dependence,
· there is no evidence for instance of the applicant consistently needing to increase his alcohol intake to achieve intoxication,
· the evidence supporting him suffering withdrawal symptoms is vague (mentioned in Dr van der Linden’s notes in 1997[86]),
· there is no evidence of the veteran ever determining any time during which he intended to drink thereby rendering it impossible to reach a finding that he continued to drink for a period longer than he intended,
· there is no evidence that the veteran has had ‘persistent desire’ to reduce or control his drinking – he has successfully cut down his drinking in recent years and, in order to meet the dependence criteria, a person is required to have made “unsuccessful efforts” to cut down or control drinking,
· there is no evidence that he has spent a great deal of time in activities necessary to obtain alcohol,
· the final two criteria for substance dependence, that is, important social, occupational or recreational activities are given up because of alcohol use and continuing alcohol usage despite knowing of the physical or psychological problems, would seem to be met.
[86] Long before the veteran gave up heavy drinking.
53. For there to be a finding of alcohol abuse, DSM-IVTM requires the person must not be determined to have been alcohol dependent. As the Tribunal is satisfied that the evidence does not establish the veteran as being dependent, it is appropriate to find, and the Tribunal so finds, that he suffers alcohol abuse. The alcohol related offences occurring prior to him serving in Vietnam leave the Tribunal satisfied that, despite the applicant, on some occasions, maintaining that he did not drink heavily prior to his Vietnam service, the alcohol abuse condition was present prior to him undertaking overseas service.
54. The Tribunal accepts that the applicant increased his alcohol consumption during the period of his service in Vietnam.
Anxiety Disorder
55. There is a division of opinion between the medical specialists as to whether the veteran suffers from an anxiety related condition. Drs van der Linden and Seabridge, with Dr Walton concurring, diagnosed an anxiety condition not otherwise specified. Dr Strauss diagnosed anxiety (and depression) secondary to his alcohol abuse, and Dr Newlands that he had ‘features’ of a generalised anxiety disorder. The analysis carried out by Dr Walton in which he accepted that an anxiety condition not otherwise specified:
“…is a diagnostic proposition which it is virtually impossible to exclude as it is defined as not meeting the specified diagnostic criteria in DSM-IV but that a clinician can exercise a clinical judgement if it is believed that a valid clinical entity has been identified”[87].
[87] Exhibit R20, page 8 (original emphasis).
This view is most appropriate and accords with the weight of the psychiatric evidence. The Tribunal accepts that the clinical onset of the condition occurred in 1970 while the applicant was still in Vietnam.
Is There A Reasonable Hypothesis?
56. The question to resolve is whether there is a reasonable hypothesis connecting the conditions, that the Tribunal is satisfied the veteran suffers from, to his war service. This must be determined by the Tribunal having regard to all of the material before it, although it does not need to determine the facts at this stage. Rather, the Tribunal may accept the facts as submitted by the veteran. It must decide whether the material before it is consistent with the factors required to satisfy the SOP.
The Relevant Statement Of Principles
57. The current SOP must first be examined. If the veteran’s circumstances do not comply with the current SOP, then reference may be had to the SOP applicable at the date of the veteran’s application. For alcohol abuse the current SOP is Instrument No 1 of 2009. Clause 6 provides that at least one of the factors set out must be present before a reasonable hypothesis can be raised connecting the condition with the circumstances of a person’s service. Since the Tribunal is satisfied that the veteran’s alcohol abuse condition existed prior to him undertaking overseas service, then the factors set out in clause 6(g) to 6(m) must be considered. Of these, clause 6(h) provides that the veteran must have experienced ”a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse”. The definition of a category 1A stressor is set out in clause 9 of the SOP and includes ”experiencing a life-threatening event”.
58. The veteran meets the stressor requirement in as far as the result of his stated involvement in the helicopter incident. The evidence of Dr Walton indicates that it was likely there was a clinical worsening of his alcohol abuse following him experiencing the stressor. Accordingly, it is reasonable to hypothesize that there is a connection between a clinical worsening of the applicant’s alcohol abuse and the stressor he experienced in the helicopter incident.
Anxiety Disorder Not Otherwise Specified
59. The relevant SOP is Instrument No. 101 of 2007. It relevantly defines the condition in clause 3(b) in the following terms:
““anxiety disorder” means …anxiety disorder not otherwise specified.”
The same clause further provides that:
““anxiety disorder not otherwise specified” means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.”
60. One of the factors establishing a connection between the veteran’s service and the condition is that the veteran has experienced a category 1A stressor within the five years preceding the clinical worsening of anxiety disorder.[88] The definition of a category 1A stressor is the same as that applicable for alcohol abuse in SOP No. 1 of 2009. It was Dr Walton’s assessment, which is consistent with Drs Newlands, Seabridge and van der Linden, that the clinical onset of the veteran’s anxiety probably occurred after the helicopter incident. It is not unreasonable to hypothesize that the occurrence of the helicopter incident brought about the onset of the veteran’s anxiety condition. For that reason, the Tribunal is satisfied that the hypothesis requirement has been met for the veteran’s anxiety condition.
[88] The factor set out in clause 6(a)(ii) of the SOP.
61. It follows from the above, that the claim must succeed unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.[89] Now the Tribunal needs to consider in more detail the circumstances surrounding the helicopter incident.
[89] Section 120(1) of the Act.
62. While in Vietnam the applicant served with and befriended two Australian servicemen, Messrs Burgess and Cairns, who were also based at Vung Tau. These three servicemen went on the American helicopter. The flight was taken on a Sunday when none of them were rostered on duty. All three servicemen said that they had been issued with headphones and, apart from Mr Cairns who said there was too much interference, were able to hear the conversation passing between the pilots and other American personnel on board the helicopter. All three servicemen claimed that the helicopter struck a storm. While in flight the pilot announced that the helicopter had been hit. After being hit the helicopter returned to Can Tho where damage was inspected before the three servicemen were returned, in a different helicopter, to Vung Tau.
63. The veteran, in his evidence to the first Tribunal, stated that at the time of the helicopter incident he thought he was going to die. He claimed that a bullet from the ground fire lodged between him and the helicopter fuselage.[90]
[90] Exhibit R1, Appeal Book, p 144.
64. The veteran did not mention the helicopter incident at all to Dr Nice between 1983 and 2004, more particularly in the years following 1996 when Dr Nice was seeing the veteran regarding his veteran’s pension application. Additionally, the veteran did not mention it to Dr van der Linden when that doctor was first consulted in 1997. The veteran maintained in his evidence to the first Tribunal that he did not do so because he disliked talking about his experiences in Vietnam[91] and, later in re‑examination, that he claimed he did not relate well to Dr van der Linden.[92] However the veteran mentioned the helicopter incident to the doctor in April 2004. On that occasion Dr van der Linden recorded the veteran as saying that while there was some damage to the helicopter from small arms fire, it did not penetrate the cabin and went through the loading bay door into the hold.[93]
[91] Exhibit R1, Appeal Book, p 160.
[92] Exhibit R1, Appeal Book, p 170.
[93] Appeal Book, p 339.
65. There has been some variation in the veteran’s description of the helicopter incident. For example, he told Dr Newlands that, after being fired upon, the helicopter landed in a field where it remained stationary until other helicopters came to accompany it back to Can Tho.[94] This account is not consistent with any other account the veteran gave or that given by Messrs Burgess or Cairns. The Tribunal accepts that the veteran was recalling the events nearly 40 years after the incident happened by which time it could be expected that his memory was not, and the memories of Messrs Burgess and Cairns were not, as clear as may be the case if a contemporaneous description was being given. The Tribunal has taken this latter aspect into account having regard to the requirements of s 119(1)(h)(i) of the Act when considering the circumstances relating to the helicopter incident. The Tribunal has also taken into account that the veteran is suffering from alcohol related cognitive dysfunction which more probably than not contributes to his confusion over accurately recalling the details.
[94] Exhibit R1, p 125.
66. Mr Burgess prepared a statement dated 15 February 2005 for use in the first Tribunal hearing[95]. In that statement, he claimed that the pilot changed course in order to avoid a storm and when the door gunners in the helicopter commenced firing the helicopter dropped height. After landing the crew said that the helicopter had been struck.
[95] Exhibit R1, Appeal Book, pp 131-132.
67. Mr Cairns also prepared a statement dated 5 May 2005 for use in the first Tribunal hearing.[96] Mr Cairns stated that, just as the helicopter was taking off from unloading at the fire support base, ’a couple of enemy rounds’ hit the body of the helicopter. The helicopter banked and the door gunners commenced firing towards the ground. Mr Cairns stated that by then the helicopter was in the middle of a tropical storm, and to avoid both the storm and the enemy fire the helicopter returned to base flying at tree level.
[96] Exhibit R1, Appeal Book, pp 133-134.
68. Neither Mr Burgess nor Mr Cairns gave oral evidence at the first hearing. Mr Burgess provided a further statement[97], and both he and Mr Cairns gave oral evidence to the Tribunal. In his further statement, Mr Burgess stated that he had been unaware that the helicopter had taken small arms fire until being told by the helicopter crew. Mr Burgess also said that he did not see the veteran again until they met at a reunion in Queensland in October 2004 at which time they discussed the helicopter incident.
[97] Exhibit A7.
69. In his oral evidence, Mr Cairns said that the helicopter incident occurred about six or seven weeks before he left Vietnam, which places the incident at the end of October or early November 1970.[98] Mr Cairns told the Tribunal that he saw holes in the floor of the helicopter, which he assumed were from enemy fire. [99]
[98] Transcript, p 137.
[99] Transcript, pp 140 and 162-164.
70. It was Mr Burgess’ evidence that he was near the rear hatch, which had been purposely left open so that he could take photographs. He told the Tribunal that some minutes after taking off from the fire support base, at a time when the helicopter was approaching an electrical storm, the gun crews ‘opened up‘.[100] The helicopter suddenly banked and started to lose height. Mr Burgess said he was unable to hear anything that the pilots said, as there was too much noise and crackling in his earphones. The helicopter then continued to fly at tree level until other helicopters joined in accompanying it back to the Can Tho base. After the helicopter had landed, Mr Burgess was told by Mr Brady and Mr Cairns that there were bullet holes in the helicopter. He did not observe them.
[100] Transcript, p 231.
71. In all, seven reports were obtained from Writeway Research Services Pty Ltd.[101] A check was made of the American aircraft repair records for the period September to November 1970. The records disclosed that there were six incidents of American helicopters being fired on. Only one occurred on a Sunday and that incident occurred when a helicopter was landing. The Tribunal is satisfied that the circumstances do not match the descriptions of the incident given by Messrs Brady, Burgess and Cairns.
[101] Two for the first Tribunal hearing and the remainder for this hearing.
72. While it is accepted that not every incident required to be reported in official records is reported during a war, incidents connected with aircraft being hit, which would inevitably give rise to safety issues, are very unlikely to go unreported. This is particularly so when the incident is an isolated one not occurring in the heat of battle. The Tribunal has taken account of the requirements contained in s 119(1)(h)(ii) of the Act in reaching a conclusion that it is unlikely that an incident such as the helicopter incident would remain unreported.
73. There was no contact between Mr Burgess and the veteran between the time the latter left Vietnam until 2004.[102] Mr Cairns and the applicant had periodic telephone contact and the veteran attended Mr Cairns’ wedding in 1993.[103] In October 2004 the applicant attended a reunion meeting of Vietnam veterans in Queensland. There he reconnected with Messrs Burgess and Cairns. The applicant stayed with Mr Cairns during the period of the 2004 reunion. It appears that during a visit of Mr and Mrs Cairns to Victoria in approximately September 2006, he and the applicant were discussing the helicopter incident and stopped doing so when Mrs Brady entered the room. Mr Cairns said they had not discussed the incident with their wives[104], and Mrs Brady, in her evidence before the first hearing, stated that she did not follow up by discussing the incident with the applicant.[105] According to Mr Burgess, the applicant commenced, when they met in 2004, by raising the issue of the helicopter incident and commenting on how lucky the three of them had been to survive.[106]
[102] Transcript, p 257.
[103] Transcript, p 173.
[104] Transcript, p 174.
[105] Transcript, p 206.
[106] Exhibit A7, p 2.
74. The three men, Mr Cairns[107], Mr Burgess[108] and the veteran [109], denied, when it was put to them in cross examination, that they had concocted the story of the helicopter incident.
[107] Transcript, p 174.
[108] Transcript, p 259.
[109] Transcript, p 126.
75. The Tribunal is satisfied that the veteran, along with Messrs Cairns and Burgess, went on an American Chinook helicopter. While in flight the helicopter encountered a storm and, as a result, took evasive action, including reducing the height at which the helicopter was flying to tree level, until it returned to the base at Can Tho. For the following reasons, not any one of which is determinative, but which in their totality, leave the Tribunal satisfied beyond reasonable doubt that the helicopter did not encounter enemy small arms fire:
a) the veteran did not mention this incident to either Dr Nice or in his first interview with Dr van der Linden. It is likely that he would have mentioned this as he subsequently claimed it was effectively the stressor which brought on a worsening of his alcohol consumption and anxiety condition.
(b) there is no mention of the helicopter being hit by small arms fire contained in the contemporaneous records examined by Writeway Research. The Tribunal accepts that not every incident occurring during the course of a war is recorded. However, in the case where a helicopter had been hit by enemy fire there would be, if nothing else, safety concerns arising which would need to be investigated. There is no reason for the report of such an incident not to be made unless it did not occur.
(c) while extensive photographs were taken commemorating the trip, there are none which record any damage to the helicopter. Given that this is claimed to be such a dramatic occurrence it would be unlikely that, after landing, a photograph of the damage would not have been taken.
(d) while the Tribunal accepts that it is common for veterans not to discuss their dangerous war related experiences with immediate family members, that is a different circumstance from them ceasing to discuss such experiences upon the spouse of one of the veteran’s entering the room during the course of a discussion. That in this case they discontinued the discussion gives rise to a suspicion that the discussion was not associated with a simple recall of events.
(e) the applicant is the only member of the three Australian servicemen to claim to have witnessed the damage from the fire as it occurred. Both Messrs Cairns and Burgess say that they learnt of the damage after landing at Can Tho. It is highly unlikely that the applicant would not have pointed out the damage, even after the helicopter had landed, at least to Mr Cairns who was seated near him in the forward part of the helicopter, it being the section claimed by the applicant to have been damaged.
(f) the veteran denies he told Drs Nice and van der Linden that shortly after his return to Australia he contemplated volunteering for a second tour of duty in Vietnam. However the Tribunal is satisfied that it is unlikely that both doctors would have erroneously recorded what he told them. The Tribunal is satisfied that the veteran expressed an interest in volunteering a return to Vietnam and is also satisfied that he is unlikely to have done so if, as he claims, he experienced a category 1A stressor.
76. It follows from the above that the evidence is so unreliable that the Tribunal is unable to accept, beyond reasonable doubt that the stressor relied on by the veteran, in order to establish a reasonable hypothesis connecting his medical conditions to his service, did in fact occur (Meehan v Repatriation Commission[110] and Meehan v Repatriation Commission[111]). Thus, the Tribunal is satisfied beyond reasonable doubt that the American helicopter in which the veteran travelled did not come under enemy fire. It follows that in fact that the veteran did not experience a 1A stressor within the five year period preceding the clinical onset of his anxiety disorder or his alcohol abuse.
[110] [2003] AATA 429 at para 65.
[111] [2003] FCA 1371 at para 39.
77. For the reasons given the Tribunal affirms the decision under review.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Miss E A Shanahan, MemberSigned: …(sgd D De Andrade)...........
Personal AssistantDates of Hearing 21 April 2008, 22 April 2008, 23 April 2008,
28 October 2008, 29 October 2008,
19 February 2009 and 20 February 2009
Date of Decision 10 May 2010
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Peter J Liefman
Counsel for the Respondent Ms J Macdonnell
Solicitor for the Respondent Australian Government Solicitor
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