Brady and Repatriation Commission
[2007] AATA 1163
•23 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1163
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/446
VETERANS’ APPEALS DIVISION ) Re WILLIAM BRADY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr John Handley, Senior Member
Date23 March 2007
PlaceMelbourne
Decision The decision of the Veterans’ Review Board under review with respect to post-traumatic stress disorder is affirmed. The remainder of the decision is set aside and in substitution IT IS DECIDED that the injuries or diseases of generalised anxiety disorder and alcohol dependence or alcohol abuse are war‑caused. The application is remitted to the respondent for assessment of pension in accordance with these reasons. . ..............................................
John Handley
Senior Member
VETERANS’ AFFAIRS – modest and infrequent consumption of alcohol before enlistment – sense of apprehension after arrival in Vietnam – alcohol consumption increased – applicant a passenger in a helicopter which was attacked – thought he would die – significant increase in alcohol subsequently – findings of 1) clinical onset of 2) generalised anxiety disorder and alcohol dependence or alcohol abuse 3) within two years by reason of having 4) experienced a severe stressor and a severe psychosocial stressor as defined by Statements of Principles – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth) s 120 and s 120A
Benjamin v Repatriation Commission [2001] FCA 1879
Delahunty v Repatriation Commission [2004] FCA 309
Hardman v Repatriation Commission [2005] FCAFC 83
Hill v Repatriation Commission [2005] FCAFC 23
Lees v Repatriation Commission [2002] FCAFC 398
Meehan v Repatriation Commission [2001] FCA 597
Mines v Repatriation Commission [2004] FCA 1331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) FCR 364
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation v Gosewinckel [1999] FCA 1273
Repatriation v Hancock [2003] FCA 711
Statements of Principles Instrument No 1 of 2000
Statements of Principles Instrument No 76 of 1998
REASONS FOR DECISION
23 March 2007 Mr John Handley, Senior Member 1. Mr Brady (the applicant) is a Vietnam veteran. His claim for acceptance of the conditions of anxiety disorder/depression, post-traumatic stress disorder and alcohol abuse was refused by the respondent. The Veterans’ Review Board (VRB) affirmed those decisions save that it varied the diagnosis of the first claimed condition to anxiety disorder with co‑morbid depression. The VRB otherwise affirmed the respondent’s decisions. This application is a challenge to the decisions of the VRB.
2. The applicant presently is 59 years of age having been born on 6 November 1947. He enlisted with the Australian Army as a conscript on 29 January 1969 and was discharged on 28 January 1971. He served in Vietnam between 2 April 1970 and 12 December 1970 as a member of the 102 Field Workshops. At the commencement of his enlistment he was a qualified auto electrician having recently completed his apprenticeship. He currently receives 30 per cent of the general rate of pension for the accepted conditions of acne and sensori‑neural hearing loss.
3. Mr Thomson who appeared on behalf of the applicant, submitted at the commencement of the hearing that the applicant would rely on a number of events which arose out of his service in Vietnam as being responsible for his anxiety and alcohol consumption. Those incidents, being a continuing sense of apprehension whilst in Vietnam, being engaged in patrols of the perimeter base, driving vehicles between Vung Tau and Nui Dat, observing body bags being unloaded and being engaged in a search of a boat. The most significant event was an occasion where the applicant was a passenger in a helicopter in October 1970. That event assumed considerable significance in these proceedings and the evidence heard concerning it will be recorded later in these reasons.
4. A feature of the hearing of this application was learning of the applicant’s sense of reluctance to speak with other persons – no less his wife and doctors who have examined him for the purposes of these proceedings – of the events in Vietnam – particularly the helicopter event. Considerable attention was given, in evidence‑in‑chief and in cross‑examination to the absence of, or errors in, the history some doctors recorded.
the evidence
william francis brady
5. The applicant was educated to Form IV level and upon leaving school commenced an apprenticeship as an auto electrician in Colac. He was initially conscripted in 1968 but was able to defer entering the army for 12 months in order to finish his apprenticeship. He then commenced training and said that he enjoyed it. Recruit training was undertaken at Puckapunyal, Bandiana and Canungra with some training at engineering workshops in Melbourne. The applicant said that he had considered joining the regular army as a career whilst training and whilst working in the Melbourne workshops. In April 1970, the applicant flew to Saigon and then travelled to Nui Dat and later to Vung Tau. Initially he worked as an auto electrician at the 102 Field Workshop repairing vehicles and generators.
sense of apprehension
6. The applicant said that shortly after he arrived in Vietnam he developed a fear of the location and was concerned that they could get you. He said that there was an occasion when he was at Vung Tau where shots were fired at the front gates to the compound. He did not see or hear the shooting but learnt of it later. He said that event reinforced a sense of vulnerability. In cross-examination, the applicant said that the shots would have been fired at the gate by the enemy but did acknowledge that there was little enemy activity in the vicinity of the base where he was located.
7. Additionally, the applicant said that it was possible to observe combat in the Long Hai mountain range approximately 15 to 20 kilometres away. During night time, he heard rockets, mortar and bullets from machine guns being discharged from helicopters. He said tracer bullets were discharged which had a phosphorous tip and could therefore be observed despite the darkness. That activity also re-inforced a sense of vulnerability and the applicant said that he was glad I was not up there amongst it.
8. On three or four occasions during his tour of Vietnam, the applicant drove vehicles from Vung Tau to and from Nui Dat. Each journey was of approximately one hour duration, in convoy but passing through the town of Baria. The applicant said that he had a fear of the unknown and didn’t know what to expect. He said that there had been enemy activity around Baria.
observing body bags
9. On a number of occasions the applicant worked at a local field hospital servicing generators. Casualties were brought to the hospital by helicopter. On one occasion when working at a workshop adjacent to the hospital, he walked around the back of a number of buildings to observe the landing of a helicopter. On that occasion he observed body bags being unloaded and said that it then brought home the reality of what was going on over there. The applicant said it could have been me and believed that the bodies being unloaded were Australian casualties.
piquet duties
10. Piquet duty was undertaken by the applicant on an average of one occasion per week. That duty involved a 12 hour shift commencing at 6pm and concluding at 6am where piquet patrols would be undertaken by him two hours on and two hours off. He was required to patrol the workshop areas, sometimes with another person but on occasions by himself. He said the experience was unnerving.
patrol boat
11. On one occasion only, the applicant was enlisted to assist in identifying persons in a nearby fishing village who were onboard boats. That activity was undertaken in conjunction with United States personnel.
helicopter incident
12. The applicant said that he and other mechanics were stood down on Sundays and usually travelled into Vung Tau for recreation. In October 1970, he and two other persons, Mr Burgess and Mr Cairns had the opportunity to travel in a United States helicopter delivering cargo and fuel supplies. Their rifles were left with an armoury and pistols were issued. They travelled in a Chinook helicopter to a number of United States and South Vietnamese fire bases. Later in the day after they had delivered a large rubber bladder of fuel which was suspended in a net below the helicopter, they encountered a sudden electrical storm and the pilot decided to fly around it. The applicant and his colleagues, the pilot and gunners were wearing helmets with earphones and microphones attached which allowed them to communicate with each other. The applicant said that he suddenly heard someone say we’ve been hit and the helicopter lurched. The door gunners immediately opened fire from each side of the helicopter with mounted machine guns. The helicopter dropped quickly and the applicant thought that it would crash. He learnt later that the helicopter pilot was then undertaking an evasive manoeuvre. When the helicopter landed it was inspected for damage and a bullet was observed to be lodged in the roof. That event was corroborated by the statements of Mr Burgess and Mr Cairns which were found at pages 64 and 66 of the T‑documents. The incident itself was not disputed by the Respondent. The effects of it upon the applicant were in dispute.
13. The applicant said that subsequent to that event he commenced to consume greater quantities of alcohol. He said that he was unable to cope with the added fear of the helicopter incident. He was frequently drunk and there was an occasion where he was reprimanded for leaving his rifle at a wet canteen one evening after he was drunk. That occasion was subsequent to the helicopter incident.
14. The applicant said that he later had difficulty sleeping and resorted to consumption of greater quantities of alcohol. He continues to suffer distress and memories and nightmares of that event. He thought he would then die.
post service
15. The applicant returned to Australia in December 1970 without any thought of re‑enlisting. He said he was unsettled upon discharge and was drinking heavily. He had met his wife before enlistment and said that she noticed that there was a change in him upon his return. He said he was embarrassed about the fears that he had and did not want to admit to any person – including his wife – that he was scared. He continued to consume alcohol to excess to help him cope with the continuing fear from the helicopter incident. He eventually obtained work at a local abattoir as a handyman but later obtained work with Wattie Pict harvesting peas and beans. Initially he was the driver of a mower but when it was learnt that he had auto electrical qualifications, he was engaged to service vehicles. He worked with Wattie Pict for approximately 20 years travelling throughout Western and Eastern Victoria. He was away from home for many months each year and saw little of his wife and children.
16. The applicant said that the work with Wattie Pict allowed him to escape because he continued to have trouble adapting to married life and to life as a civilian. The job gave him an excuse to get away from responsibilities for which he said he was not proud.
17. Wattie Pict eventually decided to close down its Victorian operations and the applicant was retrenched. He then learnt that the auto electrical business in Colac where he had completed his apprenticeship was being sold. He and another person, Trevor O’Dowd bought it. He worked in that business, in partnership, with Mr O’Dowd until April 2006 when he sold his interest in it. The applicant has not subsequently worked. He said that over the years leading up to April 2006 he had continuing difficulty being able to cope, relating to and talking with customers. He said he frequently absented himself from the business without the knowledge of his partner. He continues to consume large quantities of alcohol.
18. The applicant said that prior to enlistment he was a sociable person and frequently attended a local picture theatre and dance halls. Subsequently he said that he is upset by crowds and has virtually become a hermit. His moods and behaviour have upset his wife and there has been conflict. She has encouraged him to talk about his experiences but he refuses.
19. In cross-examination, the applicant agreed that the history taken by Dr van der Linden as evident by a report of 21 February 1997 makes no mention of the helicopter incident. The applicant agreed that he did not volunteer it to Dr van der Linden because he prefers not to talk about the incident especially to a stranger. He said that he prefers not to talk about his experiences in Vietnam to persons other than Vietnam veterans. The applicant was adamant that a bullet did penetrate the cabin of the helicopter despite a history from Dr van der Linden following a consultation in April 2004 where the clinical notes record saw some damage didn’t penetrate the cabin. Additionally, the applicant was adamant that he did think that he would die in that incident, again, despite a history from Dr van der Linden in his clinical notes which recorded didn’t think he’d die – very scary (refer page 4 of handwritten clinical notes Dr van der Linden).
20. There was some doubt about when the partnership with Mr O’Dowd commenced – having regard to differences in the histories taken by the doctors. The applicant said that the partnership commenced later than 1987 but he could not be accurate. He said that he barely coped with the work up until about 2000. Thereafter, he absented himself from work during the day and did not attend trade nights that he and his partner organised for customers. The applicant said that he suffered from the increasing effects of poor memory, concentration and anxiety. He said he lost confidence and could not cope with relating to other persons. The partnership eventually dissolved.
21. In re-examination, the applicant acknowledged that his evidence at the hearing was, on occasions, inconsistent with the history taken by doctors. He said that he found it difficult to relate to Dr van der Linden and felt that he had been shut out. He said that he preferred to talk to other Vietnam veterans because they understand. He thought that Dr van der Linden was abrupt and was upset having to attend consultations with him. He found it easier to talk with Dr Seabridge – to whom he was referred by his solicitors – because he was subtle.
22. In answer to some questions from me, the applicant confirmed – despite a history taken by Dr van der Linden and Dr Nice – that he did not ever express an interest in joining the regular army after he arrived in Vietnam. He agreed that he did have such an interest after he first enlisted and whilst he was engaged in training in Australia. He considered joining the regular army as a career. He said that he could not recall ever informing any doctor or any other person that he enjoyed his time in Vietnam. He was firm in his evidence that he did not enjoy his experiences in Vietnam. He denied ever giving Dr van der Linden a history that he was a binge drinker before enlistment. He said that he barely consumed alcohol whilst he was in Colac but did consume considerable quantities of alcohol after discharge. On one occasion, after discharge, he lost his motor car licence for six months because he exceeded the statutory blood alcohol content.
23. I also asked the applicant to confirm a suspicion that I had – based on his manner of answering questions in evidence and his general demeanour – of whether he is a person who is reluctant to speak at all about any feelings that he has. For example, when he was asked in cross-examination why he had left his employment at the Colac abattoir, he said he was not retrenched but left that employment because he didn’t like the place. In answer to my questions of him, the applicant said that he does have feelings about a number of circumstances but will not talk about them.
24. I also asked the applicant a number of questions in order to obtain a history of his alcohol consumption. The evidence of consumption before, during and after service was unclear from the evidence heard.
25. The applicant said that prior to enlistment he lived in Colac and consumed three or four seven ounce glasses of beer on week-ends after football. He said that he was then an apprentice and had a modest income and could not afford to drink other than on a social basis. During the summer when football was not played, he said that he would not drink very much at all, that he did not have a taste for drink and there would be many weeks where he would not drink at all.
26. When the applicant enlisted he drank seven ounce glasses of beer once per week at the end of his training at Puckapunyal and had a similar pattern of alcohol consumption when at Bandiana. He said that he did not drink very much at all when he was at the Melbourne Workshops because he was in the presence of other apprentices and when at Canungra he did not have access to alcohol.
27. When the applicant arrived at Vietnam he said that he would drink one or two cans of beer on two or three occasions per week during the first two or three weeks. He then started to drink more frequently, being one or two cans on most nights. There were occasions when he would drink six cans of beer.
28. After the helicopter incident the applicant said his alcohol consumption became much greater. He said that he was drinking on most nights per week and was frequently drinking up to six cans per night. He was also drinking whiskey.
dr seabridge
29. Dr Seabridge is a consultant psychiatrist who has been in practice for approximately 40 years. He provided a report of 22 May 2006 arising out of a consultation with the applicant on 1 May 2006. The applicant was referred to him by his solicitors.
30. Dr Seabridge was familiar with an opinion expressed by Dr Strauss, a psychiatrist, who examined the applicant at the request of the Respondent. In his report of 22 November 2005, Dr Strauss reported the diagnosis as substance abuse disorder and I believe that he has developed anxiety and depression secondary to that substance abuse disorder.
31. Dr Seabridge said that he found it difficult to comprehend that diagnosis. He said that he had consulted with approximately 800 veterans and has a professional interest in patients with substance abuse. He said that he had not ever seen or heard or read of the diagnosis as reported by Dr Strauss. He said it is usually the other way around. That is, persons drink alcohol to self-medicate from the effects of anxiety. Dr Seabridge said (trans. p43):
His alcohol consumption has its only relationship with anxiety as an effect not as a consequence. His anxiety leads to his drinking. His drinking doesn’t make him anxious. There is no way that an association can be made with a large number of severe anxiety symptoms that were presented to me in the interview and his alcohol consumption, other than on the basis of attempted symptomatic treatment.
32. Dr Seabridge was of the opinion that the applicant increased his drinking habit after the helicopter episode in order to cope with the emotional consequences of it. He said such a scenario is not uncommon and noted that the army and other branches of the military make alcohol available to their members as a relaxant.
33. It was Dr Seabridge’s opinion that the diagnosis applicable to the applicant was anxiety disorder not otherwise specified. He noted that such a diagnosis is found within DSM IV and is referred also in the definition of anxiety disorder found at paragraph 2 of Statement of Principles, No 1 of 2000.
34. Dr Seabridge was satisfied that the helicopter incident was alarming to the applicant. He referred to the history that he obtained (refer report page 2) where the applicant had told him that that incident was the most frightening thing in my life – I was sure it was going down. Dr Seabridge said that he was struck by that description because he has another patient with a similar history from Vietnam who gave a similar explanation of the feelings and consequences suffered as a result of such an incident. Dr Seabridge was of the opinion that the episode was a sufficiently severe psychosocial stressor within the meaning of the Statement of Principle.
35. Dr Seabridge said that most veterans that he consults are disinclined to interact with persons who are not members of the veteran community. He said that veterans have a reluctance to reveal or discuss alarming events, especially if they have a sense of shame or are self-conscious or are anxious. He said these features in veterans are almost universal and can lead to veterans giving false or misleading information to other doctors. He also noted that the history given by the applicant’s wife – found within the statement at pages 31 to 33 of the T‑documents ‑ were a description characteristically of symptoms observed by spouses of alcohol affected husbands namely; restlessness, sweating and frequent waking during the night, agitation, nervousness, becoming reclusive, consuming large quantities of alcohol, refusal to discuss events in Vietnam and refusal to seek professional assistance. (The applicant’s wife recorded in her statement that she was very relieved when his general practitioner – Dr Nice – diagnosed depression and anxiety, commenced treatment of it, including prescribing medication and referred him to Ms Newlands, a psychologist, in Geelong.)
36. With respect to the applicant’s work history, Dr Seabridge said that the effects of long-term alcohol consumption on a person will eventually affect their ability to function. When asked why the applicant had markedly deteriorated in his late 50’s and had ceased self-employment, Dr Seabridge said that professional speculation was that younger men are more industrious and active and engage in activity which distracts them from their symptoms, for example, by working. Later, persons find it more difficult to cope and as children become older and leave home, they are no longer distracted.
37. Dr Seabridge thought that the applicant probably fulfils the diagnosis of alcohol abuse but in partial remission. He noted that Dr Nice had diagnosed peripheral neuropathy in 1990 which was associated with excessive alcohol consumption and was consistent therefore with a diagnosis of alcohol abuse.
38. In cross-examination, Dr Seabridge said that the applicant had commenced to suffer the effects of alcohol in about 2004 when he was having difficulty coping with employment. He noted that peripheral neuropathy was diagnosed in 1990 and it was his opinion that the applicant’s cognitive functioning was probably then affected. Dr Seabridge said that by 2004 the long-term consequences of depression were manifesting in the applicant’s inability to work and absenting himself from the workplace. Dr Seabridge acknowledged it would appear that the applicant did have a good work record up until approximately 2004 and it would have been difficult for outsiders to discern that he had an anxiety disorder and an alcohol habit.
39. Dr Seabridge was satisfied that there was no other event in the applicant’s life that would be responsible for his anxiety and alcohol abuse except for the helicopter event. He thought that the employment history of the applicant subsequent to discharge with Wattie Pict and in self-employment had been helpful because he had been able to get away. He said the reclusive type behaviour exhibited by the applicant was characteristic of many Vietnam veterans that he had consulted. He thought on balance that the applicant was not a capable person and who had not been coping with his Vietnam experiences as evident by having been employed by Wattie Pict for approximately 20 years without any promotion. He was alerted to the history taken by other doctors of an alleged expression of interest in wanting to join the army. Dr Seabridge said that even if the applicant had expressed such a wish whilst he was in Vietnam, it was his experience that most men who are engaged in a regimented environment which is secure and where they are armed and protected and where they wear uniform, do not recognise their symptoms until they are discharged. He said that support for that opinion is to be found in the applicant returning to Colac where he spent most of his time for the first six weeks drinking heavily in the local hotel.
bernadette brady
40. Mrs Brady is the wife of the applicant. They were married in October 1971.
41. Mrs Brady said that she and her husband grew up together in Colac in Western Victoria. She recalled that they both went to the same school and she has a memory of him from about the age of 13 or 14 years. They both mixed in the same circle of friends and she recalled that her husband was a close friend of her elder brother. Mrs Brady recalled that the same circle of friends mixed each weekend in both social and sporting activities. She recalled her husband to be a happy and outgoing young man. He loved working on motor cars and frequently attended her home – with others – because her parents had a swimming pool and a tennis court.
42. Mrs Brady also recalled that when her husband obtained his motor car licence he did not drink. On occasions during social activities, beer and other alcohol was available and exchanged but her husband did not drink it. On occasions when she and he attended local dances and cabarets, her husband would confine his drinking to three or four glasses of beer throughout the whole of the night. If he did drink alcohol, he did not drive. She specifically recalled that her husband was never affected by alcohol prior to enlistment. She said that if he had been, she would have known because it would have been the subject of gossip amongst the circle of their friends and throughout the wider Colac community. Mrs Brady also vigorously rejected a comment made by Dr van der Linden in his reports that her husband was a binge drinker before service.
43. Mrs Brady recalled that being called up for National Service did not worry her husband. On weekend leave, he continued to be a happy and contented person, they mixed socially and he maintained his outgoing personality. Whilst in Vietnam, the applicant wrote to her regularly but she recalled that towards the end of his tour of duty, his letters became more infrequent and she assumed that he had extra duties and was therefore busy.
44. On return to Colac after discharge in December 1970, Mrs Brady said that her husband was drinking heavily. He was moody and withdrawn and would not attend social functions. She said her husband attended a hotel, in Colac, daily, after discharge, and drank throughout each day. (She could observe him from a shop, where she worked, opposite the hotel). She then assumed that he was getting Vietnam out of his system. Their relationship resumed and later they were married. Approximately six months after returning to Colac, the applicant commenced employment but only because he had then spent all of his army salary on beer. She recalled that the applicant did not visit her parents’ house nor did he mix with the circle of friends that existed prior to enlistment. He did not attend sporting functions and he had been drinking alone.
45. Initially, the applicant obtained employment at a local abattoirs but attended a local hotel daily after work for a number of hours and then returned home with bottled beer which he drank throughout the night. Mrs Brady said that her husband was sometimes violent after he had been drinking excessively and there was an occasion where he fractured her arm during a confrontation at home. Mrs Brady attempted to talk to her husband about his excessive alcohol consumption but she said that he rejected her advice and would not acknowledge his excessive drinking. After the occasion when he fractured her arm, she recalled that he became very remorseful and was no longer violent but he did continue to drink excessively.
46. Later, the applicant obtained employment with Wattie Pict for approximately 20 years as an auto electrician. Mrs Brady said that he was away for five or six months of each year servicing harvesting machines. He rang home every second night but it was obvious from the background noise that he was at a hotel. On the occasions when the applicant did return to Colac, Mrs Brady said that he was reclusive and would not mix with others. He did not attend school functions or parents’ nights nor did he watch their children play sport. He continued to drink excessively and lost his licence on two occasions for drink driving. On the second occasion his licence was forfeited for four years. Mrs Brady said that her husband slept poorly, he was restless and sweated profusely. He would scream out words which she could not discern, he would thrash his arms and blankets would fall to the floor. On other occasions her husband would wake during the night and he would be found later in the kitchen by himself.
47. In cross-examination, Mrs Brady acknowledged a comment in her statement found at pages 31 – 33 of the T‑documents that suggested that her husband abstained from social and sporting functions after he returned from Vietnam because of severe acne on his face and back. She said that she held that belief after he returned from Vietnam but on reflection, and whilst writing the statement, she was of the belief that he withdrew from others because he was depressed.
48. Mrs Brady also acknowledged that when her husband was away from home whilst working for Wattie Pict, she was not aware of the quantities that he drank or the frequency but recalled that when he was back in Colac, he went to a local hotel after work each night for two or three hours and then brought bottled beer home which he then drank.
49. Mrs Brady re-affirmed in cross-examination that prior to service in Vietnam her husband was a confident and outgoing person. His correspondence from Vietnam did not ever mention any event that frightened or concerned him but since returning to Colac he has been withdrawn. She recalled a wedding that she and her husband recently attended where he sat outside during most of the wedding breakfast but except for eating his meal and listening to speeches.
nigel strauss
50. Dr Strauss is a consulting psychiatrist who examined the applicant on 22 November 2005 at the request of the respondent. A report of the same date was received into evidence.
51. Dr Strauss was of the opinion that the applicant developed a substance abuse disorder in Vietnam by reason of the availability of alcohol and peer group pressure. It was his opinion that the applicant did not suffer any traumatic experiences which were referrable to his drinking habits. Dr Strauss acknowledged that he did obtain a history from the applicant concerning an event involving a helicopter. Whilst he acknowledged that the applicant was frightened by that experience, Dr Strauss recorded in his report – which he adopted in evidence – that he was not convinced that it has caused him to suffer from a post‑traumatic stress disorder and I do not believe that it has been particularly significant in regard to his excessive alcohol consumption.
52. Dr Strauss understood that the applicant had been drinking heavily prior to the incident involving the helicopter but as far as he was aware the consumption of alcohol did not increase after that event. He concluded that any anxiety related condition suffered by the applicant was related to, and secondary to, his substance abuse disorder.
53. Dr Strauss maintained that opinion throughout his report. In evidence he re-affirmed his opinion that the primary diagnosis was substance abuse disorder and the anxiety and depression were secondary to that disorder. He was not of the opinion that the applicant suffered any psycho-social stressor in Vietnam that was responsible for substance abuse but rather, the substance abuse was a consequence of the availability of alcohol and peer pressure. At page 18 of his report, Dr Strauss recorded that by reason of the applicant not describing any specific stressor, he was unable to conclude when the anxiety condition would have commenced.
54. The witness was asked to read a report completed by Dr Seabridge which had not previously been made available to him. After he read the report, Dr Strauss concluded that it was very brief and It’s as if he’s just simply done a quick assessment and read a few other reports, and put in a conclusion. He acknowledged that Dr Seabridge was of the opinion that the helicopter incident is the cause of all his problems. On balance he was of the opinion that the history obtained by Dr Seabridge had not been assessed comprehensively and it appeared to him that Dr Seabridge had summarised everybody else’s information, then he reaches a conclusion. Dr Stauss said that his opinion was not changed having read the report of Dr Seabridge.
55. In cross-examination, Dr Strauss became aware that the history taken by him differed substantially from the evidence given by both Mr and Mrs Brady in these proceedings. When that history was related to him, Dr Strauss agreed that it was significant that the applicant did attend a local hotel, on a daily basis, for many weeks after returning from Vietnam. He also agreed that it was significant that the applicant’s habits and behaviour had changed when he returned to Colac. He also agreed that alcohol consumption can help to reduce anxiety.
56. Dr Strauss agreed that the applicant would find his service in Vietnam to be distressing when he observed body bags being unloaded, when on patrol and when travelling in a convoy through Baria because of reports of enemy activity. Dr Strauss agreed that the applicant was frightened by his experience in the helicopter, particularly because it plunged downwards and because he then thought that he was going to die. Dr Strauss said that if he had obtained a history of a significant change in the level of alcohol consumption following the helicopter incident it would have also been of significance to him in making his diagnosis. When he learnt that the applicant had also said in evidence that he commenced to consume spirits to help him sleep following the helicopter incident and otherwise increased alcohol to help him cope, Dr Strauss agreed that if he had obtained that history, he might reach different conclusions (transcript p117).
57. Nonetheless, Dr Strauss remained of the opinion that there was no evidence that the applicant did suffer from an anxiety disorder. He remained of the opinion that the applicant’s behaviour was explained by his alcohol abuse. He said that speaking hypothetically, if he had obtained a history from the applicant of significantly increased alcohol consumption following the helicopter incident he would be prepared to change his opinion. However, he said that the evidence being relayed to him by Mr Thomson differed from the history that he had obtained from the applicant and in the circumstances he regarded the exchange between he and Mr Thomson as a hypothetical conversation.
58. Dr Strauss acknowledged that Dr Seabridge obtained a history of the applicant suffering from tachycardia, chest tightness, shortness of breath, being tremulous, suffering panic attacks and going blank. He acknowledged that Dr Seabridge was of the opinion that those symptoms were suggestive of a severe level of anxiety. Dr Strauss acknowledged that those symptoms could indicate anxiety but they could also be consistent with someone who is suffering from alcohol withdrawal or alcohol craving. He thought that going blank might be associated with the effects of long term excessive alcohol consumption. He remained of the opinion that the opinion of Dr Seabridge of anxiety usually preceding alcohol consumption rather than being a consequence of it, was a generalisation. Dr Strauss said that there are some persons who are alcoholics who are never anxious.
59. On balance, Dr Strauss agreed that it was possible that there is a hypothesis in the present case of an anxiety disorder connected to the applicant’s experiences in Vietnam in addition to his alcohol abuse disorder. He also agreed that it was possible that if his alcohol consumption increased significantly after the helicopter incident, that that incident precipitated the increased consumption. Additionally, he agreed that it was possible that if the applicant had been drinking by reason of an underlying fear always present in him after the helicopter incident and his behavioural characteristics and personality changed on his return from Vietnam that he in fact did have an anxiety disorder at that time.
summary of reports of persons not called to give evidence
60. Dr Nice of the Corangamite Clinic in Colac has treated the applicant since 1983. His clinical notes were received into evidence as was a report completed by him on 14 October 2005. His notes confirm that on 19 May 1990, a diagnosis of alcohol induced peripheral neuropathy was made. On 18 December 1996, the notes record that the applicant was a social drinker before army and he was then drinking five cans/day. Those notes apparently arise out of a DVA medical conducted on that date. At 11 June 2001, the notes record the applicant was then drinking six cans/day.
61. On 7 January 2004, the notes record (the handwriting is difficult to comprehend) that the applicant then appeared to be morose and flat. The notes also record major disruption when returned home, unable to settle, wanted to volunteer for further tour of Vietnam but would have to be a regular soldier. A diagnosis of alcohol abuse and probable depression was recorded. On 12 March 2004, Dr Nice recorded the applicant feels he is getting slowly worse.
62. In his report of 14 October 2005, Dr Nice recorded that at January 2004, the applicant described increasing social withdrawal. Anti‑depressant medication was prescribed and he was referred to Dr Carol Newlands a psychiatrist in Geelong in September 2004. Dr Nice diagnosed post-traumatic stress disorder with anxiety and social avoidance, lowered mood and alcohol abuse. He reported that Dr Newlands diagnosed generalised anxiety disorder and secondary alcohol abuse syndrome.
63. In the applicant’s claim for acceptance of the conditions of generalised anxiety disorder and post-traumatic stress disorder, he was supported by Dr Nice who recorded comments as the Basis for Diagnosis. With respect of the claimed condition of generalised anxiety disorder, Dr Nice recorded persistent significant lowering of mood; but rarely sought medical help, alcohol abuse [illegible] + elevated mood. Secondary morbidity from alcohol abuse. With respect to the condition of post-traumatic stress disorder, Dr Nice recorded has anxiety and depression. Scant socialising and generally neglected himself and not sought appropriate help. Some ruminations of situation in Vietnam. Dr Nice had recorded that the applicant consulted him with respect to those conditions in approximately 1996. The comments of Dr Nice were recorded on 24 February 2004 and are found at pages 19 and 20 of the T‑documents.
64. Dr Newlands is a psychiatrist in practice in Geelong. The applicant was referred to her by Dr Nice. She first consulted in September 2004. In a report of 20 January 2005 (T‑docs, pp 55 – 63), Dr Newlands comprehensively reports upon her many consultations with the applicant. She reported that the applicant had been irritable and had difficulty with his mood for many years. He had lost interest in work, suffered poor concentration, restlessness, poor sleep and poor memory. He was also noted to have lowered motivation. She obtained a history of alcohol abuse with a recent change to consumption of light beer, a history of the applicant finding difficulty settling upon return to Colac after he was discharged from service, anxiety around other people, ceasing to play football and swimming and the applicant’s belief that his inability to relate to people was because of acne after his return from Vietnam.
65. Dr Newlands obtained a history from the applicant of the helicopter incident including the applicant’s reaction that he thought he would die and it frightened the hell out of [him]. She also obtained a history that after the helicopter landed the applicant was taken back to Vung Tau by another helicopter in which he was extremely dubious about entering. Additionally it would appear that the applicant lives in Colac near a cricket ground which is used as a helipad and when he hears helicopters he freaks out. She reported that the applicant also dreams monthly of a helicopter crashing. Her report contains a history of the applicant’s patrol of a fishing vessel and of observing body bags being removed from helicopters and being taken to a hospital at Vung Tau.
66. Dr Newlands reported the applicant drank heavily whilst enlisted and had drunk heavily since discharge. It had caused disharmony in his marriage, he had lost his motor car licence on two occasions for alcohol related offences and had been charged with a drunk and disorderly offence.
67. Dr Newlands was of the opinion that the applicant commenced drinking alcohol whilst enlisted probably as a means of coping with the stressors he experienced and the daily bringing in of bodies on helicopters. She also noted that the applicant had described significant anxiety following his helicopter trip and noted his comment that he thought he would die. The history that she obtained was of the applicant drinking modest quantities of alcohol before Vietnam by reason of his age and because he could not afford to drink.She did obtain a history that he did drink considerably more whilst there and afterwards. On balance, it was her opinion that the applicant’s anxiety had been present since Vietnam and had recently increased. She was also of the opinion that his heavy alcohol consumption had been evident since Vietnam. She diagnosed alcohol abuse syndrome and generalised anxiety disorder. She reported that the symptoms of anxiety would satisfy the requirement for a specific stressor given his feelings of anxiety which arose when he felt he was under fire in the helicopter. By way of conclusion she was of the opinion that the generalised anxiety disorder and the alcohol abuse syndrome would appear to be related directly to his time in Vietnam according to his account.
68. Dr Newlands also wrote a number of reports to Dr Nice which were found in his file. In her report to him of 29 September 2004, she referred to the helicopter incident and reported that he was not fired at and was not at risk of serious bodily harm. That opinion appears to have been modified because in her report of 20 January 2005, she did record that the applicant described the helicopter as being hit around the loading bay area. (It is not clear to me from her report of 29 September 2004, whether her comment that he was not at risk of serious bodily harm is an objective or subjective opinion based on the description of the incident given to her by the applicant or whether at September 2004 she either misunderstood the incident or then had an incomplete description of the incident.)
69. In a report of 8 April 2005 addressed to Dr Nice, Dr Newlands concluded that the applicant seems to have two conditions these being generalised anxiety disorder and secondary, an alcohol abuse syndrome. In the next paragraph of that report she expressed the opinion that the alcohol abuse syndrome commenced from the applicant’s service in Vietnam but then reported but I’m not certain how his anxiety condition might have commenced there as he describes no specific stressor. That opinion appears to be contrary to the opinions that she expressed in her report of 20 January 2005. As recorded above Dr Newlands then reported a number of incidents related to her by the applicant, and she expressed the opinion that his condition of generalised anxiety disorder – on the applicant’s history to her – was related to his service in Vietnam.
70. The comment made by Dr Newlands in her report of 8 April 2005 that the applicant describes no specific stressor is clearly an error. In her report of 20 January 2005, she records in some detail a number of episodes described by the applicant as being stressful, that she accepted that he had symptoms of anxiety and that the helicopter incident alone amounted to a specific stressor having regard to the subsequent feelings of anxiety suffered by the applicant.
71. The applicant consulted with Dr van der Linden on three occasions. His reports and his clinical notes were of considerable significance – and influence – in these proceedings. It was largely by reason of his comments in reports that were made available to the VRB that the applicant’s claim was then dismissed and certain negative comments were made in the VRB decision concerning the applicant’s character. The reports and clinical notes of Dr van der Linden were raised in cross‑examination of the applicant, in these proceedings.
72. The following is an attempt to compare the reports of Dr van der Linden and the notes made by him. There are a number of discrepancies and differences in the opinions that he has expressed. There are also differences between the clinical notes and the reports. An explanation for these differences might be that Dr van der Linden was not aware until after April 2004 that he consulted with the applicant in February 1997. That is, he did not refer to his notes of 1997 when he consulted in April 2004. He did not make comparisons or assessments of any change or alteration in the applicant’s history or complaints or symptoms. The differences might also be explained by the relationship between the applicant and Dr van der Linden during consultations. This has been the subject of comment earlier in these reasons. For the purposes of the following analysis, Dr van der Linden has written reports of 21 February 1997 and 3 May 2004. His clinical notes arise out of consultations on 20 February 1997, 20 April 2004 and 27 April 2004. It is unfortunate that he was not called to give evidence.
73. In his first report Dr van der Linden recorded that the applicant coped reasonably well in Vietnam. A similar comment is made in the report of 3 May 2004 and the clinical notes of 20 April 2004. However, the second report records that the applicant described being chronically apprehensive and anxious (page 31).
74. Other than the nature of the work undertaken by the applicant in Vietnam, the only other activity of significance in the first report was of the applicant undertaking beach patrols and he otherwise had little potentially dangerous work. He noted that the applicant’s base was on full alert a number of times as well as coming under mortar attack although these were always out of range. In the second report and in the clinical notes of April 2004 there is a considerable history taken and recorded of the applicant having observed wounded personnel being unloaded from helicopters and numerous corpses being unloaded and taken to the morgue. He has also recorded a history of the applicant being anxious when travelling by road between Vung Tau and Nui Dat. Significantly, a history of the helicopter incident is absent from the first report and the clinical notes of first consultation, but a history of some detail of the helicopter incident is contained in the second report. But there are discrepancies between the second report and the clinical notes. The second report and the notes of 20 April 2004 record the applicant having heard someone say whilst he was in the helicopter we’ve been hit… some damage was noticed which did not penetrate the cabin. The clinical notes record that the bladder of fuel was attached by lines through the loading bay door where it took the hit in the hold. The report records apparently small arms fire went through a loading bay door into the hold. The notes record didn’t think he’d die – very scary yet the report records he said that from then on he was extremely worried whilst in the air that they would be hit and killed.
75. The clinical notes of 20 February 1997 and the first report record the applicant did not drink heavily before Vietnam but started drinking heavily in Vietnam. The second report records heavy drinking in Vietnam but the applicant had been binge drinking before enlistment and had lost his licence at the age of 18 for drink driving. The first report records that the applicant lost his motor car licence on two occasions after he returned from Vietnam.
76. The second report records the applicant’s memory as shocking. The first report records that the applicant has not ever suffered from memory loss but the clinical notes record poor memory.
77. The first report records that the applicant had no difficulty sleeping but it was believed that that was due to alcohol consumption. The second report recorded that the applicant had trouble sleeping which commonly was related to pressure at work. The first report and the clinical notes of 20 February 1997 record that the applicant did not suffer from nightmares or intrusive thoughts about Vietnam. The second report recorded that the applicant had weird dreams which he was unable to piece together. They were not clearly related to events of Vietnam.
78. The second report records that the applicant enjoyed his time in Vietnam and had considered another tour of Vietnam but was advised that he would have to join the Regular Army for a minimum period of three years which he was not prepared to do. The clinical notes of 20 April 2004 records that after his tour in Vietnam would have gone for another tour…
79. In the first report and in the clinical notes of February 1997, Dr van der Linden recorded that there was no significant evidence of depression or anxiety but the applicant did suffer from alcohol abuse. In the second report, Dr van der Linden concluded that the applicant, at consultation, appeared depressed and a little anxious. He diagnosed alcohol dependence for most of the past 35 years. However his dependence is now more a matter of abuse. He reported that the applicant had not suffered any withdrawal symptoms of significance over the previous 12 months and whilst maintaining his diagnosis, he was of the opinion that the applicant does not fulfil the Statement of Principle for alcohol dependence abuse.
80. Geoffrey Burgess and John Cairns both provided statements which are found at T‑docs pp64 – 65 and pp66 ‑67. They were both with the applicant on the occasion of the helicopter incident in either October or November 1970. Mr Burgess reported that after the helicopter ascended carrying a bladder of fuel, door gunners within the helicopter opened fire, the helicopter lost height it banked and began to descend. Several gun ships came along side their helicopter and they were escorted back to [illegible]. He said he learnt later that we had taken enemy fire and damage had been caused to the helicopter. He reported that when the door gunners opened fire we did not know what was actually happening but knew we were in some sort of trouble and I feared that we would not make it.
81. Mr Cairns reported that after the helicopter ascended having dropped off the fuel bladder we took a couple of enemy rounds to the body of the chopper. These rounds passed between Bill and myself after coming through the floor and lodged in the roof. He reported that the pilots were alerted by other crew members, the helicopter then banked and the side gunners opened fire into the jungle below. He recorded that when the helicopter landed, he and the applicant were very shaken by this incident, especially when we realised how close these machinegun bullets had come to us. I still have nightmares and dreams about that incident and others which followed.
conclusion and reasons for decision
diagnosis
82. The kind of injury or disease suffered by the applicant is to be determined on the probabilities (refer Repatriation v Hancock [2003] FCA 711; s 120A Veterans’ Entitlements Act 1986). Such a decision must be made in order to identify whether a Statement of Principles is applicable. Statements of Principles are not relevant to a finding on the probabilities of diagnosis, that is to say, such a finding is not to be made by reference to a Statement of Principle (refer Repatriation Commission v Budworth [2001] FCA 1421; Benjamin v Repatriation Commission [2001] FCA 1879).
83. In the present case the VRB reviewed primary decisions of the respondent with respect to anxiety disorder/depression and post-traumatic stress disorder. The latter condition was not the subject of an opinion expressed by the medical witnesses or other practitioners who provided reports, except Dr Nice who suggested the diagnostic basis for post-traumatic stress disorder was the presence of anxiety and depression and Dr Strauss who dismissed the diagnosis. On the probabilities I am not satisfied that the applicant suffers from the kind of injury or disease described as post-traumatic stress disorder. All other doctors including Dr Nice, were of the opinion that the applicant did suffer anxiety.
84. The following discussion concerns the conditions of anxiety disorder and alcohol dependence and alcohol abuse.
85. In written submissions lodged subsequent to the conclusion of the hearing, the respondent submitted that the evidence of Dr Strauss should be preferred and a finding should be made of the applicant suffering from alcohol abuse or alcohol dependence. Additionally, it should be found that factors under the Instrument applicable to alcohol abuse or alcohol dependence were not satisfied and the applicant’s case should fail. It was submitted that whilst the applicant did suffer from alcohol abuse and / or dependence, it was a consequence only of the availability of alcohol during service and peer pressure. Those circumstances are not the subject of any factor within the applicable Statement of Principle. Additionally, it was submitted that the applicant did not experience a severe stressor (as defined) during his service.
86. The applicant relied mainly on the evidence of Dr Seabridge who made a diagnosis of the applicant suffering from anxiety and depression with secondary substance abuse disorder. It was submitted that the applicant was exposed to stressful events in Vietnam, particularly the helicopter incident which involved him experiencing a severe psychosocial stressor as defined by the Statement of Principle with respect to generalised anxiety disorder. Whilst in evidence, Dr Seabridge was of the opinion that the appropriate diagnosis for the applicant was anxiety disorder not otherwise specified. That condition is, for the purposes of Statement of Principle No 1 of 2000, an anxiety disorder (refer paragraph 2). It is also defined at paragraph 8 and, relevantly, is a psychiatric disorder with prominent anxiety.
87. A feature of this application was the reluctance and embarrassment by the applicant to explain his fear and apprehension about his Vietnam service to not only the doctors but also to his wife. It therefore followed that the doctors had either incomplete or incorrect histories. Whilst medical practitioners are skilled in extracting histories from patients – whether they are treating or whether they are consulting on a medico-legal basis – the opportunity to obtain a coherent and accurate history is dependent on the preparedness by the patient to volunteer information which is both unrestrained and truthful. An opinion expressed or a diagnosis made by a medical practitioner may be inaccurate if information provided by the patient is deficient or withheld.
88. Mr Brady explained in some detail his reluctance to be forthcoming with Dr van der Linden. He did inform Dr Strauss of the helicopter incident but said that he felt uncomfortable in consultation. He said that he felt comfortable talking with Dr Seabridge because his questioning was subtle.
89. It was not in dispute that the applicant was involved in the helicopter incident. That history was corroborated by two other comrades of the applicant. There was a history of the applicant consuming alcohol prior to the helicopter incident but on the evidence that emerged during the hearing, I am satisfied and find as a fact, that the applicant did consume alcohol in considerably greater quantities after the helicopter incident. I am satisfied and find as a fact, that the increased consumption was a consequence directly of the fear and fright associated with the helicopter incident. Whilst I am also satisfied that the applicant was exposed to some unnerving events in Vietnam, namely, a sense of apprehension, witnessing unloading of body bags and being on piquet duties, the helicopter incident as described by him was largely responsible for the development of an anxiety disorder. Dr Strauss said in cross‑examination he may have changed his opinion if as a fact it was found that the applicant consumed greater quantities of alcohol after the helicopter incident, including consumption of spirits. However, he preferred to rely on the history that he elicited from Mr Brady. That is unfortunate because Dr Strauss would not have been aware at consultation of Mr Brady’s reluctance to be forthcoming nor accurately or openly describe his reaction to the helicopter incident. It would also appear that Dr Strauss had an inaccurate history or has misunderstood the applicant’s alcohol history which was carefully analysed during the hearing of these proceedings and which demonstrated a significant increase in alcohol consumption after the helicopter incident.
90. I was impressed by the evidence of Dr Seabridge, no less because of his extensive experience in treating alcohol affected veterans and being aware of certain characteristics of such persons with respect to their ability (or inability) to openly discuss circumstances of service with persons other than members of the veterans’ community. The documented evidence of Drs Nice, Newlands and Van der Linden do contain inconsistencies and errors. That may be explained by the applicant’s reluctance to discuss the circumstances of his service or his subsequent reactions. Additionally, they did not give evidence and the opinions expressed, so far as may be gleaned from their notes and reports, are untested.
91. On balance therefore, having regard to the documents read, but particularly the evidence heard in these proceedings and the responses of the applicant when directly questioned upon issues of his alcohol history and his reaction to consultation with doctors, I am satisfied on the balance of probabilities that the appropriate diagnosis is that of anxiety disorder not otherwise specified. It is also clear from the medical evidence and from the applicant’s evidence that he also suffers from alcohol dependence or alcohol abuse which on the probabilities I am also satisfied should be found as a diagnosis. With respect to the latter condition, I am satisfied that the applicant did significantly increase his consumption of alcohol either as a form of self-medication or to assist him to cope with the emotional consequences of the helicopter incident. I am not satisfied, having heard the evidence of the applicant and his wife that he was a binge drinker before enlistment. I am not satisfied that the anxiety was secondary to alcohol dependence or alcohol abuse. Dr Seabridge dismissed that diagnosis and Drs Nice and Newlands reported that alcohol dependence or abuse was secondary to anxiety. I agree with those opinions.
deledio
92. The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 recited four stages of analysis in order to determine whether a hypothesis is reasonable. An advantage of following the procedural steps required by s 120 and s 120A as explained in Deledio (refer Meehan v Repatriation Commission [2001] FCA 597 at paragraph 47) is to ensure that a hypothesis is found before it is determined to be reasonable and also to ensure that findings of fact are not made or are not confused with a determination of whether a hypothesis is reasonable. There may be applications where the connection between service and injury should be obviously found by a decision‑maker as a reasonable hypothesis without consideration of the four steps in Deledio (refer Mines v Repatriation Commission [2004] FCA 1331 at paragraph 38 and Hardman v Repatriation Commission [2005] FCAFC 83 at paragraph 32) but the present application is not so obvious or clear cut to warrant any departure from Deledio.
93. Accordingly – and applying the four procedural stages – I am satisfied that a hypothesis connecting the injury or disease of anxiety disorder and alcohol dependence or alcohol abuse connected with service does exist because there is material pointing to it. The hypothesis raised emerged . . . obviously and directly from the evidence . . . (refer Hill v Repatriation Commission [2005] FCAFC 23 at paragraph 98).
94. There are Statements of Principles during the assessment period namely, Instrument No 1 of 2000 with respect to generalised anxiety disorder and Instrument No 76 of 1998 with respect to alcohol dependence or alcohol abuse. Accordingly the first two stages of Deledio are satisfied.
95. The applicable factor with respect to generalised anxiety disorder is 5(a)(ii) namely –
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
96. The expression severe psychosocial stressor is defined at paragraph 8 of this Instrument as follows:
“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 of 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;
97. The applicable factor with respect to alcohol dependence or alcohol abuse is Instrument of 76 of 1998 is 5(b) namely –
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
98. The expression experiencing a severe stressor is defined at paragraph 8 of this Instrument as follows:
“experiencing a severe 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.
99. The third procedural stage of Deledio involves an examination of whether the hypothesis is reasonable. Findings of fact are not to be made. That is to say, a hypothesis which is reasonable will be pointed to by the facts but not proved on the balance of probabilities (refer Repatriation Commission v Bey (1997) FCR 364). A connection between service and the injury or disease of course must also be raised by the material in a determination of whether the hypothesis is reasonable.
100. In the present application there is material which points to the applicant having experienced a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder (refer Instrument No 1 of 2000). There is also material which points to the applicant having experienced a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse (refer Instrument No 76 of 1998). I am therefore satisfied that the hypothesis raised, which I have found to be reasonable, does contain factors which the Repatriation Medial Authority determined must exist as a minimum and which on the material is related to the applicant’s service.
101. Accordingly, I am satisfied that the reasonableness of the hypothesis has been determined for the purposes of s 120(3) and the next part of the hypothesis (should be) considered (refer Repatriation Commission v Webb (1998) 51 ALD 575 at 582). Accordingly, it is necessary to have regard to the fourth procedural stage in Deledio namely, whether pursuant to s 120(1) of the Act, I can be satisfied beyond reasonable doubt that there is no sufficient ground to determine that the injuries suffered by the applicant were war‑caused. Such an enquiry requires findings of fact and the application of the Statements of Principles.
102. Prior to the helicopter incident I am satisfied that the applicant was emotionally vulnerable. On the evidence heard, he drank minimum quantities of alcohol on an infrequent basis both prior to enlistment and prior to commencing his service in Vietnam. But he then became apprehensive and fearful by a number of circumstances to which he had no direct involvement but by reason of his location he was concerned that they could get you (refer paragraphs 6, 7 and 8 earlier).
103. The helicopter incident was the most significant event to which the applicant was exposed in Vietnam and consistent with the concession made by the respondent, I am satisfied that it did occur. Against that background of vulnerability, the applicant was a passenger in a helicopter where he heard someone say we’ve been hit and the helicopter suddenly lurched. Door gunners then opened fire from each side of the helicopter, it descended quickly, the applicant thought that it would crash and on landing, an inspection revealed the presence of a bullet or a bullet hole. Whilst there were slight variations in that account of the episode by the applicant’s colleagues, Mr Burgess and Mr Cairns, the incident itself and the circumstances immediately before landing, were corroborated. Indeed, Mr Burgess said that he feared that we would not make it and Mr Cairns said that he observed the applicant to be shaken. Mr Cairns said that he continues to have nightmares and dreams about that incident.
104. By reason of that incident, I am satisfied and find as a fact, that the applicant significantly increased his alcohol consumption. Whilst he had progressively increased consumption of alcohol in Vietnam, his alcohol consumption and the frequency of it subsequent to the helicopter incident was consistent with his explanation that he drank to help him cope and to help him sleep. Not only did he drink beer in greater quantities and on a more frequent basis, he also consumed spirits.
105. The helicopter incident in my view was a severe psychosocial stressor within the meaning of the anxiety disorder instrument because it was an identifiable occurrence which did evoke feelings of substantial distress. Indeed the definition includes by way of example, being shot at. That is precisely what occurred. A bullet or bullet hole found in the helicopter upon landing is consistent with being shot at. It is also consistent with the words heard by the applicant whilst in the air namely, we’ve been hit. The incident as a whole at both an objective and subjective level does, in my view constitute a severe psychosocial stressor. The applicant’s perception of the incident was not totally irrational or of baseless apprehension (refer Delahunty v Repatriation Commission [2004] FCA 309 at paragraph 27)
106. The incident also constitutes a severe stressor within the meaning of the alcohol instrument because the applicant did experience and confront an event that did involve the threat of death or (at the least) a threat to his or other person’s physical integrity and that event did evoke intense fear, helplessness or horror. At an objective and subjective level – for the reasons given above – it is not difficult to imagine that being shot at whilst in the air, hearing the words we’ve been hit and then suddenly descending and then finding a bullet or bullet hole upon landing satisfies this definition.
107. I am satisfied that the stressor experienced by the applicant namely, the helicopter incident, did occur within two years of the clinical onset of the alcohol dependence or alcohol abuse. That is to say I am satisfied that within a period of two years of the helicopter incident the applicant’s significant increase in alcohol consumption and his dependence upon it to be able to cope and to sleep – thereby also constituting an abuse, satisfies that diagnosis. It is clear from the evidence that the applicant was abusing alcohol because of his dependence upon it both in the remainder of his time in Vietnam and subsequently upon his return to Australia. That he would spend all day in a local hotel in Colac drinking alcohol – which occurred within a period of two years of the helicopter incident – of itself is a manifestation of his alcohol dependence and abuse.
108. I am satisfied also that the clinical onset of the condition of anxiety occurred within two years of the helicopter incident. The applicant’s reaction to the helicopter event namely, fear, apprehension, failure or withdrawal of communication together with dependence upon alcohol clearly point to the anxiety having its clinical onset within two years. The remarkable change in the applicant’s demeanour upon return to Colac – which occurred within two years – also clearly points to the clinical onset having occurred within the requisite period as was corroborated by the applicant’s wife.
109. I should also conclude that I am satisfied there was a clinical onset of the disease or injury of anxiety and alcohol dependence and abuse, within the meaning of Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 namely:
. . . there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present….
(refer also Repatriation Commission v Cornelius [2002] FCA 750). I am satisfied that the applicant, within two years of the helicopter incident, exhibited features or symptoms which would have caused a medical practitioner to diagnose the relevant disease or injury as then being present.
110. For the purposes also of this part of the decision I am aware of the recent decision of Finn J in Repatriation Commission v Milenz [2006] FCA 1436. His Honour then decided that clinical worsening of a disease is a medical issue and is resolved by resorting to the definition of the disease in an applicable Statement of Principle. (Whilst the present case concerns clinical onset, the decision in Milenz is no less applicable).
111. Having regard also to the decisions in Lees v Repatriation Commission [2002] FCAFC 398 and Repatriation v Gosewinckel [1999] FCA 1273 I am satisfied, having heard the evidence of the applicant, his wife and the doctors and having read all of the reports and other documents lodged, that the applicant did suffer a clinical onset of the diseases of anxiety and alcohol dependence and alcohol abuse. I make this finding by reference to those conditions, as defined, in the applicable Statements of Principles. That is, the features, symptoms and manifestations prescribed in the relevant Statements of Principles definitions (refer Milenz at paragraph 33) did exist and then, within two years of experiencing a severe stressor (alcohol Statement of Principle) and experiencing a severe psychosocial stressor (anxiety Statement of Principle) as respectively defined.The apprehension suffered by the applicant and the quantities of alcohol consumed – and the frequency – prior to the helicopter incident would not on the evidence have satisfied a diagnosis of anxiety or alcohol dependence or alcohol abuse. There was no evidence to support such a conclusion and the clinical criteria of each condition, as recorded in the Statements of Principles would not have been satisfied.
112. That the applicant did not elect to re‑enlist – as he had expressed a preference to do so before the helicopter incident (which in sequence I am satisfied did occur) – also points to the applicant’s reaction to the helicopter incident and is a manifestation of his anxiety.
113. In all of the circumstances, and for the reasons given above, I am satisfied that the applicant’s injuries of anxiety and alcohol abuse or alcohol dependence are war‑caused. Put in the alternative, I cannot be satisfied beyond reasonable doubt that the injuries were not war‑caused. The claim must therefore succeed.
114. The decision of the VRB under review with respect to post-traumatic stress disorder is affirmed. The remainder of the decision should be set aside and in substitution it is decided that the injuries or diseases of generalised anxiety disorder and alcohol dependence or alcohol abuse are war‑caused. The application is remitted to the respondent for assessment of pension.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDates of Hearing 9 October and 14 December 2006
Date of Decision 23 March 2007
Counsel for the Applicant Mr C Thomson
Solicitor for the Applicant Mr P Liefman
Departmental Advocates Mr K Rudge and Mr E Nyhof
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