Burgers and Repatriation Commission - [2002] AATA 594

DECISION AND REASONS FOR DECISION [2002] AATA 594

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/821

VETERANS' APPEALS DIVISION       )
           Re      ALBERTUS MARIA BURGERS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date19 July 2002
PlaceBrisbane

Decision The Tribunal decides: (a) the decision under review be further varied; (b) the conditions of – (i) Post Traumatic Stress Disorder; (ii) Alcohol Abuse; and (iii) Irritable Bowel Syndrome are accepted as war-caused; and (c) the matter is remitted to the respondent for assessment.

[Sgd] KL Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – post traumatic stress disorder – alcohol abuse – irritable bowel syndrome – relationship to service in South Vietnam – whether severe stressor experienced.

Veterans' Entitlements Act 1986

REASONS FOR DECISION

19 July 2002 Senior Member KL Beddoe

By determination notified on 28 May 2000 the respondent's delegate decided:
(a)"I have accepted your claim for bilateral sensorineural hearing loss with tinnitus and gastro-oesophageal reflux disease. My decision takes effect from 4 October 1999.
(b)Your claim for post traumatic stress disorder, alcohol dependence or alcohol abuse, asthma, localised osteoarthrosis of the right knee and irritable bowel syndrome has been refused.
(c)I have decided to grant disability pension at 20% of the General Rate with effect from 4 October 1999. Entitlement to payment at this rate commences from 7 October 1999, the first pension pay date after the date of effect. Arrears will be calculated from this date."
The applicant sought review of the decision relating to the refusal to accept post traumatic stress disorder ("PTSD"), alcohol dependence or abuse and Irritable Bowel Syndrome by the Veterans' Review Board. The Board decided to affirm that part of the respondent's decision. The applicant then sought review in this Tribunal.
At the hearing Mr Honchin appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" Documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and Professor McCarthy.
The applicant served in the RAAF from 19 September 1966 to 3 March 1987. He saw operational service in South Vietnam from 1 April 1970 to 1 April 1971. The applicant also rendered eligible defence service from 7 December 1972 to 3 March 1987.
While in South Vietnam the applicant worked as an Education Assistant administering a small technical library for use by RAAF personnel at the Phan Rang Base. He also worked in the postal section, the Airmen's Club and supervised issue of sporting and recreational equipment.
He says that during his posting at Phan Rang the Base was subject to enemy attack on an average of one attack per week but not on a weekly basis. Attacks may be either day or night and lasted approximately 15 to 20 minutes. Some attacks were without warning while others were preceded by Base siren warnings. On one occasion the applicant says he experienced an explosion of a rocket about 400 metres from where he was standing unprotected. On most occasions he was able to take refuge in a bunker and don a flak jacket prior to the enemy attack. He says that these attacks caused him great anxiety and that he still experiences the feelings of intense fear and helplessness as he had experienced during the enemy attacks on Phan Rang.
The applicant also said that he was constantly keyed up and on edge because of the practice of engaging local Vietnamese for certain duties on the Base. He also related an incident concerning the local Vietnamese barber. He referred to an attack on Vung Tau while he was there for rest and recreation. He said that while travelling between Vung Tau and Phan Rang he accompanied filled body bags which were on the floor of the aircraft, he did not see the bodies, but was apprehensive as to the particular contents of the bags. The applicant also said that a close friend had been killed when his plane was shot down and this affected him deeply.
Insofar as he suffered Irritable Bowel Syndrome in South Vietnam and other medical conditions, he did not report to the medical officer because he was concerned at being called a "wuss" but did report serious medical matters that had to be attended to.
In relation to smoking the applicant said he commenced the habit while in South Vietnam. He also changed his pattern of consumption of alcohol from occasional social drinker to daily consumption so as to sometimes be drunk when he retired to bed.
The respondent called Professor McCarthy whose evidence-in-chief is in Exhibit 1. Professor McCarthy notes that the Phan Rang Air Base was large with one estimate being that the perimeter fence was 21 kilometres long with the RAAF domestic area being only a very small portion of the Base. He also noted that the Australian official historian accepts as a fact that between April 1968 and June 1971 the Base was hit by 784 mortar rounds and rockets. However, Professor McCarthy conducted his own research and he sets out the results of that research in Exhibit 1. Relying on monthly RAAF reports, Professor McCarthy found a total of 24 attacks on Phan Rang in the period April 1970 and November 1970 with no attacks on the Base recorded after that date.
Professor McCarthy goes further and says:
"Between April 1970 and November 1970 it is clear that no projectile fell within 2 Squadron's domestic area or within the RAAF Hangar Revetments."
In relation to Vung Tau, Professor McCarthy says that his research of RAAF historical records disclosed one attack on Vung Tau Base during the time the applicant was in South Vietnam. This occurred in November 1970 but did not damage RAAF facilities. Professor McCarthy confirmed the loss of the applicant's friend in November 1970.
Document T4 includes a record of service by the Department of Defence which includes:
"Date and Reasons for Discharge: 03 March 1987 'On Request After 20 Years Pensionable Service'."
Since leaving the RAAF the applicant worked in a family business but left because of disagreement and since April 1996 has had permanent employment as a prison guard employed by Queensland Corrective Services.
The applicant says he has been stopped for drunk driving on several occasions but never charged because the Queensland Police have not followed up.
The Medical Evidence
In a pro forma report dated 23 December 1999 (T4), Dr Fraser diagnosed a number of medical conditions including Alcohol Abuse (6-12 stubbies per day), Irritable Bowel Syndrome, generalised anxiety disorder and PTSD.
Document T4 also includes a copy of a report by Dr Likely, Consultant Psychiatrist, dated 22 February 2000. Dr Likely records a history generally consistent with the material before the Tribunal although he refers to "several dead bodies" whereas the applicant told the Tribunal he did not see the bodies, only the body bags with bodies inside. That was noted by Dr Likely in his report.
Dr Likely diagnosed PTSD and Alcohol Abuse as Axis I disorders.
He found no Axis III disorders including Irritable Bowel Syndrome. As to Psychosocial and Environmental Problems (Axis IV) he found "Stressor of chronic mental ill health" and the Global Assessment of Functioning (Axis V) to be 51-60. He also completed the pro forma medical impairment worksheet.
In a further report dated 15 May 2001 (Exhibit B), Dr Likely noted that he was continuing to treat the applicant having seen him on five occasions since the report of 22 February 2000. He notes continuing significant symptoms and says it is his unequivocal opinion that the applicant's symptoms arose as a result of the various stressors to which he was exposed in South Vietnam. He says that while there may not have been any objective danger to the applicant caused by the rocket attacks on the Phan Rang Base, the subjective response at the time was one of intense fear and horror thereby satisfying DSMIV criteria for a significant and severe psychosocial stressor.
Consideration
Dr Likely attributes the claimed conditions to the applicant's service in South Vietnam (Exhibit B).
Before those conditions may be accepted as war-caused it must be determined whether the hypothesis is a reasonable hypothesis. It will be reasonable if it comes within the terms of a relevant Statement of Principles.
In relation to PTSD the relevant Statement of Principles is No 3 of 1999 as amended by No 54 of 1999. The applicant submits that Factor 5(a) is applicable – the applicant experiencing severe stressors prior to the clinical onset of PTSD. In the context of the Statement of Principles it is not sufficient to diagnose a condition as PTSD. It must satisfy paragraph 2 of the Statement of Principles to be PTSD within the terms of the Statement. I am satisfied, in the light of Dr Likely's reports, that it is more likely than not that the applicant satisfies paragraph 2.
The issue is whether a factor in paragraph 5 of the Statement of Principles has been satisfied. Did the applicant experience a severe stressor prior to the clinical onset of PTSD? Dr Likely reports:
"….I have no doubt that Mr Burgers' subjective response at the time was one of intense fear and horror, thereby fulfilling the DSMIV TR diagnostic criteria for a significant and severe psycho-social stressor."
I am satisfied, on an objective basis, that it is likely that the incidents as related by the applicant would have the reported effects on persons who experienced the events so that it can be accepted that the applicant was, as he says, confronted with events that involved actual or threat of death or serious injury or threat to the person's or another's, physical integrity.
In the circumstances put forward I accept that the terms of the Statement of Principles are satisfied. In particular, I note that there were regular rocket attacks in the Phan Rang Air Base so it would be reasonable to infer that there were grounds for saying (i) and (ii) in the definition of "experiencing a severe stressor" are satisfied. Also, I note that the applicant experienced bodies in body bags on the floor of an aircraft he was travelling in. That means that (iii) is also satisfied.
The respondent says that none of the reported stressors approach being severe stressors. In a sense that is right if the events are considered individually. However, here the hypothesis is that there was a repetition of stressors which when considered overall together could be perceived to constitute a severe stressor.
I am satisfied that the terms of the Statement of Principles are satisfied so that it can be accepted that Dr Likely's hypothesis is a reasonable hypothesis.
It follows, in my view, that it must be accepted that in relation to Alcohol Abuse that the applicant was suffering from a psychiatric disorder at the time of the clinical onset of Alcohol Abuse so as to satisfy Factor 5(a) in Statement of Principles No 76 of 1998. It was also submitted that paragraph 5(b) has been satisfied but I am not satisfied as to the temporal connection required by that paragraph. Given that I am satisfied that there was a severe stressor, it follows that because the PTSD is diagnosed as an Axis I condition I should accept that the diagnosed Alcohol Abuse, also diagnosed as an Axis I condition, is within the terms of the Statement of Principles so that Dr Likely's hypothesis is a reasonable hypothesis.
In relation to Irritable Bowel Syndrome, the relevant Statement of Principles is No 103 of 1996. One of the factors in paragraph 5 must be satisfied before it can be accepted that the hypothesis is a reasonable hypothesis. In particular, the hypothesis must show that the applicant was suffering a specified psychiatric condition (includes generalised anxiety and PTSD) within the six months immediately before the clinical onset of Irritable Bowel Syndrome.
Given that the condition is said to have commenced while the applicant was in South Vietnam the hypothesis does not fit within the factors in paragraph 5 because it seems to have preceded in time the onset of PTSD and Alcohol Abuse unless I can be satisfied that it is open to find that there was a clinical worsening preceded by the PTSD or Alcohol Abuse. That seems to fit with Dr Likely's hypothesis so that it can be accepted that paragraph 5(d) is satisfied.
Dr Likely's hypothesis in relation to each condition is a reasonable hypothesis.
Given the evidence of Professor McCarthy there is no basis for being satisfied beyond reasonable doubt that there is no sufficient ground for believing that the three claimed conditions are war-caused. Although I am satisfied the applicant exaggerated his evidence, I am also satisfied that the circumstances encountered by the applicant at Phan Rang in particular were, objectively, such as likely to cause severe stressors to a person witnessing those events.
The decision under review will be varied so as to accept PTSD, Alcohol Abuse and Irritable Bowel Syndrome as war-caused disabilities with effect from 4 October 1999. The matter will be remitted to the respondent for assessment.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed:         Sarah Oliver
  Associate
Date of Hearing  19 September 2001 (heard in Townsville)
Date of Decision  19 July 2002
Counsel for the Applicant        Mr D Honchin
Solicitor for the Applicant         Messrs Purcell Taylor
Solicitor for the Respondent    Mr J Stoner, Departmental Advocate