Burnett and Repatriation Commission - [2001] AATA 369

DECISION AND REASONS FOR DECISION [2001] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1093

VETERANS' APPEALS DIVISION       )
           Re      GLEN JAMES BURNETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President S P Estcourt QC., Dr J B Morley (Member) Major-General J N Stein (Member)

Date4 May 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post-traumatic stress disorder and alcohol abuse or dependence be accepted as war-caused and remits the matter to the respondent with a direction that the applicant's pension assessment should be: (a) 70% of the General Rate from 27 July 1998; (b) 90% of the General Rate from 16 December 1999; (c) 100% of the General Rate from 20 March 2001.

[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
Veterans' Affairs – war-caused disease – post-traumatic stress disorder – alcohol dependence or alcohol abuse.
Veterans' Entitlements Act 1986 – ss.120(1) & (3), S120A(1)(9)

REASONS FOR DECISION

4 May 2001 Deputy President S P Estcourt QC.,
Dr J B Morley ( Member) Major-General J N Stein (Member)

The applicant seeks the review of a decision of the respondent of 12 January 1999 refusing a claim for disability under the Veterans' Entitlements Act 1986 ("the Act") in respect of post-traumatic stress disorder and alcohol dependence or alcohol abuse.
The applicant, who was born on 22 November 1944 joined the Australian Army on 24 September 1963 and served until 23 September 1969. He has eligible war service within the meaning of the Act in Vietnam from 16 February 1967 to 5 April 1968. This service is also operational service for the purposes of the legislation.
The uncontradicted evidence before the Tribunal is that the applicant, who was at the time a corporal in 85 Platoon of 5 Coy RAASC, was in charge of a packet of about 5 trucks travelling from Vung Tau to Nui Dat on a day when he witnessed an American Army truck hit two Vietnamese civilians on a motorcycle and then reverse back over them crushing them.
The applicant stated in evidence:
"We at the time of the accident were moving towards Nui Dat, and were approximately 100 metres from an incident that caught my eye as I was in the lead vehicle. An American vehicle was heading towards Vung Tau in convoy and the lead American vehicle hit a Vietnamese and passenger by swerving out and clipping the two of them. The American vehicle stopped and the vehicle that hit the two Vietnamese ran back over the two on the ground, they were a horrible mess under the back dual wheels."
The applicant gave evidence that he did not officially report the incident but merely informed the Transport Orderly Room, where the matter was left. He further stated that it was US Army policy that if a vehicle collided with a civilian the driver should ensure that the victim did not survive. The applicant said that he had been briefed before going to Vietnam that this was also an Australian Government policy. In this context the applicant stated that what he witnessed on the day in question was not war but murder.
Much was made of this at the hearing of this application, rather unnecessarily in the Tribunal's view, as whilst the applicant's belief may have relevance to the course of his psychiatric disorder, it is not essential to the applicant's case to establish that the civilian casualties he witnessed were deliberately caused.
The Tribunal is however, moved to say at once, that it is not satisfied that there was ever an official or unofficial policy on the part of the Australian or US Government that accident victims were to be killed. Indeed the evidence in this case from Writeway Research Services demonstrates that vehicle accidents between Australian Army and Vietnamese civilian vehicles were notifiable incidents, were fully investigated and reports were raised and official files held.
The Tribunal accepts however, that unfortunately there may have been a perception on the part of some Australian soldiers that such a policy as described did exist and accepts that the unshakeable evidence of the applicant demonstrates he genuinely had such a perception.
The applicant's evidence was, that as a result of witnessing this incident he began to drink more heavily and become alcohol dependent and an abuser of alcohol and that he began to develop symptoms which were later diagnosed as constituting a post-traumatic stress disorder (PTSD").
By virtue of s.120(1) and (3) of the Act, in the case of the applicant's operational service, the Tribunal is required to find that his alcohol dependence or abuse and his PTSD were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect the specified conditions with the circumstances of the particular service rendered.
Further, s.120A(1)(a) requires the Tribunal in the case of the applicant's claim (i.e. one made after 1 June 1994) to assess the reasonableness of the hypothesis in accordance with any Statements of Principles ("SoP's") issued by the Repatriation Medical Authority.
In this case the applicant and the respondent were agreed that the two applicable SoP's were SoP 15 of 1994 concerning the applicant's claimed PTSD and SoP 76 of 1998 concerning his claimed alcohol dependence or abuse.
SoP 15 of 1994 relevantly provides:
"1.Being of the view that there is sound medical-scientific evidence that indicates that post-traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under sub-section 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder …
4. For the purposes of this Statement of Principles:
"DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
"experiencing a stressor" means the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;
"post-traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(a) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(c)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;

(iv)markedly diminished interest or participation in significant activities;

(v)feeling of detachment or estrangement from others;

(vi)restricted range of affect (eg, unable to have loving feelings);

(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and

(d)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;

(ii)irritability or outbursts of anger;

(iii)difficulty concentrating;

(iv)hypervigilance;

(v)exaggerated startle response; and

(e)duration of the disturbance (indicated by the relevant symptoms set out in paragraph (b), (c) and (c) is more than one month; and

(f)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning."

Statement of Principle No. 76 of 1998 relevantly provides:

"Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.

(b)For the purposes of this Statement of Principles,

"alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested in three (or more) of the following, occurring at any time in the same 12-month period:
(1)tolerance as defined by either of the following:

(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect;

(b)markedly diminished effect with continued use of the same amount of alcohol;

(2)withdrawal, as manifested by either of the following:

(a)the characteristic withdrawal syndrome for alcohol;

(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms;

(3)alcohol is often taken in larger amounts or over a longer period than was intended;

(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use;

(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects;

(6)important social, occupational or recreational activities are given up or reduced because of alcohol use;

(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;

"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home;
(2) recurrent alcohol use in situations in which it is physically hazardous;
(3)recurrent alcohol-related legal problems;
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
B.The symptoms have never met the criteria for alcohol dependence.

The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3.    The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.    Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.    The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of the person's relevant service are:
…

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse…
Other definitions

8.          For the purposes of this Statement of Principles:
"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.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i)        threat of serious injury or death; or
(ii)       engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abuse violence."
(emphasis added)

The applicant, the Tribunal accepts was intensely horrified at what he saw and he called one witness in particular who corroborated the effect he claimed the incident had on him prior to the clinical onset of his PTSD and within two years of the onset of his alcohol dependence or abuse. That witness was Mr. Lindsay Warwick.

Mr. Warwick gave evidence that he was with the applicant on the day he witnessed the death of the Vietnamese civilians and that the applicant got quite drunk in the canteen that night calling the American soldiers involved in the deaths "murdering bastards".

Mr. Warwick said that he didn't know the applicant well in Vietnam and that a couple of months after the incident in question he was transferred to Nui Dat while the applicant remained in Vung Tau. He said however that in the couple of months before he went to Nui Dat he witnessed the applicant change from a person who had been before, the life of the party, to a person who was quite moody. He said he witnessed the applicant change from someone who was always easy to get along with and quite a social person who like to have a drink, to someone who drank more and more heavily.

The Tribunal accepts Mr. Warwick as a credible and truthful witness and notes that his evidence was neither shaken nor contradicted. In those circumstances the Tribunal finds that the effect of the incident upon the applicant's personality and drinking habits was one of virtually immediate onset.

The applicant called two psychiatrists, Dr. Jonathon Hargreaves and Dr. Alan Freed to prove that he suffered both a post-traumatic stress disorder and an alcohol dependence syndrome. The respondent called a psychiatrist, Dr. Peter Mulholland to prove the contrary.

The difference of opinion between Drs. Hargreaves and Freed on the one hand and Dr. Mulholland on the other is of relatively narrow compass, although it relates to both the claimed conditions.

Drs. Hargreaves and Freed were of the view that on the history of symptoms and their onset given to them by the applicant, he fulfilled the DSM-IV criteria for PTSD and Alcohol Dependence Syndrome and that both conditions were related to the traumatic event involving the death of the two Vietnamese civilians.

Dr. Mulholland on the other hand, at first doubted, but later accepted that the incident would constitute a "Category A type experience", for the purpose of a DSM-IV PTSD diagnosis, but could not accept that witnessing an event such as that described by the applicant could cause one to have a lifetime of psychiatric disturbance. He also doubted that the applicant's appearance and pathology reports were consistent with his reported alcohol abuse.

As to the difference of opinion concerning alcohol abuse, Dr. Freed stated in his report of 30 October 2000:

"His Gamma GT liver enzyme done on 30 October 2000 is raised (enclosed). This is indicative of alcohol abuse. This was not raised when he saw Dr. Mulholland.
His last CDT in April was raised."

Dr. Mulholland then stated in a report dated 27 February 2001:

"I note the report of my psychiatrist colleague, Dr. Alan Freed dated 30 October 2000. I note that Dr. Freed makes a diagnosis of post-traumatic stress disorder and alcohol dependence. I note that Dr. Freed makes reference to his GGT as having become elevated recently and it has been noted that the CDT has been previously raised. This would be consistent with alcohol dependence."

The debate was not pursued by the respondent on the hearing of the application, but in any event the Tribunal construes Dr. Mulholland's comment set out above as acquiescing in Dr. Freed's opinion. There is thus a coincidence of views in relation to this diagnosis and in the absence of any evidence to indicate that the history given by the applicant to Drs. Hargreaves and Freed was untruthful, the Tribunal finds that the applicant's alcohol abuse and dependence result from intense horror evoked upon witnessing the Vietnamese civilian casualties of the accident described which occurred within two years immediately proceeding the clinical onset of his dependence and abuse.

There is thus raised within the terms of SoP 15 of 1994 a reasonable hypothesis connecting that condition or conditions with the applicant's service and the Tribunal is satisfied that the condition or conditions were war-caused.

As to the difference of medical opinion concerning the applicant's claimed PTSD, Dr. Mulholland wrote in his report of 27 February 2001:

"My assessment of this man was that he was an angry entitled man who attributed everything in his life to this specific incident in Vietnam. Assuming that this incident happened as he described then it would have been a psychologically traumatic psychiatric incident, however I still cannot see that witnessing such an incident could of itself translate itself into a lifetime of claimed psychiatric disorder. My experience is that psychiatric conditions simply do not occur in that fashion. A more likely explanation is that as time has passed and this man becomes more and more embroiled in DVA matters he is becoming more and more angry and more and more entitled and thus he is developing more and more symptomatology."

The Tribunal does not accept Dr Mulholland's assessment of the applicant as his appearance and his responses in the witness box support Dr Freed's oral evidence that the applicant was a tearful tentative man, not a grandiose man who was dogmatic as one would expect from an entitled person.

The Tribunal was also persuaded by Dr Freed's evidence that it is unlikely that a narcissistic, entitled person would focus on one event for gratification, but rather, "would be entitled all over the place".

Nor, does the Tribunal accept Dr. Mulholland's view that witnessing such an event could not translate into a lifetime of psychiatric disorder. The Tribunal prefers the opposing views of the two psychiatrists called by the applicant, namely Dr Hargreaves who has treated the applicant for some 2½ years and Dr. Freed who prepared his report with the benefit of both Dr. Hargreaves' and Dr Mulholland's conflicting opinions.

In preferring Drs. Hargreaves and Freed the Tribunal notes:

(a)that Dr Mulholland appears not to have given sufficient weight to the context in which the incident witnessed by the applicant occurred, including the undoubted state of hyper-arousal in which the applicant would have found himself at the time;
(b)that Dr Mulholland accepted in answer to a question by the Tribunal that the possibility of the onset of a PTSD would have been added to by the applicant's feelings of helplessness in believing he was unable to bring the incident to the attention of the proper authority or even talk about it to other soldiers because it was a manifestation of government policy;
(c)that Dr Mulholland accepted that it was possible that the applicant's heavy drinking in response to witnessing the incident, greatly increased his anxiety rendering his mind more fertile for the development of PTSD.

The Tribunal thus finds that, assessed in accordance with SoP 76 of 1998, there is raised a reasonable hypothesis connecting the applicant's PTSD with his operational service and is satisfied that the condition is war-caused.

It was agreed between the parties that if the Tribunal should reach the view it now has and set aside the decision under review which it now does, the applicant's pension assessment should be:

(a)70% of the General Rate from 27 July 1998;
(b)90% of the General Rate from 16 December 1999;
(c)100% of the General Rate from 20 March 2001.

For the reasons given, the Tribunal sets aside the decision under review and in substitution therefor determines that the conditions of post-traumatic stress disorder and alcohol abuse or dependence be accepted as war-caused. The Tribunal remits the matter to the respondent with a direction that pension be assessed in the amounts, and from the dates of effect, as set out in paragraph 32 of these reasons.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S P Estcourt QC., Dr. J B Morley (Member), Major-General J N Stein (Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  21 and 22 March 2001
Date of Decision  4 May 2001
Representative for the Applicant   Mr B Richards
Representative for the Respondent Mr M Smith