Carseldine and Repatriation Commission

[2005] AATA 326

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 326

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No  Q2003/643

VETERANS’ APPEALS DIVISION		)
Re		SYDNEY GEORGE CARSELDINE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date12 April 2005

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – war caused injury during operational service – diagnosis of psychiatric condition – generalised anxiety disorder – depression – alcohol dependence – hypertension – clinical onset of war caused condition in issue – clinical onset of war caused condition not within the time frame embodied in the relevant statements of principle – decision under review affirmed.

Veterans’ Entitlements Act 1986, s 120

Repatriation Commission and Cornelius [2002] FCA 750; BC200203231

Deledio v Repatriation Commission (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484; BC200207343

Youngnickel v Repatriation Commission [2004] FCA 1691; BC200408850

REASONS FOR DECISION

12 April 2005  Senior Member B J McCabe

introduction

1.      Sydney Carseldine suffers from hypertension and alcohol dependence. He is also suffering from a psychiatric condition. He says those conditions are attributable to his experiences during operational service in Vietnam. He sought compensation under the Veterans Entitlements Act 1986 (the VEA) on the basis that his conditions are war-caused. The Repatriation Commission rejected his claim. The Veterans’ Review Board (the VRB) affirmed the Commission’s decision although it concluded the applicant suffered from generalised anxiety disorder in addition to depression. Mr Carseldine has asked the Tribunal to consider his claim.

2.      I do not think the applicant’s claim can succeed because I cannot be reasonably satisfied the onset of his psychiatric condition occurred within the time frame contemplated by the relevant statements of principle. I explain my reasons in more detail below.

The material before the tribunal

3. The documents required under s 37 of the Administrative Appeals TribunalAct 1975 were tendered in evidence. The following additional documents were also tendered:

·Applicant’s statement dated 5 December 2003 (exhibit 2);

·Applicant’s statement dated 24 March 2004 (exhibit 3);

·Applicant’s statement dated 29 June 2004 (exhibit 4);

·Service documents and Applicant’s personnel file lodged and received 2 February 2004 (exhibit 7);

·Writeway report of Mr Hugh Conant dated 31 May 2004 (exhibit 9).

4.      A number of medical reports were also considered. Some of them were included in the T documents. The following additional documents were tendered in evidence:

·Report of Dr Clarke dated 12 October 2004 (exhibit 5);

·Service medical documents dated from 1974 to 1986 (exhibit 6);

·Report of Dr Athey dated 23 January 2004 (exhibit 8).

5.      The applicant gave evidence in person, as did Drs Athey and Clarke and Mr Conant of Writeway Research. 

6.      The applicant was represented by Mr Jarro of counsel. Mr Williams represented the respondent.

the factual background to the dispute

7.      The applicant was born on 13 December 1949. He grew up in country Victoria and joined the Royal Australian Air Force (RAAF) on 11 January 1965. He was discharged on 28 January 1990. He rendered operational service in Vietnam between 16 April 1969 and 15 April 1970. He was based at Vung Tau during that period. He says he witnessed a number of distressing events in Vietnam which triggered a psychiatric condition and which caused him to start drinking. He said the resort to alcohol was out of character for him: he did not like the taste of alcohol (it made him sick, he claimed). He said he successfully resisted pressure from his peer group to drink before he went to Vietnam.

8.      The distressing events in question were described by the applicant as follows:

·Helping orderlies to carry a wounded soldier in a stretcher from an ambulance onto a Hercules aircraft. The applicant says the solder had lost both legs and an arm in combat. The applicant says he was told the soldier was sent home to die. The incident apparently occurred shortly after the applicant arrived in Vietnam.

·Rocket attacks on the base at Vung Tau. The applicant says there were several attacks. He says he saw a caravan on fire after one attack and learned that a serviceman and his Vietnamese girlfriend had been killed.

·Witnessing body bags being unloaded from helicopters. The applicant says he saw at least six body bags being unloaded on one occasion from American helicopters which landed at the base. The bodies were presumably destined for the morgue.

9.      There was evidence suggesting the applicant asked to remain in Vietnam after his tour was completed because his Vietnamese girlfriend had fallen pregnant. He was not permitted to stay, and returned to Australia after his operational service in Vietnam. He remained in the RAAF and was posted to various RAAF bases including Wagga, Tindall and Amberley. He said the RAAF offered a close and supportive environment, but there was a strong culture of drinking. He says his career was progressing satisfactorily notwithstanding his heavy drinking and the sense of hopelessness he felt ever since he returned from Vietnam. 

10.     The applicant went through a particularly difficult period while he was based at Tindal in the Northern Territory. He was involved in an incident with a gun in a mess at Tindal and attempted to commit suicide in November 1988. He was suffering from stress at work at the time, and he was also involved in negotiations with his ex-wife over the custody of their children. He tried talking to the chaplain. He was hospitalised and treated for depression during this period.

11.     Mr Carseldine left the RAAF on 28 January 1990.

the medical evidence

12.     Mr Carseldine has been receiving psychiatric care for some time. His treating psychiatrist, Dr Clarke, says he suffers from generalised anxiety disorder and depression (exhibit 5). He also suffers from an alcohol abuse condition which exacerbates the psychiatric symptoms. Mr Carseldine also suffers from hypertension.

13.     Dr Athey, a psychiatrist, examined the applicant on behalf of the respondent. Dr Athey tentatively diagnosed post traumatic stress disorder (PTSD). During the course of his oral evidence, however, he agreed a diagnosis of generalised anxiety disorder was probably more appropriate. Mr Jarro, for the applicant, said his client was no longer claiming to suffer from PTSD.

14.     I am reasonably satisfied from the medical evidence that the applicant suffers from generalised anxiety disorder, depression, hypertension and alcohol abuse.

the deledio process

15.     The applicant’s claim must be assessed under s 120 of the VEA. That section requires that I adopt a four stage process in the assessment of a claim like this. The operation of the section was explained by the Full federal Court in Deledio v Repatriation Commission (1998) 49 ALD 193.

16.     The first step is to identify the hypothesis. In this case it is straight-forward. The applicant said he witnessed a number of distressing events during the course of his operational service in Vietnam. He says the stress of those events was a factor in the development of his anxiety disorder, which was in turn a factor in the development of his depression and alcohol abuse and hypertension conditions.

17.     The second step is to identify the relevant statements of principles. They are:

·Generalised Anxiety Disorder: Instrument No 1 of 2000

·Alcohol Dependence: Instruments No 76 of 1998 or No 77 of 1998

·Depressive Disorder: Instrument No 58 of 1998

·Hypertensions: Instruments No 31 of 2001 or 35 of 2003.

18.     The next step is to determine whether the applicant’s story is capable of fitting the template of the SoPs. The Tribunal does not engage in fact-finding at this stage; it considers the operation of the SoPs in light of the story it has been told.

19.     The applicant says the stressful events referred to above all qualify as severe psychosocial stressors within the meaning of the SoPs for generalised anxiety disorder and depression. (The term is defined in the same way in both SoPs.) I did not understand there to be any argument that the events in question were capable of being considered severe stressors as that term is used in the SoP relating to alcohol abuse. In any event I am satisfied for reasons I will explain that the events cannot be considered in that light.

20.     The expression severe psychosocial stressor has been considered in a number of cases, including Stonehouse and Repatriation Commission [2004] AATA 707. In that case, the Tribunal pointed out there was a difference between a severe psychosocial stressor and a severe stressor. The terms are defined differently in the relevant SoPs. The expressions describe events or reactions that are not merely different in degree or severity; they are different in nature as well. A psychosocial stressor is – at the risk of stating the obvious - a stressor that is psychosocial in nature. The expression severe stressor tends to be applied in circumstances where there is a serious and imminent threat of death, injury or mutilation (although the definition extends to witnessing the immediate aftermath of a death or injury or mutilation, like that which might occur in the course of casualty clearance on a battlefield).

21.     I have already pointed out none of the events in question satisfy the demanding criteria of a severe stressor. Although the applicant says he saw panicked, dead and injured people, none of the events he described occurred in a context that would allow the applicant to claim he was confronted with those events. He was a distant observer in the case of the fire and the body bags being unloaded from the helicopter. Even his brief encounter with the wounded soldier being transported home was too fleeting and occurred after the man’s injuries were stabilised.

22.     The encounter with the injured soldier on the stretcher in particular is more likely to qualify as psycho-social stressor. The applicant described his sense of pity and hopelessness when he saw the young man. The applicant said he wondered about the impact on the man’s family, and he questioned whether he (the applicant) would be next. I have some doubt, however, over whether that event could be described as being a severe psychosocial stressor. I do not accept the other events he has described were sufficiently serious or intense to merit the description severe psychosocial stressors.

23.     It is not enough to establish the applicant experienced a severe psychosocial stressor. The SoPs with respect to anxiety disorders and depression both require that the stressors be experienced within two years before the onset of the conditions in question. Unfortunately for the applicant, the evidence does not suggest the applicant’s psychiatric conditions (as opposed to his medical conditions) manifested themselves until some time later. His claim form (at p 37 of the T documents) suggests he first became aware of the symptoms of the psychiatric conditions in around 1985. He says he felt a sense of hopelessness and despair dating back to his time in Vietnam, and that he started drinking heavily during that period. He says he was irritable upon his return. But that is not the same thing as having a diagnosable condition.

24.     The Full Federal Court explained in Lees v Repatriation Commission (2002) 74 ALD 68 that clinical onset of a condition did not occur within the relevant period unless there was evidence the applicant suffered from the symptoms associated with that condition. In Repatriation Commission v Cornelius [2002] FCA 750, Branson J said (at paragraph 26) that meant:

“[the] 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...’

25.     Bennett J endorsed that view recently in Youngnickel v Repatriation Commission [2004] FCA 1691. Her Honour said (at paragraph 31) the Tribunal should not make a finding of clinical onset unless “all of the symptoms of the disease [can] be shown within the two year period”.

26.     In this case, we have the evidence of the applicant’s despair, irritability and his desire to drink more heavily upon his return from Vietnam – but that does not sustain a diagnosis. The medical evidence is unclear: Dr Athey says it is impossible to be certain about the date of onset. The service medical documents suggest the applicant suffering some physical problems as early as 1976 that might be connected with stress or depression (an entry dated 11 March 1976 suggests the applicant suffered from dermatitis that arose out of marital problems). The rest of the service documents that describe his deteriorating mental condition – particularly those made at the time of his breakdown at Tindal in the late 1980s – focus on the difficulties he experienced as a single parent as a source of stress. A medical report prepared by Dr Kathy Diminic in the T documents (at p 50) suggests the conditions first manifested themselves in 1984-1986.

27.     While it is likely the applicant had a drinking problem since the date of his return from Vietnam, there is not enough evidence to make a diagnosis of generalised anxiety disorder or depression within the two year period after he experienced the stressors I have already described. The conditions were not (and could not be) diagnosed until some time later.

28.     For the sake of completeness, there was also suggestion made that the applicant’s alcohol dependence could have arisen from his defence service. If this were the case it would be necessary to take into account Instrument No 77 of 1998 of the SoPs. This point was not pressed at the hearing. I was not made aware of any material that indicated the applicant’s defence service yielded any serve stressors or other identifiable occurrences that may satisfy the SoPs.

conclusion

29.     The applicant’s story cannot meet the requirements of the SoPs in respect of anxiety disorder and depression because the conditions did not manifest themselves until more than two years after he returned from Vietnam. The SoP in respect of alcohol abuse cannot be satisfied because there was no war-caused psychiatric condition present at the time of onset of that condition, and because the applicant did not experience a severe stressor within the meaning of that SoP. It also follows the applicant is unable to satisfy the SoP with respect to hypertension because he did not suffer from a war-caused anxiety or depression condition within six months of the date of onset of that condition.

30.     The decision under review is therefore affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Dates of Hearing  13 January 2005
  21 January 2005
Date of Decision  12 April 2005
The applicant was represented by Mr Jarro of Counsel.
Mr Williams appeared for the Respondent.