Chohan and Repatriation Commission
[2011] AATA 872
•8 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 872
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4006
VETERANS' APPEALS DIVISION ) Re GIAN CHOHAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date8 December 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
.................[sgd]........................
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety - depressive disorder - alcohol abuse - stressful events - date of clinical onset - whether conditions war-caused
Veterans' Entitlements Act 1986 ss 9, 119(h)(1), 120(1)
Delahunty v Repatriation Commission [2004] FCA 309
Kaluza v Repatriation Commission [2010] FCA 1244
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
8 December 2011
G. D. Friedman, Senior Member
1. Gian Chohan served in the Australian Army from 1 November 1967 to 31 October 1973. His service included a period on board army vessel Harry Chauvel from 11 November 1970 to 15 December 1970 in Vietnam, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2. On 20 April 2009 he lodged a claim for incapacity from tinnitus, anxiety/depression and alcohol abuse arising from stressful events during his service. His claim for tinnitus was accepted as war-caused and he is in receipt of a disability pension at 40 per cent of the general rate but the respondent refused his claim for anxiety disorder, depressive disorder and alcohol dependence or abuse. The Veterans’ Review Board (VRB) affirmed the decision and Mr Chohan seeks review of the decision.
LEGAL FRAMEWORK
3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4. In the circumstances of this case, where Mr Chohan has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
ISSUES
5. There was no dispute that Mr Chohan suffers from an anxiety condition, depressive disorder and alcohol dependence or abuse. On the medical evidence the Tribunal determines that the appropriate diagnoses are anxiety disorder, depressive disorder and alcohol abuse. The issues before the Tribunal are whether each condition is war-caused.
IS ANXIETY DISORDER WAR-CAUSED?
6. Mr Chohan stated that his operational service led to his anxiety disorder. He told the Tribunal that he was born in India and was sent to Australia by his parents as a young child to live with his aunt and uncle on a sugar cane farm in North Queensland. He completed Year 12 and commenced studying at an agricultural college, but left after one year. In 1965 he joined the part-time Citizen Military Forces and in 1967 he enlisted in the army where he qualified as a radio technician. Between November and December 1970 he served as a radio and radar technician on the Landing Ship Medium (LSM) Harry Chauvel, which departed Sydney on 11 November 1970 and arrived in Vietnam on 20 November 1970 to discharge and load cargo. The ship departed Vietnam for Singapore on 1 December 1970.
7. After completing his term of engagement Mr Chohan obtained employment in 1973 with Honeywell as a computer technician until he was retrenched in 1993, which he attributed to his emotional state that caused friction with other employees. He said that he worked for AWA until his rheumatoid arthritis and inability to relate to other people contributed to this position ending in 1996. There were several short-term and contract positions but these ceased in 2004 and he has not worked since then because of the lack of available employment and because he had had enough of the work he had been undertaking. He said that his rheumatoid arthritis has affected his hands and knees.
8. Mr Chohan stated that prior to service in Vietnam he had not experienced any emotional problems or anxiety, but that the first signs of anxiety occurred following several stressful events while his ship was anchored in Vung Tau harbour for about four weeks and caused him to fear for his life. He explained that when he was working below the water line of the vessel he heard explosions, and did not know whether these were scare charges (small hand-held devices similar to hand grenades which were dropped into the water by Australian personnel and emitted sound waves to discourage attacks by enemy divers) or were explosions from enemy mines (the underwater explosions event). He feared that he was at risk of drowning in the event of damage to the ship’s hull because the compartments below the water line were sealed. The second event occurred when he was on deck and he could hear explosions from artillery fire on shore and could see flashes of light coming from that fire (the artillery event), including tracer fire at night. He said that he believed the ship was within range of enemy artillery fire and was terrified that the firing may be directed at the ship.
9. The third event occurred when he was admitted to Vung Tau hospital for a groin condition, and said that he observed Australian soldiers who were on drips or who were bandaged for what appeared to be serious injuries (the casualties event). He stated that he found this upsetting as he realised that he might become a casualty.
10. Mr Chohan emphasised that that in the early 1970s he began to experience the first mild signs of anxiety, and he recalled consulting his doctor following his return from Vietnam about claustrophobia, sleep disturbance and nightmares about confined spaces and someone trying to attack him, but medication prescribed for him had little effect. He said that the symptoms of anxiety began in the late 1980s. He also described other stressors in his life such as in 1983 when his daughter died of sudden infant death syndrome at the age of two months and his father died. He said that he believed that the onset of rheumatoid arthritis and the loss of his employment may have aggravated his emotional state but were not the cause.
11. In respect of his hearing problems Mr Chohan stated that as a result of exposure to loud noises during operational service he has suffered from tinnitus, which became more serious in the 1980s and which has aggravated his anxiety and affected his ability to communicate effectively with others, including work colleagues. He said that the condition is severe and constant, and causes him great distress. He explained that the condition interrupts his sleep and leads to headaches when he is in a noisy environment.
12. Mr E Stuart-Bell, audiometrist, stated in a letter dated 2 June 1997 to Mr Chohan’s treating doctor that an audio assessment showed a slight to mild sensorineural hearing loss in the right ear and a slight to moderate hearing loss in the left ear. Mr Stuart-Bell reported a complaint of constant moderate tinnitus bilaterally, with the left ear affected more than the right ear. In a report dated 12 April 2005 Mr G Themistoklis, audiologist, stated that Mr Chohan reported the gradual onset of tinnitus more than ten years earlier, and that the condition was present most of the time but more noticeable in a quiet environment and at night, but was tolerable much of the time, although it fluctuates in degree. In a further report dated 5 June 2009 Mr Themistoklis noted that Mr Chohan reported that the condition had become worse and was very bothersome and always present.
13. Under cross-examination Mr Chohan agreed that his memory and concentration are not good and that his recollection of events that occurred in 1970 might not always be accurate. He also agreed that on the ship he worked primarily on deck maintaining the radio and radar during daylight hours, and occasionally he worked below deck assisting with maintenance of the generators. He clarified that the ship was not anchored at Vung Tau for the whole four weeks, as it was involved in loading and unloading stores and equipment during short trips to beaches and military bases in various locations including along local rivers. Mr Chohan agreed that despite his initial fears about artillery firing he coped with the situation and overall enjoyed his experience on the ship. In relation to the casualties event he agreed that the patients he observed in hospital were convalescing and that their injuries were bandaged and not exposed.
14. In relation to his tinnitus, Mr Chohan agreed that there was little mention of this condition in the reports from the psychiatrists. He was unable to recall whether he had discussed with the psychiatrists the effects of tinnitus on his work or family life, and agreed that he tolerates the condition.
15. In a report dated 24 March 2011 Dr N Strauss, consultant & occupational psychiatrist, took a history of Mr Chohan being fearful at night while below deck in Vietnam because firing and explosions could be heard around him. Dr Strauss said that Mr Chohan reported recent depression, sleeping difficulties and frightening dreams of confined spaces or of running away. He concluded that Mr Chohan became fearful while he was in Vietnam, but that anxiety was not particularly problematic until the 1990s when Mr Chohan first presented to a doctor with psychiatric problems. Dr Strauss concluded that Mr Chohan’s anxiety disorder is not related to his service in Vietnam.
16. Dr Strauss told the Tribunal that Mr Chohan was not a reliable historian and that issues concerning his health and employment led to anxiety, plus life events such as the death of his daughter and father in 1983, and that the condition probably pre-dated his depressive disorder.
17. On 11 September 2009 Dr J Cooper, psychiatrist, stated that he first assessed Mr Chohan on 3 August 2009 and reviewed him on two subsequent occasions that year. Dr Cooper took a history from Mr Chohan that the four weeks in Vietnam were very stressful and frightening: …guns were fired every night, they were often on full alert, and…mine sweeping activities occurred around them. Mr Chohan described being stressed, edgy and anxious, especially when below the deck and when alerts were sounded, and he was worried that the vessel may come under attack and he may be killed. Dr Cooper noted that after service in Vietnam Mr Chohan claimed to have suffered sleep disturbance, nightmares and claustrophobia as well as irritability, low moods, intolerance and poor concentration. Dr Cooper concluded that Mr Chohan showed symptoms of mild anxiety after service in Vietnam and self-medicated with alcohol to relieve the condition, which contributed to the development of chronic depression. He noted that other non-service issues related to stressful life events contributed to the exacerbation and perpetuation of the depression. In a further report dated 30 May 2011 Dr Cooper stated that little had changed since 2009.
18. In a report dated 18 September 1997 Dr J Cronin, consultant psychiatrist, stated that Mr Chohan told him of being increasingly irritated over small things in the preceding five or six years, leading to strained relationships, and also stress arising from losing jobs. Mr Chohan also reported nightmares and fear of confined spaces. Dr Cronin said that Mr Chohan did not develop any psychiatric condition as a result of service in Vietnam. In particular Dr Cronin noted that Mr Chohan found continuous gunfire at night to be frightening, but as he talked to people he became reassured and accepted that this was part of life in Vietnam. Mr Chohan saw his concerns to be similar to other people and was still able to get on with his job and his daily life.
19. In a report dated 24 January 2011 Dr T Entwisle, consultant psychiatrist, took a history that Mr Chohan found his time in Vietnam frightening and threatening, often working below the water line in a situation he perceived as of considerable danger. Dr Entwisle described Mr Chohan as an anxious man before travelling to Vietnam, and the experiences there frightened him and resulted in the development of claustrophobia, dreams and nightmares. Dr Entwisle concluded that a combination of experiences in Vietnam, Mr Chohan’s daughter’s death, and workplace experiences contributed to his psychiatric symptoms, and that Mr Chohan had been reluctant to seek treatment. Dr Entwisle told the Tribunal that Mr Chohan had a difficult and vulnerable developmental history after being sent to a distant country as a young boy, which contributed to his anxiety. Under cross-examination he agreed that he had difficulty in obtaining answers to questions during the assessment.
20. In a report dated 18 January 2011 for Writeway Research Service Pty Ltd Mr W Barsley stated that LSMs operating in Vietnam were used primarily for transporting cargo such as ammunition and heavy equipment such as bulldozers and armoured vehicles between Australia and Vietnam. The vessels were armed and protected while in Vietnamese waters, including river systems. Unlike large naval ships, LMT Harry Chauvel, being a small former landing craft, had a shallow draft and did not lie deep beneath the water line. It usually berthed with its cargo doors on land to enable quick loading and unloading directly onto the shore, and did not require a wharf. Mr Barsley noted that records indicate that there was only one attack against Australian shipping in Vietnam, and that this occurred in 1969 involving another LSM. He said that the passage of LSM Harry Chauvel to and from Vietnam was uneventful with no significant incidents or enemy activity recorded. Mr Barsley said that United States’ military forces had responsibility for security in Vung Tau harbour.
21. In respect of the underwater explosions event, Mr Barsley stated that ships deployed armed guards who were alert to suspicious movements in the water and maintained regular patrols. He said that LSM Harry Chauvel did not carry scare charges, which were not permitted in the harbour, and that in any event scare charges emit sound waves and are not explosives.
22. In respect of the artillery event Mr Barsley could find no evidence of night firing activities in the Vung Tau area at the time, and there were no artillery units based in Vung Tau, with the nearest artillery base situated about 20 miles (32 km) away. He said that artillery normally operated in daylight hours. There was no evidence of the ship’s weapons being fired at any stage of Mr Chohan’s time in Vietnam. The only recorded attack on the Vung Tau dockside area during Mr Chohan’s period of service in Vietnam was on 24 November 1970 when the allied air base was hit by two rockets. No Australian casualties occurred. There were no minesweeping operations in Vung Tau harbour during the visit by the ship, and no real likelihood of danger from enemy mines. In respect of the casualties event Mr Barsley stated that at Vung Tau hospital the surgical wards were separated from the recovery wards.
23. In relation to the first step from Deledio, after considering all the material including evidence from Mr Chohan and the psychiatrists about his anxiety disorder and its connection to operational service, the Tribunal determines that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by Mr Chohan. Therefore he satisfies the first step.
24. In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, being SoP Nº 101 of 2007 (as amended by SoP Nº 42 of 2010) concerning anxiety disorder, so Mr Chohan satisfies the second step.
25. In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Chohan and the medical evidence. The Tribunal considers that the hypothesis linking Mr Chohan’s operational service with his anxiety is a reasonable one. Therefore Mr Chohan satisfies the third step.
26. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Chohan’s anxiety disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
27. Factor 6 in Instrument Nº 101 of 2007 concerning anxiety disorder provides:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(vii) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of anxiety disorder;
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
28. There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:
The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
29. In respect of clinical onset of anxiety disorder, Dr Strauss stated in his report that Mr Chohan’s anxiety was not particularly problematic for him until the 1990s and that the condition was not of clinical proportions and clinically significant until the 1990s. At that time Mr Chohan was having trouble with employment and he had developed a debilitating physical condition. Dr Cronin concluded that Mr Chohan may have had some underlying anxiety as a result of service on the small ship, but that his psychiatric illness was not a result of service in Vietnam.
30. Dr Cooper stated that Mr Chohan probably had undiagnosed but significant mild anxiety from the time he left the army in 1973, and that events occurring after service may have contributed to or exacerbated his condition. Dr Entwisle stated that clinical onset of anxiety disorder is difficult to determine, with Mr Chohan being anxious after returning from Vietnam, and mood disturbance symptoms beginning to show themselves some time later, with contributory factors including his employment and redundancy, plus his daughter’s death. Dr Entwisle was unable to say whether clinical onset occurred more than five years after Mr Chohan’s service in Vietnam.
31. On balance after considering the medical evidence the Tribunal prefers the evidence from Dr Strauss and Dr Cronin, which was supported by Mr Chohan’s recollections, that the symptoms of mild anxiety began after Mr Chohan’s operational service and reached a point in the mid-1990s when he became aware of the features or symptoms which later enabled a medical diagnosis of his condition and treatment to commence. Dr Entwisle was unsure of the date of clinical onset and agreed that mood disturbance and other factors became evident some time later, including from the 1980s, and Dr Cooper noted mild anxiety from the time Mr Chohan left the army.
32. The Tribunal finds that clinical onset of anxiety disorder is the mid-1990s, so Mr Chohan cannot satisfy factor 6(a)(ii) or 6(a)(iii) of SoP Nº 101 of 2007 because the claimed stressors occurred more than five years before the clinical onset of the condition. Consequently there is no need for the Tribunal to determine whether any of the events constitute category 1A or 1B stressors.
33. In respect of factor 6(a)(vii) of SoP Nº 101 of 2007, the Tribunal takes into account Mr Chohan’s evidence and the evidence from Mr Stuart-Bell and Mr Themistoklis. The Tribunal acknowledges that Mr Chohan’s accepted conditions of tinnitus and bilateral sensorineural hearing loss have caused discomfort and inconvenience for him and have deterred him from pursuing his sporting and social interests, as well as having an impact on his ability to communicate with others. However on all the material the Tribunal concludes that Mr Chohan has tolerated the conditions and made little mention of them during assessment by psychiatrists, and the Tribunal finds that within the five years before the clinical onset of anxiety disorder they were not life-threatening and did not result in a serious physical or cognitive disability. Therefore Mr Chohan does not satisfy this factor.
34. It follows that Mr Chohan does not satisfy the fourth step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Chohan’s anxiety disorder was war-caused.
IS DEPRESSIVE DISORDER WAR-CAUSED?
35. Mr Chohan stated that his operational service led to his depressive disorder. He acknowledged that clinical onset of the condition occurred in 1990, but said that his anxiety condition, rather than the life events including the death of his daughter and his father in 1983, was the main reason he developed the depressive disorder. He also stated that his accepted condition of tinnitus resulted in a serious physical or cognitive disability in the 1980s. Mr Chohan linked his tinnitus and hearing loss to his depressive disorder by reiterating that the conditions have caused an inability to follow conversations, and noise tends to aggravate the tinnitus and leads to headaches. This has had an adverse effect on his opportunity to socialise with family and friends and has prevented him from undertaking sporting activities such as golf.
36. Dr Strauss noted that in the 1990s Mr Chohan was having trouble with employment and had developed a debilitating rheumatoid arthritis condition. Dr Strauss concluded that the depressive disorder was not related to Mr Chohan’s service.
37. Dr Cooper concluded that after service in Vietnam Mr Chohan self-medicated with alcohol to relieve his anxiety condition, which contributed to the development of chronic depression. He noted that other non-service issues related to stressful life events contributed to the exacerbation and perpetuation of the depression. In a further report dated 30 May 2011 Dr Cooper stated that little had changed since 2009.
38. Dr Cronin concluded that Mr Chohan’s major depressive episode was precipitated by his retrenchment from work and development of rheumatoid arthritis, and that Mr Chohan became preoccupied with past unpleasant events including the death of family members and the difficult circumstances of working on small ships.
39. In relation to the first step from Deledio, after considering all the material including evidence from Mr Chohan and the psychiatrists about his depressive disorder and its connection to operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Chohan. Therefore he satisfies the first step.
40. In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, being SoP Nº 27 of 2008 (as amended by SoP Nº 40 of 2010) concerning depressive disorder, so Mr Chohan satisfies the second step.
41. In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Chohan and the medical evidence. The Tribunal considers that the hypothesis linking Mr Chohan’s operational service with his depressive disorder is reasonable. Therefore Mr Chohan satisfies the third step.
42. In relation to the fourth step from Deledio, factor 6 of SoP Nº 27 of 2008 concerning depressive disorder provides:
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(vii) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or
(viii) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder;
In paragraph 9 of the SoP:
"a clinically significant psychiatric condition" means any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
43. There was no dispute that the clinical onset of depressive disorder was around 1990. In respect of factor 6(a)(vii) of SoP Nº 27 of 2008 the Tribunal has found that anxiety disorder was not war-caused, so there is no material linking a clinically significant psychiatric condition with Mr Chohan’s operational service and he does not satisfy this factor. In respect of factor 6(a)(viii) of SoP Nº 27 of 2008 the Tribunal concludes, for reasons already given in respect of anxiety disorder, that within the five years before clinical onset of depressive disorder Mr Chohan’s accepted conditions of tinnitus and bilateral sensorineural hearing loss were not life-threatening and did not result in a serious physical or cognitive disability. Therefore he does not satisfy this factor.
44. It follows that Mr Chohan does not satisfy the fourth step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Chohan’s depressive disorder was war-caused.
IS ALCOHOL ABUSE WAR-CAUSED?
45. Mr Chohan told the Tribunal that he first consumed alcohol after his enlistment in the army and began drinking during training because of peer pressure. He said that prior to his service in Vietnam he consumed 2-3 glasses of beer once per week. During the journey to Vietnam each person on the ship received an entitlement to one large can (750ml) of beer per day and he consumed this amount because of its availability; there was little else to do when he was not on duty; and he was nervous about entering a war zone. He stated that he began to drink to excess while in Vietnam because he feared for his life as a result of the stressors that he described in respect of anxiety disorder and depressive disorder.
46. Mr Chohan stated that on return from Vietnam he was drinking 4-5 stubbies (375ml per stubby) of beer each week day and more at weekends because of anxiety from which he was suffering, and by the 1980s he was drinking 10-15 standard drinks plus wine and spirits per day. Mr Chohan acknowledged that in 1983 he suffered stressful events including the death of his daughter and his father, but by this time he had already developed a drinking habit.
47. Mrs K Chohan, wife of Mr Chohan, told the Tribunal that she met and married Mr Chohan in 1975, and observed that he consumed abut 3-4 stubbies of beer every week night and more than this at weekends. She said that his drinking has increased gradually. Mrs Chohan added that Mr Chohan has never discussed his experiences in Vietnam with her.
48. In his report Dr Strauss stated that Mr Chohan’s alcohol consumption increased while his ship was anchored in Vietnam because of boredom and because others were drinking heavily. Dr Strauss took a history of consumption of 5-6 stubbies of beers per day. Mr Chohan also told Dr Strauss that after service in Vietnam he maintained his level of drinking at 5-6 stubbies per day and that is his current consumption. Dr Strauss could find no evidence that the excessive alcohol consumption affected Mr Chohan’s employment after leaving the army until the 1990s.
49. Dr Strauss assessed Mr Chohan as an unreliable witness because the heavy drinking has led to concentration and memory difficulties. He concluded that Mr Chohan has been a heavy drinker since service in Vietnam but that his alcohol condition occurred because of peer pressure, boredom and the availability of alcohol, and not because Mr Chohan was frightened or fearful or was reacting to a stressor listed in the relevant SoP. He added that it is impossible to conclude that Mr Chohan necessarily had a clinical psychiatric illness from that time until the 1990s when he first presented to a doctor.
50. Dr Cooper took a history of drinking that commenced in about 1970 and has continued since then, with alcohol being used as a self-medication arising from the stresses of his service in Vietnam. Dr Cronin made no mention of alcohol consumption in his report.
51. In relation to the first step from Deledio, after considering evidence from Mr Chohan and the psychiatrists about his alcohol abuse and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Chohan. Therefore he satisfies the first step.
52. In respect of the second step from Deledio, there is a SoP in force, being SoP Nº 1 of 2009 concerning alcohol dependence or alcohol abuse. Therefore Mr Chohan satisfies the second step.
53. In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Chohan and the medical evidence. The Tribunal considers that the hypothesis linking Mr Chohan’s operational service with his alcohol abuse is reasonable. Therefore Mr Chohan satisfies the third step.
54. In relation to the fourth step from Deledio, in SoP Nº 1 of 2009 factor 6 provides:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
…
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
Paragraph 9 of the SoP states:
For the purposes of this Statement of Principles:
…
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
55. The Tribunal has found that the conditions of anxiety disorder and depressive disorder were not war-caused, so there is no material linking a clinically significant psychiatric condition with Mr Chohan’s operational service. Therefore Mr Chohan does not satisfy factor 6(a) of SoP Nº 1of 2009.
56. In respect of factors 6(b) and (c) of SoP Nº 1of 2009 the Tribunal notes that in Woodward v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court approved the decision in Stoddart v Repatriation Commission [2003] FCA 334. The Court held at [140]:
…It would be open to the AAT to find that the material pointed to Mr Woodward believing that he was in danger whilst he was on patrol and that such a belief was reasonable. It would also be open to conclude that the material pointed to MrWoodward perceiving a threat of serious injury or death from actual events, experienced in circumstances in which it was reasonable to perceive a threat. It would be open to conclude that there were one or more "events" which precipitated the perception and that the events were real in the sense that they had an objective existence. If the reasoning of Mansfield J is accepted, the material before the AAT was capable of satisfying the requirements of the definition of "experiencing a severe stressor" in the SoP in relation to the incident on patrol.
57. In Delahunty v Repatriation Commission [2004] FCA 309 Tamberlin J said at [27]:
…While one can accept that the perception of the stressor cannot encompass a totally irrational perception or baseless apprehension, it must be borne in mind that the question is whether the stressor is severe and this recognises that there are different degrees of stress which may arise from the incident and give rise to fine questions of fact and degree in any particular circumstances. This indicates that the definition must be approached in a manner which is not unduly restrictive.
58. In assessing the claimed stressors, the Tribunal takes into account that the descriptions given by Mr Chohan to medical practitioners and the VRB have varied, although this is not surprising given the time that has elapsed since 1970, and the admission by Mr Chohan that he has memory and concentration difficulties and that several medical practitioners have described difficulty in taking an accurate history from him. The Tribunal accepts that during the brief period of his operational service there were potential threats to Mr Chohan’s safety in Vietnam, and that he was apprehensive about his well-being.
59. In relation to the underwater explosions event the Tribunal accepts the evidence from Mr Barsley that LMT Harry Chauvel did not carry scare charges and that there were no enemy mines in Vung Tau harbour as a result of patrols and security measures taken by United States military forces. The Tribunal also accepts that the ship was small and did not lie deep beneath the water line, casting doubt on Mr Chohan’s claims that he was afraid of drowning in the event of enemy attack. The Tribunal notes the history taken by Dr Cronin to the effect that Mr Chohan was reassured that his concerns were similar to other people in Vietnam and was able to get on with his job and his daily life. For these reasons the Tribunal finds that Mr Chohan did not experience a life-threatening event, so he did not experience a severe traumatic event (paragraph (a) of a Category 1A stressor).
60. Similarly, in relation to the artillery event the Tribunal accepts that Mr Chohan was apprehensive about hearing explosions that he believed were from artillery fire, although as he told Dr Cronin, after talking to people at the time he became reassured and accepted that hearing gunfire was part of life in the war zone. The Tribunal accepts the evidence from Mr Barsley that there were no artillery units in the vicinity of Vung Tau, and that artillery firing did not take place at night. The flashes of light might not have been from artillery fire. For these reasons the Tribunal finds that Mr Chohan did not experience a life-threatening event, so he did not experience a severe traumatic event (paragraph (a) of a Category 1A stressor).
61. In relation to the casualties event alert the Tribunal accepts that Mr Chohan spent several days in Vung Tau hospital and that in the recovery ward he observed Australian soldiers who had been injured or wounded. Some were bandaged. The Tribunal recognises that this would be upsetting and may evoke a feeling that he was vulnerable as he was in a war zone. However there is no persuasive evidence that he was present in the surgical wards or that he viewed corpses or critically injured casualties as an eye witness (paragraph (b) of a Category 1B stressor). He did not claim to be an eye witness to or participating in, the clearance of critically injured casualties (paragraph (b) of a Category 1B stressor). For these reasons the Tribunal finds that Mr Chohan did not experience a severe traumatic event.
62. The Tribunal is satisfied that none of the stressful events constitutes a severe traumatic event as defined in the SoP, and none was a category 1A or category 1B stressor. Therefore Mr Chohan does not satisfy factors 6(a), (b) or (c) of the SoP and does not satisfy the fourth step, regardless of the date of clinical onset of alcohol abuse. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Chohan’s alcohol abuse was war-caused.
OTHER MATTER
63. The Tribunal notes that s 119(1)(h) of the Act requires the Tribunal to take into account the difficulties attributable to the passage of time and the absence or deficiency of relevant records resulting from the fact that an occurrence was not reported to appropriate authorities. In Mason v Repatriation Commission [2000] FCA 1409 Weinberg J stated at [76]:
… In the AAT's view, Mr Mason's evidence simply did not point to a connection between his lumbar spondylosis and war service, as required by the SoP. The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act.
64. The Tribunal accepts that the events described by Mr Chohan occurred more than forty years ago, and its findings take into account that Mr Chohan’s ability to recollect those events has been affected by his medical conditions.
DECISION
65. The Tribunal affirms the decision under review.
I certify that the sixty-five [65] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
[sgd]Michael Heffernan
Associate
Dates of hearing: 23 and 24 August 2011, 5 December 2011
Date of decision: 8 December 2011
Counsel for the applicant: Mr C Thomson
Solicitor for the applicant: Williams Winter
Advocate for the respondent: Ms R Casamento
Solicitor for the respondent: Department of Veterans’ Affairs
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