Constable and Repatriation Commission
[2004] AATA 1151
•4 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1151
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/778
VETERANS’ APPEALS DIVISION )
Re ROBERT PATRICK CONSTABLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date4 November 2004
PlaceTownsville
Decision The Tribunal affirms the decision under review. [Sgd] Member
CATCHWORDS
VETERANS’ AFFAIRS – entitlement – whether alcohol abuse or dependence related to service – meaning of severe stressor – reasonable hypothesis
Veterans’ Entitlements Act 1986 ss 9, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Re Stonehouse and Repatriation Commission [2004] AATA 707Repatriation Commission v Hill [2002] FCAFC 192
REASONS FOR DECISION
4 November 2004
Ms MJ Carstairs, Member 1. This is an application by Robert Patrick Constable (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 27 March 2003 which determined that alcohol abuse was not related to service. This decision was affirmed by the Veterans’ Review Board (the VRB) on 22 July 2003.
2. At the hearing in Townsville on 3 November 2004 Mr D Honchin of counsel, instructed by Purcell Taylor Lawyers represented the applicant. The respondent was represented by Mr J Stoner, a departmental advocate.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T6 as well as exhibits marked A1-A6 for the applicant and R1-R5 for the respondent.
BACKGROUND
4. The applicant was born on 1 August 1941. He enlisted in the Australian Army on 4 November 1958 and was discharged on 4 November 1979 having reached the rank of Sergeant. After his service he obtained employment firstly as a driver security guard with Armaguard, a job that he subsequently lost after a drink driving offence. He then obtained security and cleaning work for a period of years, then garden maintenance, ceasing employment towards the end of 1999. He has not worked since.
5. The applicant’s service in the Army included a period serving in Vietnam between 23 July 1969 and 23 July 1970. This period is operational service under the Veterans’ Entitlements Act 1986 (the Act). His other relevant service is the period from 7 December 1972 to 4 November 1979 which is eligible defence service under the Act. The applicant claimed in relation to alcohol abuse or dependence on 17 February 2003. When his claim was rejected by the VRB he lodged his appeal with the Tribunal on 11 September 2003. The applicant has a number of disabilities accepted as being related to his war service, including depressive disorder.
6. The issue for the Tribunal in this application is whether his alcohol abuse or dependence, a diagnosis on which medical practitioners are in agreement, is attributable to his service.
EVIDENCE
7. In his written claim dated 17 February 2003 the applicant claimed for alcohol abuse as a result of his psychiatric condition of depressive disorder. In a previous claim for the same condition in 1999 the applicant completed an alcohol questionnaire (page 37) in which he stated that he commenced drinking alcohol in Papua New Guinea (PNG) in 1963 when he was drinking 6 glasses of beer per day. He stated his alcohol consumption increased to 10 glasses of beer per day in 1963/1964 and that in 1969/1970 he was drinking 15 glasses of beer and 5-6 glasses of scotch per day. He noted also an increase to 20 glasses of beer per day in 1971.
8. In a written statement dated 18 December 2003 (Exhibit A1) the applicant said that he enlisted in the Army at the age of 17 and trained as an engineer. He stated that his drinking pattern in PNG was not excessive. He said, however, that the pattern increased when he was deployed to Vietnam in 1969. He stated that alcohol was cheap and readily obtainable there and he relied upon it to control his apprehension and to assist him sleeping.
9. The applicant stated that his cousin, Major-General George Constable, was killed in action in Vietnam a year before his deployment in Vietnam, and so also was a close friend, Colonel McLaughlin (the deaths incidents). The applicant applied for a posting to Vietnam despite knowing the dangers.
10. He stated that in Vietnam he observed a landrover transporting Australian casualties when he was driving to obtain supplies from Vung Tau (the landrover incident). The landrover was carrying 3 wounded troops and he was close enough to observe their bloodied bandages. He stated he felt physically sick, and continues to do so now if he recalls the landrover incident. In oral evidence the applicant said that the approaching landrover was blowing its horn to alert oncoming vehicles to pull over so that the landrover could cross a single lane bridge. He said that all approaching vehicles including his pulled over to let the landrover through. The applicant said that the landrover increased its speed once it was seen that the bridge was clear and he estimated it passed him at well over 60 klms per hour. He said that he observed the 3 soldiers, one he recalled sitting upright with bloodied bandages to his head. The applicant estimated that the landrover incident had occurred about Christmas 1969.
11. The applicant said that it was a shock to him but that he thought it had to be expected in Vietnam. He said he had seen wounded servicemen in hospital in Vung Tau but the landrover incident was different because there was so much blood observable. When asked about his reference to feeling sick in the stomach, he said this was due to nerves.
12. The applicant said in his written statement (exhibit A1) that he noticed that by Christmas 1969 he was drinking daily and when he returned to Australia on leave his excessive drinking was noticed by his wife. In his oral evidence he said that he increased his alcohol consumption as soon as he went to Vietnam. He said he was drinking to forget things. In cross-examination he agreed he had been drinking in PNG every day but insisted that there was a noticeable increase when he was in Vietnam. When he returned to Vietnam from leave in Australia he sought a transfer from Vung Tau to Nui Dat as he believed there was less easy access to alcohol there. He said, however, that at Nui Dat he was exposed to more casualties at 8 Field Hospital and he continued to take alcohol to assist with sleep. He stated that he was disciplined for alcohol-related offences during his time in Vietnam and that others frequently covered for him when he was intoxicated.
13. In a medical report dated 19 November 1999, Dr M Likely, consultant psychiatrist, diagnosed the applicant as having panic disorder and alcohol abuse (stable). Dr Likely found that the applicant had no Axis II disorders and no psychosocial stressors. He stated that the applicant suffered from the general medical conditions hypertension, gastro-oesophageal reflux and peptic ulcer disease. Dr Likely continued:
Mr Constable stated that his duties as a Storeman involved him often participating in convoys between Nui Dat and Vung Tau and on occasion he saw wounded soldiers in the backs of Landrovers. However he did not recall his response at the time of such incidents to be that of fear, helplessness or horror, but rather some curiosity regarding the events that had led up to the soldiers being wounded. He did admit however to concern regarding their welfare.
He was unable to recall any particular events which caused him upset at the time, stating that he felt he was simply doing his job in Vietnam. In retrospect however, he notes that his alcohol intake escalated dramatically, particularly when stationed at Vung Tau, to the point where he would drink to intoxication virtually every day…..
14. In a medical report dated 26 October 2000 (Exhibit A3), Dr Likely stated that the applicant was suffering from a number of medical conditions which were causing him anxiety including his concerns after being diagnosed with a malignant neoplasm of the pharynx in about 1990. He said that the applicant’s depressive symptoms had led to an escalation in his alcohol consumption. Dr Likely said that he had specifically examined the applicant regarding any possible trauma from his service in Vietnam. Again, the recurrent thoughts about wounded soldiers were mentioned by the applicant but Dr Likely reiterated that the applicant’s response at the time of the landrover incident did not involve feelings of helplessness and horror. Dr Likely diagnosed generalised anxiety disorder with panic attacks, major depression, and alcohol abuse.
15. In a medical report dated 16 March 2003 (Exhibit A4), Dr Likely said that he had questioned the applicant further in regard to the landrover incident and stated that he now considered that the feeling of being physically sick “could be extrapolated to include feelings of horror”. Dr Likely also said that the landrover incident and the deaths incidents would have led the applicant to being keyed up and on edge prior to his deployment in Vietnam. He referred also to the applicant’s escalation in alcohol use in Vietnam. Dr Likely confirmed the diagnoses given in 2000. He stated that a stressor was chronic physical and mental ill health.
16. In a report dated 5 August 2004 (Exhibit A5), Dr Likely stated that the applicant’s mental condition had deteriorated and he was unable to control worry and had difficulty sleeping. The applicant complained of a pervasively depressed mood.
17. In a medical report dated 22 May 2004 (Exhibit R1), Dr P Mulholland, psychiatrist, stated that he had interviewed both the applicant and the applicant’s wife. The applicant’s wife said that she had known the applicant since their early teens and they married when he was 20. In her account the applicant was very different when he returned on leave from Vietnam and was drinking excessively. She described problems in their married life. She told Dr Mulholland that the applicant experiences disturbed sleep but never discussed his Vietnam experiences. She said that the applicant ceased drinking when he was diagnosed with throat cancer but had commenced drinking again. She estimated he was drunk 2 or 3 days per week.
18. Dr Mulholland diagnosed the applicant as suffering alcohol abuse or dependence, even though the pathology tests he had ordered did not show signs of recent excessive alcohol intake. Dr Mulholland considered that certain features of depression, anxiety, and post traumatic stress may be in partial remission and were not present at the time of his consultation. Dr Mulholland’s report noted the following:
· that the applicant related no particular event of over-riding significance in Vietnam except observing the landrover incident;
· that the applicant told him that he had a chronic sense of apprehension when he was in Vietnam; and
· that the applicant’s alcohol intake increased markedly when he was in Vietnam.
19. Dr Mulholland stated that the applicant did not give any history of severe stressors which would cause excessive drinking.
20. In oral evidence Dr Mulholland said that the clinical onset of alcohol disorders cannot be established simply by looking at quantities of alcohol consumed and in his view the clinical onset of the applicant’s alcohol abuse was during his service in Vietnam, not in PNG.
21. Dr Mulholland stated that he did not consider the applicant had generalised anxiety disorder in Vietnam and said that symptoms such as being on edge, which he had referred to in his report, would be a normal reaction in such an environment and did not warrant a clinical diagnosis. He said that the applicant’s described reaction of feeling sick in the stomach was not a severe enough reaction and was not one at a psycho-pathological level. He agreed under cross-examination that it was possible that the applicant may not be able to describe his reactions well; that the applicant’s knowledge of the deaths incidents would probably make him more susceptible to anxiety; and that alcohol may mask symptoms of anxiety.
CONSIDERATION OF THE ISSUES
22. The parties agreed that the applicant suffers from alcohol abuse or dependence. The Statement of Principles (SoP) for alcohol abuse or dependence is Instrument No 76 of 1998. Dr Mulholland and Dr Likely agree on the diagnosis and the Tribunal was satisfied taking into account the weight of the medical evidence that the diagnosis is established.
23. The issue in dispute is whether the applicant’s alcohol abuse or dependence is related to his service, limited to his operational service, as referred to in s9 of the Act. Section 9 prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran…
24. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Section 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a SoP determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force a SoP that upholds the hypothesis.
25. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
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 a SoP 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.
26. The hypotheses raised by the applicant were:
· that the applicant’s exposure to the landrover incident gave rise to feelings of horror which caused the development of alcohol abuse or dependence; or
· in the alternative, that the landrover incident taken in the context of the deaths incident led to the applicant having an undiagnosed generalised anxiety disorder in Vietnam which he self-treated by consuming alcohol.
27. The first of these hypotheses raised factor 5(b) in the SoP for alcohol abuse or dependence which provides as a factor raising a reasonable hypothesis of connection between alcohol abuse or dependence and relevant service (s120(3) of the Act), experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse or dependence. The second of these hypotheses involved sub-hypotheses, namely that the applicant had a psychiatric disorder at the time of the clinical onset of alcohol abuse or dependence, that psychiatric disorder being generalised anxiety disorder which was itself war-caused. This hypothesis relied upon the applicant being able to establish that he had the condition and that it was related to his service and that this had to be examined by applying the SoP for anxiety disorder which is Instrument No 1 of 2000. Factor 5(a)(ii) requires that the applicant have suffered a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder. Severe psychosocial stressor is defined in the SoP for anxiety disorder in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
28. He said the case law supports the proposition that the definition of severe psychosocial stressor concerns an occurrence that objectively is an occurrence that by its nature may evoke feelings of substantial distress in a person exposed to that occurrence and which subjectively evokes those feelings in the particular person: White v Repatriation Commission [2004] FCA 633. He submitted that the incidents relied upon met the requirements of factor 5(b) of the SoP.
29. The parties referred the Tribunal to Federal Court and Tribunal authorities that provide the interpretation of the test for severe psychosocial stressor:Stoddart v Repatriation Commission [2003] FCA 334, Repatriation Commission v Stoddart [2003] FCAFC 300, and Re Stonehouse and Repatriation Commission [2004] AATA 707.
30. The respondent submitted that factor 5(b) of the SoP for alcohol abuse or dependence was not met as the landrover incident did not meet the definition of experiencing a severe stressor. Mr Stoner said that the deaths incident pre-dated the applicant’s operational service and could not be relied upon as a stressor. He acknowledged that Dr Mulholland’s evidence confirmed that the clinical onset of alcohol abuse or dependence was in the setting of Vietnam. However, he referred to the applicant’s evidence that his alcohol increase occurred 6 months before the landrover incident. He submitted further that the landrover incident did not involve a threat of serious injury or death as required by the definition of severe stressor. He said also that the applicant’s reactions were not those of intense fear, helplessness or horror. He submitted that Dr Likely’s evidence should be given little weight in view of the varied diagnoses given in the course of the claim which he said were tailored to support the applicant. He said these remained unexplained when Dr Likely was not available to be questioned.
31. In regard to the alternate hypothesis Mr Stoner said there was simply no evidence that the applicant had generalised anxiety disorder in Vietnam and this hypothesis was purely speculative.
32. After consideration of all evidence the Tribunal accepts that the raised facts point to hypotheses connecting the applicant’s alcohol abuse or dependence with the circumstances of his service. The Tribunal must then consider whether the hypotheses are consistent with any of the factors set out in the SoP. If so then the hypotheses are deemed to be reasonable. With regard to the first hypothesis the evidence pointed to the occurrence of the landrover incident, however the Tribunal accepts the respondent’s submission that the SoP requires that the person experienced an event that involved actual or threatened death or serious injury. The definition contemplates, in the Tribunal’s view, that there is an immediacy of exposure to the event. Here the casualties were being transported to hospital and this is several steps removed from the threat envisaged in the definition. It is not evident that what the applicant observed was equivalent to a situation where, for instance, a person observes at first hand casualties being cleared immediately after injuries were sustained or observed the injuries occurring. What the applicant observed was the end part of casualty clearance as is referred to in the SoP. When this is taken into account with the very brief period in which the applicant could have observed the casualties being transported in a landrover travelling in excess of 60 klms per hour, the remoteness of the experience is underlined.
33. Furthermore, the evidence does not point to the applicant experiencing fear, helplessness or horror. His descriptions were that he felt sick in the stomach. His oral evidence was that it was the sort of thing that had to be expected. This was consistent with evidence given to Dr Mulholland and to Dr Likely. Even accepting Mr Honchin’s submission that the SoP requires only that the event “might” evoke fear, helplessness or horror, the Tribunal does not accept that the definition of severe stressor is met on the material here. The applicant was a soldier of quite senior rank at the time of the landrover incident with over 10 years experience in the Army. A reasonable person with the level of experience and seniority that the applicant had as an enlisted person would not experience fear, helplessness or horror in a brief exposure to casualties being transported to hospital. The danger to them was clearly passed.
34. For the reasons given the landrover incident does not meet the requirements of being a severe stressor. As set out in Repatriation Commission v Hill [2002] FCAFC 192 it is necessary that the material raising the hypothesis contains all the elements prescribed by the SoP. The applicant’s first hypothesis lacks the crucial element of experiencing a severe stressor.
35. With regard to the second hypothesis, this relied upon the applicant having the condition of generalised anxiety disorder whilst on service in Vietnam and the factors in the SoP for anxiety disorder had to be met. Much was made in evidence of the possibility that this condition was present and was masked by the applicant self-medicating with alcohol. However, there has to be some evidence pointing to the applicant having the condition at the time. There was simply no evidence that the applicant had the condition of generalised anxiety disorder or that its clinical onset was suggested within 2 years of experiencing a severe psychosocial stressor as required in the SoP for anxiety disorder.
36. Dr Likely did not suggest that the applicant had generalised anxiety disorder during his Vietnam service or soon after it. Neither did Dr Mulholland. Dr Mulholland specifically excluded a diagnosable psychiatric condition other than alcohol abuse or dependence. Dr Mulholland’s evidence that the deaths incidents might make a person more susceptible to an anxiety disorder and his evidence that alcohol can mask anxiety disorder is not evidence that can be taken as supporting the proposition that this applicant had that disorder during his Vietnam service or soon after it so that the second raised hypothesis becomes a reasonable hypothesis. It simply is not. For these reasons the applicant’s claim must fail without the Tribunal needing to consider whether the definition of experiencing a severe psychosocial stressor within the SoP for anxiety disorder is met.
37. The Tribunal affirms the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 3 November 2004
Date of Decision 4 November 2004
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Counsel for the Respondent Mr J Stoner, Departmental Advocate
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