Costello and Repatriation Commission
[2007] AATA 1673
•17 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1673
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500937
VETERANS' APPEALS DIVISION ) Re GAVIN JOHN COSTELLO Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C. Ermert, Member Date17 August 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) C. Ermert
Member
VETERANS’ AFFAIRS ‑ operational service in Vietnam – sight of wounded soldier – increased alcohol consumption – diagnosed condition – alcohol dependence ‑ Statement of Principles 76/1998 – Factor 5(a) – diagnostic criteria for alcohol abuse – diagnostic criteria for alcohol dependence – whether suffered alcohol abuse at clinical onset of alcohol dependence ‑ whether hypothesis fits Statement of Principles – reviewable decision affirmed
Veterans’ Entitlements Act 1986
Administrative Appeals Tribunal Act 1975
Benjamin v Repatriation Commission (2001) 70 ALD 622
Constable v Repatriation Commission [2005] FCA 928
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
17 August 2007 Brigadier C. Ermert, Member INTRODUCTION
1. Mr Gavin John Costello, the applicant, served in the Australian Army (the Army) from 1 February 1967 to 31 January 1969. He served with the Army in South Vietnam from 3 October 1967 to 1 October 1968. Mr Costello’s service constitutes operational service within the meaning of the Veterans’ Entitlements Act 1968 (the Act). While in South Vietnam he was allocated to 1 Field Squadron, a unit located in the Australian operational base at Nui Dat. His duties were those of an electrical fitter; which, in his case, involved tasks such as running power cables around the base area.
2. Mr Costello worked mainly in and around the Nui Dat base. He said that on one occasion he saw a wounded soldier being carried on a stretcher from a helicopter to the nearby medical treatment facility. Mr Costello described himself as a moderate drinker. But after seeing the wounded soldier, he said his need for alcohol increased. Mr Costello’s increased consumption of alcohol continued after his return to Australia and discharge from the Army. He has become depressed and argumentative and has alcohol problems. These problems have been associated with the break up of his marriage, loss of employability and isolation.
3. The Repatriation Commission (the Commission) has accepted that Mr Costello suffers from bilateral tinnitus and bilateral sensorineural hearing loss. Mr Costello is currently receiving a disability pension at 50 per cent of the General Rate. On 31 January 2005 Mr Costello lodged a claim to have Psych. Condition, Alcohol Abuse, and Hypertension, from which he also suffers, accepted as war‑caused disabilities and to have his rate of pension increased. On 8 June 2005 a delegate of the Commission rejected the claim and maintained the pension at 50 per cent of the General Rate. Mr Costello applied for a review of the decision by the Veterans’ Review Board (the VRB). On 30 September 2005 the VRB affirmed the decision. On 21 October 2005 Mr Costello applied to the Tribunal for a review of the VRB decision. This hearing is a review of that decision of the VRB.
THE HEARING
4. At the hearing Mr Costello was represented by Mr Peter Liefman, solicitor. Mr Liefman tendered documents marked as Exhibits A1 to A3. I heard evidence in person from the applicant and by telephone from Dr Mohamad Cassim Schrueder, consultant psychiatrist. The Commission was represented by Mr Gerry Purcell, a barrister with the Department of Veterans’ Affairs. Mr Purcell tendered additional documents marked as Exhibits R1 to R13. I heard evidence from Mr Hugh Thomas Conant, military historian and Dr Nigel Strauss, consultant and occupational psychiatrist. I had before me the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).
THE ISSUES
5. Mr Costello claimed that his psychiatric condition, alcohol abuse and hypertension are war-caused. There is disagreement between the parties about the correct diagnosis for the claimed psychiatric and alcohol related conditions. In Fogarty v Repatriation Commission [2003] FCAFC 136 the Full Court of the Federal Court of Australia decided that the diagnosis should be determined as a preliminary matter. It is only after the determination of the diagnosis that the Tribunal can consider whether the condition is war-caused. Thus, the first issue to be determined in this case is the diagnosis of the conditions claimed by Mr Costello.
6. After determining the correct diagnoses of Mr Costello’s conditions, the substantive issue is whether those conditions are war-caused.
What is the Diagnosis of Mr Costello’s Conditions?
7. Mr Costello’s conditions have been described as post traumatic stress disorder (PTSD), adjustment disorder, alcohol dependence, alcohol abuse, depression, and hypertension.
8. My first task is to determine the diagnoses of Mr Costello’s conditions. The standard of proof to be applied is to my reasonable satisfaction (Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690). Consistent with these cases, in Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:
…When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act…
Evidence as to Diagnoses
9. Dr Schrueder reviewed Mr Costello for the purpose of this application. In his oral evidence, Dr Schrueder stated that initially he considered Mr Costello suffered from the conditions of PTSD and alcohol dependence. After seeing Mr Costello again and becoming aware of the disagreement about the level of trauma experienced by Mr Costello during his operational service, Dr Schrueder amended his diagnosis to adjustment disorder which has led to alcohol dependence.
10. Dr Schrueder stated that he based his diagnosis of adjustment disorder on the history given to him by Mr Costello of seeing a wounded soldier. Mr Costello told Dr Schrueder he was shocked, frightened and distressed by the incident; and that he vomited and had to leave for the day as he could not continue working. Dr Schrueder described the basis for his diagnosis in the terms of the diagnostic criteria for adjustment disorder in the relevant Statement of Principles (SoP), Instrument Nº 57 of 1996. Paragraph 2(b) of the SoP sets out criterion A to E based on DSM‑IV (the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders). Dr Schrueder stated that seeing the wounded soldier was an identifiable stressor (Criterion A) and that Mr Costello may have experienced a greater level of distress than others (Criterion B(1)) due to a childhood background of a father who drank alcohol and was sometimes aggressive. Dr Schrueder said that the incident took place during the war, with shelling from time to time, which kept Mr Costello in a state of heightened anxiety. Dr Schrueder reported that Mr Costello’s distress and vomiting were evidence of marked distress and that Mr Costello had difficulty in functioning.
11. Dr Schrueder also said that not being able to continue working was a problem with occupational functioning (Criterion B(2)). He stated that the incident did not meet the criteria for another Axis I diagnosis and that Mr Costello does not have an Axis II diagnosis, therefore the incident cannot be an exacerbation of a pre-existing Axis I or Axis II disorder (Criterion C). Dr Schrueder said that the symptoms are not that of bereavement (Criterion D).
12. Dr Schrueder stated that the onset of adjustment disorder is the reaction to a stressor and that it usually stops when the stressor ceases. In the case of Mr Costello, the adjustment disorder came on straight away when Mr Costello saw the wounded soldier. The condition has now stopped (Criterion E). However, the consequence of the adjustment disorder has been the development of Mr Costello’s alcohol dependence.
13. Following a question from Mr Liefman, Dr Schrueder proposed a further diagnostic chain. He said (Transcript, p75):
…I think one can see it in this way: that he started off with alcohol abuse, because he was drinking in the situation where - he was traumatised, and then started drinking, and it interfered with his - it would have interfered with his functioning. And then as time went on, he would become more physically dependent on the alcohol and would have development of tolerance and the likelihood of withdrawal. So first of all it would be alcohol abuse, and then changing into alcohol dependence. But as I say, I can't really specify a time when that would occur.
14. Dr Strauss stated in his oral evidence that Mr Costello suffers from alcohol dependence and no other condition. Dr Strauss explained the reasoning for his diagnosis of alcohol dependence (Transcript, p110):
…I think that it's affected all aspects of his life to a certain extent. It's affected his relationships, I think, at times, it's affected his work capacity, I think there's probably some cerebral involvement, as I have already alluded to, and he has had an inability to give it up, it appears until recently. So temporally he has used the substance for many, many years in very high amounts and I think that really the pattern has more than justified the diagnosis.
15. When asked to comment on Dr Schrueder’s diagnosis of adjustment disorder, Dr Strauss noted Dr Schrueder’s change of diagnosis from PTSD to adjustment disorder and continued (Transcript, p11):
…So I believe, with all respect to Dr Schrueder, that he's reached his conclusion more on information that's been conveyed rather than on clinical presentation. I don't believe that there's any real evidence to suggest that Mr Costello suffered from a psychiatric illness apart from his alcohol problem, substance abuse and dependence. I believe that the problems that Mr Costello's obviously had over the years have been due to alcohol and I don't believe that there's been any independent psychiatric illness. I think that the problems that Mr Costello has had could be explained by his dependence on alcohol, the irritability, the problems with interpersonal relationships and so forth. He's never required psychiatric treatment up until recently and he's never been on psychotropic medication as far as I know, until recently. Now, thirdly, I think that to state that someone's developed an adjustment disorder quite suddenly so many years previously is a very difficult retrospective diagnosis to make and again it's based simply on this information that Mr Costello has conveyed to him. Now, I don't have any argument with the fact that Mr Costello may well have seen a wounded man and that might have been a very upsetting experience for him and it may have precipitated an increase in his alcohol consumption at the time, I can't dispute that, that's a possibility, but I see no real evidence to suggest that after that particular incident he developed a psychiatric illness per se apart from any alcohol difficulty and I don't think that there's really any evidence to suggest that over the years he's suffered from any psychiatric illness apart from the substance abuse. And to make a retrospective diagnosis like that and to state that straight away Mr Costello developed an adjustment disorder is a long shot, in my opinion.
16. I will now consider each of the conditions in turn.
Post Traumatic Stress Disorder
17. Although Dr Schrueder initially diagnosed Mr Costello’s condition as PTSD he later withdrew from that diagnosis. Dr Schrueder said in his evidence (Transcript, p69):
…after the first assessment - or two interviews … I thought that his psychiatric condition was post traumatic stress disorder and alcohol dependence … having a look at the information which was sent on to me by yourself, and seeing him again, I am aware that there is disagreement about the level of the trauma. And as such, my alternative diagnosis is of an adjustment disorder.
18. Dr Strauss gave evidence that he did not believe that Mr Costello exhibited symptoms suggestive of PTSD.
19. As there was no evidence before me that supported the diagnosis of PTSD I am reasonably satisfied that Mr Costello does not suffer from PTSD.
Adjustment Disorder
20. In my considerations I note Dr Schrueder’s understanding, that immediately after seeing the wounded soldier on the stretcher Mr Costello could not continue working and had to leave for the day. However, in his own evidence, Mr Costello said that after the incident he went back to his tent because he had finished his work for the day. When that information was put to Dr Schrueder he conceded that it reduced the level of stress he assumed Mr Costello was experiencing at the time.
21. Dr Schrueder also agreed that his diagnosis stemmed directly from the history given to him by Mr Costello. This aligns with the opinion of Dr Strauss when he said that Dr Schrueder reached his conclusion more on information that's been conveyed rather than on clinical presentation. On this occasion Dr Schrueder’s understanding of the history of Mr Costello’s reaction after sighting the wounded soldier was significantly at variance with the facts from Mr Costello’s own evidence. This mistaken understanding casts doubt in my mind over the presence of two of the criteria contained in the SoP concerning adjustment disorder (Instrument Nº 57 of 1996) used by Dr Schrueder for his diagnosis, namely the level of distress experienced by Mr Costello (Criterion B(1)) and the impairment in social or occupational functioning (Criterion B(2)). This leads me to prefer the evidence of Dr Strauss to that of Dr Schrueder on this issue.
22. Dr Schrueder also stated in his evidence that the adjustment disorder has stopped. As a result I am not reasonably satisfied that Mr Costello suffers from adjustment disorder.
Alcohol Abuse and Alcohol Dependence
23. In regard to the diagnosis of Mr Costello’s alcohol problems Drs Schrueder and Strauss agreed in evidence that he now suffers from alcohol dependence. These opinions confirm an earlier diagnosis made by Dr Terry Chong, psychiatrist. In a written report to the Department of Veterans’ Affairs, dated 9 February 1995 (T5, p2), Dr Chong stated his opinion that Mr Costello’s psychiatric condition was consistent with alcohol dependence.
24. There was no evidence that Mr Costello now suffers from alcohol abuse.
25. From the evidence I am reasonably satisfied that Mr Costello does suffer from the diagnosed condition of alcohol dependence.
Depression
26. In regard to the condition of depression, Dr Schrueder’s evidence was that Mr Costello suffered depression secondary to his use of alcohol. He said (Transcript, p74) that Mr Costello:
… said that he had feelings of depression and it was more in relation to financial problems … he had a lot of financial difficulties and he was feeling depressed about that, and he said that he also drank alcohol to try to reduce that feeling of depression … so he had just some features of depression, not a diagnosis of major depression as such…
In his oral evidence Dr Strauss reiterated his opinion that Mr Costello suffers from no condition other than alcohol dependence. In his written report dated 8 September 2006 (Exhibit R1, p6) Dr Strauss says that, on examination, Mr Costello was a pleasant man who was not clinically depressed…
27. There was no evidence before me of a diagnosed condition of depression. As a result I am not reasonably satisfied that Mr Costello suffers from depression.
Hypertension
28. In regard to the condition of hypertension, I note Mr Liefman’s submission in his opening statement that the condition of hypertension arises from the alcohol dependence. The implication of that submission is that if Mr Costello’s alcohol dependence is found to be war‑caused then his hypertension should be accepted as war-caused as a consequence. Mr Purcell did not make a submission in connection with hypertension, and neither party presented evidence in regard to this condition. As the matter was not pursued in this hearing, I am not able to make any findings in regard to the condition of hypertension.
Diagnosed Conditions
29. As a result of my considerations, I am reasonably satisfied that Mr Costello suffers from alcohol dependence. I will now consider whether Mr Costello’s alcohol dependence is war-caused.
Is Mr Costello’s Alcohol Dependence war-caused?
30. The question of whether an injury or disease is taken to be war‑caused is covered in section 9 of the Act. This section relevantly provides as follows:
(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;
…
31. The parties agree that Mr Costello’s service in South Vietnam constitutes operational service. Thus the question of whether his alcohol dependence is war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
32. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from section 120A(3), which relevantly provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
33. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides, in effect, that if the RMA is of the view that:
there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans…
the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
34. The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. Section 196B(14) provides that:
A factor causing … an injury… is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service…
35. The condition of alcohol dependence is the subject of an SoP. Therefore, I must apply the test prescribed by section 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
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 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.
Step 1 – Does the Material Point to a Hypothesis Connecting Alcohol Dependence with Mr Costello’s Operational Service?
36. Mr Costello’s evidence was that while he was serving in Vietnam he saw a wounded soldier being carried on a stretcher from a helicopter to the medical facility in Nui Dat. There was evidence from Mr Conant, retired Lieutenant Colonel and researcher for Writeway Research, that incidences of seriously wounded soldiers being brought by helicopter to Nui Dat were not common. However, there were occasions when it did happen. Such instances occurred particularly when the wounds were so serious that the soldier required stabilisation before being taken to the appropriate treating hospital. This evidence was consistent with the photograph showing a wounded soldier being carried on a stretcher to 8th Field Ambulance at Nui Dat which was tendered into evidence by Mr Liefman (Exhibit A3).
37. Mr Costello said that the sight of the wounded soldier shocked and horrified him and caused him to drink more alcohol, particularly turning to spirits, as beer was no longer strong enough. He said that after the incident he consumed two bottles of bourbon a week in addition to eight to ten cans of beer a day. Mr Costello’s evidence was that he continued this level of alcohol consumption after returning from Vietnam, up to the time of his open-heart surgery in August 2006. Although he had reduced his alcohol consumption at the time of his surgery, Mr Costello stated that he increased his consumption again about two months after the operation.
38. This history was given to a number of doctors who formed opinions from that history. Dr Schrueder stated that seeing the wounded soldier shocked and frightened Mr Costello and he developed emotional distress which in turn led to heavy alcohol consumption and dependence.
39. Dr Strauss, in his evidence, agreed that seeing a wounded soldier might have been a very upsetting experience for Mr Costello and may have precipitated an increase in Mr Costello’s alcohol consumption. As already stated in paragraph 23, there is agreement among the doctors that Mr Costello now suffers alcohol dependence.
40. In his final submissions Mr Liefman submitted the following as the hypothesis connecting Mr Costello’s alcohol dependence with his operational service (Transcript, p115‑116):
The diagnosis is - as you have just heard me suggest to Dr Strauss, would be that the initial condition was alcohol abuse during service and that as a psychiatric condition in its own right it would be connected to service by Factor 5(a) for abuse.
So suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse. And then if that is the condition that is then a psychiatric disorder suffering - 5(d), experiencing a severe stressor within the - sorry. Suffering from a psychiatric disorder at the time of the clinical worsening - I have got myself mixed up, I am sorry. I think what I am trying to say is that there is a - the hypothesis from the applicant is that the alcohol dependence which is currently diagnosed arises from the alcohol abuse.
41. From that submission, I understand the applicant’s case to be that the sight of the wounded soldier during his operational service caused Mr Costello to suffer the psychiatric disorder of alcohol abuse, which he was suffering at the time of the clinical onset of his condition of alcohol dependence.
42. After considering all the available evidence, I am satisfied that there is material that points to that such a hypothesis which connects Mr Costello’s alcohol dependence with his operational service in Vietnam.
Step 2 – Is There an SoP in Force?
43. Instrument Nº 76 of 1998 deals with Alcohol Dependence or Alcohol Abuse. Thus there is in force a relevant SoP determined by the RMA.
Step 3 – Does the Hypothesis Fit the Template of Instrument Nº 76 of 1998?
44. Before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence with a person’s operational service there must exist one of the factors listed in the relevant SoP. The case for Mr Costello relies on the existence of the conditions of Factor 5(a).
45. Factor 5(a) of the relevant SoP states that a person must be:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse…
46. The applicant’s hypothesis is that Mr Costello was suffering a psychiatric disorder, namely alcohol abuse, at the time of the clinical onset of his alcohol dependence. I will consider the evidence in regard to each of the conditions in turn.
Evidence of Alcohol Abuse
47. The diagnostic criteria for alcohol abuse listed in the SoP are:
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.
48. In regard to item (1) there is no evidence from Mr Costello that his alcohol use resulted in a failure to fulfil major role obligations. The only evidence available to me on this issue is the history recorded by Dr Chong in 1995 which shows that:
Mr Costello was able to work but he needed the alcohol. the problem was really bad from about 1976 to 1985. He drank gallons and gallons. He was arguing, fighting, and drunk. But he still worked as an electrician.
So, in spite of his alcohol use he was still working and therefore not failing to fulfil a major role obligation.
49. There was also no evidence from Mr Costello in regard to alcohol use in physically hazardous situations (item (2)). When asked about his alcohol use when required to do piquet duty in Vietnam, Mr Costello stated that he would not have alcohol on those occasions. In regard to the potential danger of having to climb poles as part of his wiring duties in Vietnam Mr Costello said that he left that work to the juniors. There is no other evidence relevant to this issue.
50. In regard to legal problems (item (3)), Mr Costello gave evidence of two drunk driving incidents, the most recent being ten to twelve years ago and the first about four years before that. That puts the occurrence of the incidents during the years 1991 to 1997. There was no evidence of other legal problems.
51. In regard to item (4), Mr Costello gave evidence that his wife left him because of problems arising from his use of alcohol. This was during the eighteen months that he was married, during 1973 and 1974.
52. The only other material available to me on this issue is the opinion of Dr Strauss. In his oral evidence Dr Strauss said:
…Now, I don't have any argument with the fact that Mr Costello may well have seen a wounded man and that might have been a very upsetting experience for him and it may have precipitated an increase in his alcohol consumption at the time, I can't dispute that, that's a possibility, but I see no real evidence to suggest that after that particular incident he developed a psychiatric illness per se apart from any alcohol difficulty and I don't think that there's really any evidence to suggest that over the years he's suffered from any psychiatric illness apart from the substance abuse… (emphasis added). (Transcript, p112)
53.Further, in his report (Exhibit R1, p7), Dr Strauss stated his opinion that:
…this man has a substance abuse disorder and that … on the balance of probabilities he was suffering from the condition by the time that he returned from Vietnam.
Dr Strauss confirmed this belief in his oral evidence.
54. Thus there is evidence from Mr Costello of a maladaptive pattern of alcohol use, in the terms of the diagnostic criteria in the SoP, relating to the years 1973 and 1974, and 1991 to 1997. There is no evidence from Mr Costello of a maladaptive pattern of use in the years of Mr Costello’s service in Vietnam or immediately on his return from Vietnam, nor in the more recent years of 2006 and 2007. There is the opinion of Dr Strauss that Mr Costello was suffering from substance abuse when he returned from Vietnam, however there is no evidence of the existence at that time of the criteria required for the diagnosis of alcohol abuse.
Evidence of Alcohol Dependence
55. Mr Purcell referred to the diagnostic criteria for alcohol dependence listed in paragraph 2(b) of the relevant SoP. Mr Purcell submitted (Transcript, p120):
There is no evidence of tolerance, there is no evidence of withdrawal problems, no evidence of the alcohol being taken over a longer period than was intended or of unsuccessful attempts to cut down or of alcohol use being continued despite knowledge of having a persistent or recurrent physical or psychological problem, etcetera. Nor is there evidence of important social, occupational, or recreational activities being given up or reduced…
56.The diagnostic criteria for alcohol dependence listed in the SoP are:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any ime 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 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 recurring physical or psychological problem that is likely to have been caused or exacerbated by alcohol…
57. In regard to item (1) (tolerance) Mr Costello’s evidence was that immediately after his sighting of the wounded soldier, he markedly increased the amount of alcohol he consumed, in particular he commenced drinking spirits at that time.
58. There was no evidence advanced by Mr Costello or on his behalf in regard to item (2) (withdrawal) and item (3) (taken more or for longer than intended).
59. In regard to item (4) Mr Costello gave evidence of two occasions of an unsuccessful effort to cut down alcohol use. In his oral evidence Mr Costello agreed that he tried to significantly reduce his alcohol use in 2004 (Transcript, p53). He also gave evidence that immediately after his heart surgery in 2006 he cut down his alcohol consumption but after a few months he reverted to drinking as much as he had previously. There was no evidence of any other attempts to cut down his consumption and no evidence of a persistent desire or persistent efforts to cut down consumption.
60. There was no evidence of Mr Costello spending a great deal of time to obtain, use or recover from alcohol (item (5)).
61. In regard to item (6) there is evidence in the history given by Mr Costello to Dr Chong that in 1995 Mr Costello could not work full time because of his alcohol use. There was no evidence of any other activities given up or reduced because of alcohol use.
62. Mr Costello gave evidence that he continued to use alcohol despite being advised by his doctors that alcohol caused his heart problems. This fits item (7) and occurred in August 2006.
63. It can be seen from the above that there is evidence in regard to the manifestation of three of the criteria; however they did not occur in the same 12‑month period. Mr Costello’s need for increased amounts of alcohol occurred in 1968, while his effort to cut down alcohol use and his continued use despite knowledge of the problem occurred in 2006. There is no evidence from Mr Costello that at least three of the criteria occurred at any time in the same 12‑month period.
64. The only other material available to me is in the form of the opinions of the medical experts. Dr Strauss, said in his oral evidence in relation to alcohol dependence (Transcript, p110):
…But in relation to that condition, I think that it's affected all aspects of his life to a certain extent. It's affected his relationships, I think, at times, it's affected his work capacity, I think there's probably some cerebral involvement, as I have already alluded to, and he has had an inability to give it up, it appears until recently. So temporally he has used the substance for many, many years in very high amounts and I think that really the pattern has more than justified the diagnosis.
…Would you describe that in terms of the DSM IV and SOPs as alcohol dependence or alcohol abuse?‑‑‑Well, I think alcohol dependence.
65. From that evidence it could be inferred that Dr Strauss was of the opinion that the diagnostic criteria for alcohol dependence had been satisfied, however there is no direct evidence from Dr Strauss that such was the case. In any case his opinion relates to Mr Costello’s condition at the time of his examination in 2006, and not in 1968 or immediately after Mr Costello left Vietnam.
Consideration of Factor 5(a)
66. Factor 5(a) of the SoP requires the person to suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse or alcohol dependence. The applicant’ case is that Mr Costello was suffering the psychiatric condition of alcohol abuse at the time of the clinical onset of alcohol dependence. The evidence available to me in regard to alcohol abuse and alcohol dependence shows no temporal coincidence of the two conditions. While Dr Strauss offered an opinion that Mr Costello suffered from alcohol abuse in 1968 and on his return from Vietnam, there is no evidence of the existence, at that time, of the required diagnostic criteria. Also there is no evidence of his suffering alcohol dependence at that time. Similarly there is no evidence of Mr Costello suffering alcohol dependence in the years 1973 and 1974 and during 1991 to 1997.
67. As there is no evidence of Mr Costello suffering alcohol abuse at the time of the clinical onset of his alcohol dependence the conditions of Factor 5(a) are not met. This means that the hypothesis does not fit the template of the relevant SoP and that Mr Costello’s alcohol dependence can not be found to be war-caused.
CONCLUSION
68. From the medical evidence available to me, I am reasonably satisfied that the correct diagnosis for Mr Costello’s condition is alcohol dependence. There is an SoP relevant to alcohol dependence, namely Instrument Nº 76 of 1998, concerning Alcohol Dependence or Alcohol Abuse.
69. The hypothesis connecting Mr Costello’s condition with his operational service is that, as a result of seeing a wounded soldier during his operational service, Mr Costello suffered the psychiatric disorder of alcohol abuse and that he was suffering from this disorder at the time of clinical onset of his alcohol dependence. I have found no evidence of the existence of the psychiatric condition of alcohol abuse at a time coincident with the clinical onset or existence of Mr Costello’s alcohol dependence. Hence the hypothesis does not fit the template of the relevant SoP and Mr Costello’s alcohol dependence is not war-caused. Mr Costello’s application to have his alcohol dependence found to be war-caused is unsuccessful.
70. As the condition of hypertension was not pursued at the hearing I have made no findings in regard to that condition. The parties can pursue that issue as desired as a result of my decision that Mr Costello’s alcohol dependence is not war‑caused.
DECISION
71.The Tribunal affirms the decision under review.
I certify that the seventy‑one [71] preceding paragraphs are a true copy of the reasons for the decision herein of
Brigadier C. Ermert, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of Hearing: 18 April 2007
Date of Decision: 17 August 2007
Solicitor for the applicant Mr PJ Liefman, Barrister and Solicitor
Counsel for the respondent: Mr G Purcell
Solicitor for the respondent: Department of Veterans’ Affairs
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