Day and Repatriation Commission - [2001] AATA 454

DECISION AND REASONS FOR DECISION [2001] AATA 454

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/994

VETERANS' APPEALS DIVISION       )
           Re      Harry Thomas DAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 28 May 2001
PlaceSydney

Decision      The Tribunal affirms those parts of the decision of the Repatriation Commission dated 15 May 1997 in respect of "refractive error (myopic astigmatism) left eye", "irritable bowel syndrome", "heart problems" and "nerves/alcohol dependence".
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether suffers from PTSD and alcohol abuse or dependence – whether PTSD and alcohol abuse war-caused – Statements of Principles applied – Veteran served in Battle of Coral – whether reasonable hypotheses raised – whether experienced a stressor on service prior to clinical onset of PTSD – whether suffered from psychiatric condition before or at the time of clinical onset – whether satisfied diagnostic criteria in Statement of Principles

Budworth v Repatriation Commission [2001] FCA 317
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108

Veterans' Entitlements Act 1986: ss120(1), 120(3), 120A, s5D, s8

Statement of Principles, Instrument No. 15 of 1994 (Post Traumatic Stress Disorder)
Statement of Principles, Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of those parts of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 15 May 1997 that refused a claim made by Harry Thomas Day ("the Applicant") for acceptance of irritable bowel syndrome, heart problems, nerves/alcohol dependence and refractive error (myopic astigmatism) left eye. The Veterans' Review Board ("the VRB") affirmed those parts of the delegate's decision on 1 April 1998. All applications for review were in time. Therefore the earliest effective date in the event that the Applicant is successful in this application for review is 15 May 1996, being a date not earlier than three months before the Applicant lodged his claim.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence. Dr A H Dinnen, psychiatrist, was called by the Applicant to give oral evidence, and Dr M A Walden, psychiatrist, was called by the Respondent to give oral evidence at the hearing.
A Statement of the Applicant dated 10 March 2000 (exhibit A) and reports of Dr Dinnen, dated, 7 January 1999, 21 January 1999, 25 February 1999 and 15 April 1999 (exhibit B) and 7 March 2000 (exhibit C) were tendered as evidence on behalf of the Applicant. Reports of Dr Walden dated 16 September 1999 and 9 March 2000 (exhibit 1) were tendered as evidence on behalf of the Respondent.
The Applicant advised at the commencement of the hearing that he no longer wished to pursue the claims for irritable bowel syndrome, refractive error and heart problems. Accordingly, the Tribunal affirms those parts of the reviewable decision with respect to those conditions.
The only issue before this Tribunal concern whether the Applicant suffers from post traumatic stress disorder ("PTSD") and alcohol dependence/abuse. The Respondent conceded during the hearing that the Applicant met the requirement of "experiencing a stressor" in the Statement of Principles for Post Traumatic Stress Disorder, Instrument No.15 of 1994. Its case rested essentially on the contention that the Applicant did not suffer from PTSD.
legislation and applicable statement of principles
The Applicant served in the Australian Army from 28 September 1966 to 27 September 1971. He served in Vietnam from 5 February 1968 to 13 August 1968, which constituted operational service. This is the only period of service that can be considered by the Tribunal in determining the claim.
The standard of proof to be applied to the Applicant's operational service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act"). This section requires the Tribunal to determine, with respect to the period of the Applicant's operational service, that his conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions were war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service.
As the Applicant lodged a claim after 1 June 1994, pursuant to s120A of the Act, the Tribunal is also required to apply the relevant Statement of Principles in determining this matter. The Statements of Principles concerning Post Traumatic Stress Disorder, which were in place at the time the primary decision was made, are Instruments No.15 of 1994 as amended by No. 225 of 1995. However at the time of the hearing, the Applicant relied on factor 5(a) in the more recent Statement of Principles, that being Instrument No.3 of 1999 as amended by No.54 of 1999, (that revoked the earlier Statements Of Principles), which states –
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder

In Instrument No.15 of 1994, that factor was factor 1(a), viz –

1…
(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder;

The Tribunal has taken into account the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 regarding the Statement of Principles to be applied and considers that, in this matter the Applicant is not affected in any material way by the changes made to the Statements of Principles as it was conceded by the Respondent that the Applicant suffered a stressor which satisfied both Statements of Principles.
With respect to alcohol abuse/dependence, after some consideration during the period of these proceedings, the Applicant also sought to rely on his accrued rights to have his alcohol abuse claim determined using the Statement of Principles No.5 of 1994 that was in place at the time of the primary decision. Factor 1(b) of that Instrument states:
having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;

evidence of applicant

The Applicant was conscripted for National Service at age 20 years. After his training he nominated for service corps and air dispatch/ artillery, but instead was deployed in the Medical corps.
The Applicant said that after he turned 18 years of age he was only a social drinker and never drank much as he was heavily involved in playing various sports.
With less than 12 months to complete his National Service, the Applicant was reassigned temporarily to 7 RAR in Vietnam until 1 RAR came to replace 7 RAR. He said that while he was in 7 RAR he witnessed his first casualty. A man had jumped off the back of a truck, catching his wedding ring on the edge of the truck. His finger was cut off. The Applicant said he felt "squeamish", because that was the first time he was required to "patch someone up".
Later the Applicant was transferred to 1 RAR to complete his tour of duty in Vietnam. He was involved in the Battle of Coral, as part of the Tet Offensive. He made the following observations in his statement dated 3 March 2000 (exhibit A) about his first night in battle -
Our intelligence sources tracked the enemy coming south and our battalion was sent out to intercept them. "D" Company was the first company in, and due to miscalculations we were dropped too close to the target and we came up against their left flank. We were involved in a fierce battle. We lost 9 men from the Battalion that first evening, two from the 'D' Company. We were attacked every night for about a month.
My job, as a medical orderly, was to check the wounded, do what I could and organise the serious cases to be evacuated back to hospital. That first night of the Battle of Coral I tended to several wounded soldiers. I patched up one man who had been shot in the chest, and badly wounded. He later died. We then evacuated the wounded from the area about 3.00 am. There was still sniper fire around but further down the track.

In his oral evidence, the Applicant recalled tending to one of his friends, who received a chest wound on that first night. He said he "was shaking like a leaf" when he realised that they were under fire on that first night. He said –
It wasn't just a single shot, there was [sic] rockets, there was mortars, there was people screaming that were injured, confusion, it was dark and then in the process I killed a snake at the same time….I just picked up a machete and chopped its head off without realising what I'd done….There was a lot of initial panic on my point..but once I started to patch Larry up and a couple of other guys up, I was okay until I finished patching them up and then started to shake and get the shock and everything afterwards…

The Applicant also recalled that one of his "mates", John, was killed on the second day of the battle. Subsequently, he met John's mother and brother at the War Memorial; he said " that was pretty hard meeting them…he didn't need to get killed if they had done the right thing". He said he did not have any debriefing when he was discharged (exhibit A).
The Applicant said that it was not possible to drink heavily whilst at base camp in Vietnam because it was dangerous and there was a risk of being charged. He said his drinking in Vietnam was controlled (exhibit A). This was somewhat at odds with the alcohol questionnaire he completed on 2 August 1996 (T6). In that alcohol questionnaire he noted that he commenced drinking in 1968 during service because it helped him relax. He stated "we would be on patrol for three weeks then at camp for one week when we would get drunk every day". He stated his average daily intake when he first started drinking was six schooners per day, and there was no change in his drinking habit during his service.
According to his written statement (exhibit A), the Applicant started drinking heavily after he was discharged from the Army in 1968 when he was posted by the bank to Grafton, and then especially when he was transferred to Batemans Bay. He was single at the time and drank by himself on occasions. He said he drank at least half a dozen schooners every afternoon when he was in Batemans Bay. He did not drink at work but went to the golf club or RSL club after work and drank for three to four hours before going home for dinner. He also drank on the weekends at the golf club after playing a round of golf. It was the Applicant's evidence that during this time he went to bed "drunk" on most nights so that he did not have difficulty falling asleep. The Applicant said he did not think his drinking affected his work.
The Applicant was subsequently transferred to Nowra, Goulburn and then Canberra. He married in 1974 whilst in Canberra where he remained for 5 years. He commenced an accountancy course through TAFE at this time, hoping to further his career and gain promotion, as he had been doing the same job for eight years by this stage. However he did not complete the course because of his heavy workload. The Applicant's evidence was that his drinking pattern changed at this time. Studying accountancy, and having recently married, he did not have a lot of time to drink after work. In his alcohol questionnaire (T6) he noted that he reduced his consumption in 1974 when he got married. However in his written statement (exhibit A) he recalled he and his wife socialised on most Saturday nights when they had dinner parties, at which time "large amounts of alcohol " were consumed, but he qualified that his drinking was more of a social habit. Nonetheless he continued to drink about one to two cans of beer on most nights to help him relax.
The Applicant noted in his statement that he began to drink heavily again when he was transferred to Coffs Harbour as a Senior Assistant to the Manager. According to his alcohol questionnaire this was in about 1979. He was in charge of all loan applications and all company and council business. He said the job was "very stressful". After work, he went to the club and drank about six schooners but "with not much effect". Most of the times he drank with work colleagues and various other groups, but he would return home for dinner by 6.30pm. Sometimes he returned to work and then went to the pub again to have another drink before going home. Occasionally he drank on his own. He said 80 per cent of his drinking was done away from home.
The Applicant was transferred to several other branches after Coffs Harbour, including Muswellbrook and Hamilton, and then to Newcastle as branch accountant. He did not consider his drinking to be a problem at that stage. Due to an error made by one of the tellers at the time, the Regional Manager attributed responsibility to the Applicant as he was in a senior role. Subsequently he lost his position as branch accountant and so his expectations of becoming a manager had diminished. The Applicant said "there was no reason why I shouldn't have got it [managerial position] because I had been getting paid bonuses there, so everything was fine" until the "incident". For the next three years the Applicant worked as relieving manager in the Newcastle area.
The Applicant's final transfer before ceasing work was to Mathoura at which time he received his first posting as Manager of a branch. As Manager he was responsible for all loans, budget analysis, staff management, targets and branch accounts. He said he did not experience any difficulties in doing that job and he was competent in his work. The Applicant explained in his statement that in 1994 the Mathoura branch was closed. Consequently he elected to take a redundancy package; he said" I knew I was too far down the ladder to be appointed Manager of a bigger branch. I knew that I faced losing my job at some point during this restructure period…"
The Applicant's evidence was that his drinking habits and attitude affected his career with Westpac. No one expressly stated this, but that sentiment was perceived by him. Since he was competent in his job, there was some other factor involved. In his statement he noted –
Although I stayed with the bank for 33 years I was not promoted as quickly as I could have been. Prior to Vietnam I was progressing well, and quite advanced for my age. After Vietnam I was not promoted as quickly as I thought I could have been. I noted other people getting ahead more quickly than me. My first managerial position was my last branch. I did not get the managerial positions in the bigger city branches. I think had an attitude problem. I tended to speak out on things when it might have been better to stay quiet. I did have a few customer complaints to my regional manager. I am sure the bank knew about my drinking. I also was abrupt in my manner and could get snappy and rude with people. I have noticed that over the last 10-15 years I have been snappy with people.

In oral evidence the Applicant said that while he was working in Batemans Bay he did not receive any customer complaints because he did not come into contact with clients in the same way as he did later on. The first time he received a customer complaint was when he was working in Coffs Harbour, followed by a couple in Mathoura. The nature of those complaints pertained to his abrupt and rude behaviour towards customers. He said he first noticed this behaviour about 12 or 13 years ago when he was working in Muswellbrook. He considered that he became more cynical by this time and that there had been a "whole change" in his attitude.
In oral evidence the Applicant said that on the basis of other staff promotions or persons who were of the same age and experience, he had expected to be in his third managerial position by the time he ceased working at the bank.
The Applicant admitted in cross-examination that his failure to complete his accounting course in the mid 1970's affected his promotion prospects to some extent as the bank offered incentives such as promotion bonuses to do extra study. He did not consider that not working in Sydney hindered his chances of obtaining a promotion.
The Applicant said that since ceasing work he has applied for about 150 jobs in building societies, credit unions, and lending institutions, out of which he received only two job interviews. He has worked as treasurer and secretary of a bowling club on a voluntary basis for a couple of years and was promised the position of President, but subsequently it was given to someone else.
The Applicant noted in his alcohol questionnaire that in 1996 he drank two to three schooners of beer a day (T6). Currently he drinks three to four cans of beer per day and two glasses of wine with his meal at night. He said that at various times he has tried to reduce his habit, but has always reverted to high consumption. This evidence was inconsistent to the history obtained by Dr Walden who examined him in September 1999 (exhibit 1). In his oral evidence he said his wife prompted him to reduce his consumption on several occasions. He said she had "driven off" on a few occasions when he had been drinking. She remained away for over six hours and he did not know when she would return. He said that he has reduced his drinking of his own volition on a few occasions.
Recently, the Applicant underwent an operation and was told not to consume alcohol for 24 hours before and after the operation. He said that by the end of the 48 hours he became irritable and "suffered withdrawal pains"; he said "I was hanging out for a drink". The only other time when the Applicant stopped drinking alcohol completely was about eight years ago, for a week, when he had a prostatectomy. However as soon as he arrived home from hospital he drank beer.
The Applicant said he recalls some of the incidents during the Battle of Coral "quite vividly". He said those memories are usually triggered on Mother's day, because that was when the Battle commenced, on Anzac Day, and October which was the month when one of the servicemen in his company was killed in Vietnam. He said those particular days "bring a tear to my eye at times", but he said there were also "good times" during his service in South Vietnam. He said memories of his Vietnam experiences are also triggered when he reads the Veterans' Newsletter. He recalled recently having read about the death of one of the servicemen with whom he served, which disturbed him.
The Applicant stated that he does not tend to talk about his Vietnam experiences. In his statement (exhibit A) he said –
My way of dealing with those things is not to think about it. I have trained myself to think of something else whenever I start to get a memory, eg. At anniversary times something might come up that triggers a memory and I switch off. If I get a veterans' newsletter where someone's name is mentioned, that might trigger something and I think of something else.

Although the Applicant is still a member of 1 RAR Association and likes to read the newsletter, he has little contact with his Army friends. He attended about three reunions to see old friends, but not to talk about his war experiences as he preferred to "talk about the happy times rather than the sad times". The last reunion the Applicant attended was about six years ago. He does not go to VVAA meetings because he is not interested in talking about Vietnam.

The Applicant said that ever since the Army he has become a light sleeper. He said the nature of his duties required him to be alert at all times. At present he said he has disturbed sleeping patterns; if he wakes up, he has difficulty falling asleep again. This happens a few times a week. Light noises tend to wake him. He can lay awake for up to three hours before going back to sleep. He said he does not dream "a great lot " about his service; he said "sometimes I'll wake up and I'll be thinking of something and other times I just wake up and I don't know why I wake up". He could not recall experiencing such sleeping patterns prior to the Army. He said he also wakes up in a sweat once every couple of months for the last few years.
The Applicant admitted that he does not mind doing activities on his own such as playing bowls which he does twice a week. He has played for about 20 years but never competitively; he prefers to play on his own or with one of his friends. When he lived in Newcastle his house was near the bowling club and in order to drink there he was required to be a member and play bowls.
The Applicant said he was happy in his marriage and that he gets on well with his children.
medical evidence
Dr Dinnen prepared several reports for the purpose of these proceedings (exhibits B and C) after having examined the Applicant in December 1998. He obtained the following history regarding the Applicant's psychiatric and drinking problem (exhibit B, report dated 7 January 1999) –
He sleeps "light". He said that when he wakes he cannot get back to sleep, and will lay there for up to three or four hours at a time. This occurs about three times a week and has been present "for years". He said, " I learnt to sleep very light in Vietnam- sleeping out in the scrub".
He mentioned… high blood pressure, which he appeared to think was related to his nervous condition.
…He said he used to drink fairly heavily, but it is "not too bad now". In the past he would drink six schooners after work each day.
…he had reduced his intake, he thought, from about 1980. He said his wife had not been too happy with his drinking through the years, and he was also concerned with his lack of progress in his career. Promotion was not occurring very fast, partly because he tended to be outspoken…in about 1993 after he was retrenched he increased his alcohol intake again, and now drinks about one carton of beer a week at home. In addition he usually has a couple of beers at the club each day. He said he has a few spirits and about half a bottle of port each week.
The patient said he tends to get worked up…He said it takes a few hours for him to calm now when he is worked up. He gets the shakes, butterflies in the stomach, and cannot write because of the shaking of his hand.
…I asked him about use [alcohol] during service. He said it was cheap in Vietnam, and that after they had been on patrol for some days ... he would begin drinking on his return to camp. The first night he would have two or three drinks, and that would be enough to make him drunk. By the end of the week he would "get stuck into it". When asked why he kept drinking after service he said he really didn't know. However he mentioned….it helped to "calm yourself down".
… the patient told me that when he wakes up during the night at times he finds the back of his pyjama tops are all wet with sweat.
I asked the patient if he had any "flashbacks". He said these were not a problem. Occasionally he wakes up in a sweat, sits up looks around to see where he is, but he cannot recall specific dreams or memories of service. "I block most of it out, sort of thing". He said he thinks of it about two or three times a year, but generally it is "not on my mind".
… he tends to keep his own company quite a lot and prefers not to be in mixed company. He will sit in a club an have a half dozen beers without talking to anybody. He tends to be a loner.
…He said his wife now reckons that he is "getting a bit short fused".
He has never talked much to his wife about his service. He said his wife's brother also served in Vietnam and she doesn't talk to him at all. On direct enquiry he thought that service probably had changed him. He said that alcohol still tends to cause him to settle if he is feeling uptight.

Based on that history, Dr Dinnen opined that the Applicant suffered from PTSD and psychoactive substance abuse.

With respect to his PTSD, Dr Dinnen said the main symptom presented by the Applicant was that of sleeping problems and that he learnt to sleep light when he was in the scrub in Vietnam which has continued post service and continues. Dr Dinnen considered that was an example of "re-experiencing the traumatic event". He said that in order to satisfy the diagnosis of PTSD, it was not necessary that one re-experienced only the most dramatic elements of the traumatic event; in psychological terms, there was no difficulty in observing the generalisation of symptoms as deriving from their original stressful experience.
Dr Dinnen considered that superficially the Applicant appeared to cope well with his condition, but the reality and overall impression he obtained was that he was adversely affected by his service; the fact that he did not like to talk much about his experiences was evidence that he was psychologically damaged. He explained that the Applicant coped with his condition of PTSD by way of suppression and denial, so that his condition was not "traumatic"; nor was it demonstrative.
Dr Dinnen considered the Applicant related to others reasonably well, but without emotion. He opined that those character traits were a result of his Vietnam experiences adding to an underlying personality style.
In effect, Dr Dinnen considered that the Applicant suffered from PTSD and alcohol abuse but that he had only a mild degree of impairment. He said the conditions affected the Applicant's general level of functioning. Although he was coping reasonably well, his conditions limited his career and general lifestyle. In that sense the conditions prevented him from achieving his potential in that the Applicant limited his exposure to stressful events in day to day life.
Dr Dinnen considered in his reports that the Applicant satisfied criteria C, factors (i) to (vi), in Instrument No.15 of 1994, although in oral evidence he qualified that by saying that factors (ii) and (iii) were more difficult to establish on the evidence than the other factors. He said the fact that the Applicant went to reunions did not necessarily mean that he was not avoiding the trauma, because in this case as the Applicant described, he only ever attended to see his friends, not to talk about past experiences. Dr Dinnen opined that in this case the Applicant avoided the trauma by way of suppression and denial. With respect to factor (iii), Dr Dinnen said that the Applicant displayed an avoidance of recalling important aspects of trauma rather than an "inability" to recall. Dr Dinnen could not exclude the possibility that the Applicant was simply not interested, but his clinical impression was to the contrary.
Dr Dinnen said that he would have offered the Applicant psychotherapy if he had attended for treatment. Although a pathological state was not required in order to justify psychotherapy, Dr Dinnen said that he would not offer psychotherapy if he did not believe the person had significant pathology. He said, however, that it was not critical for the Applicant to have undergone treatment; "he could muddle along like he is doing for years".
Dr Dinnen assessed an impairment rating of 14 (exhibit C). Although he said he had used GARP-IV in making his assessment, having noted the work-sheet that was attached to his report it is clear to the Tribunal that he used GARP-V for the assessment, that indeed was the correct instrument to use.
With regard to the Applicant's drinking habit, Dr Dinnen opined that the Applicant suffered from alcohol abuse rather than dependence and that he satisfied the relevant Statement of Principles. He acknowledged the Applicant disclosed very little information regarding his drinking history. However the history he did provide consistently pointed to the fact that he used alcohol more than he thought he should have and he dated the habit back to his Vietnam service, and that he increased his consumption again about the time he finished work. In particular Dr Dinnen noted the Applicant's increased tolerance of alcohol since Vietnam.
Dr Dinnen considered the Applicant's use of alcohol was an expression of his PTSD; it was an avoidance strategy to suppress the memories. This also helped to explain why the Applicant's sleep was disturbed.
Dr Dinnen said he discussed with the Applicant (although there is no record of this) the connection between his level of drinking and his hypertension but the Applicant continued to drink nonetheless. Accordingly, he considered the Applicant satisfied factor 4(b) of Instrument No.5 of 1994 – recurrent use of the substance when use is physically hazardous. He considered that if the Applicant gave up drinking his PTSD would probably become more symptomatic.
Dr Dinnen postulated that the Applicant's increase in alcohol consumption in Coffs Harbour resulted from a combination of current stressors and his previous traumatic combat experience. Although the contribution of current factors like drinking with social groups, pressures of work and family, could not be excluded as a reason why the Applicant continued to drink post-service, the reason why he became vulnerable to those factors was because of his Vietnam service. Dr Dinnen considered that, without his Vietnam service, the Applicant would not have increased his alcohol consumption to the extent he did.
Dr Walden, consultant psychiatrist, provided reports dated 16 September 1999 and 9 March 2000 (exhibit 1) after having examined the Applicant on 16 September 1999. She opined that the Applicant did not suffer from any psychiatric disorder and that he did not satisfy the diagnostic criteria (paragraphs (b) – (f)) in the relevant Statement of Principles. She conceded that the Applicant was exposed to a traumatic event.
Dr Walden considered that the Applicant did not have symptoms relating to paragraph (b) of the definition of "post traumatic stress disorder" in the relevant Statement of Principles- persistently re-experiencing the event. From the history she obtained the Applicant was able to think about Vietnam without feeling distressed by it, he did not have recurrent intrusive thoughts about it, nor did he experience nightmares or intense distress at re-exposure
With respect to paragraph (b) of the defintion, Dr Walden acknowledged that the mechanism described in the Applicant's statement of thinking about something else when he was reminded of Vietnam did constitute "avoidance" to some extent. However she suggested that was an adaptable way of coping with something that might have been distressing and it was not the sort of avoidance that was described in the Statement of Principles. She noted that the Applicant was able to attend Anzac services and go to the RSL, and to derive satisfaction from these activities. She did not believe the Applicant experienced feelings of detachment or emotional numbing as he had been happily married for 20 years and had a good relationship with his daughters. He maintained contact with his extended family and had reasonable connections with other people. She considered that the Applicant had "average" functioning in respect to all aspects of his life.
Dr Walden accepted that the Applicant experienced difficulty falling or staying asleep and displayed signs of irritability [paragraph (d)]. However she qualified that those symptoms were fairly non-specific and non-pathological to PTSD, and were not outside the norm of people's emotional responses. She also added that it was very plausible that the Applicant's pattern of light sleep became a learned, adaptable and self-reinforcing form of behaviour.
With respect to paragraph (f) she opined that the Applicant did not have any clinically significant impairment in his functioning; he had sustained work and marriage for more than 30 years and 27 years respectively and had some social activity.
With respect to the Applicant's drinking habits, Dr Walden obtained the following history (exhibit 1) -
For the last 3 to 4 years, he stated that he has been drinking about four cans of beer in the afternoon, perhaps a glass of wine with dinner, and sometimes a glass of port after dinner.
….Mr Day stated that he started drinking prior to National Service when he would drink a few beers at the weekend. He stated that whilst in the Army, he would drink a few beers at the Base Camp. After discharge from the service, he stated that he started drinking quite heavily for about five years. He stated he would drink about half a dozen schooners of beer most nights. He then said, "It eased off after I got married". He then said about 15 years ago, his consumption increased again to 5 or 6 beers, perhaps six nights of the week. It then reduced and 8 or 9 years ago, he considered he was probably drinking about four beers a day. With regard to the fluctuations in his consumption, he had no explanation to offer….He stated that he has not attempted to reduce his drinking and does not consider that he drinks too much. He states that no one has ever complained about his alcohol intake. He has never experienced any physical withdrawal symptoms associated with his drinking. He has never had a drink driving charge or an assault charge.
On the history that the Applicant provided in his oral evidence (that differed in a number of respects from the history Dr Walden obtained), she said it was possible that the Applicant satisfied Instrument No.5 of 1994 concerning psychoactive substance abuse but on the available evidence she could not be satisfied on the balance of probabilities that currently this was the case, notwithstanding that he might have satisfied that diagnosis in the first two years after his discharge from the Army. She accepted that the Applicant consumed more alcohol than the safe recommended limit for males, but noted that diagnosis of alcohol abuse was not based on consumption alone. In particular, she said there was not enough information to conclude with certainty that the Applicant displayed an increased tolerance of alcohol, nor was there any indication that there was a recurrent alcohol use resulting in a failure to fulfil major role obligations at work or at home. Although it was possible that the Applicant had attempted to reduce his drinking at various times, there was nothing to suggest that there was a physical reason for this.
Dr Walden did not consider that the Applicant's Vietnam service "had a lot of impact" on his life in the sense that the "trauma" had not adversely affected him. She did not consider the Applicant suffered from depression or anxiety.
consideration of evidence, submissions and findings of fact
Does the Applicant suffer from a "disease"?
It was submitted for the Applicant that he met the criteria for diagnosis of PTSD in both the 1994 and 1999 Statements of Principles for Post Traumatic Stress Disorder. The Respondent agreed that, in respect of the Applicant meeting the definition of "post-traumatic stress disorder" in the 1994 Statement of Principles, paragraph (a) relating to exposure to a traumatic event has been satisfied. The Tribunal notes that the Applicant sought to rely on his accrued rights to have this matter determined using the Statement of Principles in place at the time the primary decision was made. Instrument No.15 of 1994 for Post Traumatic Stress Disorder is therefore the relevant Statement of Principles to be applied.
With respect to paragraph (b) of the definition, relying on the evidence of Dr Dinnen, it was submitted for the Applicant that he experienced recurrent and intrusive recollections of the traumatic events through his sleep disturbance, and that he became distressed at certain times during the year that reminded him of Vietnam. He had successfully developed a coping mechanism having trained himself not to think about Vietnam. He did not talk about his Vietnam experiences at home and he discussed the subject only when asked about it. It was also submitted that he satisfied factors (i), (ii) and (vi) in paragraph (c). With respect to paragraph (d), it was submitted that the Applicant satisfied factors (i) and (ii). It was submitted that his pattern of sleep disturbance, accompanied by sweats, was well outside the norm of everyday experience. In respect of functional impairment, it was submitted there was "mild " impairment of the requisite severity ("significant distress") in social and occupational areas. It was submitted that the Applicant's condition of PTSD has slowly developed since his service.
It was submitted for the Respondent that the issue of diagnosis must be determined on the balance of probabilities. It was conceded for the Respondent that it was "possible" that the Applicant suffered from a psychiatric disorder other than PTSD, although it was noted that Dr Waldon considered he did not suffer from any disorder and there was no other psychiatric evidence other than that of Dr Dinnen who considered that he suffered from PTSD. It was submitted in respect of the definition of "post-traumatic stress disorder" in the Statement of Principles, that the Applicant fails to meet paragraph (b) viz.
The traumatic event is persistently re-experienced in one or more of the following ways:
(i)        recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)       recurrent distressing dreams of the event;
(iii)       acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)      intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)       physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
It was submitted that in respect of (b)(ii) the Applicant does not know why he wakes up and cannot remember any distressing dreams. The fact that he sleeps lightly does not necessarily mean that he is re-experiencing a traumatic event. It was submitted that without any recall of a dream that factor cannot be made out. On the Applicant's evidence he has dreams two or three times a year, but he does not recall their content. In any event his sleep disturbance is approximately three times a week and he does not have any recall associated with that. It was submitted that paragraph (b) is not met as the Applicant does not appear to persistently re-experience the traumatic event.
It was submitted for the Applicant in reply, that in the alternative he might well satisfy paragraph (b)(i) "recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions". The Applicant does have memories of the trauma at key times during the year. It was submitted in respect of paragraph (c) that Dr Dinnen noted that the defence mechanism of denial could be a large factor in avoiding thoughts, feelings, conversations associated with the trauma. It was submitted that the Applicant's "coping mechanism" is to deny and not to cope with his thoughts. In respect of paragraph (d) Dr Dinnen noted that the Applicant's service caused him to learn to sleep lightly, but it is also the case that he wakes and is unable to go back to sleep two or three times a week. It was submitted that the Applicant's sleep pattern could be a symptom of distressing recollections.

In relation to paragraph (f) "the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning", it was submitted for the Respondent that the Applicant's reason for leaving the bank was that he took a voluntary redundancy, believing that he could not progress his career in the bank. Although the Applicant said that was because of his drinking and the effects of his psychiatric condition, it was submitted that in reality the bank was rationalising its country branches, and there is no objective evidence from the bank that they were concerned about the Applicant's performance. It was submitted for the Respondent that it was doubtful that there was any social impact on his career from his alleged psychiatric condition. Paragraph (f) required that the disturbance of behaviour must be present in a "clinically significant" degree.
It was submitted for the Respondent, in effect, that although it is acknowledged that the Applicant "appears to suffer from some psychiatric frailty which may be quite properly characterised as a psychiatric disability" it was not conceded that he suffered "from a recognised psychiatric disorder". It was submitted for the Applicant that, relying on the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307, the Tribunal must, in the first instance determine to its reasonable satisfaction whether the Applicant suffers from a disease the subject of his claim. If that question is answered in the affirmative, then the Tribunal applies the test identified by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 to determine whether a reasonable hypothesis connecting the claimed condition with the circumstances of the service has been raised. The diagnosis of the disease, if a disease is found by the Tribunal to exist, then becomes part of the reasonable hypothesis test by applying the Statement of Principles.
The Tribunal agrees with this submission, and indeed notes that more recently that position has been adopted by the Federal Court by Madgwick J. in Budworth v Repatriation Commission [2001] FCA 317. His Honour held in effect that it must be shown on the balance of probabilities that a disease exists, but there is no requirement to prove on the balance of probabilities that the disease has a specific medical label. If questions of causation arise on the question whether a disease exists the reverse criminal standard applies. In Budworth, as in the matter now before the Tribunal, the first question to consider is whether the Applicant suffers from a disease, without determining how the disease might be labelled medically.
The Tribunal is concerned in respect of Dr Dinnen's evidence to the effect that the Applicant suffered from a diagnosable PTSD. The Tribunal finds that Dr Dinnen has been somewhat equivocal about the Applicant's pathology, and in coming to an opinion that the Applicant suffers from PTSD he has been influenced by the fact that the Applicant considers he has a problem with his "nerves" that has led him to pursue this claim. This clouds rather than clarifies the issue of whether he suffers from a diagnosable condition, or, put another way, whether he suffers from a pathological state – that is, a disease.
While the Tribunal would agree that Dr Dinnen has obtained a much fuller history than that provided to Dr Waldron, the issue of whether the Applicant is suffering specific symptoms of PTSD or whether he is merely demonstrating good coping mechanisms is one that relates to assessment rather than history, although assessment is based in part on history. In any event, both doctors had the benefit of the fuller history when they gave their oral evidence. Moreover, there is a significant issue for the Tribunal regarding the inconsistencies in the Applicant's history to different people and over time.
Considerable store has been placed by the Applicant on the curtailment of his promotion at the bank. The fact that his promotion was slow is not in doubt, and the Tribunal so finds. The real issue, however, is whether his progress at work was thwarted by a war-caused psychiatric condition and/or by a war-caused alcohol abuse. In considering this issue, the Tribunal also notes that the Applicant discontinued tertiary studies relevant to his work that the bank was supporting. His reason for not continuing was his heavy workload, his wife's pregnancy and the purchase of a new house. The Tribunal finds that this too was a relevant factor in the curtailment of his promotion.
It was also submitted for the Applicant that the curtailment of his promotion was affected by his irritable behaviour towards customers and that that behaviour was related to his psychiatric condition. The Tribunal accepts that if he suffered from a psychiatric condition, then his irritable behaviour could be attributed to it. It was submitted for the Applicant to the effect that his irritable behaviour at work caused a clinically significant impairment in his occupational functioning.
The Applicant was aged 22 years when he went to Vietnam. He returned from Vietnam in August 1968 and after a short period at home he was sent by his employer (the bank) to Grafton where he started drinking heavily. Although he was not discharged from the Army until 27 September 1971 at the age of 25 years, the previous three years were in the Regular Army Reserve, presumably part time.
The Tribunal finds that the Applicant found his service in Vietnam to be stressful, and on his evidence he drank in Vietnam to relieve stress. The Applicant's evidence about the quantum of drinking on service is conflicting. His oral evidence was to the effect that it was not possible to drink heavily while in Vietnam and heavy drinking did not commence until he went to Grafton, but in an alcohol questionnaire he said he drank six schooners per day on average during his service and "was drunk every night". Whatever the quantum of his drinking might have been, apparently it did not affect either his service in the Army or his work in the bank. His evidence was that he drank so that he did not have difficulty falling asleep. However, the only other identification of a sleeping problem throughout the Applicant's post-service period is that he is a light sleeper and sometimes he wakes and is unable to get back to sleep. There is no other evidence that he had difficulty getting to sleep. Therefore the Tribunal is unable to give much weight to the Applicant's evidence that he drank when he went to Grafton to avoid difficulty falling asleep. There is no evidence of the Applicant drinking in Grafton for any other reason relating to his service, and in particular there was no reference to trying to "calm his nerves" or "relieve stress" or "to forget or dull the horrors of his service". When Dr Dinnen asked him why he kept drinking after his service the Applicant did not know. Hence the existence of underlying psychopathology existing at that time is merely left open. It is not pointed to by the evidence. The only evidence about his irritability at work relates to the last three years at the bank (Dr Dinnen's report of 7 January 1999 –exhibit B). As he left the bank in 1993, the Tribunal assumes that his irritability did not become a problem until 1990.
The Tribunal finds, on the evidence of Dr Dinnen and the Applicant's own evidence, that the Applicant does not talk about his Vietnam experience unless he is asked specifically. It is not that he refuses to talk about it. Nor is it the case that he has blocked it from his consciousness, although he tries not to think about it, and when he does think about it, about three times a year in relation to significant events, he becomes "a bit teary" and "sad". The Tribunal is not reasonably satisfied that this scenario is indicative of a pathological state. Rather the opposite: the Tribunal is reasonably satisfied, taking into consideration the evidence of the Applicant, Dr Dinnen and Dr Walden, that the Applicant has not demonstrated a pathological reaction in relation to these factors, but that they are normal psychological responses to a series of traumatic experiences he had while on service. The Applicant's preference for his own company when drinking, on its own, is not pathological. It appears that he is not an outgoing person by nature, he does not reflect emotional warmth in a relationship although he appears to have sustained a fairly good marriage for almost 30 years and generally has good family relationships. There is certainly no evidence that he has become a withdrawn unemotional person only since his return from Vietnam.
While the Applicant's chronic abuse of alcohol could reflect an underlying stress reaction that he is attempting to control with alcohol, the Tribunal is not inclined to view his drinking as a symptom of any psychiatric condition. Apart from there being no expressed connection between the two by the Applicant himself, the history is that his drinking became heavy when he went to Grafton (which could be associated with the work environment in which he found himself). It decreased in 1974 when he married (which again is not associated with his service) and he reduced it again about 1980 because his wife was not happy about it. It increased again only in 1993 after he left his employment. There is documentary evidence (T8, p69) to the effect that he had low self-esteem after he left his employment and he was depressed. Again, this episode of alcohol abuse was explicitly related to the significant change in his employment status and there is no evidence that it related to the circumstances of his war service.
The Tribunal's real concern in this matter is that the only significant evidence about the relationship between the Applicant's war service and his alleged psychiatric illness has been provided in the context of this claim for pension. When this is added to the very limited identification of specific symptoms that could be attributable to a pathological state, the Tribunal is unable to give much weight to the evidence that has emerged specifically in relation to this claim. The inconsistencies identified in the Applicant's evidence puts a further veil over the quality of the evidence.
Taking all the evidence and the submissions of the parties into account, the Tribunal is not reasonably satisfied that, pursuant to s5D of the Act, the Applicant suffers from any psychiatric disease in answer to his claim for "nerves". Hence, as he does not suffer from a disease as defined in the Act, it is not necessary for the Tribunal to move to the next step of determining whether a reasonable hypothesis has been raised that the disease has a connection to the Applicant's service. pursuant to ss120(1) and 120(3) of the Act: Deledio (supra). Therefore, without proceeding to apply the Statement of Principles, the Tribunal will affirm that part of the decision under review in respect of the Applicant's claim for "nerves".
Alcohol Abuse
It was submitted for the Applicant that on the evidence of Dr Dinnen the Applicant suffers from alcohol abuse. In respect of the definition of "psychoactive substance abuse or dependence", the Applicant sought to rely on paragraph (a), viz.
Continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance;

It was submitted that the Applicant continued to drink alcohol and was not able to reduce his consumption despite his interpersonal and social problems. Moreover, he has continued a heavy pattern of drinking despite suffering from hypertension.

It was submitted that the Applicant suffered from alcohol abuse as a result of experiencing a stressful event, that being the Battle of Coral [factor 1(a)]. He continually used alcohol despite his hypertension problem and arguments with his wife. Additionally, although alcohol use did not interfere with his work performance, it was submitted that it had an impact on how other people viewed him and affected his promotions.
It was submitted that the Applicant was a social drinker prior to service but that after service his pattern of drinking changed dramatically to the point where he started drinking every day and he positioned himself around his drinking activities. It was submitted that alcohol abuse was established since Vietnam.
It was conceded for the Respondent that the Applicant was involved in hazardous levels of drinking, but under the definition of "pyschoactive substance abuse or dependence" it is also necessary to consider whether his drinking represented a "maladaptive pattern of use". Although it was the Applicant's evidence that he thought people at the bank knew he was drinking heavily, he had not been told by the bank that they were concerned about his drinking. The Applicant managed to cope with his level of drinking. Although it is his case that he cannot give up alcohol, he does not claim that it is causing a great deal of distress. His hypertension is under control. The only evidence of a major problem for him was when he had to abstain from drinking for 48 hours because of a surgical procedure, and he "couldn't wait to get back to it".
It was submitted for the Respondent that there are two distinct hurdles for the Applicant in relation to this part of his claim. Firstly, he does not appear to suffer much impairment, and secondly, on the evidence of Dr Dinnen, he has a laconic manner and does not demonstrate impairment as easily as others might. It was submitted that this was also borne out at the hearing. It was also submitted that his laconic manner could reflect his country upbringing. At no time in his evidence did the Applicant appear to get upset.
In considering the evidence and submissions, the Tribunal moves first to consider whether the raised facts meet the definition of "psychoactive substance abuse or dependence" in the Statement of Principles. The Respondent has conceded that the Applicant's drinking is "physically hazardous" – paragraph (b) of the definition. The Tribunal does not consider that to be a concession properly made on the facts. There is no evidence that the Applicant drove while intoxicated or that his drinking had caused any legal problems. He did not become aggressive when drunk. There is no evidence that he had falls while drunk, thus being a danger to himself. The Tribunal assumes the Respondent's concession related to could only have related to the Applicant continuing to drink despite having hypertension. If that was the basis of the concession then there are two problems. One is that there is no evidence that his hypertension has been uncontrolled at any stage because of his drinking. Secondly, this issue is more likely to be considered under clause (a) of the definition, viz. having a physical problem (hypertension) that is caused or exacerbated by use of the substance. The Tribunal finds there is no evidence that links the Applicant's hypertension with his drinking, either by way of causation or exacerbation.
The Tribunal has already made some findings in respect of the Applicant's drinking (paragraph 71) that are also relevant here and do not need to be repeated. On the evidence the Tribunal finds that the Applicant has been involved in hazardous levels of drinking at least since he commenced work for the bank in Grafton, presumably in late 1968. However, the Tribunal accepts the submission for the Respondent that the Applicant has continued to abuse alcohol despite a persistent or recurrent social, occupational, psychological or physical problem caused or exacerbated by his use of alcohol. Although the Applicant's evidence was that he assumed his heavy drinking had curtailed his promotion at the bank, no one at the bank had told him that. Indeed, on his evidence, no one at the bank had raised his drinking as a problem; and the Tribunal so finds. It is a fact that is merely left open by the evidence.
Taking all this evidence into account the Tribunal finds that on the evidence there are no raised facts that the Applicant continued his drinking "despite having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of (alcohol)". The evidence certainly is not that it caused marital or family problems, but merely that on two occasions when he was drinking his wife drove off for six hours and that at periods during his marriage he has reduced his drinking at his wife's request. This does not constitute evidence of "persistent or recurrent" marital problems. Rather, it shows the Applicant's ability to adapt to his wife's needs by reducing his drinking when she insisted. The Tribunal also finds that the Applicant's drinking did not cause occupational problems for the reasons already identified in paragraph 71.
Overall, the raised facts do not meet the definition of "psychoactive substance abuse or dependence" in the Statement of Principles, and therefore the Applicant is unable to meet the requirements of factor 1(a) or 1(b). However, even if the Tribunal was to have found that the raised facts did indeed meet the definition for "psychoactive substance abuse or dependence" in 4(a) or (b), the Tribunal is not satisfied that a reasonable hypothesis would have been raised that connected the Applicant's drinking with his war service. That connection is merely left open, and applying the decision of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517, the hypothesis must find support in that material, that is, the material must point to and not merely leave open, a hypothesis as a reasonable hypothesis. There is no doubt that the Applicant experienced a stressful service in Vietnam, prior to his pattern of heavy alcohol consumption developing soon afterwards. However, on the evidence the causal connection between his Vietnam service and his heavy drinking is merely left open.
The Tribunal is left in no doubt about the adequacy of the preparation of the Applicant's case for hearing. Over a period from January 1999 to March 2000 Dr Dinnen has provided five reports to the Applicant's solicitor (exhibit B), presumably in an attempt to tighten and focus the medical evidence. Dr Dinnen himself has made an assumption about the reason for the Applicant's heavy drinking being his Vietnam service because of the traumatic nature of that, but he has not elicited any history of a connection, except perhaps a temporal one. Nor is there any other evidence that points to a history of his drinking being connected to his war service.
The Tribunal notes the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564, relating to assumed facts, where (at 569) the Court said –
In some cases, the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumed that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered.

The Tribunal in this matter has considered whether it is appropriate to assume the connection between the Applicant's drinking and his war service, as Dr Dinnen has done. On this point the Tribunal notes that the Full Federal Court in East said –

… the practical situation remains that it will often be in the interests of a party to proceedings before the Tribunal to adduce particular evidence; the reason being that, in the absence of that evidence, the Tribunal will not be free to make the decision sought by that party. In a case where that party apparently makes a conscious decision, with the benefit of legal advice, not to deal with the matter the Tribunal would be justified in assuming that the party had no evidence on the point which would assist the case: cf Jones v Dunkel (1959) 101 CLR 298. In the present case, the Tribunal did not speak of onus. It simply observed that there was no evidence of the particular matters and that the applicant had apparently made a conscious decision not to deal with the subject; the implication being that any evidence available to her upon that matter would not have assisted her case. We see no error of law in that statement.

In the matter now before the Tribunal it appears that the Applicant was given every opportunity, both by his own solicitor and also the solicitor for the Respondent, to present his case fully. In particular, it was open to the Applicant's solicitor to have adduced more evidence that went to the issue of his drinking being connected to the circumstances of his war service. However such evidence was wanting. The implication can only be that such evidence would not have assisted his case. Even Dr Dinnen, who is well skilled in taking a full and helpful history, was unable to do more than assume a causal connection.

In all the circumstances of this case the Tribunal considers that the raised facts do not provide a causal connection between the Applicant's heavy alcohol consumption and the circumstances of his Vietnam service, and therefore he fails to meet the provisions of clause 1 of the Statement of Principles. Therefore a reasonable hypothesis has not been raised pursuant to s120(3) of the Act in respect of alcohol abuse, and the Tribunal determines that this condition is not war caused. The Tribunal will therefore affirm that part of the decision under review.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10 March 2000
Date of Decision  28 May 2001
Solicitor for the Applicant         Ms E Sadleir, Legal Aid Commission
Solicitor for the Respondent    Mr R Wallis, Department of Veterans' Affairs