Geraghty and Repatriation Commission
[2004] AATA 998
•24 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 998
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/627
VETERANS' APPEALS DIVISION )
Re DENIS JOHN GERAGHTY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Bernard McCabe
Mr IR Way, MemberDate24 September 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .........[Sgd] B J McCabe.........
Senior Member
CATCHWORDS
VETERANS ENTITLEMENTS – pensions and benefits – veteran claims anxiety disorder and alcohol abuse are related to service – whether applicant experienced a severe psychosocial stressor – whether applicant experienced a severe stressor – decision affirmed.
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196A, 196B(2)
Repatriation Commission v Deledio (1998) 83 FCR 82
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
24 September 2004 Senior Member Bernard McCabe
Mr IR Way, Member1. Denis John Geraghty is the applicant in these proceedings. On 29 August 2001, the Repatriation Commission refused the applicant’s claim for anxiety disorder, lumbar spondylosis and alcohol dependence or alcohol abuse. On review of this decision, the Veterans’ Review Board (“VRB”) on 18 June 2002, affirmed the Commission’s decision in respect of anxiety disorder and alcohol dependence or alcohol abuse and set aside the decision in respect of lumbar spondylosis, substituting a decision that this condition was war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).
2. The applicant has applied to this Tribunal for review of that part of the Commission’s decision which refused his claim for anxiety disorder and alcohol dependence or alcohol abuse.
3. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2Report of Dr William Kingswell, Consultant Psychiatrist, dated 7 March 2003
Exhibit 3Transcript of VRB Hearing dated 18 June 2002
Exhibit 4Statement of Denis John Geraghty dated 14 November 2002
Exhibit 5Report of Dr Janis Carter, Consultant Psychiatrist, dated 3 November 2003
4. The applicant was represented by Mr O’Gorman of counsel. Mr O’Gorman was instructed by Gilshenan and Luton. The respondent was represented by Mr Smith, a departmental advocate. The applicant, Dr Carter and Dr Kingswell gave oral evidence.
Background to the claim
5. The applicant was born on 10 December 1945 and rendered National Service in the Australian Army from 20 April 1966 to 26 January 1968, including a period of operational service in Vietnam from 1 April 1967 to 1 December 1967. The applicant’s record of service shows he was discharged from the Army “unsuitable for further service – disciplinary reasons”.
6. During his service in Vietnam the applicant was employed as a storeman and forklift driver in the Royal Australian Army Ordinance Corps at the Composite Ordinance Depot, 1 Australian Logistic Support Group, Vung Tau.
7. The applicant’s accepted service-related disabilities are:
§Lumbar spondylosis
§Bilateral sensori-neural hearing loss with tinnitus
His non-service-related disabilities are:
§Anxiety disorder
§Alcohol dependence or alcohol abuse
8. The applicant has put forward two hypotheses. His first hypothesis is that he suffers from generalised anxiety disorder as a result of experiencing a severe psychosocial stressor during his service in Vietnam. The applicant’s second hypothesis is that he suffers from alcohol dependence or alcohol abuse that is causally connected to suffering from a war-caused psychiatric disorder.
Legislative Framework
9. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
10. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(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.
…
(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.
11. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. It is common ground between the parties and the Tribunal accepts that the relevant SoPs in this matter are:
§ Anxiety Disorder – Instrument No 1 of 2000
§ Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
12. The relevant factor in the anxiety SoP is:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) …..
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…..
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder…
13. “Severe psychosocial stressor” is defined in the SoP as follows:
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems
The relevant factor in the alcohol abuse or alcohol dependence SoP is:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of
alcohol dependence or alcohol abuse;
(b) experiencing a severe stressor within the two years immediately before
the clinical onset of alcohol dependence or alcohol abuse
“Experiencing a severe stressor” is also defined in the SoP:
“experiencing a severe stressor” means the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:
(i) threat of serious injury or death;
(ii) engagement with the enemy;
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
Applicant’s Evidence
14. The applicant told the Tribunal that he was a “naïve kid” when he landed in Vung Tau and witnessed war in a foreign country for the first time. He said he suffered a “culture shock” seeing the country so filthy and seeing the poor living-conditions of the local people. The applicant described three stressful incidents in his written statement. One of these matters related to being held in detention and his claims of being victimised or bastardised during his service in Vietnam. The applicant did not press this aspect of his claim at the hearing. He relied on the other stressful events which he described in his written statement (Exhibit 4) as follows:
“7.It was an awful place in Vietnam. I could hear the bombs going off as they shelled in the distance. You could hardly sleep at night and I felt a lot of tension.
8.I was stationed right next door to Vung Tau hospital where they’d fly in all of the dust-off helicopters at all hours of the day and night. On many occasions I saw the casualties come in. I got to within 20 metres away at the closest. The dead were covered up, but I saw a lot of blood and injured men. It was horrific for me. One moment I was in Australia, called up for national Service, and the next I was seeing all of these horribly injured men. It was terrifying to see what could happen.”
15. In his oral evidence the applicant said he was worried about enemy infiltration and could hear constant shelling from Naval gunfire every night “half a mile up the road”. He said he found these circumstances made him feel “pretty anxious”, uncomfortable and fearful, and that he could not sleep because of the noise. He said he never drank alcohol before being posted to Vietnam but after about 4 to 6 weeks in the country he started drinking a lot after work. He said this helped him sleep at night. He estimated his consumption of alcohol at 20 to 24 cans (stubbies) per day. He said that after Vietnam he reduced his consumption by about half and 12 months later would have been averaging 6 to 8 cans per day.
16. The Tribunal notes the applicant said in his written statement that he thought the Vung Tau area was not particularly dangerous in terms of enemy activity. We also note the applicant told the Veterans’ Review Board:
“…the Yanks had a battle ship that used to bomb the Horseshoe, up towards Nui Dat, which was probably about 10 k’s away. And it went non-stop from dusk to about 5am and for the first about three or four weeks, I think – it might have been a little longer – I used to just lay in bed and I couldn’t sleep. And then they’d stop at 5am and then I’d just fall asleep from exhaustion and then you had to get up at 6. So then everyone else used to get drunk at night, so then I did then.”
17. When asked to explain the inconsistency between this account and his account to the Tribunal of the shelling being “half a mile up the road” from 1 ALSG, and his earlier evidence to the Veterans’ Review Board of the shelling being at the Horseshoe some 10 kilometres away, the applicant said he was not sure where the shells landed and that he had never been to the Horseshoe position, or outside the Vung Tau area.
18. The applicant conceded he never saw casualties arriving at the base hospital at Vung Tau at night and at no stage was he required to assist in the evacuation of casualties. He said he could not help but notice the arrival of casualties during the performance of his normal duties as a storeman/forklift driver in the Ordinance Depot adjacent to the hospital and its helipad. He said seeing the casualties from a distance “didn’t go too well at the time” and made him feel “pretty sick”.
19. The Tribunal notes that apart from the applicant telling the Veterans’ Review Board that he was stationed in a compound right next to the hospital there is no mention whatsoever in the Veterans’ Review Board transcript of the applicant recalling the witnessing of casualties, nor has the Veterans’ Review Board addressed this issue in its reasons for decision. The Tribunal notes that the applicant only referred to bombing and bastardisation in his statutory declaration of 26 October 2001.
20. Mr O’Gorman questioned the applicant about how long he had been experiencing symptoms of anxiety. The applicant explained that he recollected anxiety conditions occurring from when he was 17 years old (and suffering from acne). He said the symptoms he experienced then were probably the same as when he saw Dr Carter in 2001. He said that during the intervening period he tried to live with his symptoms. The Tribunal notes the applicant said he had told the RAP at Vung Tau that he had an “upset tummy” and that his F Med 5 and Sick Report recorded the applicant being prescribed Librium for tension on 12 May 1967 – although the documents did not indicate any further treatment beyond 30 May 1967, which suggests the problem may have been resolved.
21. The applicant told the Tribunal he had been in continuous employment since leaving the Army and that he still worked. He has been self-employed for the past 6 years as a sub-contractor driving a 2 tonne removal truck. Immediately prior to this he had been self-employed driving a milk truck for 16½ years (between the hours of 2 am and 9.30 am).
Medical Evidence
22. As is often the case in matters such as this, there are conflicting medical opinions about the applicant’s psychiatric condition and alcohol-related problems.
23. Dr Carter (the applicant’s treating psychiatrist) first saw the applicant on 23 February 2001 and has seen him since on some 20 occasions. In her opinion the applicant suffers from generalised anxiety disorder, with a date of onset during the applicant’s service in Vietnam. She attributes this condition to the applicant suffering stressors during his service in Vietnam.
24. In her report of 5 June 2001on the applicant’s claim, Dr Carter describes the stressor as hearing American bombing all night. The sound of bombing prevented him sleeping. In her report of 27 August 2001, Dr Carter again refers to American bombing “up the road” and the applicant drinking “to knock himself out so he could sleep over the general din of the bombs”. In this report she also refers to the applicant being victimised and being the subject of bastardisation during his relevant service.
25. Dr Carter does not refer to the applicant witnessing casualties in either of the reports referred to above. However in her subsequent report of 3 November 2003, Dr Carter does refer to the applicant witnessing a collection of casualties by helicopter. She records how the helicopters landed near where the applicant was working and that “he would know how many people died and what happened to them”. She also referred to the bombing “going on at the Horseshoe, which wasn’t exactly in Vung Tau, but he can clearly hear the bombing”.
26. Dr Carter also opined that the applicant suffers from alcohol dependence or alcohol abuse which he attributes to his generalised anxiety disorder.
27. Dr Kingswell has had the opportunity to review the documentation relevant to this case and has seen the applicant on one occasion on 17 February 2003 for 1 hour 45 minutes.
28. Dr Kingswell concluded the applicant experienced anxiety and alcohol abuse during his service in Vietnam, including one instance of treatment with Librium for sleep disturbance and abdominal symptoms. However, Dr Kingswell concluded both of the applicant’s problems resolved on discharge from the military.
29. Dr Kingswell opined:
“Mr Geraghty’s difficulties arose on a background of anxiety in adolescence and in the setting of conscription, overseas service and distant shelling which disturbed his sleep. Further he complained he was bullied by other soldiers and Military Police. There was no other personal or family history of psychiatric disorder and no other history of substance use or other predisposing condition. Mr Geraghty would have satisfied the criteria for adjustment disorder with anxious mood (DSMIV-TR:309.24) and alcohol dependence (DSMIV-TR:303.90) in 1967 but not at any other time.
…..
1.Mr Geraghty does not currently suffer from a psychiatric disorder. He does not suffer from a substance use disorder.
…..
3. Mr Geraghty does not have any continuing psychiatric disorder.”
30. The Tribunal notes Dr Kingswell makes no reference to the applicant witnessing casualty evacuation. When Dr Kingswell was questioned about this, he said the applicant had not referred to casualty evacuation as a stressful event even though he had been given ample opportunity to say so. On cross-examination by Mr O’Gorman, Dr Kingswell agreed that he had the applicant’s statement dated 14 November 2002 before him when he saw the applicant. In that statement, the applicant clearly described witnessing casualty evacuation. Dr Kingswell said he had overlooked this and that had he not done so he would have raised the matter with the applicant.
31. In the face of vigorous cross-examination by Mr O’Gorman about the conflict between his opinion and the opinion of Dr Carter, Dr Kingswell strongly adhered to his view that the applicant no longer suffers from a psychiatric disorder or from a substance abuse disorder.
Consideration
32. Clearly, an issue before the Tribunal is whether the applicant suffers from anxiety disorder and whether he suffers from substance dependence or abuse. Mr Smith submitted that this question of diagnosis is the first issue which the Tribunal must address. He is correct. The question must be decided to the Tribunal’s reasonable satisfaction: Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205. We are reasonably satisfied of the diagnosis of anxiety disorder and alcohol abuse or dependence in this case having regard to the medical evidence from Dr Carter, who is the applicant’s treating doctor.
33. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present:
“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 s196B(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 s196B(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 s120(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.”
34. After consideration of all of the material before it, the Tribunal accepts the raised facts point to a hypothesis connecting the applicant’s injuries with the circumstances of his service.
35. The relevant SoPs are those referred to in paragraphs 12 – 14 (supra).
36. The next question before the Tribunal is whether the raised hypotheses “fit” the templates found in the SoPs. If they do the hypothesis is deemed reasonable. If they are not consistent with the SoP the hypotheses are not reasonable and the applicant’s claim must fail.
37. We think there are two threshold questions here. First, whether any of the stressors relied upon by the applicant meet the definition of “severe psychosocial stressor” within the meaning of the anxiety SoP. Second, whether either of the stressors meets the definition of “severe stressor” within the meaning of the alcohol abuse or dependence SoP.
Anxiety Disorder: Is either stressor a “severe psychosocial stressor”?
38. Spender J addressed the meaning of “experiencing a severe psychosocial stressor” in White v Repatriation Commission [2004] FCA 633. He said:
“27.…the concept of “experiencing” a “severe psychosocial stressor” in the SoP embodies both objective and subjective elements.
28.The reference to “an identifiable occurrence” is objective. The examples given in the definition are of the kinds of “identifiable occurrence” that are contemplated…
29.The reference to “experiencing” a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase “experiencing a severe stressor” in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence “that evokes feelings of substantial distress in an individual” also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase “experiencing a severe stressor”.
30.In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
39. The Tribunal has carefully considered the two stressful “occurrences” on which the applicant relies.
40. In respect of the shelling incident the Tribunal is mindful of the applicant’s own evidence that he felt he was in a safe area and the shelling was not so close that he could clearly recall where it was. While distant shelling might have disturbed the applicant’s sleep pattern, we do not think, objectively speaking, the nature of this occurrence would evoke feelings of substantial distress in an individual of the kind contemplated by the SoP.
41. Counsel for the applicant submitted the casualty evacuation occurrence falls clearly within the examples given in the definition of “experiencing a severe stressor” in the SoP for alcohol dependence or alcohol abuse. The Tribunal also considered whether the incident meets the definition of a “severe psychosocial stressor” in the anxiety SoP.
42. Mr Smith submitted the Tribunal should take account of the secondary nature of this occurrence. He highlighted the fact that the occurrence did not emerge until recently - although facts are not in issue at this point in the process. Mr Smith also pointed to the fact the applicant was not directly involved in any way in the evacuation process. The applicant’s observations were made while he was undertaking his normal duties at some distance from where the medivac helicopters landed.
43. While we accept the experience was unpleasant, we do not think the incident was objectively of such a nature as to evoke feelings of substantial distress of the kind contemplated by the SoP in an individual. That is particularly so considering the applicant’s physical remoteness from the event. The applicant’s witnessing of the end-stages of the medivac evacuation does not meet the definition of “experiencing a severe psychosocial stressor”.
44. Neither stressful event meets the definition of “experiencing a severe psychosocial stressor”. Therefore the applicant’s hypothesis connecting anxiety disorder with service is not reasonable.
Alcohol abuse or dependence – is either event a “Severe stressor”?
45. The Tribunal has also considered whether either stressor meets the definition of “severe stressor” in the alcohol abuse or dependence SoP. We are mindful of the definition of “experiencing a severe stressor” in the SoP and the approach to be taken in considering the meaning of this definition.
46. We think hearing the sounds of shelling “half a mile up the road” cannot satisfy the definition of “severe stressor”. First it is arguable whether the applicant “experienced, witnessed or was confronted” the shelling merely by hearing shells landing a considerable distance away. In any event we think it must fail the objective/subjective test laid down in Stoddart v Repatriation Commission [2003] FCA 334. We do not think the shelling incident was capable of conveying (and did not convey) a risk of death, serious injury or threat to physical integrity when to a reasonable person in the position of and with the knowledge of Mr Geraghty. We note that in describing his reaction to the incident (at paras 15-18, supra) Mr Geraghty revealed he did not experience “intense fear, helplessness or horror”. This means the incident cannot qualify as a severe stressor for the purposes of the SoP.
47. We think the witnessing of battlefield casualties being taken to the hospital is closer to being a severe stressor but still falls short. We note the applicant was never required to assist in the handling of the casualties – he just saw from a distance as they were transported. This cannot be equated to “casualty clearance” described in the SoP. It is also questionable whether witnessing wounded men being moved to hospital gives rise to the necessary “threat”. In Stoddart v Repatriation Commission [2003] FCA 334 Mansfield J defined that term to mean “an indication of probable evil to come; something that gives indication of causing evil”. The use of this definition was affirmed on appeal: Repatriation Commission v Stoddart [2003] FCAFC 300. We think an individual in Vung Tau (it is important to note he knew he was in a safe place) who sees wounded men in transit from the battlefield to the hospital is a witness to an indication of evil past. We do not think it is an indication of a “probable evil to come” – unless that individual is or expects to go into battle himself. Mr Geraghty was not in that situation.
48. We find none of the events described by the applicant meets the definition of “experiencing a severe stressor”. Factor 5(b) of the SoP is not satisfied in this case.
49. The claim that the applicant’s alcohol dependence or alcohol abuse is war-caused based on Factor 5(a) also fails as the applicant was not suffering a war-caused psychiatric illness.
conclusion
50. The Tribunal affirms the decision under review.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard McCabe and Mr IR Way, Member
Signed: Thomas Ritchie
Associate:
Date/s of Hearing: 24 June 2004
Date of Decision: 24 September 2004
The applicant was represented by Mr O'Gorman.
The respondent was represented by Mr Smith, a departmental advocate.
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