Gerzina and Repatriation Commission
[2003] AATA 208
•5 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 208
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/89
VETERANS’ APPEALS DIVISION ) Re ALDO GERZINA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Dr. P Fricker, MemberDate5 March 2003
PlaceMelbourne
Decision The Tribunal varies the decision under review to provide that alcohol dependence is a war-caused disease with effect from 13 June 1999. (Sgd) Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – whether post-traumatic stress disorder, depressive disorder, alcohol abuse and irritable bowel syndrome are war-caused diseases – operational service in Vietnam – interaction of reasonable satisfaction standard of proof in regard to questions of diagnosis and reasonable hypothesis standard of proof as to factors in a template when one factor is suffering from a disease from which the Tribunal has found the veteran does not suffer – decision varied
Veterans' Entitlements Act 1986 ss 9, 120(1), (3) and (4)
Statement of Principles Instrument No. 104 of 1996
Statement of Principles Instrument No. 78 of 1998
Statement of Principles Instrument No. 58 of 1998
Statement of Principles Instrument No. 76 of 1998
Repatriation Commission v Deledio (1998) 49 ALD 193.......................................................... 4
Benjamin v Repatriation Commission (2001) 34 AAR 270 [2001] FCA 1879.......................... 5
Repatriation Commission v Budworth (2001) 66 ALD 285 [2001] FCA 1421........................... 5
Repatriation Commission v Budworth (2001) 66 ALD 285, [2001] FCA 1421
Benjamin v Repatriation Commission (2001) 34 AAR 270 [2001] FCA 1879
REASONS FOR DECISION
5 March 2003 Mrs Joan Dwyer, Senior Member
Dr. P Fricker, Member
1. This is an application for review of a decision of the Repatriation Commission made on the 9 September 1999, which was affirmed by the Veterans Review Board (“the VRB") on 5 December 2000.
2. At the hearing Mr G Moore of Counsel appeared for Mr Gerzina. Mr K Rudge, an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission. Mr Gerzina gave evidence. Evidence on his behalf was also given by Dr Cooper, a psychiatrist. The respondent called Mr Tilbrook, a military historian, and Dr Timney, a psychiatrist. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing.
BACKGROUND
3. The issues in this matter are whether Mr Gerzina suffers from war-caused Post-Traumatic Stress Disorder (“PTSD”), or depressive disorder, or substance abuse or dependence and, if he is found to suffer from one of those conditions, whether he suffers from war-caused irritable bowel syndrome. The definition of a war-caused disease is found in s 9 of the Act.
4. Mr Gerzina had operational service in Vietnam from 18 February 1969 to 11 February 1970.
5. The relevant standards of proof in the Act are set out in s 120(1), (3) and (4) as follows:
(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
6. Section 120(1) and (3) are affected by s 120A which provides that where there is a Statement of Principles (“SoP”) in respect of incapacity from a disease of a particular kind, a hypothesis connecting that disease with the circumstances of a veteran’s service, is reasonable only if the SoP upholds the hypothesis.
7. The way in which the reasonable hypothesis standard of proof is to be applied, where there is a relevant SoP, was explained by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193.. The Full Court said at p206:
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) …
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.
8. There was no dispute as to the relevant SoPs in the matter. They are as follows:
PTSD, Instrument No. 3 of 1999 as amended by Instrument No. 4 of 1999
Depressive Disorder, Instrument No. 58 of 1998
Psychoactive Substance Abuse or Dependence, Instrument No. 76 of 1998
Irritable Bowel Syndrome, Instrument No. 103 of 1996
THE ISSUE WHETHER MR GERZINA SUFFERS FROM PTSD
9. In Repatriation Commission v Budworth (2001) 66 ALD 285 [2001] FCA 1421, at para15, the Full Court of the Federal Court stated that when the Commission or the AAT must determine whether a veteran suffers from a “claimed disease”, that issue must be decided to the “reasonable satisfaction” of the decision-maker in accordance with s 120(4) of the Act.
10. In Benjamin v Repatriation Commission (2001) 34 AAR 270 [2001] FCA 1879the Full Court explained that, although the SoPs must be used in regard to deciding whether or not a disease is war-caused, they are not relevant to the issue of diagnosis of a claimed condition. The Full Court said in Benjamin at para 41: [read in via –auslii]
41 The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever.
11. We therefore must consider the evidence as to whether or not Mr Gerzina suffers from PTSD using the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”), which are as follows: [scanned]
g Diagnostic criteria for 309.8 I Posttraumatic
Stress Disorder
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)the person's response involved intense fear, helplessness, or horror.
. . .
B.The traumatic event is persistently reexperienced in one (or more) of the following ways:
(1)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. . . .
(2)recurrent distressing dreams of the event. . . .
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). . . .
(4)intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
(5)physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2)efforts to avoid activities, places, or people that arouse recollections of the trauma
(3)inability to recall an important aspect of the trauma
(4)markedly diminished interest or participation in significant activities
(5)feeling of detachment or estrangement from others
(6)restricted range of affect (e.g., unable to have loving feelings)
(7)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D.Persistent symptoms of increased arousal (not present trauma), as indicated by two (or more) of the following:
(1)difficulty falling or staying asleep
(2)irritability or outbursts of anger
(3)difficulty concentrating
(4)hypervigilance
(5)exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute: if duration of symptoms is less than 3 months
Chronic: if duration of symptoms is 3 months or more
Specify if:
With Delayed Onset: if onset of symptoms is at least 6 months after the stressor
12. Although the psychiatrists gave their evidence in relation to the criteria as set out in the relevant SoP, as the Full Court pointed out, the similarity of the definition in the SoP which was relevant in Benjamin, (or in SoP Instrument No. 3 of 1999), and in DSM-IV, means that the difference is “of no practical consequence whatsoever”. The major difference is as to whether roman or arabic numerals are used for sub-paragraphs.
THE EVIDENCE
13. Mr Gerzina gave evidence as to two circumstances which he regarded as traumatic during his service in Vietnam. The first was being in the vicinity of a helipad known as Vampire when wounded soldiers were arriving by helicopter, having been evacuated to hospital. The material before the Tribunal included various accounts of that matter apparently given by Mr Gerzina at different times. It seems that at times, for instance in the VRB hearing (R5) and to Dr Timney (R4), Mr Gerzina said that he had assisted with unloading wounded from the helicopter. However, at the hearing, Mr Gerzina simply said that he had been at the helipad in company with a friend, WO Tyrrell, whose duty it was to attend to weapons and ammunition brought in by the wounded soldiers. Mr Gerzina said that he had played no role in unloading wounded soldiers but had, perhaps, on occasions, lent a hand to steady a stretcher. He said that he had been close enough to see that some soldiers were badly wounded. Some had missing limbs and uniforms soaked in blood. He said he had attended at the helipad with WO Tyrrell on about three occasions.
14. The other circumstance Mr Gerzina described was part of his duties as a vehicle artificer. He was the senior NCO in the workshop. One of the workshop duties was to clean and prepare vehicles, which had been damaged and could not be repaired in Vietnam, for return to Australia. As the Senior NCO, Mr Gerzina said it was his duty to open up tanks and armoured personnel carriers which had been sent to the workshop. He said that on a number of occasions there was a stench of putrefaction when he opened the hatch of a vehicle. He said some times there were traces of blood visible, and small particles of human remains, such as skin. He described the occasion which he said made him feel the worst. That time there was a three or four centimetre square of skin, identifiable by hair, as part of a scalp, sticking to the interior of the vehicle. Mr Gerzina thought he had worked on six or seven vehicles and on four or five occasions there were traces of blood or skin visible to him.
15. Both Dr Cooper and Dr Timney said that these occurrences could satisfy the DSM-IV, PTSD diagnostic criterion A(1). However, while Dr Cooper accepted that diagnostic criterion A(2) was also satisfied, Dr Timney was of the opinion that it was not. The criterion requires that “the person’s response involved intense fear, helplessness or horror”.
16. Dr Cooper, in his report (A1), diagnosed Mr Gerzina as suffering from PTSD, on the basis of Mr Gerzina’s statement to him that, while with Mr Tyrell at the helipad he witnessed “with horror, dead bodies and mutilated soldiers including those with missing limbs”.
17. In evidence Mr Gerzina said that the only time he saw wounded soldiers was when he was at the helipad. He said he did not know that any of the soldiers were dead, they seemed sedated and there was some moaning.
18. Mr Gerzina, in evidence, gave more emphasis to the stressor involving the cleaning of the armoured vehicles. He said the stench of putrefaction was overwhelming. He showed signs of being emotionally affected, when describing the fragment of scalp.
19. The medical evidence did not agree on whether or not Mr Gerzina suffered from PTSD. Dr Seabridge, a treating psychiatrist, provided two reports (T7 pp59-60 and T24 pp159-160) in which he expressed the view that Mr Gerzina did not suffer from PTSD. In his first report of 27 November 1998, Dr Seabridge wrote:
He was stationed in Vung Tau, where he was responsible for setting up new technical equipment, and receiving damaged tanks and personnel carriers from the operational areas. He was frustrated and upset by the routine nature of this work, and his distance from the areas of action. He was regularly reminded of this, when servicing or checking equipment brought back from operational areas, with gruesome evidence of action in the form of blood and tissue residues, in and on the vehicles. He was additionally exposed to action by their proximity to the incoming helicopters, landing with wounded, whom they were required to help unload. Mr Gerzina was sufficiently frustrated and distressed by this that he went to Saigon personally and arranged an interview with the colonel to request transfer into an operational area. His request was denied.
20. Dr Seabridge noted symptoms such as increased alcohol consumption since Vietnam, lack of satisfaction with his career, and inability to experience emotional closeness with his family. In his first report Dr Seabridge diagnosed Mr Gerzina as suffering from an adjustment disorder consequent upon his service in Vietnam. He stated that Mr Gerzina did not suffer from PTSD. This was based on the history given to him that Mr Gerzina’s emotional problems during service were that he was frustrated and upset due to the routine nature of his work and his failure to obtain a transfer to an operational area. Dr Seabridge recommended ongoing counselling, which he commenced.
21. In his second report of 22 September 2000, Dr Seabridge said that he had seen Mr Gerzina for four counselling sessions. In a passage which the Tribunal found somewhat puzzling, Dr Seabridge wrote (Tdocs p159):
In my initial report, I classified his condition as an adjustment disorder, of chronic nature, with features of anxiety and depression.. However I find that this diagnostic construction is not acceptable, and I have discussed this issue with the past, and the present, director of the National Centre of War-related PTSD, and also with the president of the International Society for Traumatic Stress Studies, Professor McFarlane. They advised me that my proposal is not in their opinion an acceptable interpretation of this diagnosis, and that I should re-classify the diagnosis of Mr Gerzina.
22. Dr Seabridge then considered whether a diagnosis of “depressive disorder not otherwise specified” was available. He concluded that it was. He also diagnosed substance abuse.
23. Dr Timney said that the history Mr Gerzina gave to him was of a response to service stressors in Vietnam, which did not satisfy criterion A(2). It was his opinion that Mr Gerzina had been exposed to conditions which had the potential to cause PTSD, but his response to both stressors did not satisfy criterion A(2). He said the description of response given to him by Mr Gerzina was not at the level required to meet the description.
24. Dr Cooper said that in his opinion Mr Gerzina did suffer from PTSD. In his report he set out a lengthy list showing all the possible requirements of each category of the diagnostic criteria as satisfied. When Dr Cooper was asked by the Tribunal to refer to the material in his notes on which he had based his assertions that all criteria were satisfied, he read to the Tribunal an account of stressors similar to that Mr Gerzina had given in evidence. There was some ambiguity about whether Mr Gerzina had helped move soldiers or only their equipment. Dr Cooper did have a history of Mr Gerzina seeing dead soldiers and “some with limbs missing” at the helipad.
25. In cross-examination, Dr Cooper said that one aspect of Mr Gerzina’s distress in Vietnam was his guilt at being in a relatively safe and protected situation when others were being injured in combat type situations. He said he did not think that Mr Gerzina’s emotional response as to that aspect of his stress satisfied the criteria as a reaction to the traumatic event, but he did think that his guilt and distress made him more vulnerable to be traumatised by relatively milder forms of trauma.
26. The Tribunal asked Dr Cooper where he found the avoidance behaviour which is required by criterion C of the DSM-IV diagnostic criteria. The Tribunal queried that matter in view of the evidence that Mr Gerzina applied to be sent to a combat area, and, that he joined up for a further six year term with the Army in 20 December 1971 and further, was a member of the RSL and the Vietnam Veterans’ Association and attended his local sub-branch on an irregular basis “for a couple of beers and a yarn”.
27. Dr Cooper replied, at trans. p63:
Yes. I mean, one possibility is that he didn't, in fact, fill all the requirements of the SOP before he knew what was in the SOP. But the thinking about the thing makes one think of more symptoms, either consciously or also unconsciously.
28. Dr Cooper said that he had not asked Mr Gerzina to explain why, if he felt distressed by his attendance at the helipad dustoffs, he had gone back there just to keep a friend company, even though doing so was not part of his duties.
29. In deciding whether to prefer the evidence as to diagnosis of Dr Cooper or that of Dr Timney and Dr Seabridge, we were troubled by the changes to Mr Gerzina’s accounts of the stressors during his service. He seems to have changed his claims due to the requirements of the SoP, and to have reduced the account of involvement in the “dustoffs”, as information was provided in Mr Tilbrook’s reports contradicting his claim that he was involved in unloading the wounded. This matter is clarified by looking at the chronology of Mr Gerzina’s accounts of the stressors in his Vietnam service.
30. The claim for pension (Tdocs p49) lodged in 12 November 1998 and signed by Mr Gerzina on p55, (but not written by Mr Gerzina) claims anxiety/depression as war-caused diseases. In support of that claim it states (T5 p49):
I believe that this was caused by my active service in SVN.
I was required to drive between Vung Tau and Nui Dat where I was always under observation from enemy forces. This anxiety feeling has always remained with me and has had an extremely negative effect on my life.
31. There is no mention in that claim form of either of the stressors relied on at the hearing. Similarly, there was no evidence at the hearing of anxiety while driving in South Vietnam.
32. Mr Gerzina first saw Dr Seabridge in September 1998, shortly before Dr Seabridge was asked to prepare a report in support of the claim to have anxiety/depression accepted as war-caused. Dr Seabridge set out the history he obtained from Mr Gerzina as mainly one of frustration and upset with the routine nature of his work in Vietnam, but, as set out in paragraph 19 of these reasons, he did also include reference to the two stressors relied on in this hearing.
33. At the VRB hearing on 5 December 2000 the transcript shows Mr Gerzina to have explained his assistance at the dustoffs as follows (R5 p16):
No, from memory they were in stretchers and they were bleeding pretty badly. I remember the medic turning around saying, you know, calling for the doctor to “this one is going, doc, come over and fix him up”. The doctor was only continuing onto the tarmac from one to the other to patch them up until they got them into theatre.
Mr CHAPMAN: Did you assist with the stretchers?
Mr GERZINA: Yes
Mr CHAPMAN: And did you take into the theatre?
Mr GERZINA: Yes.
Mr CHAPMAN: And after that?
Mr GERZINA: That is it.
34. Mr Gerzina saw Dr Timney on 1 June 2001. Dr Timney set out his description of the unloading as follows (R4 p2):
On a number of occasions, which he estimated as either three or four, he says that he helped to unload the wounded from the helicopters. He described the situation as follows: “They were screaming out for help and you did what you could”.
Dr Timney said that he had understood the reference to “screaming” to relate to the wounded screaming, rather than to medics screaming out for help.
35. On 14 September 2001, Mr Gerzina attended Dr Cooper, who provided a report dated 30 October 2001 (A1). Dr Cooper wrote in the section dealing with service history:
Mr Gerzina indicated that the workshop was located about 60 metres from the helipad and witnessed frequent dust offs. He observed the proceedings at the helipad because of concern and frustration. He witnessed stretchers being taken off the helicopters and taken into the hospital. Mr Gerzina said that he and a friend, Bill Tyrrell, helped by taking the wounded men’s equipment away to be stored. He witnessed with horror, dead bodies and mutilated soldiers including those with missing limbs.
36. On 20 March 2002, Mr Tilbrook, a military historian provided a report (R2) which included a summary of his discussion with WO2 Bill Tyrrell. Mr Tilbrook noted:
WO2 Bill Tyrrell confirmed that it was his task to clear out the CONEX periodically to destroy the residue ammunition recovered from battle casualties arriving aboard DUSTOFF aircraft, and that he personally attended the VAMPIRE Pad on perhaps eight to ten occasions during his 12 months tour of duty to collect ammunition items. His attendance at VAMPIRE Pad was usually at night when he had returned to his accommodation at 2 AOD. He recalls being accompanied on some occasions when performing this task by another SNCO from the 2 AOD SGTs Mess, but given the efluxion of time he could not recall if WO2 Rocky Gerzina had accompanied him as claimed. Along with the other former members of 2 AOD consulted by the Researcher who had a sound knowledge of the activities on VAMPIRE Pad (i.e. LTCOL Bob Arnold, LTCOL David Roubin, MAJ Gordon Foster, WO2 Fred Baum and WO1 Kevin Fisher), WO2 Bill Tyrrell was also quite adamant that the Ordnance personnel present on VAMPIRE Pad played no part in the handling of battle casualties and could not support the Veteran’s cited Contentions (as currently described).
Mr Tilbrook also referred to discussions with Major Gordon Foster who stated that any collection of ammunition from the CONEX was not carried out until after the Iroquois aircraft had lifted off.
37. After receiving those two reports from Mr Tilbrook, Mr Gerzina provided responses. In his response dated 7 May 2002 he repeated the assertion that he and WO2 Tyrrell assisted “where we could with the wounded”.. He included a statement from a Sergeant Fidler saying that he had acted as a stretcher bearer on the dustoff pad on more than one occasion, although that was not part of his duties, “if the pad was busy during “dustoffs” and you were passing you gave a hand if requested”. In the second response Mr Gerzina included a statement from a medic from 1 Fd Hospital, Mr Randle, confirming that at times members from other units on the helipad were asked to help carry the wounded and dead to the triage area. At the hearing, Mr Gerzina described the level of his involvement with the wounded as “we would help with the picking up of a stretcher” (trans. p16).
38. On the evidence we are not satisfied that Mr Gerzina found his attendances at the helipad to be “traumatic events”. We find that his accounts of those activities to the VRB and Dr Cooper were somewhat exaggerated as to his proximity to and involvement with the wounded. Further, if the experience was traumatic, we would have expected Mr Gerzina to have included it in his claim to have “anxiety/depression” accepted as a war-caused disease, rather than relying simply on his anxiety while driving in South Vietnam. Another factor which makes us doubt the accuracy of Mr Gerzina’s account, and the traumatic nature of his activities at the helipad, is the evidence that he went back there to keep WO2 Tyrrell company, on two or three occasions, even though it was not his responsibility to perform the task of emptying the CONEX.
39. As to the second alleged traumatic event, we find that Mr Gerzina was upset by his duties involving the inspection and preparation of battle damaged vehicles for return to Australia, and by the smell of putrefaction and the traces of blood or skin indicating that people had died or been severely wounded in those vehicles. But we are not satisfied that his reaction was such as to satisfy criterion A(ii) of the diagnostic criteria for PTSD. Mr Gerzina could not have felt any fear as a result of those duties. He gave the impression in his evidence, and we find, that he did feel “horror”. But we are not satisfied that it was “intense horror”.. If so, that seems to us to be inconsistent with his account to Dr Seabridge, that he went to Saigon to ask the Colonel to transfer him to an operational area because he was frustrated by the routine nature of his work, in the light of the reminders in the vehicles that other soldiers were killed.
40. The evidence does not establish to our satisfaction that Mr Gerzina’s reaction to either of the two traumatic events he described involved “intense fear, helplessness, or horror”. We prefer Dr Timney’s evidence on this issue to that of Dr Cooper. Dr Timney said that the history he obtained was of a reaction to the traumatic events which did not satisfy criterion A(ii). Mr Gerzina told him that he did not perceive the events as particularly traumatic at the time. He told Dr Timney that he felt very frustrated in that he wanted to get out among the action and be part of it and be of more use.
41. We find that during his service Mr Gerzina saw himself as a skilled career serviceman and felt he could be more use than he was being in the workshop. At that time he accepted that the traumatic events he described to us, though unpleasant and upsetting, were part of the experience of service in the Armed Forces. They did not evoke a response which involved “intense fear, helplessness, or horror”. We find that diagnostic criterion A(ii) is not satisfied. Thus we accept the opinions of Dr Seabridge and Dr Timney, in preference to that of Dr Cooper, and find that Mr Gerzina does not suffer from PTSD.
DEPRESSIVE DISORDER
42. Dr Timney diagnosed Mr Gerzina as suffering chronic low grade depressive symptoms which he described as a dysthymic disorder. He obtained a history that the symptoms of that condition first developed around 1985, although he had noted that Mr Gerzina attributed his depression and alcohol abuse to his Vietnam service. He wrote:
It was extremely difficult to discover when exactly Mr Gerzina first felt depressed. Eventually he told me that he recalled the onset was sometime around 1985 and he felt he had been continually in depression from 1985 until he first consulted a psychiatrist in 1998. He was unable to tell me what may have happened in 1985 to trigger the onset of his depression.
43. Dr Seabridge in his second report (T24) diagnosed Mr Gerzina as suffering from “depressive disorder not otherwise specified”.. He stated that Mr Gerzina had expressed deep distress about matters arising in respect to Vietnam service, in particular his inability to play a more active role in the war, and the disruption his Vietnam service caused to his family relationships. He also obtained a history of a lack of career satisfaction in respect to the Army at least from 1977. Mr Gerzina told Dr Seabridge that he had deep seated feelings of inadequacy and drank excessively. He described interpersonal problems and social withdrawal.
44. Dr Cooper also diagnosed a depressive disorder, which he wrote possibly dated back to the mid 1980’s (R1 p6). He described it as a Major Depressive Disorder. He said that in his opinion the PTSD was apparent around the time Mr Gerzina was in Vietnam and shortly after. He saw the depression as “a secondary problem that emerged some time later” (trans. p55).
45. We are satisfied on the evidence that Mr Gerzina does suffer from a depressive disorder.
46. The Tribunal must therefore apply the steps derived from the Full Court decision of Deledio, as set out in paragraph 4 of these reasons. The first step is to consider whether the material points to a hypothesis connecting the disease with the circumstances of Mr Gerzina’s service. In this case the material does point to the depression resulting from Mr Gerzina’s exposure to stressors during service.
47. The second step is to ascertain whether there is in force a SoP in relation to depressive disorder. It is agreed that there is and that it is SoP Instrument No. 58 of 1998.
48. The third step is to consider whether the hypothesis “fits . . . the template . . . in the SoP”.
49. The SoP so far as relevant provides as follows:
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
. . .
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
. . .
Clause 8 of the SoP provides the following relevant definition:
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
50. Mr Moore explained that it was the applicant’s case that he suffered from “a clinically significant psychiatric condition”, namely PTSD, within the two years immediately before the clinical onset of the depressive disorder. We have found that Mr Gerzina does not and did not suffer from PTSD. There is a question whether, in spite of having made that finding on the reasonable satisfaction standard of proof as to the issue of whether he suffers PTSD, we need to also consider that issue at step 4 on the reasonable hypothesis reverse onus standard of proof. That issue was not specifically addressed by the Full Court in Budworth. In Benjamin, the Full Court gave some explanation as to how the different standards of proof were to be applied, but it did not deal with the situation where in a reasonable hypothesis situation the relevant factor in a SOP is the veteran having the very disease from which the Tribunal has earlier found, on the reasonable satisfaction standard of proof, that the veteran does not suffer. It seems to us that, the finding having been made, in regard to the claimed PTSD, that we are not reasonably satisfied that Mr Gerzina does suffer from that condition, it would be illogical (even recognising the different standards of proof) for us to find that the material does raise a reasonable hypothesis that Mr Gerzina had PTSD within the two years immediately before the clinical onset of depressive disorder.
51. However, it is not necessary for us to determine that difficult issue. The SoP factor 5(c) requires not only that Mr Gerzina had PTSD within the two years immediately before the clinical onset of depressive disorder, but that it was “clinically significant”.. That term is defined as set out in paragraph 49 of these reasons. There is no material before us pointing to Mr Gerzina suffering “clinically significant” PTSD in the years prior to the clinical onset of his depressive disorder, whether that was in 1985 or earlier. There was no material suggesting that Mr Gerzina suffered PTSD at any time before 1985 “sufficient to warrant ongoing management, which may involve regular visits . . . (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner”..
52. Mr Gerzina was promoted to WO1 in February 1971 and re-enlisted in the Army for six years in December 1971. He served in Malaysia from February 1974 to December 1976. He said it was his opinion that his heavy drinking affected his performance in Malaysia, but there were also political problems affecting the success of the defence aid project with which he was involved. On his discharge in 1977, he had some difficulty finding alternative employment, but was employed from 1977 or 1978 until 1989 as a Technical Administrative Officer with the Victorian Public Service. When he left that position he worked as a Contracts Controller with the Municipal Association of Victoria and then with Property Purchasing Service from 1989 to 1998, when he retired on 2 July 1999 at age 62. Although Mr Gerzina did describe difficulty with interpersonal family relationships and heavy or excessive drinking at times, there is no evidence that he or anyone else ever thought it appropriate for him to consult a psychiatrist, clinical psychologist or general practitioner until he saw Dr Seabridge in November 1998.
53. Mr Moore did not address the Tribunal on how it should deal with this matter if it should find that Mr Gerzina did not suffer PTSD. But Mr Rudge did submit that the Tribunal should find that the clinical onset of Depressive Disorder was more than two years after the claimed stressors. Mr Rudge seems to have overlooked the fact that the applicant was relying on factor 5(c) rather than factor 5(b) of SoP Instrument No. 58 of 1998 (see trans. p98).
54. As to factor 5(c), if we should find that alcohol abuse or dependence is a war-caused disease, it would be necessary to return to SoP Instrument No. 58 of 1998, factor 5(c) to consider whether the material raises the hypothesis of Mr Gerzina having “clinically significant” alcohol abuse or dependence within the two years immediately before the clinical onset of depressive disorder.
ALCOHOL DEPENDENCE
55. The term used in the SoPs to cover alcohol dependence is Psychoactive Substance Abuse or Dependence. The condition was diagnosed by Dr Seabridge as “Substance abuse”, by Dr Timney as “alcohol dependence” and by Dr Cooper as “Alcohol Dependence”. We find that Mr Gerzina suffers from alcohol dependence.
56. The hypothesis raised by the evidence of Dr Cooper, on behalf of Mr Gerzina, was that the alcohol dependence resulted from Mr Gerzina’s experience in Vietnam. Mr Moore, at trans. p99, said that he relied on factors 5(a) and 5(b) of SoP Instrument No. 78 of 1998.. So far as relevant clauses 4 and 5 of the SoP provide as follows:
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
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; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
. . .
57. Dr Cooper suggested that Mr Gerzina was suffering from PTSD at the time of clinical onset of his alcohol dependence or alcohol abuse. We have found on the balance of probabilities, that Mr Gerzina did not and does not suffer from PTSD. Thus, as discussed in relation to PTSD, we do not consider that we are required to again consider that issue (on the reasonable hypothesis standard of proof) at step 4 of the Deledio steps. We move on to consider the material raised in respect of factor 5(b).
58. The term “experiencing a severe stressor” is defined in clause 8 of the SoP as follows:
“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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
59. The evidence of both Dr Timney and Dr Cooper was that the two stressors described by Mr Gerzina during his service, were events which “might evoke intense fear, helplessness or horror”, as referred to in clause 8 of the substance abuse or dependence SoP. They said the events could have satisfied the diagnostic criteria for PTSD. They differed only on whether they did evoke that response. Dr Seabridge and Dr Timney both formed the opinion that Mr Gerzina did not suffer from PTSD, not because of the nature of the stressors, but because he did not give them an account that indicated that his response to those events had involved “intense fear, helplessness, or horror”. We have accepted their opinions on the issue.
60. Thus the material before the Tribunal fits the requirement in paragraph 5(b) of SoP Instrument No. 76 of 1998 as to Mr Gerzina “experiencing a severe stressor”. However, that paragraph also requires that Mr Gerzina experienced the severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
61. Dr Seabridge and Dr Cooper reported that Mr Gerzina may have suffered at least from alcohol abuse during his service in Vietnam. Dr Seabridge saw Mr Gerzina on 19 October 1998. At that time Mr Gerzina’s recollection was less likely than later to have been affected by an increasing knowledge of the requirements of the legal process. He obtained a history which is set out at Tdocs p59:
During his time in Vung Tau, he was smoking and drinking heavily, to a degree different from his previous habit. On his return he was put in charge of the engineering workshop in Pukapunyal, where he was regularly in the sergeants mess drinking heavily. He was stressed and tense and irritable. In 1973 he was transferred with his family to Malaysia. His family relationships were tense and strained.
62. In his second report of 22 September 2000, after seeing Mr Gerzina on four occasions, Dr Seabridge wrote at Tdocs p160:
As a consequence of this situation during his active service in Vietnam, Mr Gerzina began to smoke and drink heavily, and has a continuing problem of substance abuse. He drinks every day, about 12 cans daily, plus wine and some spirits. He spoilt his birthday by being drunk before lunch, and he did the same thing again on Christmas Day. This habit developed during, and as a consequence of, the distress he suffered in Vietnam, as described above.
63. Dr Timney, in his report of 7 June 2001 (R4), did not give any history of increased alcohol consumption during Vietnam service. He wrote, at R4 pp2 and 3:
Interestingly, Mr Gerzina did not perceive any of these situations as particularly distressing or traumatic at the time they occurred. In fact, he was reportedly very frustrated in his posting, in not being closer to combat and had applied on a number of occasions to be posted into a combat zone. He considered that he could be more useful in the war if he was in a combat role.
. . .
He estimated his alcohol consumption in 1985 to be 2-4 beers on 3-4 occasions per week, which would certainly not indicate any problems at that stage with alcohol dependence. His alcohol intake has of course significantly increased, with binge-type drinking patter since 1985.
. . .
He stated that he mainly had problems with feeling distant from his wife, who had been concerned by his high alcohol intake. He told me that he can drink up to twelve cans of beer per day and has been drinking at that rate for approximately twelve months. I note that his relatively high alcohol intake has increased with the development of tolerance. Prior to that, he had usually consumed six drinks per day. He more recently has often taken his first drink at 6 o’clock in the morning.
64. Dr Timney concluded at p5 of his report:
He presents with a clear cut history of alcohol dependence. His alcohol dependence is a relatively new diagnosis and has been present for, at most, two years and he has been drinking at a particularly hazardous level for the previous twelve months. His alcohol intake has significantly increased since he took early retirement.
65. Dr Cooper, in his report of 30 October 2001 (A1), set out the history he obtained as being that Mr Gerzina returned from Vietnam “changed” and “with lots of problems”.. Mr Gerzina explained to Dr Cooper that he had “covered his difficulties with excessive alcohol consumption and working long hours. As to drinking in Vietnam, Dr Cooper wrote at A1 p4:
Mr Gerzina said that he began abusing alcohol in Vietnam where [he] consumed a one litre bottle of rum per day on many occasions. Prior to going to Vietnam he participated in “normal mess life” and estimated his alcohol consumption was of the order of 6 beers on 2-3 days per week. He moderated his intake during the 1970s to about 3-4 cans per day but was drinking to abusive levels from the 1980s. He reported a relationship between an increase in his intrusive memories from Vietnam and increased alcohol consumption as an effort to control them.
Mr Gerzina has had no periods of abstinence since Vietnam. He has driven while drunk but escaped detection. He is aware that his drinking causes him to be aggressive and rude and caused problems in his relationships.
66. Dr Cooper addressed the issue of the onset of the alcohol problems, at p6 of his report:
I understand that a point of contention in this case is the onset of Mr Gerzina’s Alcohol Dependence. Mr Gerzina specifically disputed Dr Timney’s account. My understanding of this situation from the description he gave me, is that his pattern of drinking prior to Vietnam was no[t] problematic. In Vietnam, and in subsequent years he drank excessively in a manner consistent with an Alcohol Abuse Disorder, if not Alcohol Dependence. He had a period of more controlled drinking in the late 1970s after leaving the [A]rmy that nevertheless occurred on a daily basis without alcohol-free days. Interestingly, he reported a significant exacerbation of his PTSD intrusive symptoms that, by his account, contributed to a resumption of hazardous and then subsequently dependent drinking.
67. In his concluding remarks, Dr Cooper noted at p8 of his report:
Dr Timney diagnosed Mr Gerzina as suffering from a recent onset alcohol dependence and a dysthymic disorder. As indicated above, I disagree with the idea that the alcohol problem is recent as it started in Vietnam.
68. Mr Gerzina, in his evidence to the Tribunal, said he drank to excess in Vietnam. He said he was drinking 8-12 cans of beer after work each night and a bottle of Baccardi would last him two or three days (trans. p20). He said his alcohol consumption had remained fairly constant over the years since Vietnam. He said (trans. p23):
I went through a stage of trying to slow down. It was obviously interfering with things and I thought that might solve some of my problems but I fell back into it again. I am I suppose what you would call a heavy drinker now. I drink every day.
How much do you drink every day? --- It varies but it can be a minimum of six or seven cans of beer in a day, up to a dozen sometimes depending on the day and a couple of glasses of wine.
69. Mr Gerzina said that he was not satisfied with his level of performance when he was in Malaysia from February 1974 to December 1976. He said this was because his heavy drinking was interfering with his job and he did not take the care and responsibility he should have done.
70. That material does fit the “template” to be found in the SoP. The hypothesis relied on by Mr Gerzina was that his alcohol dependence had developed from alcohol abuse which started in Vietnam as a result of his service there, including the two stressors referred to earlier. That hypothesis contains the elements required to satisfy factor 5(b) in SoP Instrument No. 76 of 1998. Thus the hypothesis can not be said to be contrary to proved or known scientific facts, nor otherwise fanciful. We find that the hypothesis raised is a reasonable one.
71. The fourth step in Deledio requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that Mr Gerzina’s incapacity from alcohol dependence did not arise from a war-caused disease. It is only at this stage that the Tribunal is required to find facts.
72. There has been no challenge to Mr Gerzina’s evidence as to the “sentencing of vehicles for repair out of theatre” or the preparation of battle-damaged vehicles for return to Australia. Mr Tilbrook in his report (R1, para 5) explained that the vehicles being prepared for return to Australia were those which were “battle damaged” and that they would have had to be steam cleaned to remove all dirt contamination in order to meet stringent quarantine requirements.
73. Mr Tilbrook checked the records and found that Mr Gerzina’s statement as to the number of tanks and armoured personnel carriers he had inspected was exactly correct. The armoured vehicles had been damaged in fatal mine incidents or by armour piercing shells. Mr Tilbrook wrote at paras 25, 27, 28 and 29:
25. The task of cleaning out crew compartments of the evidence of dead and wounded from Tanks or APCs that were involved in mine explosions was initially carried out at the contact site by the unit Medic and other crewmembers prior to and immediately following the evacuation of battle casualties. Obviously only rudimentary attempts at cleaning blood and body tissue was possible in the field of operations.
. . .
27. Turning now to the Veteran’s claim that “he inspected two Tanks and six APCs that had been blown up, were smelly and had some evidence of injuries to the crew (blood and body tissue in some of the vehicles)”.. It is confirmed that as part of the normal duties WO2 Aldo Gerzina would have included the inspection, sentencing and supervision of steam cleaning of the ‘hulks’ of battle damaged armoured vehicles to meet stringent quarantine standards for the import of these vehicles into Australia.
28. Against the background described in Paragraphs 25 and 26 some efforts to clean the crew compartments of any evidence of crew casualties had already been completed before the ‘hulks’ were back loaded and deposited with 2 AOD (to meet with Ordnance requirements). On that basis it is unlikely that any great amounts of blood or body tissue would have been present when vehicles were passed to 2 AOD.
29. The standards for cleaning of battle damaged vehicles for return to Australia and quarantine inspections were very stringent, with all cavities and parts of the vehicles having to be cleaned of all evidence of dirt contamination. In carrying out inspections and cleaning operations it is accepted that the Veteran (and others executing the cleaning) would have encountered evidence of blood stains, oil and fuel spills caused by the massive explosions and upon very close scrutiny there may have been some evidence of particles of body tissue and hair. Those members of 2 AOD identified in Paragraph 16 that were consulted on this Contention did agree that it was likely that WO2 ‘Rocky’ Gerzina would have entered battle damaged ‘hulks’ of armoured vehicles that exhibited bad odors and signs of crew casualties that had sustained in those ill-fated vehicles some weeks beforehand.
74. It was apparent to the Tribunal that the aspect of the evidence which most distressed Mr Gerzina was when he was asked to describe his duties inspecting those vehicles. He described the overwhelming stench of rotting flesh as the first experience when he opened the hatches to gain entry to the vehicles. He then referred to pieces of flesh and blood, left on the walls and dried up. He broke down when describing, “The one that really stood out and made me feel the worst ever . . . a piece of scalp, about four square inches . . . stuck on the wall of the fighting compartment” (trans. p19).
75. We find the evidence before the Tribunal does raise material sufficient to meet the “severe stressor” requirement of factor 5(b) in SoP Instrument No. 76 of 1998. The SoP factor 5(b) only requires the experiencing of one “severe stressor” within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
76. Thus it is not significant that we are not so clearly satisfied as to the other stressor described by Mr Gerzina. The material provided by Mr Tilbrook shows Mr Gerzina’s account of his involvement in the dustoffs to have been, as he conceded, incorrect in some respects, as set out in medical reports and in the transcript of the VRB hearing. However, we cannot be satisfied beyond reasonable doubt that Mr Gerzina did not see helicopters land and wounded be carried into the hospital, from his position at the workshop. Nor can we be satisfied beyond reasonable doubt that he did not sometimes attend with WO2 Tyrrell, and see the helicopter land and the wounded being taken into triage, while waiting to clear ammunition from the CONEX near the helipad. Although we do have some reservations as to that aspect of the material, we cannot be satisfied beyond reasonable doubt that those experiences were not also stressors sufficient to satisfy the requirement of factor 5(b) of SoP Instrument No. 76 of 1998.
77. As to the clinical onset of alcohol abuse there is a conflict on the evidence as to whether Mr Gerzina’s alcohol abuse started in Vietnam or only in the 1980’s or even after retirement. Dr Seabridge’s first report of November 1998 gave a history of heavy drinking in Vietnam to a degree different from Mr Gerzina’s previous habit. That evidence raises the hypothesis that the heavy drinking was because of being upset and frustrated by the routine nature of his work and his distance from areas of action, and also due to being confronted with the gruesome evidence of action in the form of blood and tissue residues in and on vehicles he inspected.
78. Dr Seabridge obtained a history of ongoing heavy drinking since service in Vietnam to the extent that it interfered with Mr Gerzina’s performance of his duties and his personal relationships. Dr Cooper obtained a similar history but Mr Gerzina told him that he moderated his intake during the 1970’s but returned to drinking at abusive levels in the 1980’s. Dr Timney was the only psychiatrist who was not given a history of excessive drinking commencing during service in Vietnam. However he acknowledged in cross-examination that he had not explored that issue. As the history of heavy alcohol consumption in Vietnam was mentioned in Dr Seabridge’s earlier reports, and as Dr Timney stated that he had reviewed “the available records and file data”, we are surprised that Dr Timney did not specifically ask Mr Gerzina about his drinking habits in Vietnam and subsequently.
79. There is material pointing to Mr Gerzina suffering from alcohol abuse since his service in Vietnam even though for a time in the late 1970s he seemed to have had the problem under control. There is also evidence, which Mr Rudge relied on as contradicting that conclusion. He referred to Mr Gerzina’s continuing service in a responsible WO role with the Army until 1977, and his finding and holding of other employment after his discharge from the Army.
80. It is not unheard of for serving Army personnel or people in other employment to hold responsible employment while drinking at a level to satisfy the definition of alcohol abuse. There is evidence of the heavy drinking being such as to create problems in Mr Gerzina’s family interpersonal relationships (T7 p59) during his Army service, as well as his evidence that it interfered with the performance of his duties, especially in Malaysia. He said he was “a changed man”, after his return from Vietnam and the main changes raised by the evidence are heavy drinking and smoking and poor interpersonal family relationships.
81. The Tribunal had before it a three page handwritten letter from Mr Meehan an RSL Vice-President and Welfare/Pensions Officer who served with Mr Gerzina in Vietnam (T21 pp153-5). He wrote:
I hereby wish to advise DVA that I served in South Vietnam during Feb-Jun 69 with Warrant Officer Gerzina at 2 AOD Vung Tau. My job required close contact with this soldier and within a few months of him arriving in Vietnam I witnessed a great change in his character and outlook.
As part of this soldier’s duties he was required to pick up damaged (blown up) armoured vehicles from Nui Dat base and bring them back to Vung Tau for preparation to be sent back to Australia. This required travel through enemy controlled areas. These vehicles often had body parts of Australian soldiers splattered on the walls and under benches. WO Gerzina was required to remove this before sending the vehicles back.
He spoke to me on several occasions about the effects that these duties were having on him. He had become extremely anxious and depressed and was abusing alcohol to an excessive degree (on the job) to get the sights and thoughts out of his mind.
82. The evidence is not such as to allow us to be satisfied beyond reasonable doubt that Mr Gerzina did not have a problem with alcohol abuse during and after his Army service in Vietnam.
83. We find that Mr Gerzina’s current condition of alcohol dependence is a war-caused disease.
DEPRESSIVE DISORDER
84. Our finding that alcohol dependence is a war-caused disease means that we must revisit the issue of whether depressive disorder is a war-caused disease, looking at factor 5(c) in SoP Instrument No. 58 of 1998 in the light of our finding about alcohol dependence. The question is whether there is evidence raising or pointing to Mr Gerzina having “clinically significant” alcohol abuse or dependence within the two years immediately before the clinical onset of depressive disorder. There is no precise evidence as to the date of clinical onset of depressive disorder other than that it was around 1985. There is also only very scant evidence as to the pattern of Mr Gerzina’s alcohol abuse or alcohol dependence during the early 1980’s. He was employed by the Victorian Public Service at that time and when he left that position he seems to have quickly found similar work with the Municipal Association of Victoria. There is evidence that after he left the Army Mr Gerzina controlled his drinking problem until he ceased working when he increased his consumption again, before again managing to reduce it somewhat in more recent years.
85. There is no material before the Tribunal pointing to Mr Gerzina’s alcohol abuse or dependence being “clinically significant” as that term is defined in SoP Instrument No. 58 of 1998 between 1983 and 1985 or thereabouts.
86. Accordingly we do not find that depressive disorder is a war-caused disease.
IRRITABLE BOWEL SYNDROME
87. Mr Moore and Mr Rudge did not address the Tribunal as to irritable bowel condition during the hearing. Mr Moore said in opening, at trans. p8:
So far as the irritable bowel syndrome is concerned, there is no issue as between us concerning that diagnosis. The factor relied upon in the Statement of Principles is factor 5(b)[sic]:
Suffering a specified psychiatric symptom within six months immediately before the clinical onset of irritable bowel syndrome.
I think we would both agree that if in fact the Tribunal concludes that the post traumatic stress disorder is made out, then the irritable bowel syndrome is made out. It cascades out in a sense. And if the post traumatic stress disorder condition is not made out, then that goes as well.
88. The applicant’s Statement of Facts and Contentions at para C stated that the relevant factors in SoP Instrument No. 104 of 1996 were factors 5(b) or 5(d). During the hearing it was clear that in fact the applicant relied on factor 5(a). It provides as follows:
5.The factors that must exist before it can be said that, on the balance of probabilities, irritable bowel syndrome or death from irritable bowel syndrome is connected with the circumstances of a person’s relevant service are:
(a)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
89. The SoP contains a definition of “a specified psychiatric condition”. It is as follows:
“a specified psychiatric condition ” means:
(a)a psychiatric condition with features of anxiety, including:
(i)generalised anxiety disorder, ICD code 300.02; or
(ii)panic disorder, ICD code 300.01; or
(iii)adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv)post traumatic stress disorder, ICD code 309.81; or
(b)a psychiatric condition with depressive features, including:
(i)major depressive disorder, ICD code 296.2 or 296.3; or
(ii)neurotic depression, ICD code 300.4; or
(iii)other depressive disorders, ICD code 311; or
(iv)adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;
90. Mr Gerzina said that his symptoms of irritable bowel syndrome (“IBS”) dated back to his Vietnam service. He said at trans. p23 that he had had the symptoms since Vietnam. In his claim he stated (T5 p51):
I believe that this was caused by my service in SVN. I abused alcohol to an excessive degree and it has continued throughout my life until this symptom was identified.
I have reduced alcohol but it has caused the problem.
He said that he became aware of the disability in September 1975. That would seem to be a reference to becoming aware of the diagnosis rather than of the problems.
91. However, a hypothesis linking the irritable bowel syndrome with alcohol abuse is not reasonable as it is not upheld by SoP Instrument No. 104 of 1996. Even though we have found that Mr Gerzina’s alcohol dependence commenced as alcohol abuse in Vietnam, and is a war-caused disease, the material does not raise a hypothesis which fits the template in factor 5(a) of the relevant SoP. That is because alcohol abuse and alcohol dependence are not “specified psychiatric conditions” as defined in SoP Instrument No. 104 of 1996.
92. We find that irritable bowel syndrome is not a war-caused disease.
93. The decision under review will be varied to provide that alcohol dependence is a war-caused disease with effect from 13 June 1999.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member and Dr P Fricker, MemberSigned: Grace Carney
Personal AssistantDate/s of Hearing 18 October 2002
Date of Decision 5 March 2003
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Mr K Rudge
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