Gordon and Repatriation Commission
[2004] AATA 825
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 825
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/461
VETERANS' APPEALS DIVISION )
Re JAMES GORDON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date6 August 2004
PlaceBrisbane
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Gordon’s Alcohol Dependence is a service-related disability with effect from 6 March 2003.
....................[Sgd].....................
EK Christie
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – alcohol abuse – alcohol dependence – clinical onset of symptoms – clinical worsening of condition
Veterans’ Entitlements Act 1986 s 120, 120A, 196B
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Whetton (1991) 24 ALD 690
Benjamin v Repatriation Commission (2001) 70 ALD 622
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Cooke (1998) 52 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Stares (1996) 41 ALD 212
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 175 CLR 408
Deledio v Repatriation Commission (1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235
Byrnes v Repatriation Commission (1993) 1777 CLR 564
Briginshaw v Briginshaw (1938) 60 CLR 336
Kattenberg v Repatriation Commission[2002] FCA 412REASONS FOR DECISION
6 August 2004 Dr E K Christie, Member 1. This is an application by James Gordon to review a decision of the Veterans’ Review Board (“the VRB”) made on 6 March 2003.
2. In reaching its decision, the VRB concluded that on the evidence before it:
“…clearly indicates that at the time of clinical onset of the veteran’s alcohol dependence (ie prior to the start of his operational service in Vietnam) he was not yet suffering from PTSD; the clinical onset of that condition did not occur until after that service. As there is no evidence that the veteran was suffering from any other service-related psychiatric disorder at the time of the clinical onset of his alcohol dependence, the requirements of factor 5(a) cannot be met”
and
“The veterans’ operational service did not lead to clinical worsening of clinical worsening of alcohol dependence.” (T4 Folio 114).
3. At the hearing, James Gordon was represented by Mr B Carter-Nicoll of Counsel. The respondent was represented by Ms H Bruce, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
Facts
5. The general facts were not in dispute and may be stated briefly. Mr Gordon was born on 24 November 1944 and is now aged 59. Mr Gordon joined the Regular Army, aged 17, in March 1962 and was discharged in July 1968. His eligible war service (which is also operational service) was in Vietnam from 31 May 1966 to 14 June 1967.
6. Mr Gordon has the following accepted service-related disabilities:
§ Bilateral sensorineural hearing loss with tinnitus;
§ Lumbar spondylosis; and
§ PTSD (following the VRB decision of 6 March 2003)
7. Mr Gordon has the following non service-related disability:
§ Alcohol Dependence or Alcohol Abuse.
The Issues to be Decided
8. At the start of the hearing both parties acknowledged that it was not in dispute that Mr Gordon experienced a severe stressor whilst on operational service in Vietnam.
9. The parties agreed that the only issues for the Tribunal to decide related to whether Mr Gordon’s condition of Alcohol Dependence was war caused.
Examination of the Factual Evidence
10. Mr Gordon gave oral evidence at the hearing. Dr Janis Carter, a consultant psychiatrist also gave evidence on behalf of the applicant. The applicant elected not to call Dr J McIntyre, a psychiatrist, for cross-examination.
Evidence of James Gordon
11. Mr Gordon stated that he did not drink before joining the Army in March 1962. He commenced drinking, at a very low level, at this time through socialising with Army friends. Following three month’s basic training he was posted to Ingleburn for about three months and then posted to Canungra. There was little opportunity to consume alcohol during the Canungra posting, so he did not drink much at this time. On completion of his posting at Canungra, he was posted to 6 RAR, Brisbane about June 1965.
12. He acknowledged that there were several alcohol-related charges prior to embarkation to Vietnam and attributed this to his youthfulness and exuberant behaviour whilst being led astray in the presence of older, more experienced soldiers.
13. When referred to the many instances of civil drunkenness he had been charged with whilst serving in the Army prior to embarkation to Vietnam, Mr Gordon said, except for one instance, that he could not remember these events.
14. Mr Gordon said that his drinking increased significantly, following exposure to traumatic events in Vietnam. On his return from Vietnam, he had taken every opportunity to drink.
15. Under cross-examination, Mr Gordon said that he could not remember whether he had given Dr Carter his past history of civil drunkenness charges whilst serving in the Army, prior to his embarkation to Vietnam.
Supplementary Medical Evidence
16. Mr Gordon’s service documents [T4, Folios 2, 4] reveal that over an eighteen month period (March 1965 – September 1966) he was charged with 9 civil drunkenness/alcohol related military offences on the following dates:
§ 19 March 1965
§ 22 March 1965
§ 12 April 1965
§ 12 November 1965
§ 22 December 1965
§ 31 March 1966
§ 30 May 1966
Operational service in Vietnam 31 May 1966 – 14 June 1967
§ 5 September 1966
§ 27 May 1967[1]
[1] Note: This offence arose after “Operation Bribie” on 17 February 1967
17. However, a significant feature of all the evidence and information before the Tribunal was that this information was not considered by either psychiatrist when making their diagnostic assessment of Mr Gordon’s substance-use [alcohol] disorder.
18. Accordingly, the Tribunal exerted its inquisitorial powers by providing both Dr J Carter and Dr W McIntyre with a copy of Mr Gordon’s history of civil charges for drunkenness over the period March 1965 to May 1967, and issued a Direction. The Direction required both Dr J Carter and Dr W McIntyre to consider this history, together with their earlier expert reports, to provide a professional opinion on whether Mr Gordon’s clinical symptoms of “Alcohol Dependence” occurred:
(i) prior to embarkation to Vietnam; or
(ii)during operational service in Vietnam but prior to exposure to a severe stressor; or
(iii)during operational service in Vietnam, but after exposure to a severe stressor.
19. In his supplementary report (17 May 2004), Dr McIntyre stated:
(a)“I would say that the number and frequency of his drunkenness offences between 19 March 1965 and 30 May 1966 is suggestive of a maladaptive pattern of alcohol use leading to clinically significant impairment or distress as manifested by recurrent alcohol related legal problems. This satisfies criterion A of the DSMIV diagnostic criteria for alcohol abuse as adopted by the RMA Statement of Principles. The information provided and the absence of further corroborative history from Mr Gordon does not allow me to form an opinion as to whether or not his condition met the criteria for alcohol dependence prior to his embarkation to Vietnam.”;
(b)“In relation to alcohol dependence after exposure to a severe stressor during operational service in Vietnam, I am unable to comment….in the absence of further history as to his actual alcohol intake and the presence or otherwise of features of alcohol dependence such as tolerance, withdrawal effects or inability to abstain I am unable to give a valid opinion on whether or not he would have fulfilled dependence criteria at that time….”;
(c)“Based on the new information provided to me of his alcohol related offences during that period [see para.16] I would say it is more probable than not that he met the prime DSMIV and RMA Statement of Principles criterion for alcohol abuse. However, I cannot say with confidence that he suffered from alcohol dependence during that period as relevant information allowing such a diagnosis to be made is lacking.”; and
(d)“Based on the new information provided I no longer take the view expressed at page 8 of my report of 13 June 2000 that ‘there is a clear relationship between his service in South Vietnam and his increased alcohol intake out of which his alcohol dependence evolved.’”
20. In her supplementary report, Dr Carter (30 June 2004) stated:
(a)That Mr Gordon “was not suffering from alcohol abuse or alcohol dependence prior to his going to Vietnam, despite what may appear from the reports I’m able to obtain. Even though he had many charges, it would seem as though his drinking was still within acceptable behaviour for a young soldier, given his age, physical stature, background, and expectations”;
(b)During operational service in Vietnam, because of (i) an incident in which his mortar fired offline and could have killed his troops together with (ii) “his involvement in Operation Bribie, his attitude to alcohol changed. Rather than just being one of the boys, he looked on alcohol as something to help sedate him and help him cope with his stressors, and at this stage it is my contention that his drinking became not social but pathological”; and
(c)“On his return from Vietnam, he had become a daily drinker, and he had the symptoms of alcohol dependence…..
.....his drinking was noted on his return from Vietnam to be a problem, because he was not retained in the Army because of his drinking…..
…..In my opinion, his drinking is as a result of the stressors he suffered from in Vietnam, and is directly a result of his post traumatic stress disorder.”
21. Under the Tribunal’s Direction, the parties were invited to make supplementary submissions to these medical reports.
Contentions and Submissions of the Parties
22. Ms Carter-Nicoll referred to the expert medical evidence of Dr Carter who had diagnosed PTSD at the time of the clinical onset of Alcohol Dependence.
23. Ms Carter-Nicoll referred to the history reported by Dr Carter (Exhibit A4, 20 November 2003) in which she stated:
“On careful history taking, James [Gordon] gives a clear history that he was not in the habit of abusing alcohol prior to going to Vietnam, and in fact, while his drinking did come to the attention prior to his going to Vietnam, he was certainly not considered to be someone who had a major alcohol problem.”
24. She then referred to a further statement in Dr Carter’s report which expressed the opinion that Mr Gordon’s alcohol habits moved from “an episodic excessive drinking of a young man in the military” to become an “entrenched habit”. It was Dr Carter’s opinion that Mr Gordon’s exposure to severe stressors in Vietnam led to the development of his condition of Alcohol Dependence.
25. Ms Carter-Nicoll contended that Mr Gordon’s exposure to stressors in Vietnam would have resulted in any Alcohol Abuse condition, prior to his service in Vietnam, developing into Alcohol Dependence.
26. It was her contention that Mr Gordon suffered PTSD at the time of clinical onset of his Alcohol Dependence, both conditions being caused by the severe stressor that he experienced. It was her further contention that the onset of both conditions were within two years. Moreover, she submitted that Dr Carter’s evidence indicated that both conditions were immediate after the bullet ricocheting event in “Operation Bribie”.
27. Ms Carter-Nicoll then submitted that any alcohol condition that Mr Gordon may have had prior to operational service in Vietnam worsened, due to the severe stressors he experienced in Vietnam. Furthermore, that he became dependent on alcohol at this stage as he tried to control his PTSD symptoms with alcohol.
28. Ms Bruce submitted that Mr Gordon had a well-established drinking habit prior to operational service as evidenced by a number of civil charges of drunkenness. She referred to his service document record that disclosed that Mr Gordon was charged on six separate occasions, under civil legislation, with drunkenness. The first of these charges was recorded on 19 March 1965, the last was recorded on 30 May 1966 (T4, Folio 2). All of these charges occurred before Mr Gordon’s operational service.
29. Ms Bruce then referred to Mr Gordon’s service document record which identified Mr Gordon as being charged with a military offence “with conduct to the prejudice…” on three separate occasions. One charge was “having intoxicating liquor in unit lines”, another charge was “consuming liquor in unit lines”, while the other was being “unfit for his duties by previous indulgence in alcoholic liquor” (T4, Folios 2, 4).
30. Ms Bruce stated that the first of these charges was recorded as being on 22 May 1965. The other two were recorded on 5 September 1966 and 27 May 1967 respectively i.e., whilst Mr Gordon was serving in an operational area.
31. Moreover, Mr Bruce submitted that the first of the latter two incidents [i.e. the incident of 5 September 1966] occurred prior to Mr Gordon’s involvement in “Operation Bribie”; “Operation Bribie” had taken place on 17 February 1967 (T4, Folio 119). Accordingly, Ms Bruce contended that it was relevant that two of these offences had occurred prior to Mr Gordon experiencing a severe stressor during “Operation Bribie”.
32. It was Ms Bruce’s contention that a consideration of Mr Gordon’s alcohol consumption prior to operational service, during operational service and following his discharge would indicate that Mr Gordon’s Alcohol Dependence or Abuse condition was not war-caused.
Statutory Framework and Legal Principles
33. Section 120(1) of the Act provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, “the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
34. Section 120(3) of the Act provides that in applying subsection (1):
“the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.
35. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four steps which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four steps as follows:
“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.” (emphasis added). (at 49 ALD 206)
36. In Repatriation Commission v Hancock [2003] FCA 711, Selway FCJ identified a further problem necessarily involving at least two extra steps before Step 1 of the “Deledio methodology”:-
“The first of these is self-evident. It is necessary to establish the pre-conditions for a claim other than causation [the status of the veteran and applicant] on the balance of probabilities … Secondly, in order to ascertain whether a SoP applies, it is necessary to identify the “kind of injury” or “kind of death” suffered by the veteran: see s 120A(2) and (4) of the Act.”
37. In Repatriation Commission v Whetton (1991) 24 ALD 690 the Full Federal Court held:
“The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function.”
38. In Benjamin v Repatriation Commission (2001) 70 ALD 622, the Full Federal Court concluded (at 632) that:
“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.”
39. In Re Robertson and Repatriation Commission (1999) 50 ALD 668, the Tribunal gave the following meaning to the phrase “clinical onset”:
“The ‘clinical onset’ of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
40. The principles for proof in accordance with the standard in subsection 120(4) have been established in a number of cases. That meant, as Tamberlin J noted in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’” [emphasis added].
41. In Repatriation Commission v Cooke (1998) 52 ALD 1 the Full Federal Court stated (at 6):
“In our respectful opinion Lee J was correct in Ferriday …when he said at ALD 533 ALR 74: Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service under s 120(1) are facts to be established to the reasonable satisfaction of the commission.”
42. In Deledio v Repatriation Commission (1997) 47 ALD 261 Heerey FCJ made the following observations on the concept of sound expert medical evidence in relation to sections 120 and 120A of the Act:
“The concept of "sound medical-scientific evidence" introduced by the 1994 amendments is a standard not unlike the Frye test [Frye v United States 293 F 1013 “expert opinion evidence needed to conform to methods and principles which had received widespread acceptance in a particular field of knowledge”]. In this respect at least, the Parliament has accepted the Baume Committee's criticism of "doctor shopping".
43. The following legal principles are relevant with respect to the Tribunal’s consideration of the four steps in the “Deledio methodology”.
44. An hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
45. In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court at 534 said:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
46. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
47. In Bushell v Repatriation Commission (1992) 175 CLR 408 the High Court said (at 414-415) that an hypothesis is not reasonable if it is:
“obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”
and
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which supports the hypothesis and if the hypothesis can be regarded as` reasonable if the facts are true”.
48. Furthermore, the High Court in Bushell said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
49. With respect to the third step referred to in Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey FCJ stated:
“The particular claim then has to fit the template laid down by the template …Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point.”
50. With respect to the fourth step referred to in Deledio, Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-2 stated:
“… As the Full Court said in Deledio it is only at the step 4 of the process that the Tribunal will be required to find facts from then material before it.”
51. In Byrnes v Repatriation Commission (1993) 1777 CLR 564, the High Court, in its analysis, said at 571:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran’s service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed[2] unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
Consideration of the Issues
52. The Tribunal considers that an extra step to the “Deledio methodology” is necessary in considering this application for review, i.e. the kind of substance use (alcohol) disorder(s) that Mr Gordon suffered during his period of service: see Hancock’s case. The Tribunal therefore must make findings upon expert evidence that is relevant in deciding this question: Whetton’s case. The clinical onset of symptoms of substance-use (alcohol) disorders is central to the Tribunal’s fact-finding process: see Robertson’s case. The standard of proof is the reasonable satisfaction standard in subsection 120(4): see Gosewinckel and Jackman cases.
53. The Tribunal has considered the factual basis for making findings on the clinical symptoms of substance-use (alcohol) disorders by reference to the supplementary expert reports provided by Dr Carter and Dr McIntyre and the description and diagnostic criteria contained in DSM-IV: see Benjamin’s case.
54. “Substance Use Disorder” refers to Substance Dependence and Substance Abuse. Alcohol is a drug of abuse. Furthermore, DSM-IV recognises that Alcohol Abuse requires fewer symptoms and thus may be less severe than Alcohol Dependence.
(a) Criteria for Substance Dependence (DSM-IV at 197)
“A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period (Tribunal emphasis):
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of the substance to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of the substance
(2) withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances)
(b)the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)the substance is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control substance use
(5)a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects
(6)important social, occupational, or recreational activities are given up or reduced because of substance use
(7)the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition that an ulcer was made worse by alcohol consumption).”
(b) Criteria for Substance Abuse (DSM-IV at 199)
“A.A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period (Tribunal emphasis):
(1)recurrent substance use resulting in a failure to fulfil major role obligations at work, school, or home (e.g. repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household)
(2)recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use)
(3)recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct)
(4)continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)
B.The symptoms have never met the criteria for Substance Dependence for this class of substance.”
55. The history of drinking referred to by Dr McIntyre in his diagnostic evaluation (T4, Folio 27; Report dated 17 May 2003) is as follows:
(a)at the time of enlistment, Mr Gordon did not drink, other than an occasional glass of beer; and
(b)during operational service in Vietnam, Mr Gordon drank up to 5 cans of beer per day, when not on patrol and in base camp.
In addition, in his earlier report (T4, folio 27), Dr McIntyre refers to Mr Gordon’s increased alcohol consumption on return to Townsville [1967] to 15 stubbies of full strength beer per day.
56. In her second report (Exhibit A4, 20 November 2003), Dr Carter states:
“On careful history taking, James gives a clear history that he was not in the habit of abusing alcohol prior to going to Vietnam, and in fact, while his drinking did come to the attention prior to his going to Vietnam, he was certainly not considered to be someone who had a major alcohol problem.
When he was in Vietnam, however, his drinking, rather than being an episodic excessive drinking of a young man in the Military, it became an entrenched habit. When he was in Vietnam, prior to Operational Vaucluse [Bribie?] he would just drink with his mates, and sometimes he would drink too much, but it wasn’t a compulsive habit, it was just more or less a social habit, but after Operation Vaucluse he would use alcohol to try to reduce his symptoms, and his alcohol drinking then became pathological, in my opinion. If in fact he was a problem drinker, he would not have been taken to Vietnam. He was considered to be a young man who was a little imprudent on a couple of occasions. Had he not gone to Vietnam and had he not been exposed to the stressors that he went through, in my opinion he would not have developed the habit of alcohol dependence.”
57. Mr Gordon’s oral evidence was that he did not drink before joining the army and that his drinking increased significantly following exposure to traumatic events in Vietnam. On his return from Vietnam, he had taken every opportunity to drink.
58. Mr Gordon’s “Record of Medical Examination of Recruit” (T2, Folio 10, 11 September 1962) indicates no psychiatric history [mental troubles/nervous breakdown] and he was certified as Class I.
59. Information of fellow soldiers on Mr Gordon’s alcohol consumption was as follows:
(a)Robert Russell (Exhibit A3): Over the pre-embarkation period 1962 – 1966, he had never seen Mr Gordon drunk. On return to Australia, Mr Gordon had changed and drank a lot;
(b)Ron Summers (T4, Folio 66): Statement refers to Mr Gordon becoming a changed person after “Operation Bribie”, resorting to alcohol and had become “frightened, lonely person, panicked and very easily started”. On his return home, Mr Gordon had “used alcohol excessively” and was “unable to be part of any social situation”; and
(c)Arthur Butler (T4, Folio 68): Refers to a behavioural change in Mr Gordon after “Operation Bribie” as he had become “quiet, withdrawn, not wishing to participate in any activities”.
60. Mr Gordon completed a “Drinking Questionnaire” on 26 April 2000 (T4, Folio 12) in which he stated:
(a) that he was aged 17 when he first consumed alcohol (Q3);
(b)that he was aged 21 when he began to consume alcohol regularly (Q4);
(c)that he consumed “8-10 cans or sometimes more” once he had become a regular drinker (Q6); and
(d)that there was a period when his drinking habit increased significantly and during such period his drinking “increased to 12-16 cans per day” (Q7, Q8).
61. Mr Gordon’s service documents reveal that over on 18 month period he was charged with 9 civil drunkenness/alcohol-related military offences on the following dates:
§19 March 1965
§22 March 1965
§12 April 1965
§12 November 1965
§22 December 1965
§31 March 1966
§30 May 1966
§5 September 1966
§27 May 1967
62. The latter offence (27 May 1967) arose after “Operation Bribie” (17 February 1967). It is not in dispute that Mr Gordon experienced a severe stressor during “Operation Bribie” and which led to his condition of PTSD.
63. Mr Gordon’s history of civil drunkenness over the period March 1965 to May 1967 has now been considered by Dr Carter and Dr McIntyre in their diagnostic evaluation of substance–use (alcohol) disorders in their Reports prepared under the Tribunal Direction.
64. Based on all of the evidence and information before the Tribunal, the Tribunal concludes that it is reasonably satisfied that over the period March 1965 to September 1966, Mr Gordon suffered from the substance-use (alcohol) disorder of “Alcohol Abuse”.
65. The Tribunal concludes that Mr Gordon suffered from “Alcohol Abuse” during the period March 1965 to September 1966 because of the following reasons:
(a)The evidence of Dr McIntyre (17 May 2004) in this regard. Specifically, that the clinical onset of “Alcohol Abuse” can be adduced from the symptoms specified in DSM-IV as diagnostic criteria. In particular:
A(3). Recurrent substance-related legal problems (e.g. arrests for substance-related disorderly conduct. That is, “the substance [alcohol] related problem must have occurred repeatedly during the same 12-month period or been persistent (DSM-IV)”;
(b)There is no evidence or information before the Tribunal with respect to DSM-IV criteria A(1), (2) and (4); and
(c)Furthermore, there is no information before the Tribunal to indicate that Mr Gordon’s symptoms have met the criteria for substance dependence (alcohol) [DSM-IV Criterion B]. The history of alcohol consumption taken by Dr McIntyre for this period makes no reference to clinical symptoms of substance dependence (alcohol). Specifically, the criteria of tolerance, withdrawal or a pattern of compulsive use (DSM-IV Criterion). These criteria are not included as criteria for Substance Abuse (Alcohol); Moreover, Dr Carter’s opinion was that during operational service and prior to “Operation Vaucluse [Bribie]”, Mr Gordon’s drinking pattern was not a compulsive habit. Mr Gordon was considered to be a young man who was a little imprudent on a number of occasions.
66. Following exposure to the severe stressor during “Operation Bribie” (February 1967) and on consideration of all of the evidence and information before it, the Tribunal concludes that it is reasonably satisfied that Mr Gordon’s substance-related (alcohol) disorder had changed from “Alcohol Abuse” to “Alcohol Dependence”.
67. The Tribunal has reached this conclusion because of the following reasons:
(a)Dr Carter’s professional opinion that the clinical onset of all seven symptoms of Alcohol Dependence specified as diagnostic criteria in DSM-IV [such as tolerance, withdrawal, amount consumed…] were linked to his exposure to a severe stressor and the emergence of his PTSD condition (T4, Folios 60, 61).
(b)In her subsequent reports (Exhibit A4; 30 June 2004), Dr Carter expresses the further opinion that, had Mr Gordon not gone to Vietnam and so been exposed to a severe stressor, he would not have developed the habit of Alcohol Dependence. Her opinion was that his drinking was a direct result of his PTSD.
(c)The statements of fellow soldiers in Vietnam with Mr Gordon [Ron Summers – who knew Mr Gordon from 1964 (T4, Folio 66) – and Robert Russell – who knew Mr Gordon from 1964 (Exhibit A3)] corroborate the fact that Mr Gordon’s drinking habits changed significantly following “Operation Bribie” and on his return home.
68. The Tribunal notes that Dr McIntyre in his report (17 May 2004) expresses a qualification with respect to the connection between exposure to a severe stressor and alcohol dependence - without a further history of Mr Gordon’s actual alcohol intake. The following conclusion by the Tribunal in this regard is relevant. The Tribunal has placed little weight on Mr Gordon’s responses in the “Drinking Questionnaire” (T4, Folio 12) because limitations in the design of the Questionnaire have led to responses which can only be considered as “indefinite testimony” of an “inexact proof”: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. Specifically, the ambiguity in the answers given to Question 4 (Mr Gordon was aged 21 prior to and after exposure to the severe stressor) and Question 6 (it is uncertain as to what “time period” the amount consumed refers to). Accordingly, the Tribunal cannot be “reasonably satisfied” that this evidence is consistent with the requisite standard of proof.
69. Accordingly, the Tribunal gives weight to Dr Carter’s professional opinion, in this regard, and the corroborative evidence of fellow soldiers who noted a significant change in Mr Gordon’s drinking habits following “Operation Bribie” and on his return home.
70. Given this conclusion as to the nature of the substance-related (alcohol) problem suffered by Mr Gordon changing, over time, from Alcohol Abuse to Alcohol Dependence, the Tribunal has adopted the “Deledio Methodology” to consider whether his Alcohol Dependence was a service-related disability.
Whether The Material Before The Tribunal Points To An Hypothesis That Connects The Disease With The Circumstances Of Service
71. It is not in dispute that Mr Gordon experienced a severe stressor during “Operation Bribie” (February 1967) and that this stressor led to his PTSD condition.
72. There is also evidence and information before the Tribunal that Mr Gordon did not drink before joining the Army as a 17 year old recruit in 1962. However, during eligible service and later operational service, he suffered Substance-Abuse (Alcohol) Disorders that changed from Alcohol Abuse to Alcohol Dependence.
73. Accordingly, the Tribunal considers that there is sufficient material that points to an hypothesis that connects Alcohol Dependence with the circumstances of operational service, given that Mr Gordon experienced a severe stressor during operational service.
Whether an SoP is in Force
74. An SoP is in force that is relevant to this application for service:
§ Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
Whether the Hypothesis is a Reasonable One
75. The Tribunal concludes that the hypothesis that connects Alcohol Dependence with the circumstances of operational service is reasonable because, pursuant to subsection 120(3) of the Act the following factors are contained within the SoP and are consistent with the template or factor:
“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
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.”
76. Based on all of the evidence and materials before it – specifically that Mr Gordon has experienced a severe stressor, as well as the Tribunal’s findings on the changes in the nature of the substance-abuse (alcohol) disorder suffered by Mr Gordon over time, the Tribunal concludes that Factor 5(d) is the relevant factor central to the hypothesis. As such, the Tribunal considers that an hypothesis containing these matters prescribed in Factor 5(d) is a “reasonable hypothesis” as it is not impossible, fanciful or too remote to be tenuous: Bushell’s case.
Whether the Factual Evidence Before the Tribunal Discharges the Legal Standard of Proof
77. The Tribunal turns to subsection 120(1) of the Act to decide whether or not it can accept sufficient of the facts as to disprove the hypothesis beyond reasonable doubt, by carefully considering all of the evidence and information before the Tribunal.
78. The first issue for the Tribunal to consider is whether Factor 5(b) is satisfied according to the requisite level of proof.
79. It is not in dispute that Mr Gordon experienced a severe stressor during “Operation Bribie” in February 1967.
80. The Tribunal’s earlier reasons and findings are that Mr Gordon’s substance-abuse (alcohol) disorder of Alcohol Abuse over the period March 1965 to September 1966 changed to Alcohol Dependence following exposure to a severe stressor during “Operational Bribie” in February 1967. Whilst both substance-abuse (alcohol) disorders conditions represent a maladaptive pattern of alcohol use, the diagnostic criteria and their manifestations [clinical symptoms] are quite different. DSM-IV further recognises that Alcohol Abuse requires fewer symptoms and thus may be less severe than Alcohol Dependence.
81. Accordingly, the Tribunal concludes that there has been a clinical worsening of Mr Gordon’s substance-abuse (alcohol) disorder between the period March 1965 to September 1966 and from the time following his exposure to a severe stressor in March 1967. That is, his disorder has worsened from Alcohol Abuse to Alcohol Dependence.
82. Furthermore, based on the available medical evidence, the Tribunal further concludes that Mr Gordon experienced a severe stressor within the two years immediately before the clinical worsening of his substance-abuse (alcohol) disorder, i.e. the change from Alcohol Abuse to Alcohol Dependence.
83. Given this finding, the Tribunal next considers the SoP for Alcohol Dependence and Alcohol Abuse with respect to Clause 6: Factors that apply to material contribution or aggravation.
84. In discussing the statutory framework with respect to SoPs and raising a "reasonable hypothesis" connecting a disease with the circumstances of service, Emmett J in Kattenberg v Repatriation Commission[2002] FCA 412 stated:
“8. Section 196A of the Act establishes the Repatriation Medical Authority ("the Authority"). Section 196B is concerned with the functions of the Authority. Section 196B(2) provides that, if the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of disease can be related to certain service, the Authority must determine a Statement of Principles ("SoP") in respect of that kind of disease. An SoP must set out the factors that must, as a minimum, exist, and which of those factors "must be related to service rendered by a person", before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.”
85. Section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase "related to service". That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present. Thus, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, if:
“(b) it arose out of, or was attributable to, that service; or...
(d) it was contributed to in a material degree by, or was aggravated by, that service;...
(f) in the case of a factor causing, or contributing to a disease-it would not have occurred...but for the rendering of that service by the person'."
86. Later, Emmett J stated:
“42. An SoP is brought into existence in order to comply with s 196B. The terms of SoP 130 of 1996 purport to comply with the requirements of s 196B(2) by referring to the requirement that "factors must be related to any relevant service". That is the language used in s 196B(2)(e). It is appropriate to construe that language, when used in SoP 130 of 1996, as having the same meaning as is given to the same language in s 196B. That entails reading into the language of the SoP the language of s 196B(14).”
87. Accordingly, the requirement of SoP 130 of 1996 that the relevant factor be related to the Veteran's service will be satisfied if there is shown to be a causal or contributory relationship between the specified number of pack years and service, or if the factor would not have occurred but for the rendering of that service. (Emphasis added).
88. The Tribunal has applied the reasoning and principles in this decision to the application for review.
89. It follows, in the Tribunal’s view, that Mr Gordon’s alcohol habits were directly caused by his military service. The Tribunal accepts his evidence that he did not drink beer before joining the Army as a 17 year old recruit. However, thereafter, in the company of older soldiers, and subject to peer pressure, his drinking habits and alcohol consumption changed. His civil drunkenness charges over the period March 1965 to September 1966 reflect episodic, excessive drinking of a young man in the Army, which commenced as a social habit. His drinking at this stage was not a compulsive habit. His disorder at this period was Alcohol Abuse.
90. However, following “Operational Bribie”, as well as the “mortar incident”, and the severe stressor he experienced, his drinking became pathological as he would use alcohol to reduce his symptoms. From this point in time onwards, his disorder changed to Alcohol Dependence as the clinical symptoms of tolerance, withdrawal, increased consumption and persistent use emerged.
91. In effect, Mr Gordon’s drinking habits changed from the time of enlistment (1962) i.e. a non-drinker to the disorder of Alcohol Abuse (the 12 month period to embarkation for Vietnam in March 1966). Moreover, following exposure to a severe stressor in February 1967, during operational service, his disorder changed and clinically worsened into Alcohol Dependence. The PTSD condition that resulted caused stress-related alcohol consumption and Alcohol Dependence in Mr Gordon.
92. Each case must be considered on its merits. In this particular matter, for all of the above reasons and based on all the evidence and material before it, the Tribunal finds that for the purposes of subsection 120(1) of the Act, one or more facts that support the hypothesis have not been disproved beyond reasonable doubt: Byrne’s case.
93. Accordingly, the Tribunal concludes that Mr Gordon’s Alcohol Dependence was contributed to in a material degree, or was aggravated by his operational service, in Vietnam. Moreover, his Alcohol Dependence would not have occurred but for him rendering operational service and his exposure to a severe stressor in February 1967. That is, Factor 5(d) of the SoP is satisfied (emphasis added).
94. The Tribunal finds there are sufficient grounds for determining, at the requisite level of proof imposed by subsection 120(1), and in accordance with the legal framework outlined in this decision, that there is a connection between Mr Gordon’s Alcohol Dependence and his operational service.
95. The Tribunal decides to set aside the decision under review and in substitution thereto decides that Mr Gordon’s Alcohol Dependence is a service-related disability. The Tribunal makes a direction that the respondent now consider the implications of this decision with respect to determining the degree of incapacity of Mr Gordon from his accepted service-related disabilities and, in turn, the appropriate rate of pension entitlements.
I certify that the 95 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: Sarah Oliver
AssociateDate/s of Hearing 25 March 2004
Date of Decision 6 August 2004Counsel for the Applicant Ms B Carter-Nicoll
Solicitor for the Applicant Sciacca's Lawyers
For the Respondent Ms H Bruce, Departmental Advocate
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