Gordon Batzloff v Repatriation Commission

[2004] AATA 1115

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATTA 1115

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/533

VETERANS' APPEALS  DIVISION		)
Re		GORDON BATZLOFF

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe;
Mr Way, Member

Date27 October 2004  

PlaceBrisbane

Decision The decision under review is set aside.  The conditions of anxiety disorder, depressive disorder and alcohol abuse or dependence are war-caused within the meaning of s9 Veterans’ Entitlements Act 1968.  The matter is remitted to the respondent for assessment of the rate of pension payable.  The date of effect of this decision is 27 December 2001.

...................[Sgd]......................

Senior Member

CATCHWORDS

VETERANS ENTITLEMENTS – pensions and benefits – veteran claims adjustment disorder, anxiety disorder, depressive disorder and alcohol abuse are related to service – diagnosis of adjustment disorder – diagnosis of alcohol abuse where veteran no longer drinking excessively – whether hypothesis reasonable – veteran experienced psychosocial stressor – decision set aside

Veterans’ Entitlements Act 1986

Repatriation Commission v Cooke [1998] FCA 1717

Repatriation Commission v Delidio (1998) 83 FCR 82

Re Henderson and Repatriation Commission [2001] AATA 397

Re Hartshorn and Repatriation Commission [2004] AATA 846

McKenna v Repatriation Commission [1999] FCA 323.

REASONS FOR DECISION

27 October 2004   Senior Member McCabe;
Mr Way, Member  

1.      Gordon Batzloff is the applicant in these proceedings. He claimed he suffers from post traumatic stress disorder (PTSD) and alcohol abuse or dependence conditions as a result of his experiences in Vietnam. His claim for compensation was rejected by the respondent, the Repatriation Commission, on 20 March 2001. The respondent’s decision was affirmed by the Veterans’ Review Board (the VRB) on 4 March 2002. Mr Batzloff has asked the Tribunal to review his case.

2.      Mr Batzloff has altered his claim.  He no longer contends he suffers from PTSD. He argued before the Tribunal that he suffers from anxiety disorder, depressive disorder, adjustment disorder and alcohol abuse or alcohol dependence condition. He says all of those conditions are related to his service. 

3. The matter was heard on 1 July 2004. Mr Mackie represented the applicant. Mr Smith represented the respondent. In evidence were the documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.  The following documents were also before the Tribunal:

• A statement of the applicant dated 28 October 2002;
• A statement of Mrs Batzloff dated 28 October 2002
• A report of Dr Troup dated 5 September 2003;
• A bundle of medical records of Dr Troup;
• Three reports of Dr Mulholland dated 21 February 2003; 1 April 2003 and 25 November 2003;

• A letter written by Danny Mullins (CEO of the Esk Shire Council) to Dr Troup concerning the applicant’s behaviour, dated 22 August 2000.

The background

4.      Mr Batzloff served in the Australian Army from 30 June 1965 to 29 June 1970.  His operational service was from 6 June 1966 to 14 June 1967. He served in Vietnam.

5.      Mr Batzloff claims his conditions are caused by several incidents he experienced while on operational service in Vietnam.  He recalls them in his statement:

Incident #1 – Mortar Attack

The first stressor that I experienced was a mortar attack.  It was in August of 1966. My position was not mortared….They came in early in the morning, at about 3.40am.  It seemed to last a long time.  They hit about 500 metres behind us.  They sounded so close.  You didn’t know if the next one was going to land on you.  You could hear them hit the ground with a huge whomp. …I was shit-scared.  Absolutely terrified.  It was the 18^th, the day of the battle of Long Tan.

Incident #2 – Friends killed in Battle of Long Tan

I knew 6 of the men killed in that battle [of Long Tan].  I regarded them as friends.  There was Lt Sharpe, Thomas, Drebble and Mitchell and the two McCormack boys.

Incident #3 – Threats from another soldier

The third stressor involves being threatened by another soldier.  It happened around December 1966 or January 1967.  I can’t remember what we were doing at the time, but we must have had some kind of disagreement.  This bloke threatened me.  He said that he was going to get me.  He said that he knew where I lived.  He told me that he could get me and that he was going to do it… I was terrified.  It went on and on.  I felt that my life was being threatened.  I felt that I was in danger.  I was very afraid.

Incident #4 – Rifle discharge

The [next] stressor I feel is related to the first, but I am not sure.  I think that it was sometime in March of 1967,…A fellow soldier suddenly fired a full magazine of his rifle into the ground no more than 2 metres away from me.  I was terrified.  I was on edge because of the threats I had been receiving and at the time I thought that the soldier who wanted to get me had put him up to it….at the time I thought that my life was in danger.

Incident #5 – Shrapnel incident

The [next] stressor occurred some time in the first four or five months of 1967. A chook had set off a trip flare on the perimeter.  At the time I was standing guard.  Our fellows mortared the spot.  I was coming out of the hole when a piece of shrapnel hit my rifle on the stock.  I felt a hard jarring.  It was glowing hot.  I still have the piece.  If I had not [had my rifle] the shrapnel would have ripped through my stomach.  I would have been dead.  I was in total shock.  I was lucky to be alive.  My rifle saved my life.

Incident #6 – Death of Private Tweedie

It was around the time that my friend Geff (sic) Tweedie was killed that I really lost the plot.

Mr Batzloff revealed more of the last incident in his oral evidence.  He said he took the death of Pte Tweedie badly and started drinking and acting aggressively.  He said Pte Tweedie was his best friend and he saw him daily.  In cross-examination he stated Pte Tweedie’s death was the worst of the stressors.

6.      We understand Mr Batzloff’s claim to be that he experienced an adjustment disorder as a result of experiencing the above stressors while in Vietnam.  The adjustment disorder then developed into anxiety disorder, depressive disorder and led to his alcohol abuse.  For reasons we explain below, we are satisfied Mr Batzloff’s claim should succeed on that basis.

The Law

7. Section 13 of the Veterans’ Entitlements Act 1986 (the Act) says the Commonwealth is liable to pay a pension to a veteran where that veteran has become incapacitated from a war-caused disease.  The first step in a claim is to establish a diagnosis. Once the Tribunal has made a diagnosis to its reasonable satisfaction (s 120(4); see also Repatriation Commission v Cooke [1998] FCA 1717), the Tribunal must evaluate the claim in accordance with s 120 of the Act. The correct approach to the application of s 120 was explained by the Full Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82. The Court explained the Tribunal must proceed through four steps once a diagnosis has been made.

Diagnosis

8.      Both parties now accept Mr Batzloff does not suffer PTSD.  He claims he suffered adjustment disorder while in Vietnam, and says he now suffers from anxiety disorder, depressive disorder, and from an alcohol abuse or alcohol dependence condition.

9.      In her report of 5 September 2003 Dr Troup opines Mr Batzloff suffered a chronic adjustment disorder while in Vietnam.  She says as a result of this he developed an alcohol dependency.  She also says his adjustment disorder “developed into a generalised anxiety state and dysthymia”.  She says he currently suffers those conditions.

10.     Dr Mulholland compiled a report, dated 21 February 2003.  Regarding Mr Batzloff’s alcohol intake, he said the applicant:

…gives a history of chronic excessive intake of alcohol as would be in the borderlands of requiring a diagnosis of alcohol abuse/dependence.  However there are no biological markers in support of his history of chronic excessive alcohol intake…it is considered that the most likely situation is that there is some exaggeration of alcohol intake.

11.     Dr Mulholland added:

There is no doubt that he does have some ongoing psychiatric problems and it sounds as though these are in the realms of chronic agitation-anxiety-irritability…excessive intake of alcohol…may be [a] feature of a PTSD or PTSD like condition.

…However it is not considered that he meets the requirements for any formal diagnosis of psychiatric disorder (illness).

12.     Both experts agree Mr Batzloff suffers some psychiatric symptoms.  The difference between them is essentially one of degree. Dr Mulholland does not think the symptoms are sufficient to warrant a diagnosis being made. In the circumstances, we prefer the diagnosis of Dr Troup, the applicant’s treating doctor. She has had a better opportunity to form a judgement about the severity of the applicant’s symptoms. On the basis of Dr Troup’s reports (of 21 September 2001 at ff60-64 T4 of the T-documents, and exhibit 4) we are reasonably satisfied the veteran suffers anxiety disorder, depressive disorder, and did suffer adjustment disorder. 

13.     The diagnosis of alcohol abuse or dependence is also problematic.  The blood tests performed at the behest of Dr Mulholland indicate the applicant does not drink to excess:

there are no biological markers in support of his history of chronic excessive alcohol intake in that his MCV, GGT and CDT are all normal.  These normal tests do not entirely eliminate the possibility that this man is engaging in chronic excessive intake of alcohol but it is considered that the most likely situation is that there is some exaggeration of alcohol intake.

14.     Mr Batzloff’s statement of 28 October 2002 provided further information about his alcohol consumption.  He says “at the moment I drink 3 to 5 stubbies of an evening and then more on the weekend”.  The oral evidence given by Mr Batzloff also shed light on his claimed alcohol problem.  In cross-examination he said he didn’t drink every night.  He said he goes to the pub some days and may have 3 or 4 pots of beer (or more), depending on who he meets there.

15.     While it is common to both parties the applicant is not drinking to excess currently, Dr Mulholland said in evidence Mr Batzloff’s alcohol problem “may be in remission”.  This approach has been followed by the Tribunal in other cases where an applicant with an alcohol abuse condition has since limited their drinking: see for example Re Henderson and Repatriation Commission [2001] AATA 397 (at par 101); Re Hartshorn and Repatriation Commission [2004] AATA 846. Dr Troup also diagnosed Mr Batzloff with the condition repeatedly. On that basis we are reasonably satisfied the applicant suffers from alcohol abuse or dependence.

Delidio Steps

16.     Having settled on a diagnosis, we will now evaluate the claim according to the process outlined in Repatriation Commission v Delidio (1998) 83 FCR 82.

Delidio Step 1 – Hypothesis

17.     The first step requires us to determine whether there is an hypothesis connecting the applicant’s claimed conditions with the circumstances of his or her relevant service.  It seems to us the hypothesis is as follows: the applicant was exposed to the stressors outlined in paragraph five of these reasons during his service in Vietnam. The stress arising out of those incidents caused him to develop an adjustment disorder, which in turn led to the development of anxiety disorder, depressive disorder and his alcohol abuse and dependence condition.

18.     We are satisfied there is an hypothesis connecting the events the applicant described with the circumstances of his service. We are not making findings of fact at this point, nor are we assessing whether the hypothesis is reasonable. That occurs later.

Delidio Step 2 – Statements of principle

19.     The next step is to identify the relevant Statements of Principle (SoPs).  Given the diagnoses we have accepted, the following SoPs are applicable:

• Adjustment disorder: Instrument No. 57 of 1996;

• Alcohol dependence or alcohol abuse: Instrument No. 76 of 1998;

• Depressive disorder: Instrument No. 58 of 1998;

• Anxiety disorder: Instrument No. 1 of 2000.

20.     Each of the SoPs identifies factors which – if they can be identified in the applicant’s account – can provide the link between the applicant’s service and his condition. The factors are not all the same. For the sake of convenience, we will identify the factors relied on in this case in each SoP.

21.     Factor 5(a) in the SoP dealing with adjustment disorder (Instrument No. 57 of 1996) says the veteran must have experienced an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder. “Psychosocial stressor(s)” is defined in the SoP as:

…an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a

disabling medical condition such as a malignancy or chronic cardiorespiratory disorder)…

22.     Factor 5(a) of the SoP dealing with alcohol abuse or dependence condition (Instrument No. 76 of 1998) says the veteran must be suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.

23.     Factor 5(c) of the SoP dealing with depressive disorder (Instrument No. 58 of 1998) says the veteran must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder.

24.     Factor 5(a)(iii) of the SoP dealing with anxiety disorder (Instrument No. 1 of 2000) says the veteran must have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder.

25.     For the sake of convenience, we will undertake the Deledio analysis in its entirety in relation to each of the conditions that has been claimed. We deal with them consecutively below.

Delidio Step 3 –adjustment disorder SoP

26.     The third stage of the Delidio process requires that we assess whether the applicant’s story “fits” the template of the SoP.  We are not at this point required to decide whether we accept the applicant’s story: we are merely evaluating his story against the standard of the relevant SoPs.

27.     Because of the nature of this claim, it is necessary to completely resolve whether Mr Batzloff’s adjustment disorder is service-related before proceeding to deal with the other conditions.  Mr Batzloff says his adjustment disorder was war-caused, and it led to alcohol abuse, depressive disorder and anxiety disorder.  If the adjustment disorder is not war-caused, it cannot be relied upon to satisfy factors in other SoPs: see McKenna v Repatriation Commission [1999] FCA 323.

28.     Factor 5(a) of the adjustment disorder SoP requires Mr Batzloff to have experienced a psychosocial stressor.  That term is defined above in paragraph 22 of these reasons.

29.     We are satisfied the death of Pte Tweedie amounts to a psychosocial stressor within the meaning of the adjustment disorder SoP.  It was an occurrence that was capable of evoking (and apparently did evoke) feelings of substantial anxiety or stress in Mr Batzloff.  Mr Batzloff says Pte Tweedie was his “best friend” and Pte Tweedie was killed in a “friendly fire” incident. Many soldiers in Vietnam experienced the loss of close friends and comrades to enemy action, and we note Mr Batzloff did not witness Pte Tweedie’s death. But we think the accidental death of Pte Tweedie at the hands of his own comrades may have been a source of particular stress to the applicant, or to any person in the applicant’s position.

30.     It follows we accept factor 5(a) of the adjustment disorder SoP is satisfied.  There is a reasonable hypothesis connecting adjustment disorder with the circumstances of Mr Batzloff’s service.

31.     Because the death of Pte Tweedie satisfies the definition of psychosocial stressor it is not necessary to assess the other incidents.

Delidio step 4 - adjustment disorder

32.     Once the Tribunal is satisfied the applicant’s story “fits” the SoP, it proceeds to the final step. That step was explained by the Full Federal Court in Deledio as follows:

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..

33.     The fourth step in the Deledio process requires that we make findings of fact from the material before us. Can we be satisfied beyond reasonable doubt that the adjustment disorder did not arise from the applicant’s service? That depends on our assessment of the applicant’s account. If we were satisfied beyond reasonable doubt that one of the central facts was disproved or an inconsistent fact was proved, we could not find the applicant’s condition was connected to his service.

34.      The respondent provided an historical report compiled by Writeway Research Service (ff45-52 T4 of the ‘T-documents’).  The researcher considered the death of Pte Tweedie and found:

The Vietnam Casualty List shows that Pte G L Tweedie was accidentally killed on 28 Jan 67.  2IC B Coy recalled that Pte Tweedie was a member of one of the rifle platoons.  He had been asked to cover a track while other forward elements of the platoon searched in another direction.  Pte Tweedie was then shot with a long burst of automatic fire by one of his colleagues as he returned to his platoon….

35.     The report clearly establishes Pte Tweedie was killed in a friendly fire incident. There was no additional evidence to suggest otherwise.

36.     There was a suggestion in the evidence that Mr Batzloff had claimed he witnessed Pte Tweedie’s death.  The assertion is recounted in Dr Troup’s report of 11 September 2000 (ff23-43 T4 “T-documents”).  She noted:

Mr Batzloff also saw an Australian accidentally kill another Australian with an M16.

37.     On 21 September 2001 she clarified that report (ff60-64 T4 “T-documents”), writing:

Pte Tweedie was one of his very good friends…He did not see this [incident] but was very upset by it.

I hope this clarifies the inconsistencies in the first report…Mr Batzloff’s concentration is not good and as I said in the beginning of the report I think it was partly misinterpretation on my part and him telling me about incidents that upset him which I believed he saw but he did not, he just heard about them.

38.     Before the VRB and then this Tribunal, Mr Batzloff said he was not present when Pte Tweedie was killed. We do not think anything turns on the inconsistency, which Dr Troup adequately explains.

39.     We have no reason to doubt the applicant’s claim that he was a good friend of Pte Tweedie. It follows we must accept his account in this respect. We also note Dr Troup’s opinion that the condition arose during the course of the applicant’s service in Vietnam. It follows we accept the veteran’s adjustment disorder is war-caused.

Delidio Step 3 – Alcohol Abuse, Depressive Disorder, Anxiety Disorder

40.     We have established the veteran suffered adjustment disorder that was war-caused.  Adjustment disorder is a ‘psychiatric condition’. It follows Factor 5(a) of the alcohol abuse SoP, Factor 5(c) of the depressive disorder SoP and Factor 5(a)(iii) of the anxiety disorder SoP are all satisfied, providing the applicant can show clinical onset within the appropriate time.

Clinical onset – alcohol abuse

41.     The alcohol SoP requires the veteran to be suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence or abuse.  In his statement Mr Batzloff recalls:

It was around the time that my friend Geff (sic) Tweedie was killed that I really lost the plot…I started to drink as much as I could then.

42.     We are satisfied having regard to the reports of Dr Troup and the applicant’s own evidence that the alcohol abuse began during the applicant’s time in Vietnam, while he was suffering from an adjustment disorder.  Factor 5(a) is satisfied.

Clinical onset – Depressive Disorder, anxiety disorder

43.     The depressive disorder and anxiety disorder SoPs require the veteran to have had a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder.  The date of clinical onset for those conditions are unclear.

44.     The veteran’s hypothesis is that his adjustment disorder developed over time into depressive disorder and anxiety disorder.  It would thus be very hard to point to a precise (or even approximate) date on which Mr Batzloff experienced clinical onset of depressive disorder and/or anxiety disorder.  We are unable to identify a temporal break between the first psychiatric condition and the onset of the other two. Dr Troup’s evidence (in particular her report of 5 September 2003) suggests the onset of the depressive disorder and anxiety disorder was inevitably within two years of the adjustment disorder.  It follows the applicant’s account of his experiences is capable of satisfying the relevant SoPs.

Delidio Step 4 – Alcohol Abuse, Depressive Disorder, Anxiety Disorder

45.     Can the respondent disprove a necessary fact or prove a relevant inconsistent one beyond a reasonable doubt?  Because we have already established Mr Batzloff had a clinically significant psychiatric condition (i.e. adjustment disorder) it follows the respondent can succeed at this stage only if they can disprove the dates of clinical onset of the conditions.

46.     We do not think the respondent has disproved the date of the clinical onset of Mr Batzloff’s alcohol abuse. Nor do we think the respondent has disproved the applicant’s claim that the clinical onset of anxiety disorder and depressive disorder occurred within two years of experiencing adjustment disorder. It follows we are satisfied the applicant’s conditions of anxiety disorder, depressive disorder and alcohol abuse or dependence are war-caused.

Conclusion

47.     The decision under review is set aside.  We find Mr Batzloff currently suffers anxiety disorder, depressive disorder and alcohol abuse or dependence.  Those conditions are war-caused within the meaning of s 9 Veterans’ Entitlements Act 1968.  The matter is remitted to the respondent for assessment of the rate of pension payable. The date of effect is 27 December 2001.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe and Mr Way, Member.

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date/s of Hearing: 1 July 2004
Date of Decision: 27 October 2004.
The applicant was represented by Mr Mackie.
The respondent was represented by Mr Smith.