Greene and Repatriation Commission

[2007] AATA 1381

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1381

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200500845

VETERANS' APPEALS DIVISION		)
Re		ROGER WILLIAM GREENE

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal:  G. D. Friedman, Senior Member   

Date:29 May 2007

Place:Melbourne

Decision: The Tribunal sets aside the decision under review and substitutes a decision that bruxism, erosion of teeth, generalised anxiety disorder, alcohol abuse and hypertension are war-caused with effect from 16 September 2003.  The Tribunal remits the matter to the respondent for assessment of rate of pension.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - generalised anxiety disorder - alcohol abuse - hypertension - applicant threatened with pistol - whether conditions war-caused 

Veterans' Entitlements Act 1986 ss 9, 120(1), 196B(2)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

Stoddart v Repatriation Commission (2003) 197 ALR 283

REASONS FOR DECISION

29 May 2007 G. D. Friedman, Senior Member

1.        Roger Greene commenced his career with the Australian Army at Royal Military College, Duntroon, in 1962, and served until 1984, reaching the rank of Lieutenant-Colonel.  He claims that his medical conditions are related to his service in Vietnam, where he was a communications officer.   

2.        The issues before the Tribunal are:

·What are the medical conditions suffered by Mr Greene?

·What is the legal framework?

·Is each condition war-caused?

WHAT ARE THE MEDICAL CONDITONS SUFFERED BY MR GREENE?

3.        Mr Greene made a claim for disability pension on the basis of anxiety disorder, alcohol abuse, bruxism (teeth grinding), hypertension and erosion of teeth.  The Repatriation Commission has accepted that bruxism and erosion of teeth are war-caused.

4.        The Tribunal is required to determine to its reasonable satisfaction whether Mr Greene suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). There was no dispute that Mr Greene suffers from generalised anxiety disorder, alcohol abuse and hypertension.

WHAT IS THE LEGAL FRAMEWORK?

5.        Mr Greene served in Vietnam from 21 October 1970 to 21 October 1971 which was operational service under the Veterans’ Entitlements Act 1986. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

6.        In the circumstances of this case, where Mr Greene has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:

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…

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] 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…

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… If the Tribunal is so satisfied, the claim must fail…

IS GENERALISED ANXIETY DISORDER WAR-CAUSED?

7.        Mr Greene said that after graduating from the Royal Military College he completed a diploma in communications in Melbourne and was posted to the Signals Corps.  In 1970 he was sent to Vietnam as a Squadron Operations Officer with the rank of Captain and was based at Vung Tau.  Mr Greene told the Tribunal that the duties involved maintaining a communications network under difficult conditions.  He often worked sixteen hours per day. 

8.        Mr Greene stated that his anxiety disorder began during his service in Vietnam.  He explained that in addition to the general stress of operating a communications system in a war zone there were a number of stressful incidents, but two events caused significant distress.  The first occurred in January 1971 during a disagreement over rosters with Lieutenant L. O’Neill, a junior officer.  In the presence of several soldiers Lieutenant O’Neill produced a loaded pistol and pointed it at Mr Greene before being persuaded by others to put the weapon away.  Mr Greene said that the incident left him scared and shaking, and he was highly distressed.  He said that he was ashamed that he had allowed the situation to reach such a state, but decided not to make an official complaint as it would have ended Lieutenant O’Neill’s career.

9.        In relation to any lasting effect of the incident on him, Mr Greene stated that his sleep was disturbed, he increased his drinking and became more cautious and introspective.  He told the Tribunal that he had not mentioned the incident in his first assessment by a psychiatrist because he did not want to remember the situation, and the focus of the psychiatrist’s questions had been on combat experience, which was not applicable to him.  He said that after discharge from the Army he continued to experience sleep disturbance, irritability, difficulty in relating to people and a lack of confidence. 

10.      Mr Greene said that the second event involved witnessing casualties arriving at the field hospital at Vung Tau.  He explained that he had no formal responsibility for communications involving the hospital, but provided support such as arranging telephone calls to Australia by injured soldiers.  He also said that he visited the hospital several times each week in a social capacity, as he was friendly with several hospital personnel.  Mr Greene stated that on a number of days he witnessed the arrival of helicopters carrying wounded soldiers, and was distressed to observe the injuries, particularly on one occasion when the casualty was a former classmate at the Royal Military College.

11.      In a report dated 3 March 2004 (T12) Dr B. Kenny, consultant psychiatrist, said that he had no reason to doubt Mr Greene’s account of his experiences, and concluded that service in Vietnam contributed to the anxiety disorder, although Mr Greene had an obsessive personality structure.  Dr Kenny said that a stressor was the working day of sixteen or more hours, together with the pressure under which Mr Greene worked in Vietnam.  He stated that Vietnam service aggravated the anxiety disorder and the condition has continued since then.

12.      In a later report dated 16 March 2006 (Exhibit R1) Dr Kenny reiterated that the anxiety disorder will remain with Mr Greene and would make him susceptible to stressors in the workplace.  Dr Kenny noted that Mr Greene admitted that he had not thought to mention the pistol incident when attending the first consultation.  Dr Kenny stated that the incident was probably frightening but did not leave any lasting effect, leading to a conclusion that this and other stressful events may have produced a temporary aggravation of anxiety, but were unlikely to have made a significant contribution to any psychiatric disturbance.

13.      In oral evidence Dr Kenny agreed that there was a possibility that Mr Greene’s failure to mention the pistol incident at the first consultation might have been due to Mr Greene suppressing the matter, or that Mr Greene was reluctant to discuss the issue because he felt that his handling of the incident at the time was inadequate.     

14.      In a report dated 14 February 2005 (T22, page 104) Dr G. Kernutt, consultant psychiatrist, stated that Mr Greene’s personality is characterised by significant obsessional traits and he has suffered from long-term symptoms of chronic anxiety, insomnia and excessive worry.  Dr Kernutt said that he believed Mr Greene did not embellish or exaggerate his history, and appeared to give a genuine account of his difficulties.  Dr Kernutt concluded that Mr Greene’s generalised anxiety disorder is service-related, particularly as a result of experiences in Vietnam such as the pistol incident.  He also referred to stressful incidents described by Mr Greene such as witnessing injured soldiers.

15.      In a further report dated 26 October 2006 (Exhibit A1) Dr Kernutt stated that in his opinion the pistol incident satisfies the definition of severe psychosocial stressor and that it had a severe impact on Mr Greene.  In oral evidence Dr Kernutt reiterated that the pistol incident was the most significant factor in Mr Greene’s anxiety disorder.  He said that there were several plausible explanations for Mr Greene’s initial failure to mention the incident, including a lack of understanding of the focus of Dr Kenny’s questions and a perception by some veterans of the particular nature of their problems.  Dr Kernutt concluded that if Mr Greene was exaggerating or misrepresenting his claims he would have been more likely to highlight the pistol incident from the beginning.

16.      In a statutory declaration dated 27 July 2005 (Exhibit A6) Mr C. Edwards said that he served in Vietnam in 1970 and 1971 as a Lance Corporal in Lieutenant O’Neill’s unit.  He said that he was informed by Lieutenant O’Neill in 1971 that after consuming alcohol Lieutenant O’Neill had drawn his pistol and had threatened Mr Greene.  In oral evidence Mr Edwards stated that he was not aware of any conflict with Mr Greene about rosters.  

17.      In a statutory declaration dated 29 November 2004 (Exhibit A7) Mr L. O’Neill said that in 1971 he served in Vietnam as a Lieutenant with the posting of Troop Commander, and Mr Greene was a Captain posted as Squadron Operations Officer.  Mr O’Neill stated that he had wanted to change the rostering system but Mr Greene refused to grant approval, resulting in a number of arguments between them.  Mr O’Neill made no mention of the pistol incident.    

18.      In a report dated 29 May 2006 on behalf of Writeway Research Service Pty Ltd (Exhibit R2) Mr I. Bowen referred to Mr Greene’s claim that his duties as a communications officer in Vietnam were stressful.  Mr Bowen stated that Mr Greene was responsible for the efficient processing of a large number of signals, especially after a casualty or fatality, and he would have felt considerable pressure or stress.

19.      In relation to the pistol incident, Mr Bowen stated that the matter was not officially reported or recorded, although notes made at the time by Mr Greene’s Officer in Command (Exhibit A4) seem to confirm some confrontation between Mr Greene and Mr O’Neill involving a pistol.  Mr Bowen also referred to Mr Greene’s claim that he observed casualties at the field hospital, and stated that Mr Greene’s squadron was not responsible for ground to air communications between evacuation helicopters and the Australian field hospital.  He noted that Mr Greene would probably have visited the hospital for personal or social reasons, and might have witnessed the arrival or handling of casualties.

20.      In a witness statement dated 28 February 2007 (Exhibit A3) Mrs M. Greene said that when she met Mr Greene in 1969 he was confident, happy, relaxed, and enjoying his army career.  However when she met him again after his Vietnam service he had become more intense and withdrawn, and felt unworthy.  She added that his attitude towards people was cynical and he demonstrated a real need to prove himself.  Mrs Greene said that this attitude did not change after their marriage in 1975.

21.      In relation to the first step from Deledio, after considering Mr Greene’s evidence and the evidence from the psychiatrists about his generalised anxiety disorder and service in Vietnam, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Greene.  Therefore he satisfies the first step.

22.      In relation to the second step from Deledio the Tribunal has ascertained that there is in force a Statement of Principles (SoP) under s 196B(2) of the Act, so Mr Greene satisfies the second step. The SoP is No. 1 of 2000 concerning Anxiety Disorder. Factor 5 provides:

(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only

…

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or

In paragraph 8 of the SoP:

“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.

23.      In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 the Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.  The Tribunal has considered all the evidence, including the evidence from Mr Greene and other non-medical witnesses, and the medical evidence from Dr Kenny and Dr Kernutt, and considers that the material is consistent with factor 5(a)(ii).  The material points to the hypothesis linking Mr Greene’s operational service with the anxiety disorder.  Therefore Mr Greene satisfies the third step.

24.      In relation to the fourth step from Deledio the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Greene’s anxiety disorder was due to his operational service within the meaning of s 9 of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved. There are both objective and subjective elements to consider when assessing claims of stressful circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).

25.      The Tribunal agrees with the assessment by Dr Kenny and Dr Kernutt that Mr Greene is a reliable and truthful witness.  There was no dispute that the pistol incident occurred, and the Tribunal accepts Mr Greene’s evidence that having a loaded pistol pointed at him had a profound effect on him, evoking feelings of substantial distress, and this constitutes a severe psychosocial stressor as defined in the SoP.  The Tribunal accepts the evidence from Dr Kernutt that there may be a number of reasons for Mr Greene’s failure to mention the incident at the initial assessment with Dr Kenny, who conceded the possibility at the hearing.  After considering the medical evidence the Tribunal finds that clinical onset of generalised anxiety disorder was after the pistol incident and during Mr Greene’s service in Vietnam.  Therefore Mr Greene satisfies the fourth step.  

IS ALCOHOL ABUSE WAR-CAUSED?

26.      Mr Greene stated that he commenced drinking at the age of 18 years, and drank very little during his course at the Royal Military College or during his pre-Vietnam postings.  He explained that his consumption increased during his service in Vietnam because of the stressful nature of his work, but the most significant factor was the pistol incident, after which he drank to excess on regular basis (about 8-10 cans of beer every day) and has continued ever since.  He said that he now consumes about 10 standard drinks each day.

27.      Dr Kenny stated that Mr Greene demonstrates alcohol abuse, to a moderate degree, and there is a connection with the stressors experienced in Vietnam.  There might also be a connection with his chronic anxiety and a family background of heavy drinking.  Dr Kenny said that the alcohol abuse commenced in Vietnam and has been progressive since then.

28.      Dr Kernutt stated that Mr Greene’s pattern of alcohol abuse has been excessive for many years.  He has never received treatment.  Dr Kernutt concluded that Mr Greene satisfied the criteria for alcohol abuse, and said that the condition was service-related, particularly his service in Vietnam.  Dr Kernutt expressed the view that Mr Greene dealt with the pistol incident by self-medicating with alcohol to try to put the incident out of his mind.    

29.      Mr Greene’s wife said that in 1971 she observed her husband’s heavy dependence on alcohol to relax and relieve his anxiety in dealing with people and everyday situations.  Ms Greene stated that since their marriage his alcohol abuse has manifested itself in many negative ways on his career opportunities and his general health and wellbeing. 

30.      In relation to the first step from Deledio, after considering all the material about Mr Greene’s alcohol use and his service in Vietnam, the Tribunal determines that the evidence from Mr Greene and the psychiatrists points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Greene.  Therefore he satisfies the first step.

31.      In relation to the second step from Deledio the relevant SoP is No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. 

Factor 5 provides:

…

(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;

‘experiencing a severe stressor’ is defined in the SoP as:

…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.

32.      In relation to the third step from Deledio, the Tribunal has considered all the evidence, including the evidence from Mr Greene and other non-medical witnesses, and the medical evidence from Dr Kenny and Dr Kernutt, and considers that the material is consistent with factor 5(b).  The material points to the hypothesis linking Mr Greene’s operational service with the alcohol abuse.  Therefore Mr Greene satisfies the third step.

33.      In relation to the fourth step from Deledio the Tribunal accepts Mr Greene’s evidence that although he consumed alcohol during his Army service before his posting to Vietnam, he began to drink to excess as a result of the pistol incident and has suffered from alcohol abuse since then.  This is supported by the evidence from his wife and is consistent with the description of his drinking history given to various medical practitioners and the conclusions reached by Dr Kenny and Dr Kernutt.  The Tribunal finds that as a result of the pistol incident Mr Greene experienced an event that involved a threat of death or serious injury, so he experienced a severe stressor as defined in the SoP.  After considering the medical evidence the Tribunal finds that clinical onset of alcohol abuse was after the pistol incident and during Mr Greene’s service in Vietnam.  Therefore Mr Greene satisfies the fourth step.  

IS HYPERTENSION WAR-CAUSED?

34.      The relevant SoP is No. 35 of 2003 as amended by No. 3 of 2004 concerning Hypertension.  Factor 5 of No. 3 of 2004 provides:

…

(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol;

35.      There was no dispute between the parties that if the Tribunal finds that alcohol abuse is war-caused, then the steps from Deledio are also satisfied in relation to hypertension.  In view of the Tribunal’s finding that the alcohol abuse is war-caused, the Tribunal finds that hypertension is war-caused. 

DECISION

36.      The Tribunal sets aside the decision under review and substitutes a decision that bruxism, erosion of teeth, generalised anxiety disorder, alcohol abuse and hypertension are war-caused with effect from 16 September 2003.  The Tribunal remits the matter to the respondent for assessment of rate of pension.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  17 May 2007

Date of decision:  29 May 2007

Counsel for the applicant:            Mr G. Moore

Solicitor for the applicant:            Peter J. Liefman

Advocate for the respondent:       Mr K. Rudge

Solicitor for the respondent:         Advocacy Section, Department of Veterans’ Affairs