Hartshorn and Repatriation Commission
[2004] AATA 824
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 824
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1033
VETERANS' APPEALS DIVISION ) Re JOHN HARTSHORN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date6 August 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.................[Sgd]..................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – hypotheses raised that applicant suffered stressors during his operational service which caused his anxiety disorder and alcohol abuse, which in turn caused gastro-oesophageal reflux disease – diagnosis of generalised anxiety disorder not available on the evidence – no psychiatric condition – applicant did not “experience a severe stressor” – hypotheses not reasonable – affirmed
Veterans’ Entitlements Act 1976 ss 9, 119, 120, 196
Repatriation Commission v Cooke (1998) 160 ALR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136
Owens v Repatriation Commission (1995) 38 ALD 481
Cooke v Repatriation Commission [1997] FCA 305Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 197 ALR 203
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart [2003] FCAFC 300
REASONS FOR DECISION
6 August 2004 Mr I R Way, Member 1. This an application by John Hartshorn for review of that part of a decision of the Repatriation Commission, dated 11 January 2001, that refused his claim for Post Traumatic Stress Disorder (PTSD), Alcohol Dependence or Alcohol Abuse, Gastro-oesophageal Reflux Disease and Diverticular Disease of the Colon.
2. The Veterans’ Review Board, on 11 July 2002, varied the Commission’s decision to include a diagnosis of Generalised Anxiety Disorder (GAD) and affirmed the decision as varied.
3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follows:
§Exhibit A1 Statement of John Hartshorn dated 18 February 2003
§Exhibit A2 Statement of John Hartshorn (undated)
§Exhibit A3 Letter from John Hartshorn dated 6 March 2003
§Exhibit A4 Letter from John Hartshorn dated 1 May 2003
§Exhibit A5 Report of Dr Katz dated 26 February 2003
§Exhibit R1 Writeway Report dated 15 April 2003
§Exhibit R2 Amended Supplementary Writeway Report, 24 June 2003
§ Exhibit R3 Report of Dr Wainwright dated 20 August 2003
4. The applicant was represented by Mr R Clutterbuck of Counsel instructed by Streeting Haney, Lawyers and the respondent was represented by Mr D McAninly, Departmental Advocate. The applicant and Dr Wainwright, psychiatrist, gave oral evidence and evidence was given by telephone by Dr Katz, psychiatrist, and Mr M Brennan.
5. The applicant was born on 13 December 1937 and served in the Royal Australian Air Force from 2 October 1961 to 1 October 1981 when he resigned after twenty years of service. The applicant rendered operational service in Vietnam from 11 March 1970 to 11 March 1971 and eligible defence service from 7 December 1972 to 1 October 1981. The applicant’s claim is being pursued on the basis of his operational service and not his eligible defence service.
6. The applicant served in 1 Operational Support Unit in Vung Tau, Vietnam, with the rank of Flight Lieutenant and as a member of the accountant category of the RAAF Special Duties Branch.
7.The applicant’s accepted service related disabilities are:
§Sensorineural hearing loss of the left ear with tinnitus
§Solar Keratosis
§Non melanotic malignant neoplasm of the skin of various sites.
And his non-service related disabilities are:
§ Gastro-oesophageal reflux disease
§ Diverticular disease of the colon
§ PTSD (no incapacity found)
§Alcohol dependence or alcohol abuse.
8.The hypotheses put forward by the applicant are as follows:
§ because of stressors experienced in Vietnam the applicant suffers from GAD or in the alternative suffers from the clinical worsening of GAD;
§ because of stressors experienced in Vietnam the applicant suffers from alcohol dependence or alcohol abuse;
§ because of his war-caused alcohol dependence or alcohol abuse, the applicant suffers from war-caused gastro-oesophageal reflux disease.
9. The Tribunal accepts that the applicant’s claim for PTSD and diverticular disease of the colon are not being pursued by the applicant in these proceedings and the Tribunal affirms the respondent’s decision to refuse that part of the applicant’s claim related to these two conditions.
10.The principle issues in this matter are:
§ whether the applicant suffers from a psychiatric disorder;
§ if so, whether that disorder is war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act);
§ whether alcohol dependence and alcohol abuse is war-caused within the meaning of section 9 of the Act; and
§ whether gastro-oesophageal reflux disease is war-caused within the meaning of section 9 of the Act.
Legislative Framework
11. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
12. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
13. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) 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 an injury, disease or death of that kind with the circumstances of that service.”
14. The RMA has, pursuant to section 196B(2) of the Act determined a Statement of Principles (SoP) in respect of GAD, namely Instrument No 1 of 2000; and in respect of alcohol dependence and alcohol abuse, namely Instrument No 76 of 1998; and in respect of gastro-oesophageal reflux disease, namely Instrument No 62 of 1999. It is common ground between the parties and the Tribunal accepts that these SoPs are relevant to this matter.
15. Section 120(4) of the Act relevantly provides:
“Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
16. The Tribunal is satisfied that the standard of proof provided for by section 120(4) is to be applied in its consideration of the issue of whether the applicant suffers from a psychiatric condition (see Repatriation Commission v Cooke (1998) 160 ALR 17; Benjamin v Repatriation Commission (2001) 70 ALD 622; and Fogarty v Repatriation Commission [2003] FCAFC 136).
17. Section 119 of the Act relevantly provides:
“119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
Applicant’s Evidence
18. The applicant told the Tribunal that he joined the RAAF in 1961 when he was 23 years old, being offered direct entry as a Pilot Officer because of accounting qualifications that he held. During his twenty years service he was employed by the RAAF in accounting type roles in Amberley, Wagga Wagga, Regent’s Park, Hong Kong, Edinburgh and Vietnam. He was promoted to Flight Lieutenant during his three year posting to Hong Kong (1966 to 1968) and retired with the rank of Wing Commander.
19. It was the applicant’s evidence that prior to going to Vietnam he was married with one child (now deceased) and that he was only a social drinker, consuming two or three alcoholic drinks per week. He said that, at about half way through his tour of duty in Vietnam, the stress he was under built up and he started to question why the war was going on. At this time he said he started to drink a lot more and estimated his consumption at 12 to 15 cans of Budweiser beer a night with wine occasionally at function nights.
20. The Tribunal notes that the applicant’s alcohol questionnaire (T4/16-18) states he drank six to eight stubbies, six to eight glasses of wine and half to three quarters of a bottle of port daily from 1970 to 2000. Then in 2000 on his doctor’s advice, reduced his consumption to one stubby, two classes of wine and four glasses of port daily.
21. When taken to this statement, the applicant said the dates were obviously wrong and, although he had signed the form, he had not filled out the form and when he signed the form it did not mean very much to him. He said that his increased drinking, because of Vietnam, continued until 1990 when he halved his consumption and then in 2000 reduced his consumption to a point where he tries to keep to no more than four drinks a day. He said that issues trigger his anxiety response and it would be easy for him to go back to his old ways.
22. It was the applicant’s evidence that he separated from his first wife in 1972 because of his alcohol problems. The Tribunal notes the applicant married his first wife in 1956 and that his son was born soon after they were married.
23. With respect to the stressors experienced in Vietnam, the applicant described two major events namely:
§ Death of a Friend
“1. Whilst on tour in South Vietnam a family friend Paul Mather who was conscripted into the army was in South Vietnam. On two days weekend leave, he visited me and I took him around Vung Tau for the whole weekend.
2. Paul was a family friend, the family I had known approximately 18 years. He was the brother of a girl I was friendly with and whom my best mate had married. For approximately 5 to 6 years before joining the RAAF I had seen a lot of the family including Paul.
3. Shortly after the weekend together with Paul he went back to his company, a gun emplacement, which took an incoming rocket and he was killed.
4. I was deeply affected by Paul’s death. I was the last of the family friends to see him alive. This incident happened half way through my tour and had a great affect on me. …”
It became apparent during the hearing of this matter that the person referred to by the applicant was killed in Vietnam some months after the applicant left Vietnam, and in view of this the Tribunal accepts that the applicant no longer relies on this event as a stressor which would support his claim.
§ Firing on suspected Vietcong
“On one occasion I was on a helicopter which was on patrol (I only went along for the ride) when the helicopter gunship sub-machine gun and shot approximately 3 Vietcong as they were coming out of a pool of water. I distinctly remember the vivid images of seeing them lying on the bank, shot.”
There is considerable historical evidence put before the Tribunal to call into question whether the event as described by the applicant actually occurred. The Writeway Research Service report describes incidents which bear some similarity to the type of incident described by the applicant. However, the incidents, as recorded, do not confirm that a helicopter configured as described by the applicant, fired on Vietcong. Further, the report makes the point that it would be most unusual that any action taken against the enemy (as described by the applicant), would not be reported. The Tribunal is mindful that the applicant described his feelings (and those of the crew) at the time of the incident as being one of excitement; that there was one single pass by the helicopter; that the applicant was not sure if the suspected Vietcong had been hit by machine gun fire or not; that the applicant could offer no explanation as to why the incident had not been reported; and that it was the applicant’s evidence that it was generally accepted that 9 Squadron Members could relieve their boredom by joining helicopter flights, although not part of the regular crew; and that he went by helicopter about once a month to Saigon as part of his normal duties.
24. The applicant also told the Tribunal of a number of other events or circumstances which he claimed as stressors. These are set out below:
§ Being armed in a conflict situation
The applicant told the Tribunal that while he was given instructions on the use of a pistol, because of his concerns about his personal safety, he had a “better weapon”, namely a SMG, which he kept under his pillow when sleeping. When questioned by the Tribunal the applicant agreed that he knew the area in which he worked (at Vung Tau) was a relatively safe area and that the SMG was by his bed and not under the pillow. The Tribunal does not accept the applicant’s evidence that everyone in Vietnam had a better weapon than a pistol (as noted by the Tribunal many officers carried pistols as their personal weapon). The Tribunal also notes that the applicant, on his own evidence, regularly visited the Vung Tau back beach area some distance from his billet for recreational purposes.
§ Visiting the Army Hospital at Vung Tau
The applicant said that on occasions he was required to visit RAAF personnel in the Field Hospital to provide them with money and that he also occasionally visited RAAF friend(s) (in hospital for reasons other than battle field casualty). On these occasions he said he observed patients without legs, with bandages over their eyes and was upset to think that these men would have to spend the rest of their lives with their disabilities. He said that these feelings were heightened because of his own background of being very fit and active in inter-service sports such as squash, tennis and running.
§ Supply Missions
The applicant described being part of a supply mission which was halted because of a “fire fight up the road”. He said that he had not witnessed the fire fight, that there had been no enemy fire directed at the area where he was, nor had their been any return fire from his area.
§ Incoming one Night
The applicant said that once their had been an alert of “incoming” by way of a flashing red light in the mess at his base and that he and others took shelter in nearby trenches with some beer and mosquito repellent.
§ Accidental Discharge
It was the applicant’s evidence that a member of a helicopter crew accidentally shot himself on taking a machine gun (MG) out of its cradle. He said he did not see the incident but had heard the shot (about 100 metres away) and found out later in the Mess what had happened.
§ Nui Dat Helicopter Accident
The applicant recounted an accident at Nui Dat where an APC backed into a helicopter that was refuelling and where the rotor of the helicopter killed an Army soldier. He said it was terribly disturbing to see the pilot of the helicopter after the event and in the unit lines at Vung Tau. The Tribunal notes that the applicant was not at Nui Dat at the time of the accident.
§ Disposal of Clothing
The applicant said he witnessed disposal of clothing (by burning) and was distressed to see small local children trying to recover items of clothing during this process.
25. The applicant said he spent his last month in Vietnam “in a hole” to ensure nothing happened to him before returning to Australia. Later in his evidence the applicant told the Tribunal that he continued to go to the back beach area during this time and the Tribunal notes that on his own evidence, the applicant, during that period, spent one to two days showing the friend of his family (referred to in paragraph 23) around Vung Tau.
26. When asked why he had not sought or had any psychiatric treatment prior to his claim, the applicant said that he had little faith in psychiatrists and did not see there was any solution to his problems through such avenues. He said that he only realised he could make a claim after being advised by the Vietnam Veterans’ Federation that he might have the basis for a claim. He said this chain of events occurred when he sought a service pension. He agreed that in respect of his claim he told Dr Wainwright that he thought he should “give it a go”. However, he said he meant he should start the ball rolling and it was not a “try-on” as Dr Wainwright described his claim.
27. The applicant described his personality as “outgoing” prior to going to Vietnam, and for the period post-Vietnam up to ten years after his discharge in 1981. However, he said that for the last fifteen years he had become intolerant of people and old friends and that he had fits of depression of two to three weeks duration, three or four times per year when he gets “really down” and does not want to see anyone. The applicant told the Tribunal that his tinnitus was a contributing factor to his experiencing low moods. He also mentioned that there was a family history of anxiety.
28. Mr M Brennan, a RAAF Engineer Officer with thirty-nine years service including service in Vietnam in 1968/69 gave evidence. Mr Brennan is the author of two Writeway Research Reports before the Tribunal and he affirmed his opinion that any action against the enemy involving firing at the enemy by a helicopter crew, such as that described by the applicant, would have been reported in the Unit records. He said that the meticulous way in which complete and detailed 9 Squadron records were kept, re-enforced his opinion that there would have been a record; and that his search of the records failed to find a report of the incident. In cross-examination Mr Brennan agreed that at the time he was in Vietnam he had had no flight experience, nor had he visited 9 Squadron. He said he visited Vung Tau on only one occasion and Nui Dat on one occasion, being based with 2 Squadron at Phan Rang. He agreed record keeping was only as good as the record keeper but did not agree that an incident, as described by the applicant, would not have been recorded by 9 Squadron.
Medical Evidence
29. Dr Katz, consultant psychiatrist, provided two written reports, one dated 15 November 2001 (T4/58-61) and one dated 26 February 2003 (Exhibit A5), and gave evidence by telephone.
30. In his written report of 15 November 2001, Dr Katz said he first saw the applicant on 8 November 2001 following a referral from an RSL Advocate and opined:
“On the basis on my consultation with John Hartshorn and the history as reported to me above I am of the opinion that John has a history of Alcohol Abuse commencing in earnest during John’s active service in Vietnam, and which fulfils the criteria for making the diagnosis of the same according to DSM IV Diagnostic Manual of Mental Disorders which in turn promoted the breakdown of John’s first marriage and the development of macrocytosis about 18 months ago. John’s other reported symptoms and clinical presentation also reach the criteria for making the further diagnosis of Generalised Anxiety Disorder, again according to DSM IV with the most likely causes for these symptoms being John’s experiences during Vietnam as well as the subsequent heavy alcohol use with the latter undoubtedly causing recurrent exacerbations of the symptoms of anxiety and mood disturbance already in evidence after John returned from Vietnam.
From John’s history he has been continuing to abuse alcohol subsequent to his Vietnam service that together with the nervous symptoms above interfered with his emotional, marital and cognitive functioning with John now suffering significant short term memory impairment as well as evolving mood instability including, John said, downturns in his mood lasting several days at a time.
On the basis of my assessment of John Hartshorn I have also assigned him a GARP score of 16 in relation to the diagnosis above as per the enclosed worksheets.”
31.Dr Katz saw the applicant again on 21 February 2003 and opined (Exhibit A5):
“John informed me that 2½ years ago his General Practitioner advised him if he didn’t stop drinking he would kill himself with John remarking that he managed to reduce his drinking by about half for a number of months before returning to his dysfunctional patterns of drinking while John has evidently developed quite a high tolerance to alcohol from which he has never successfully been abstinent as withdrawal exacerbates the nervous symptoms including symptoms of irritability, hypersensitivity, anxiety, low frustration threshold, a short fuse, road rage, broken sleep, impaired concentration together with mood instability, fearfulness and depressive down turns all of which have been advancing gradually until becoming quite marked in recent years.
…
On the basis of seeing John Hartshorn again he qualifies for the diagnoses of Alcohol Abuse and Alcohol Dependency according to the criteria of DSM IV diagnostic manual of mental disorders with the alcohol abuse onsetting, by John’s history, from the time of his active service in Vietnam whereafter the abuse of drinking has continued into a pattern of dependency as well with a level of alcohol that poses a significant risk to his future medical and mental health as John’s General Practitioner had warned him of 2½ years earlier.
John also indicated that there had been progressive sensitisation whilst serving in Vietnam and John certainly does have symptoms fulfilling the criteria for making the diagnosis of Generalised Anxiety Disorder according DSM IV criteria with John not reporting any other period of his life when he was exposed to sensitising experiences other than his active service in Vietnam while these symptoms were evident by John’s report, following the war although he was also drinking very heavily at that time to mask the same and progressively, it seems, these symptoms have advanced over the years in the setting of persisting alcohol abuse/dependency as well as advancing age leading me to conclude again that such a condition, whilst significantly promoted by alcohol abuse, would most reasonably have been promoted also by the sensitising experiences to which John was exposed during his tour in Vietnam.”
32. In his oral evidence Dr Katz stated that the applicant was not abusing alcohol at the moment but may be suffering from some residual dependency. In respect of the various blood tests carried out by Dr Wainwright, Dr Katz said he had not read Dr Wainwright’s report but when taken to Dr Wainwright’s findings, Dr Katz said that the MCV test can be an indicator of alcohol abuse; the CMT test is not an authoritative test; and that he was not familiar with the CDT test. He said he did not conduct such tests relying on the patient’s GP for such matters and that he concentrated on evaluating the patient’s mental state.
33. In essence, Dr Katz was of the view that the applicant had suffered from alcohol dependence and alcohol abuse but the applicant was not abusing alcohol at the present time and that the applicant was likely to be suffering from some withdrawal and some residual dependency. In respect of GAD, Dr Katz opined that the applicant’s symptoms would have been magnified because of his drinking habit.
34. Dr Wainwright, consultant psychiatrist, provided a written report dated 20 August 2003 (Exhibit R3) and gave oral evidence. In his written report, Dr Wainwright states:
“…He displayed no evidence of hyperarousal and was relaxed throughout the interview. There was no evidence of any agitation or discomfort when describing events in Vietnam or any other time of his life. His mood during the interview was euthymic (normal) and his affect, that is the observable range of his emotional expression, was reactive and congruent with his underlying mood state. His speech was spontaneous and appeared to be of normal rate, tone and volume. There were no abnormalities of thought form, content, stream, nor possession. There was no evidence of any anhedonia, that is an inability to experience pleasure. Mr Hartshorn denied a morbid loss of self-esteem and there was no evidence of suicidal or homicidal ideation. There was no evidence of any perceptual disturbance. Mr Hartshorn appeared to be of average intelligence and was oriented in time, place and person. His attention and concentration throughout a 3 hour interview was good. Mr Hartshorn displayed some insight into the nature of his situation, and his judgment for day to day matters appeared to be unimpaired.
…
In my opinion Mr Hartshorn does not fulfil the criteria for any psychiatric disorder, and this opinion is based on the history and mental state examination. In particular, there is no evidence that he has Post Traumatic Stress Disorder (Diagnostic and Statistical Manual of Mental Disorders 4th Edition), or any other anxiety disorder. Mr Hartshorn impresses as a somewhat obsessional, self-absorbed man with a sense of entitlement, and any difficulties that he has in his life could be attributed to this personality structure. It is not surprising that with his personality structure Mr Hartshorn has encountered some problems in relationships as he has aged and his lifestyle has changed, particularly when he is now forced to spend more time with his wife. Mr Hartshorn’s history suggests that he enjoyed the life of a single man without the restrictions and responsibilities of a relationship. He was fortunate in marrying a woman who was prepared to tolerate his going away on his own for 2-3 months at a time. By his own admission this claim was an attempt to ‘try it on’ and he has not attempted to seek any treatment for any discomforts that he may have. He appears to live a normal life and has sustained a relationship for 30 years. This is not consistent with a psychiatric disorder, which by definition has to cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
…
With regard to alcohol Mr Hartshorn states that he tries hard to stick to drinking 4 drinks per day. ‘A stubby, 2 glasses of wine and a port, but tonight I will probably have more. Saturday night I might have 2 or 3 stubbies as well’. He states that he drinks on 7 days per week, but that ‘generally I am pretty good’. He states that he has been drinking at this level for the last 3-4 years. ‘Since macrocytosis started showing up in my blood. Before I used to get [port] in 20 litre casks and drink it out of a 5 ounce glass. I used to drink a lot. I think it started in Vietnam. When I came back from Vietnam it never stopped’. He states that he was able to maintain his alcohol intake in the RAAF because he was virtually his own boss, and that when his first wife left in 1972 he lived in the mess for some years. ‘I would be over the limit by 5 o’clock’.”
35. In respect of the applicant’s history, Dr Wainwright drew the Tribunal’s attention to the fact that the veteran was promoted to Squadron Leader shortly after Vietnam and rose to the rank of Wing Commander, his service showing a successful career with fairly rapid promotion. In essence, Dr Wainwright said he could find no clinically significant distress, loss of function or morbidity which would suggest the applicant suffered from GAD after Vietnam and while, overall, he did not see much of a picture suggesting anxiety disorder or any other psychiatric disorder he noted a family history of anxiety and reserved his opinion about whether the applicant suffered from a personality based disorder.
36. Dr Wainwright made the point that well separated episodes of the applicant suffering from “down” moods did not fit the diagnostic requirements for GAD, such episodic events being “part of the human lot”. In cross-examination, Dr Wainwright agreed that apart from his recording the applicant’s consumption in paragraph 16 of his report, he had not pursued the extent and nature of the applicant’s alcohol consumption prior to, during or immediately post Vietnam. Dr Wainwright said he did not find it helpful in situations such as this to invite retrospective accounts as veterans tended to over-estimate. Likewise he said he did not find it helpful to interview the wives of veterans. Nevertheless, Dr Wainwright accepted that the veteran drank heavily and to excess while he was in Vietnam but said there was no objective contemporaneous evidence of when the applicant started to consume alcohol to excess (in service records or other medical reports).
37. With respect to the blood tests he carried out and reported on, Dr Wainwright, in summary, said that the MCV showed it was possible the applicant had been a heavy drinker, that the applicant’s CDT test and CG test could be considered to be normal.
38. In respect of his comment that the applicant’s claim was a “try-on”, Dr Wainwright agreed that this was his term not the applicant’s and while he was not suggesting that the applicant was a fraud he said that the words he used reflected his opinion of the applicant’s actions. In respect of stressors, Dr Wainwright said he asked the applicant about stressors but could not recall the applicant telling him about the soldier accidentally being struck by a helicopter rotor blade; or about the young RAAF gunner accidentally being shot; or about young Vietnamese retrieving clothing; or about the red alert at 9 Squadron lines. Dr Wainwright said he was very thorough in taking clinical notes. However, his notes did not record any of these events.
39. Dr G Finnemore, consultant physician in psychiatry, saw the applicant on three occasions at the end of 2000 and submitted a written report dated 3 January 2001 (T4/46-50). In this report Dr Finnemore notes:
“He described his time in Vietnam as an Accountant working in Vung Tau. He said he slept with a submachine gun. He remembers one grenade being thrown over the guard fence. He went on a bombing run by choice to see some action and noticed that he was petrified afterwards.
He said that every night he would drink heavily. He described some of his friends who were shot down and killed, particularly a Major who had been a friend from a shipping company. He says that he blocks out the memory of this and further stated that he was reluctant to get a pension.
With regard to alcohol he said that although he was much involved in sports before Vietnam he did not drink much alcohol but in Vietnam he was drunk every night. He explains this because beer was only ten cents a can and a bottle of Gin, sixty cents. He drank beer, wine and port. After Vietnam he drank heavily until five years ago when he cut back probably following the continuous remonstrances of his LMO. The latter had discovered macrocytosis and pointed out to Mr Hartshorn that this was almost certain evidence of an alcohol problem. He now tells me that he only has four standard drinks a day.
It is clear that this alcohol abuse was related to the marriage breakup but he told me that this had no effect of his occupational ability. He retired in 1981 as a Wing Commander so clearly any of these problems did not have any adverse effect on his promotional progress.
…
With regard to his family history he told me that there was a positive family history of anxiety and that he himself always suffered from anxiety. He further told me he had always suffered from mood swings but that they are worse now. He says these mood swings occur for a week and he suffers a period of depression with total loss of interest and also a feeling of frustration that nothing goes right. He gets these attacks every month or six weeks.
…At my final interview on 11 December, I clarified issues with regard to DSM IV diagnosis. He denied ever suffering from any trauma in his life and he denied having any dreams with regard to his time in Vietnam. He denied any intrusive thoughts and said that he was now giving up alcohol and this plus fewer financial stresses had lessened his recent depressive illness. He told me that he is physically active and his friends say he looks much better after reducing his alcohol intake.
He told me that his appetite and weight were normal that his energy and drive were okay and that he had no guilt feelings.
He confirmed that his sleep pattern was undisturbed. He confirmed that the motor vehicle accident involving his wife preceded the onset of his tinnitus.”
40.And Dr Finnemore concludes:
“In summary, following my interviews with Mr Hartshorn, I could not conclude there was any firm incontrovertible evidence that he suffers from Post Traumatic Stress Disorder following his service in Vietnam.
He certainly has suffered alcohol abuse with co-morbid depression but this is not so much related to his having to handle traumatic experiences during his service but more the social atmosphere of any service mess.
It does however seem clear that Mr Hartshorn has suffered from a generalised anxiety disorder most of his life and there are family history and premorbid factors to confirm this.
However this did not preclude his advancing through the ranks and being able to retire with a rank of Wing Commander.
Finally the fact that Mr Hartshorn does not wish to have Psychiatric treatment in any form or sense at the moment would confirm that the distress despite the GARP recordings is not all that overwhelming.
The prognosis is uncertain at this stage because Mr Hartshorn has only recently given up alcohol abuse and clearly this has had a major impact on his current symptomatology, particularly his GARP score.”
41. Dr JL Corbett, consultant neurologist, saw the applicant in 1998 and 2000 in order to review his history of dizziness and related symptoms. Dr Corbett’s reports are at T4/2-8 and while Dr Corbett formed the view that the applicant was unlikely to be suffering from any major pathology, he did note that the applicant is a worrier by nature and he suspected there could be an anxiety mechanism at work, such that the problems the applicant was having were mainly linked to his very chronic high level of anxiety.
42. Dr L Dorrington, consultant enterologist, conducted an upper GIT endoscopy in October 1998 and concluded that the applicant suffered Grade 1 Savary Miller erosive oesophagitis.
43. Dr S Yelland, the applicant’s LMO, completed an emotional and behavioural condition assessment in November 2000 in respect of the applicant’s substance abuse. In this assessment Dr Yelland notes that the applicant had abused alcohol over the past thirty years and since Vietnam service. However, he also noted that with counselling and support (from his LMO) the applicant had subsequently reduced his alcohol consumption and he no longer binges or gets drunk.
Consideration
44. The first question before the Tribunal is whether the applicant suffers from GAD. As is often the case in matters such as this there are conflicting medical opinions about the applicant’s psychiatric condition. Dr Katz has diagnosed the applicant as suffering from GAD whereas Dr Wainwright formed the view that the applicant does not fulfil the criteria for any psychiatric disorder. Dr Finnemore opined that the applicant has suffered from a generalised anxiety disorder most of his life and that there are family history and pre-morbid factors to confirm this.
45. The diagnostic criteria for generalised anxiety disorder, as set out in DSM:IV, are consistent with the criteria set out in Instrument No 1 of 2000 and it is appropriate that those criteria be set out in these reasons for decision. They are as follows:
“Diagnostic criteria for 300.02 Generalized Anxiety Disorder
A.Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work or school performance).
B.the person finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms present for more days than not for the past 6 months). Note: Only one item is required in children.
(1)restlessness or feeling keyed up or on edge
(2)being easily fatigued
(3)difficulty concentrating or mind going blank
(4)irritability
(5)muscle tension
(6) sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep)
D.The focus of the anxiety and worry is not confined to features of an Axis I disorder, eg, the anxiety or worry is not about having a Panic Attack (as in Panic Disorder), being embarrassed in public (as in Social Phobia), being contaminated (as in Obsessive-Compulsive Disorder), being away from home or close relative (as in Separation Anxiety Disorder), gaining weight (as in anorexia Nervosa), having multiple physical complaints (as in Somatization Disorder), or having a serious illness (as in Hypochondriasis), and the anxiety and worry do not occur exclusively during Post Traumatic Stress Disorder.
E.The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
F.The disturbance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition (eg hyperthyroidism) and does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Development disorder.”
46. All of the above criteria must be met for there to be a diagnosis of GAD. In forming a view about the applicant’s psychiatric condition the Tribunal must be reasonably satisfied that the criteria are met if it is to be satisfied that the applicant suffers from GAD.
47. The Tribunal has noted the submissions made by each party.
48. Mr Clutterbuck, in his written submissions, asked the Tribunal to reject Dr Wainwright’s evidence and stated:
“It is respectfully submitted that when assessing all the medical evidence Dr Katz has given considered opinion based upon the organic problems that the applicant has experienced, taken a full and complete history, identified with particularity the problems the applicant had during the course of his service in Vietnam and has identified the basis of his assessment by assigning him a GARP score of 16, identifying his emotional and behavioural impairment. An additional report to that dated 15 November 2001 namely, 26 February 2003 supports his previous report. Conversely, Dr Wainwright does not:
(a) enter into a full and comprehensive history of the applicant;
(b) specify those ‘horrific injuries’ that are referred to in his report;
(c) seek to elucidate from the applicant his effects;
(d)does not consider macrocytosis – an organic complication experienced by persons who are long term drinkers;
(e) does not disclose the pathology report;
(f)makes unsupported allegations that are consistent with his task to support the respondent in its case such as ‘I thought I would ‘give it a go’ – ‘He joked with my receptionist and the pathology sister who came to do the blood and urine screening’ – ‘Mr Hartshorn impresses as a somewhat obsessional, self-absorbed man with a sense of entitlement’.
There is no objective basis for any of these findings because none of the findings are supported by evidence. There is no reference to the alcohol consumption nor reference to any of the indicia such as what did the applicant see in Vietnam, how did he react, how did he feel, what were his stressors, how much did he drink (with particularity) that one would conclude to be important when making an assessment of the nature as required in this case.”
49. Mr Clutterbuck referred the Tribunal to comments about theoretical speculation in Owens v Repatriation Commission (1995) 38 ALD 481 (Full Court of the Federal Court) where Davies, Einfeld and Drummond JJ state:
“Some medical practitioners propound in their evidence a mere theoretical possibility based, not upon a clinical consideration of the veteran’s medical condition and of the circumstances of the war service, but on mere theoretical possibility. Such an approach was criticised in Hamling where at 358-359 the court said:
‘Thus although an hypothesis is merely a theory or proposition and is not required to be proved, it must be supported by the facts…’
The existence of a theory could not of itself establish a reasonable hypothesis.”
And in respect of assessment and medical evidence, Mr Clutterbuck referred the Tribunal to Cooke v Repatriation Commission [1997] FCA 305:
“Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier 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 under s 120(3) the Commission cannot have regard to the medical or scientific material 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 but that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion… The legislative intention was aimed as a matter of public policy at assisting claimants to succeed without being subjected to strict or legalistic proof of the hypothesis they raise.”
50. Mr McAninly submitted that, in accord with the report of Dr Wainwright, the applicant does not fulfil the criteria for any psychiatric disorder and that while Dr Finnemore notes the applicant has long standing anxiety problems, the frequency and extent of the applicant’s attack of anxiety are not such as to meet the necessary criteria for GAD.
51. It was also submitted for the respondent that while Dr Katz described mood swings, generalised anxiety, hypersensitivity, irritability, impaired concentration and sleep disturbance, he also described the applicant achieving a very successful career and undertaking physical recreation activities in the RAAF and subsequently. It was the respondent’s contention that Dr Katz was actually describing withdrawal symptoms because of alcohol abstinence rather the effects of GAD.
52. All three doctors referred to the DSM:IV criteria in general terms. However, not one of the doctors relates the applicant’s symptoms or clinical presentation to the specific criteria (as set out above in par 46), such that the Tribunal can be confident that their diagnosis is firmly based on the applicant meeting each of the criteria.
53. Criterion A requires the applicant to have excessive anxiety and worry (apprehensive expectation) occurring more days than not for at least six months, about a number of events or activities such as work or school performance. Clearly, on the applicant’s own evidence this criteria is not met. He described his periods of anxiety and worry as being episodic with fits of depression three or four times a year. Likewise it is difficult to see how the applicant’s evidence would support a finding that he was restless, keyed up or on edge, easily fatigued, had difficulty in concentrating, had sleep disturbance, muscle tension and irritability for more days than not for the past six months.
54. The Tribunal does not accept the applicant’s submission that Dr Wainwright’s evidence should be entirely rejected. The Tribunal is satisfied that Dr Wainwright has undertaken a clinical assessment and consideration of the applicant’s mental state and he has expressed his opinion based on this consideration.
55. After careful consideration of all the medical opinions before it and the submissions of both parties, the Tribunal is satisfied that the applicant’s evidence and presentation before the Tribunal is in accord with Dr Wainwright’s opinion and the Tribunal accepts Dr Wainwright’s opinion that the applicant does not suffer from GAD or any other psychiatric disorder, and so finds.
56. Turning then to alcohol dependence or alcohol abuse.
57. It is common ground between the medical specialists that the applicant, during and post Vietnam suffered from alcohol dependence or alcohol abuse. There is some dispute as to whether the applicant still so suffers and whether he suffers from alcohol dependence or alcohol abuse in remission.
58. Assuming that the applicant does suffer from alcohol dependence or alcohol abuse (and the Tribunal makes no finding in respect of this at this stage), the approach to be taken by the Tribunal in considering whether such a condition is war caused, is set out in Repatriation Commission v Deledio (1998) 83 FCR 82 where the Federal Court stated (at pages 97-98):
“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.”
59. The Tribunal, after consideration of all of the material before it, accepts that the material points to a hypothesis connecting the applicant’s alcohol dependence or alcohol abuse with his operational service and that there is in force a relevant SoP, namely Instrument No 76 of 1998.
60. The factor in the SoP relied upon by the applicant is Factor 5(b), namely:
“(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; …”
61.Experiencing a severe stressor is defined in the SoP as follows:
“‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
62. The question then before the Tribunal is whether any of the stressors relied upon by the applicant meet the definition of “experiencing a severe stressor”.
63. The assessments of the nature of severe stressor have been considered by the Federal Court in Stoddart v Repatriation Commission (2003) 197 ALR 203, Woodward v Repatriation Commission (2003) 200 ALR 332 and Repatriation Commission v Stoddart [2003] FCAFC 300. The Tribunal has based its consideration of the applicant’s claimed stressors on the approach taken in these authorities.
64. Dealing with each of the claimed stressors in turn.
§Death of a Friend
This event did not occur while the applicant was on operational service and hence, while he may have found the event distressing, it is not relevant to this claim and the Tribunal so finds.
§Firing on suspected Vietcong
There is some dispute about the nature and extent of this event. However, accepting that the event took place as described by the applicant, there is no suggestion whatsoever that the event involved intense fear, helplessness or horror, rather the opposite, in that all concerned, including the applicant, experienced an exciting event. As such the Tribunal finds that this event does not meet the definition of “experiencing a severe stressor”.
§ Being armed in a conflict situation
This “event” clearly does not meet either the necessary objective or subjective tests to be categorised as “experiencing a severe stressor” and the Tribunal so finds. While the applicant was in a war zone he knew, on his own evidence, that he was in a relatively safe area and at no time did he engage with the enemy at Vung Tau.
§ Visiting the Army Hospital at Vung Tau
The Tribunal accepts that the applicant was upset to see wounded soldiers being treated in the 1 ALSG Hospital complex. However, the soldiers were in care in a safe area and the Tribunal does not accept that witnessing patients in hospital care falls within the category of a “severe stressor” nor, on the applicant’s own evidence, did he subjectively say that he had feelings of intense fear, helplessness or horror. The Tribunal is satisfied that this event was not a “severe stressor”.
§ Supply Mission
This event was remote from the applicant and he was not subject to any threat, nor did he witness the event and he was not in a situation in which he suffered feelings of intense fear, helplessness or horror. The Tribunal finds this event not to be a severe stressor.
§ Incoming one Night
This event could meet the definition of experiencing a threat of death or serious injury. However, there was no indication that the applicant suffered intense fear, helplessness or horror and on his own evidence he, along with others in the bar, continued drinking while occupying nearby trenches. The Tribunal finds that this event does not meet the definition of “experiencing a severe stressor”.
§ Accidental Discharge and Nui Dat Helicopter Incident
Both of these events were remote from the applicant and while they both gave rise to anecdotal information which the applicant found distressing, the events did not subjectively evoke in the applicant, intense fear, helplessness or horror. The Tribunal finds this event does not meet the definition of “experiencing a severe stressor”.
§ Disposal of Clothing
This event did not objectively involve an actual or threat of death or serious injury or a threat to the applicant or other people’s physical integrity and while it is an event which could give rise to feelings of sympathy and sorrow, it did not subjectively evoke in the applicant intense fear, helplessness or horror and does not constitute a severe stressor and the Tribunal so finds.
65. The Tribunal has noted the variations in the applicant’s recounting of stressful events to various doctors and in the making of his claim for PTSD and substance abuse and in the evidence he gave to the Tribunal.
66. In summary, the Tribunal accepts that the applicant became a heavy drinker during his tour of duty in Vietnam and that he was in a situation where not only was alcohol cheap and freely consumed but also where alcohol was a means of escape from the boredom of camp life. However, for the condition of alcohol dependence or alcohol abuse to be accepted as war-caused, there must be a causal connection between the applicant’s drinking and his service by the applicant “experiencing a severe stressor”. In this case, the Tribunal cannot find any such severe stressor and hence the Tribunal finds that the applicant’s hypothesis connecting his alcohol dependence or alcohol abuse with his service in Vietnam is not a reasonable hypothesis and therefore the applicant’s claim in this respect must fail.
67. Their being no war-caused alcohol dependence or alcohol abuse, the hypothesis put forward by the applicant with respect to war-caused gastro-oesophageal reflux disease is not a reasonable hypothesis and the Tribunal so finds.
68. It follows from the findings and reasons given above that the Tribunal finds that the applicant does not suffer from war-caused GAD, war-caused alcohol dependence or alcohol abuse or war-caused gastro oesophageal reflux disease.
69. The decision under review is affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: S Oliver
Associate
Date of Hearing 2 July 2004 (at Coolangatta)
Date of Decision 6 August 2004
Counsel for the Applicant Mr Clutterbuck
Solicitor for the Applicant Streeting Haney
For the Respondent Mr McAninly, Departmental Advocate
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