Henderson and Repatriation Commission

[2004] AATA 675

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2003/465

VETERANS'      APPEALS      DIVISION

Re:                ALLAN BRADLEY HENDERSON

Applicant

And:                REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:             29 June 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

VETERANS’ AFFAIRS – hypertension – alcohol dependence or alcohol abuse – anxiety condition – level of alcohol consumption and ability to decrease – whether suffers from anxiety condition

Veterans’ Entitlements Act 1986

Instrument N° 35 of 2003 as amended by Instrument N° 3 of 2004
Instrument N° 76 of 1998
Instrument N° 1 of 2000

Instrument N° 3 of 1999 as amended by Instrument N° 54 of 1999

REASONS FOR DECISION

29 June 2004  Mr B.H. Pascoe, Senior Member

1. This is an application to review a decision of the Repatriation Commission (“the respondent”) which was affirmed by the Veterans’ Review Board (“VRB”) on 26 March 2003.  The decision accepted claims for bilateral sensorineural hearing loss, bilateral tinnitus, chronic solar skin damage and non‑melanotic malignant neoplasm of the skin.  Claims for alcohol dependence or alcohol abuse and hypertension were not accepted as being war‑caused.  Claims for nervous condition and chronic bronchitis and emphysema were refused on the grounds that the claimed conditions were not present.

2. At the hearing the applicant, Mr A. Henderson was represented by Ms I. Black, clerk, and the respondent by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs.  Evidence was given by Mr Henderson, a clinical psychologist, Mr G. Foenander, and a consultant psychiatrist, Dr B. Kenny.  At the outset it was conceded that the claim for chronic bronchitis and emphysema was not being pursued. 

3. In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), one exhibit was tendered on behalf of the applicant (Exhibit A1), and nine exhibits tendered on behalf of the respondent (Exhibits R1 – R9).

4. Mr Henderson was born on 16 August 1948.  He served in the Australian Army (“the army”) from 9 July 1969 and had operational service in Vietnam from 7 May 1970 to 5 May 1971.  He served as a gunner in 107 Field Battery and was involved primarily in providing support to the infantry from behind the lines.  Mr Henderson said that, for a period, he was the batman and driver to the Battery Commander.

5. Mr Henderson spoke of an incident during his service in Vietnam when he was driving in a convoy of three guns, three tanks, a low loader carrying a bulldozer and another jeep carrying a survey team.  When passing through a village, the low loader could not fit through a gate and went around the gate followed by the second jeep.  Suddenly there was an explosion which capsized the jeep and set it on fire.  Mr Henderson recalled seeing a wheel of the jeep flying through the air.  He said that he ran and helped drag out the injured and discovered that some had suffered broken bones only.  He said that he had remembered the incident always.  He acknowledged that, while he had recollections of the incident it had not produced any nightmares.  He said that he had salvaged and retained the compliance plate of the wrecked jeep but had since thrown it away.  Mr Henderson said that the worst part of the incident was the need to carefully check the area for other possible land mines.

6. Mr Henderson worked as a clerk with Victorian Railways prior to his service in the army.  He said that, on his return, he decided against returning to an office job and preferred an outdoor life.  He commenced in 1971 with the Shire of Whittlesea (“the Shire”) as a swimming pool attendant.  After 11 years he was the acting manager of the pool and basketball centre.  He refused an offer to be the permanent manager and transferred to the parks and gardens department for one year.  He then transferred to the Shire office in a clerical position and, currently is the purchasing officer.  After more than 33 years with the same employer, he believed that he was “reasonably easy to get along with” but “doesn’t tolerate idiots.”  Mr Henderson was married at 27 years of age and has one daughter.  He said that his wife is a “saint” and he has a very happy marriage.  His father died in 1990 and he acknowledged that this caused him some stress.

7. Mr Henderson said that, prior to service in the army, he used to have a glass of beer with his father before the evening meal.  He said that his moderate drinking gradually increased after service.  He noted that he “probably gave the drink a nudge” when he got out of the army “because you could.”  He did not indicate that his level of drinking had caused any problem either at work or socially.

8. Mr Henderson said that he gets together with some mates from Vietnam from time to time and discuss their experiences there.  He said that he thinks of his time in Vietnam every three to four weeks and accepted that the experience there would always be a part of him.  He thinks how lucky he was compared to others who served in Vietnam.  He did not consider that the memories made him depressed although he was sad on occasions about the two years out of his life.  He had no great difficulty in putting the memories aside and getting on with his life.  He has an occasional dream of losing his rifle.  He awakes with a feeling of vulnerability without his rifle and of foolishness for losing it.  He said that he did not lose his rifle at any time in Vietnam.  Mr Henderson said that he had a reasonable circle of friends.  He had been active in the local football club and was made a life member.  However, he said that he has now “given the football club away” as he has been involved long enough and prefers to stay home and watch football on television.

9. Dr B. Kenny examined Mr Henderson on 10 October 2001 and provided a report to the respondent on the same day (T9).  He said that he explained to Mr Henderson that his role was to conduct a psychiatric assessment relevant to his claim.  He said that Mr Henderson told him that being sent to Vietnam did not worry him particularly and, although some times it was scary, no bad experience really stood out.  While Dr Kenny thought that Mr Henderson had demonstrated a degree of substance abuse with tobacco and alcohol, he did not believe this had any causal relationship with his Vietnam experience and that he had no other psychiatric disturbance.  In his evidence, Mr Henderson agreed that the history reported by Dr Kenny was accurate as to what he had said but that it was not true.  He said that he had understood that he was seeing Dr Kenny in relation to his claim for hypertension which he had blamed on stress of service in Vietnam.  He had thought his claim for hypertension would be straightforward.

10. Dr Kenny re-examined Mr Henderson and provided a second report of 24 September 2003 (R5).  In this report he noted that Mr Henderson told him that he had not been truthful on the previous occasion.  He was then given the details of the incident in which the jeep was destroyed by a land mine, a history of poor sleeping and the dreams of the lost rifle.  In his report, Dr Kenny stated at p4:

    …

    It is always difficult when you see a patient on different occasions and in the second assessment there is some critical information and a change of emphasis which suggests there were problems in the previous assessment.

    He seems to have made the point in the Transcript of Proceedings that the interview that I had with him was a pleasant, chatty sort of interview - which I say gives people an excellent opportunity to bring up things that are relevant to the assessment. He said that he thought he was talking about the hypertension, even though I explained as I always do that my role is to conduct a psychiatric assessment and report to yourselves.

    In this sort of situation I find myself wondering which is the more appropriate and the more valid assessment, the first or the subsequent one.

    As I have indicated at the start of this report, much has happened in terms of focusing this man’s attention on his difficulty and also in the causal relationships.

    I have no doubt but that the assessment procedures themselves, the challenges et cetera, the legal process involved, repeated assessments, increase the symptoms and really encourage the individual to relate what symptoms there are to the relevant stressors.

    Now I’m not suggesting that under these circumstances patients necessarily deliberately misrepresent. I note that he had been reminded to talk about traumatic experiences - for example the incident in the Land Rover. But I am quite sure that the reminder to talk about it, brings back the problem and may set up symptoms related thereto.

    We all have bad memories about certain aspects of our life and if we are reminded of them and talk about them, we can identify bad feelings associated therewith. I argue that that is not necessarily post—traumatic stress disorder.

    Now certainly this man has some symptoms. He doesn’t sleep well, keeps waking up during the night and that’s been worse in the last few years. I suspect that’s related to the excessive amounts of alcohol that he is drinking. If you drink heavily - especially to help you sleep - you are likely to go off to sleep but you will then wake up as you enter a withdrawal phase.

    …

    I am generally of the view that the first assessment under these circumstances is the one most likely to be valid. Subsequent ones I argue become contaminated by all sorts of factors and my view is that generally speaking they are less valid.

Dr Kenny concluded that, if the second history was taken at face value, he would accept, with reservations that Mr Henderson has a mild generalised anxiety disorder with at least some contribution from traumatic experiences in Vietnam that, in turn, may have made some contribution to his abuse with alcohol.  In his oral evidence he said that the diagnosis in relation to alcohol was more one of excessive consumption then a psychiatric condition.

1. Mr Henderson was examined by Dr E. Cole on 10 December 2002.  In his report of 14 January 2003 (T16) Dr Cole provided an opinion that Mr Henderson was suffering from a chronic post traumatic stress disorder (“PTSD”) of mild to moderate degree attributable to his experiences in Vietnam.  Dr Cole had taken a history of the land mine incident.  It should be said that much of the history recorded by Dr Cole as to the current symptoms experienced by Mr Henderson is at odds with the evidence given by Mr Henderson at the hearing.

2. Mr Foenander examined Mr Henderson on 10 November 2003 and provided a report dated 24 November 2003 (A1).  Mr Foedander said that he was asked to examine Mr Henderson for PTSD and applying the Davidson Structured Clinical Interview, was able to draw out the symptoms.  On the basis of the ratings from this structured interview, Mr Foenander considered that the criteria for PTSD were met.  Mr Foenander acknowledged that he has not examined many veterans, with the main area of his practice being in pain management after trauma from motor vehicle accidents or victims of crime.  Again it was noted that many of the symptoms noted in his assessment were not apparent from the evidence of Mr Henderson at the hearing.

3. As Mr Henderson had operational service, s 120(1) of the Veterans’ Entitlements Act 1986 (“the Act) provides that an injury or disease shall be determined as war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s 120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles (“SoP”) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:

   ·Instrument N° 35 of 2003 as amended by Instrument N° 3 of 2004 concerning hypertension;

   ·Instrument N° 76 of 1998 concerning alcohol dependence or alcohol abuse;

   ·Instrument N° 1 of 2000 concerning anxiety disorder; and

   ·Instrument N° 3 of 1999 as amended by Instrument N° 54 of 1999 concerning post traumatic stress disorder.

Each of the relevant SoPs set out the factors, one of which relate to the veteran’s service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.

1. It seems clear from the evidence that the starting point of this matter was the desire of Mr Henderson to have his claim for hypertension accepted as war‑caused.  He appeared to assume that stress would have been the likely cause of the hypertension which led him to concentrate on the stresses of service in Vietnam.  It is therefore appropriate to deal with this condition at the start.  The factors of the relevant SoP which are sought to rely on are:

   5.(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…

   (n) suffering from a clinically significant anxiety disorder for the six

   months immediately before the clinical onset of hypertension…

The date of clinical onset of hypertension as assessed by Mr Henderson’s general practitioner was 31 July 2000.  It is relevant to note that the former SoP concerning hypertension (Instrument N°31 of 2001) required as factor 5(b) for the veteran to be suffering from alcohol dependence or alcohol abuse involving consumption of 200 grams per week of alcohol.  This necessitated reference to the SoP concerning alcohol dependence or alcohol abuse.  Consequent upon the change in the more recent SoP, it is strictly unnecessary to also satisfy the SoP concerning alcohol.  It should be noted also, that the current factor 5(n) was not included in the former SoP.

1. Alcohol consumption is measured utilising the Australian standards of 10 grams of alcohol per standard alcoholic drink.  Consequently 200 grams per week is equal to 20 standard drinks.  The history given by Mr Henderson to both Dr Kenny and Dr Cole was of consuming over 40 cans or stubbies of beer per week which would well exceed the 200 grams of alcohol per week.  This level of consumption was at the date of their respective examinations.  On 19 June 1990 the clinical notes of Dr J. McLean, Mr Henderson’s general practitioner (R4), stated a consumption of three stubbies per day.  In his evidence, Mr Henderson said that he may have understated his level of consumption to the doctor and thought that it was more likely four to five stubbies per day.  On the basis of this evidence I am prepared to accept that his consumption was at an average level of at least 200 grams of alcohol per week in the six months before the clinical onset of hypertension.  However, it is then necessary to make two further findings.  The first being that the level of 200 grams per week could not be decreased below that level.  On the histories given to the examining psychiatrists to the VRB at its hearing and the evidence at this hearing, I am not able to be so satisfied.  Mr Henderson maintained that he was well aware of a high level of drinking, continued to enjoy it and, while it did not cause any significant problems in his life, had no intention of decreasing his consumption.  There is nothing to suggest that he is or was unable to reduce the level below 200 grams per week.

2. The second matter for consideration is whether Mr Henderson’s level of alcohol consumption can be related to his operational service.  All of the evidence shows that Mr Henderson commenced drinking at a moderate level prior to army service, remained moderate during service and steadily increased in subsequent years.  As he said in his evidence, his drinking increased “because you could.”  At no time has there been any indication that his later level of alcohol consumption was in any way related to his service in Vietnam.  Consequently, I am satisfied beyond reasonable doubt that Mr Henderson does not satisfy factor 5(b) of the SoP concerning hypertension either by its requirement of an inability to decrease consumption or the consumption having any connection to operational service.

3. The next issue is whether Mr Henderson was suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension and whether any such disorder was connected with his operational service.  It is noted that there is minimal references contained in Dr McLean’s notes of any stress or anxiety.  There is a reference in June 1990 but after noting the death of Mr Henderson’s father.  From the evidence given by Mr Henderson both at the VRB hearing and before me, it is difficult to accept that he has suffered any significant anxiety disorder.  In his initial examination by Dr Kenny in October 2001, soon after the claim was lodged, no psychiatric condition was found.  Two years later, after the claim was refused, after advice from Mr Henderson’s representative and after examination by Dr Cole, Dr Kenny, with significant reservations, considered that a mild generalised anxiety disorder could be diagnosed on the basis of the new history.  While Dr Cole diagnosed PTSD, he was not called to give evidence.  Dr Cole has, in the past, been a regular medico‑legal witness in veterans’ applications and has been recognised for what might be regarded as somewhat generous diagnoses and assessments in support of veterans’ claims for psychiatric disorders.  As indicated earlier, many of the alleged symptoms reported by both Dr Cole and Dr Foenander are inconsistent with the evidence given by Mr Henderson to the VRB and this Tribunal.  Consequently, I prefer the evidence of Dr Kenny and, in particular the results of his first examination which was prior to Mr Henderson becoming aware of the likely need to recall a traumatic event and to be assessed as suffering from a significant anxiety disorder.  Consequently, I am satisfied beyond reasonable doubt that Mr Henderson does not and did not prior to the clinical onset of hypertension suffer from a clinically significant anxiety disorder.

4. As noted earlier, it seems clear that the starting point of the claim for the three conditions was the hypertension.  Before the VRB, Mr T. Richards, acting as the representative of Mr Henderson, said:

   …Actually I did the claim, the initial claim, which was hypertension.  There is no doubt Mr Henderson did have hypertension.  I did ask him about his drinking, he told me what it [sic] was drinking, and it certainly satisfies the drinking criteria for hypertension, and as the result the claim more than anything was for alcohol abuse, which is a nervous condition, so it was a claim for a nervous condition and alcohol abuse.  I do find that if we don’t put down specifically, all of a sudden we will get some strange sort of a decision.  

   …

   We intended to claim a nervous condition leaning towards alcohol abuse because of the hypertension and the quantity of alcohol that Mr Henderson said that he drank.

On the basis of the SoP concerning hypertension which was current at the date of the claim and the VRB hearing, the hypothesis which needed to be put was that the hypertension was the result of alcohol dependence or alcohol abuse which in turn was caused from a psychiatric disorder which, in turn, was caused by experiencing a severe stressor during service.  Under the current SoP the hypothesis is that the hypertension resulted from either excessive and non reducible alcohol consumption or a clinically significant psychiatric condition, either of which was connected with the circumstances of the operational service in Vietnam.  As indicated previously, I am satisfied that neither the earlier hypothesis nor either of the later hypotheses is reasonable on the basis of the relevant SoPs.  For completion it should be said that I am satisfied that Mr Henderson does not and did not suffer from alcohol dependence or alcohol abuse.

1. It follows from the foregoing that the decision under review should be affirmed.

I certify that the nineteen [19] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  3 June 2004

Date of Decision:  29 June 2004
Advocate for the applicant:          Ms I. Black
Solicitor for the applicant:            DeMarchi and Associates

Advocate for the respondent:       Mr K. Rudge

Solicitor for the respondent:         Department of Veterans’ Affairs