Henderson and Repatriation Commission
[2001] AATA 397
•11 May 2001
DECISION AND REASONS FOR DECISION [2001] AATA 397
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/879
VETERANS' APPEALS DIVISION ) No N1999/1554
Re James Victor Henderson
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date11 May 2001
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal: 1. Affirms the Repatriation Commission's decision of 14 February 1998 in relation to hypertension. 2. Sets aside the decision of the Veterans' Review Board of 14 July 1999 and in substitution therefor decides that: (a) Mr Henderson suffers from the conditions of generalised anxiety disorder and alcohol abuse and these conditions are war-caused; and (b) Disability Pension is assessed at 60 per cent of the General rate and is payable from and including 19 December 1997.
.................[sgnd].....................
Ms SM Bullock
Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension - Operational Service - Reasonable Hypothesis - Hypertension - Generalised Anxiety Disorder - Alcohol Abuse - Intermediate Rate
Legislation
Veterans' Entitlements Act 1986 ss 5D, 9, 13, 23, 120, 120A
Authorities
Deledio v Repatriation Commission (1997) 47 ALD 261
Borrett v Repatriation Commission [2000] FCA 1829
REASONS FOR DECISION
11 May 2001 Ms SM Bullock, Senior Member
This is an application for review by the Applicant, Mr James Victor Henderson, of decisions made by the Repatriation Commission ("the Commission") and the Veterans' Review Board ("the Board"). Firstly, on 14 February 1998 (T2 – N1999/879), the Commission refused a claim for hypertension which was affirmed by the Board on 22 March 1999. The second decision is that of the Board, made on 14 July 1999, which set aside a decision of the Commission dated 13 May 1998 and substituted its decision that anxiety disorder with no alcohol dependence was war-caused, with pension being assessed at 40 per cent of the General rate, with effect from and including 19 December 1997 (T2- N1999/1554).
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 12 February 2001. Mr Henderson was represented by Mr N Dawson of Counsel. Mr Henderson provided oral evidence at hearing, as did his wife, Mrs Maureen Henderson. The Respondent, the Commission, was represented by Ms G Pacey, Solicitor. Taken into evidence were two sets of documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents, T1-T20, N1999/879 and T1-T13, N1999/1554) and the following exhibits:
Exhibit Number Description Date
T1-T20 Section 37 Statement and Documents (N1999/879) Various
T1-T13 Section 37 Statement and Documents (N1999/1554) Various
A1 Statements of Mr J Henderson 21 January 2000 11 September 2000 28 December 2000
A2 Statement of Mrs Maureen Anne Henderson 11 September 2000
A3 Report of Dr B Keshava, Consultant Psychiatrist 27 March 2000
R1 Report and Supplementary Report of Dr D Richards, Consultant Cardiologist 14 November 1999 25 November 1999
R2 Report and letter of Dr Y Skinner, Consultant Psychiatrist 17 December 1999 21 December 1999
R3 Report of Dr T Anderson, Consultant Occupational Physician 13 December 1999
R4 Report of Mr B O'Keefe, Consulting Historian 6 February 2001
Issues
The issues in this matter are:
(a)Whether or not Mr Henderson has war-caused conditions of hypertension and alcohol dependence or abuse;
(b)Whether or not the appropriate rate of assessment of Mr Henderson's Disability Pension is 40 per cent of the General rate;
(c)Whether or not Mr Henderson is entitled to pension at the Intermediate rate.
Legislation
A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 (Cth) ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:
"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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"
Section 13 of the Act deals with eligibility for pension.
Mr Henderson served in the Australian Army from 21 January 1964 to 20 January 1985. His eligible war-service, which is also operational service, was from 17 January 1970 to 14 January 1971 in Vietnam (T3, pp 24-34 N1999/1554; T3 pp 10-20 N1999/879). Mr Henderson also rendered defence-service as defined in Part 4 of the Act from 7 December 1972 to 20 January 1985. The standard of proof for Mr Henderson's operational service is that of the reasonable hypothesis which applies subsections 120(1) and 120(3) of the Act. The standard of proof defence-service is covered under subsection 120(4) of the Act.
In this matter, because of the circumstances of Mr Henderson's service in Vietnam, the Tribunal's attention will be confined to Mr Henderson's operational service.
"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.
Note: This subsection is affected by section 120A.
…
(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.Note: This subsection is affected by section 120A
…."
Section 120A of the Act deals with Statements of Principles and requires that the assessment of a reasonable hypothesis must be undertaken in accordance with any Statements of Principles which have been issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration made under the Act. As relevant, section 120A states:
"120AReasonableness 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.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).(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.
Note: See subsection (4) about the application of this subsection.
(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.…"
In relation to Mr Henderson's claim that he is qualified for the Intermediate rate of pension, this is dealt with under the provisions of section 23 of the Act which state:
"23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.
…"
Statements of Principles
The relevant Statements of Principles in this matter for operational service are:
· Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence.
Instrument Number 83 of 1995 concerning Hypertension.
Background
The following information is provided by way of background and is not in dispute.
Mr Henderson was born on 14 April 1947.
Mr Henderson left school aged approximately 16 years old. He joined the Army in 1964 as an apprentice electrician.
Mr Henderson married in 1968. He has three children, two sons and a daughter, and currently his daughter lives at home.
Following discharge from the Army in 1985, Mr Henderson was employed as a storeman at Townsville Technical College for a period of approximately six weeks. He then worked as an electrician with Phillips between approximately 1985 and 1986. Mr Henderson was next employed with the Defence Department in the area of quality control from 1986 until being made redundant in November 1998. Mr Henderson has continued to work on a reduced basis since that time as a self-employed electrician.
Mr Henderson has accepted conditions of chronic solar skin damage and generalised anxiety disorder.
On 1 December 1997, Mr Henderson lodged a claim for "high blood pressure", which he stated commenced in 1985; for "skin cancers" which had their onset in 1994; and "gout", which had its onset in 1989 (T12, p57 – N1999/879).
On 14 February 1998, the Commission accepted Mr Henderson's claim for chronic solar skin damage, with effect from 1 September 1997. No payment of Disability Pension was made at that time. The Commission refused Mr Henderson's claim for hypertension and gout (T2 – N1999/879).
On 26 February 1998, Mr Henderson lodged an application for review with the Board regarding hypertension and on 22 March 1999, the Board affirmed the decision under review (T17 – N1999/879).
On 11 June 1999, Mr Henderson lodged an application for review to the Tribunal (T1 – N1999/879).
On 19 March 1998, Mr Henderson lodged a claim for "PTSD/Anxiety Disorder" which he claimed had its onset in 1970. He also claimed "alcohol abuse" and "tension headaches" which he further reported he first became aware of in 1970 (T5, pp 40, 41 – N1999/1554).
On 13 May 1998, the Commission refused Mr Henderson's claim for generalised anxiety disorder with alcohol dependence and tension headaches (T8 – N1999/1554).
On 22 June 1998, Mr Henderson lodged an application for review with the Board in relation to the generalised anxiety disorder condition and alcohol dependence (T9 – N1999/1554) and on 14 July 1999, the Board consented to the withdrawal of the claim for tension headaches and set aside the Commission's decision in relation to generalised anxiety disorder. The board decided that Mr Henderson's generalised anxiety disorder was war-caused, assessing pension at 40 per cent of the General rate with effect from and including 19 December 1997. The Board did not find that alcohol dependence was war-caused (T2 – N1999/1554).
On 13 October 1999, Mr Henderson made an application for review to the Tribunal in relation to his conditions of generalised anxiety disorder and alcohol dependence (T1, 1999/1554).
Evidence of Mr Henderson
Mr Henderson made three statements to the Tribunal dated 21 January 2000, 11 September 2000 and 28 December 2000 (Exhibit A1). Mr Henderson confirmed that he had service in South Vietnam and served as a Lance Corporal in the Army, serving as an electrical fitter in Vietnam with 161 (Independent) Reconnaissance Flight, which operated Sioux Helicopters, as well as Cessna and Pilatus fixed wing aircraft.
Mr Henderson described an incident not long after arriving in Vietnam, when he was sent out in a Sioux helicopter to drop smoke markers for a bombing mission. The helicopter was flying at tree top level, Mr Henderson described, and he was required to drop flares as directed to mark the target for the bombers. On this particular occasion, there were bombs exploding behind the helicopter and the aircraft was shuddering. Mr Henderson described feeling as if he was "going to fall from the sky". On return to the base, an inspection of the helicopter revealed damage to the helicopter tail and horizontal stabiliser. Mr Henderson could not recall the aircraft tail number or if the incident was recorded in the logbook. Mr Henderson also described the helicopter sustaining shrapnel damage. He reported to the Tribunal feeling extremely anxious and fearful about these occurrences.
In his statement about alcohol consumption, Mr Henderson described that when he joined the army in 1964, he would consume two to three glasses of beer less than once per week and this pattern continued fairly constantly until July 1968 (T9, p45 – N1999/879). In January 1970, on operational service, his level of alcohol consumption increased to approximately 12 to 24 cans of beer per night, which Mr Henderson stated he drank for stress relief. Beer was very affordable and there was a culture of drinking by his peers. In January 1971, Mr Henderson noted that he reduced his intake to four to six cans of beer three to four times per week because there was less stress and less money at home. In the mid 1980's, the level of four to six cans of beer was consumed two to three times per week and then the level as at October 1997 was approximately three to four cans of beer once or twice per week. When drinking on active service, Mr Henderson reports that he drank so much as to cause him to have blackouts. This history of blackouts was also reported by Dr Keshava (Exhibit A3).
In evidence to the Tribunal, Mr Henderson stated that he was drinking extremely heavily in the Army and other people would cover for him. Mr Henderson's drinking, as described in his statement of 21 January 2001, indicated that he was consuming, prior to his enlistment, quantities of beer of two to three glasses less than once per week. In the earlier period of his Army career, he was drinking purely on a social basis and he had low wages at the time, with Army restrictions on drinking on base. Mr Henderson reiterated that by January 1967, he was consuming two or three glasses of beer once or twice per week as his wages had increased by this time, but he was still purely a social drinker. By July 1968 he was drinking two or three glasses of beer less than once per week. When Mr Henderson went to Vietnam in January 1970, his alcohol consumption increased to 12 to 24 cans per night, every night. He believed this consumption was due to the need for stress relief, peer pressure and the ready availability of alcohol. When Mr Henderson returned to Australia in January 1971, he was consuming approximately four to six standard cans of beer, three or four times per week. He had to attempt to moderate his habits, he explained, as he had less money for social activities. While Mr Henderson acknowledged he had less stress at this time and there was a good home environment, there were occasions when he would binge drink due to his inability to cope with stressful situations. This binge drinking would occur on average, once per month.
Initially, Mr Henderson stated that at present he consumes three to four cans of beer per day, once or twice per week. Later in evidence he stated he drinks six stubbies of beer at night and needs alcohol to help him sleep. Mr Henderson finds that two cartons of beer will last him a week and this level of consumption has been consistent for the past three or four years. Mr Henderson stated that if his level of stress is reduced, then he might be able to reduce his level of alcohol consumption. He further stated that at the time of his redundancy from the Department of Defence, his level of alcohol consumption rose again to 12 cans per night. Generally speaking, Mr Henderson stated that if he is stressed then he will consume alcohol. Mr Henderson informed the Tribunal that he does not currently suffer from alcoholic blackouts, but did so in Vietnam and shortly after his return. He has not been asked to leave clubs or hotels because of excessive consumption of alcohol. He further has no service or employment disciplinary measures taken against him for excessive alcohol consumption. Mr Henderson stated that he does not drive following the consumption of alcohol. His consumption of alcohol does cause arguments with his family and he becomes aggressive. He noted that his close friends have had similar drinking problems. He most usually drinks alone.
In relation to hypertension, Mr Henderson stated that he did not suffer from this condition when he enlisted in the Army. A previous Board decision of 19 January 1988, referred to a blood pressure reading of 130/70 on enlistment and 130/80 on discharge (T8, p42 – N1999/879). These readings are within the normal range. A Departmental Medical Officer noted on 10 November 1986, that the onset of hypertension occurred in February 1985. Mr Henderson confirmed that he was formally diagnosed with hypertension when he left the Army in 1985. Following discharge he had attended a medical examination for the purposes of employment at Telecom in February 1985, when he was told he was hypertensive.
Mr Henderson prepared a statement concerning, amongst other matters, his hypertension (T11 – N1999/879). He noted that his blood pressure prior to Vietnam was normal but then elevated in the following terms:
Date Blood Pressure Reading
16 November 1971 140/90
23 February 1972 140/85
10 August 1976 140/90
28 February 1980 145/90
25 February 1983 130/85
5 March 1984 154/96
17 December 1984 130/80 (pre discharge)
14 February 1985 140/80 – 140/85
19 February 1985 155/90 – 140/80 (T11-N1999/879)
Thus there were readings immediately following Vietnam of high blood pressure, which were indicative of hypertension as defined in the relevant Statement of Principles. There were only two readings of normal blood pressure, on 25 February 1983 and on 17 December 1984, Mr Henderson stated. Mr Henderson further stated that the Board's finding that he did not have elevated blood pressure until after his Vietnam service, was therefore incorrect.
Mr Henderson noted that the onset of his hypertension could be 16 November 1971, which was less than one year after his return from Vietnam. Mr Henderson believed that when looking at these readings, and considering that a blood pressure reading taken on 5 March 1984 was recorded as 154/96 and a reading taken on 14 February 1985, two months after the pre-discharge reading of 17 December 1984 recorded as 140/85, some doubt is cast as to the accuracy of the two low readings in the above list. Mr Henderson was not informed of the high blood pressure reading of 16 November 1971 and was not treated. At the time of the blood pressure reading of 140/90 on 10 August 1976, Mr Henderson estimated he was drinking a carton of beer per week (24 cans), and attending the Sergeant's Mess at that time at least twice per week. He would attend the mess at about lunch time and would often stay for the afternoon, when he should have been at work. Other people would cover for him at work. Mr Henderson would then be abusive to his family when he returned home from these drinking sessions. This pattern of drinking continued until he left the Army in 1985.
Mr Henderson informed the Tribunal that there has been no record of hypertension being a genetically acquired disease in his family. He has no record of his grandparents being treated for high blood pressure, nor his brother or sister. His mother and father also did not have any history of hypertension.
Currently, Mr Henderson's blood pressure reading is usually 140/90 and he has been prescribed the medication "Tenormin". He feels at times that he is "going to burst" and believes this is a symptom of his hypertension.
Mr Henderson described that in relation to his employment, post-service he worked as a storeman at Granville Technical College. He then commenced work at Phillips, undertaking work in quality assurance and also in the stores section, spanning a period of approximately 15 months. Next, Mr Henderson worked at the Defence Department, originally in quality assurance, from 1986. He felt better able to cope with this full-time work, because he had no time limits and was left fairly much to work alone. In February 1985, Mr Henderson was advised by his General Practitioner that he should reduce his alcohol consumption because of its adverse impact on his blood pressure, which was very high.
In 1992, Mr Henderson was advised that the Commonwealth Government was going to reorganise the Department of Defence and that his section was going to be closed down. At this point, Mr Henderson became extremely stressed and commenced a high level of alcohol consumption. His previously reduced alcohol consumption during the early 1990's, of two to three cans of beer once or twice per week, increased dramatically. With initial staff reductions, Mr Henderson's work routine changed, including his coming under greater scrutiny. At that time, Mr Henderson commenced drinking more frequently at home and also twice a week he would drink during the day. Mr Henderson told the Tribunal that he believed that this increase in alcohol consumption was due to his inability to cope with stress at work and because he had habitually used alcohol to cope with any problems since his service in Vietnam. Mr Henderson was eventually retrenched in 1998.
Since retrenchment, Mr Henderson has been self-employed, working as an electrician three to four hours per day, three or four days per week. It took him approximately three months after cessation of work at the Defence Department to start his new business. He was required to obtain his licence as an electrician prior to undertaking this work and did this without difficulty. Mr Henderson advertises in local papers for work and told the Tribunal that he is booked up for approximately one and a half weeks in advance. He has now built up a steady clientele.
If Mr Henderson works more than these hours, he becomes extremely stressed and irritable and finds himself simply "unable to cope". Work which it appears might take four or five hours, he will do over two days. Further, Mr Henderson finds it extremely difficult to work in confined spaces or on roofs. If this type of work is required, he will organise others to do it for him. Mr Henderson estimated that once or twice in the last year, he has had problems with his work because of confined spaces or having to go on to a roof. Mr Henderson does small electrical jobs only and provides free quotes. Once or twice per month, he will undertake the book work. Mr Henderson continues to be able to drive and he has a sedan and a utility.
Mr Henderson described his symptoms of generalised anxiety disorder as nervousness, irritability and "falling to pieces with any stress". Mr Henderson does not like crowds or confined spaces. He cannot stand in queues and if he finds himself in such a situation, he just has to leave and walk away.
Mr Henderson has consulted Dr B Keshava, Consultant Psychiatrist, since April 1998 and stated he sees him approximately every three months. Following his consultation with Dr Keshava, Mr Henderson feels calmer and believes that this treatment has helped him to cope with his condition. Mr Henderson is reluctant to take medication for his generalised anxiety disorder, even though Dr Keshava has discussed the benefits of medication with him. From time to time, Mr Henderson will take "Normison", a hypnotic because of his sleep disturbance. Mr Henderson described waking up at night two or three times per week, but occasionally cannot return to sleep. He will then take a "Normison" tablet. This pattern may not occur for a few weeks and then it will reoccur for no particular reason and he will have to take medication. Beer also helps Mr Henderson to sleep. In the last eight or nine months, Mr Henderson estimated that he has used two and a half packets of "Normison" tablets, containing 30 tablets in each packet.
Mr Henderson described having a good relationship with his wife. They go out socially once per month. In relation to his family unit, he has a good relationship with his children and loves his grandchildren and their visits. He does have some friends, but does not see them more regularly than every three or four years and he does not like talking on the telephone.
At the time of hearing, Mr Henderson advised that he and his wife were going on a motoring holiday in Tasmania. Mr Henderson stated that he does not have any hobbies, he does not garden or play sport. He used to attend Rugby League matches but no longer feels able to attend. He also used to read for enjoyment but does not often engage in this activity now. Similarly, Mr Henderson used to enjoy woodwork but stated that he cannot become motivated any more. Perhaps once in 12 months he might undertake some woodwork. Mr Henderson does not like using public transport because of his inability to cope with crowds of people. His leisure activities mainly involve watching television or doing odd jobs about the house.
Evidence of Mrs HendersonMrs Henderson told the Tribunal that she and Mr Henderson married just prior to his tour of duty in Vietnam. They have now been married for approximately 33 years. At the time of their marriage, Mrs Henderson described her husband as an easy going, happy man. He drank beer occasionally before going to Vietnam but this was minimal, Mrs Henderson stated. Following his return from Vietnam, Mr Henderson had changed greatly, Mrs Henderson stated. He was "very cranky, stressed and was drinking at home". This pattern of behaviour was completely different to his pre-Vietnam behaviour. Mrs Henderson described situations where very little or minor things would upset Mr Henderson. He would become extremely cross with their eldest son for no apparent reason, had nightmares, was irritable, perspiring profusely in bed and shouting out in his sleep. Mrs Henderson would often have to wake her husband up to stop these night-time outbursts. This pattern of behaviour at night has continued once or twice per week, which is reduced somewhat from such behaviour immediately post-Vietnam. Mrs Henderson told the Tribunal that she and the children developed coping mechanisms and strategies for dealing with Mr Henderson's irritability and aggression, by walking away from him and learning not to engage in arguments with him. Mrs Henderson further described her husband's post-Vietnam demeanour as moody. If he has been drinking, his moodiness is worse.
Mrs Henderson believes that the consumption of alcohol eases her husband's stress. Mrs Henderson stated that while in the Army and just after returning from Vietnam, her husband would drink in the Sergeant's Mess during the day and then at night after work, he would continue to drink alcohol. When the children were very young, the family situation was very tense but during the early 1990's, Mrs Henderson's impression was Mr Henderson's drinking was reduced. This reduction, Mrs Henderson believes, occurred because he was less stressed at work. Currently, Mr Henderson is drinking every night, at least six stubbies of beer. Mrs Henderson stated that she does not believe that her husband realises how much he is drinking and often denies that he has consumed very much alcohol. Mrs Henderson related a recent experience when Mr Henderson's daughter told her father that he had already consumed six stubbies of beer and should cease. Mr Henderson denied that he had consumed that much alcohol and in fact went on to drink more.
Mrs Henderson estimated that when out, Mr Henderson drinks four schooners of beer between 6pm and 10pm. She is not aware of his being in any trouble in relation to work or with the police because of the quantity of alcohol he has consumed. When Mr and Mrs Henderson are out socially, Mrs Henderson described being constantly on edge as to whether Mr Henderson was going to become argumentative or there would be a problem with those around him.
Mrs Henderson provided a further example of her husband's behaviour in a recent trip to the supermarket, the day before the hearing. Mr Henderson had become so stressed in the crowded supermarket that he had left the loaded supermarket trolley and walked out of the shop, leaving Mrs Henderson to carry on the shopping. Mrs Henderson stated that her husband is more often stressed than not. He does not talk to the family about his feelings, but has told her that he finds it easy to speak with Dr Keshava. Mrs Henderson observed that her husband seems for a short time calmer and better after having consulted with Dr Keshava. Mr Henderson still becomes irritable and impatient with his grandchildren and yells at them. Mrs Henderson continues to cope with these situations, as do their children, by extracting themselves from the situation.
Socially, Mrs Henderson stated that she and her husband go out approximately once per month. Such social activities are usually combined with taking out Mrs Henderson's mother. Mr Henderson may occasionally read a book and does watch television. He will not go to the cricket or football with his sons and he himself gave up playing football when he returned from Vietnam. Mr and Mrs Henderson take holidays together and are planning a holiday in Tasmania, driving to Melbourne, then taking the car to Tasmania by ferry.
Mrs Henderson works part-time and has done so for the past six years. When she is away at work, Mrs Henderson has no concerns about Mr Henderson's welfare. In relation to Mr Henderson's work, Mrs Henderson considers that her husband is not capable of working longer hours than the three to four hours he works per day, three to four days per week. To work longer would "just be too much for him and he would become stressed and agitated", Mrs Henderson told the Tribunal.
In relation to Mr and Mrs Henderson's relationship, Mrs Henderson noted that while the relationship is stressed and very strained at times, she would never leave her husband. She reiterated that she has learned to cope with his behaviour over the years and developed strategies to ensure that any tension does not escalate.
Evidence of Dr BS Keshava, Consultant PsychiatristDr Keshava has provided reports dated 7 May 1998 and 27 March 2000 (T7 - N1999/1554 and Exhibit A3). Dr Keshava first examined Mr Henderson on 21 April 1998, having subsequent consultations on 16 November 1998, 22 February 1999, 1 July 1999, 3 September 1999, 3 December 1999 and 25 February 2000.
Dr Keshava noted that Mr Henderson is short tempered, avoids reunions with fellow service men, does not like queues and crowds, and is sleep disturbed, waking up often and experiencing recurrent frightening dreams from which "he wakes up with a lather of sweat!".
Dr Keshava particularly noted Mr Henderson's duty as supplementary aircrew in helicopters in Vietnam and on occasions he was required to drop markers for artillery or high altitude bombers, as well as undertake duties as a helicopter door gunner. Dr Keshava reported Mr Henderson describing an occasion when he was flying in a helicopter and the aircraft was shot at by enemy fighter planes. Mr Henderson was very frightened by this experience, Dr Keshava noted.
Dr Keshava further described Mr Henderson as drinking heavily after joining the Army, escalating to drinking 20 cans of beer per day in Vietnam and reducing his consumption to six or eight cans at least three or four times per week. Dr Keshava reported that alcohol made Mr Henderson aggressive and that he was currently drinking mainly at home. Dr Keshava noted that Mr Henderson has become forgetful and has admitted to having alcoholic blackouts. It was further noted by Dr Keshava that Mr Henderson suffers from recurrent headaches and hypertension. Mr Henderson currently takes "Tenormin" 50 mg once daily; "Panadol" two to four tablets per day; and "Zyloprim" 300 mg once daily (Exhibit A3).
Dr Keshava further opined that Mr Henderson's drinking pattern has varied over the years and he appears to consume alcohol to excess under stressful situations. Dr Keshava's history of Mr Henderson's alcohol consumption is that he was drinking heavily during his stay in Vietnam at 12 to 24 cans of beer per night, a consumption which then reduced back in Australia, continuing to drink six cans of full strength beer with occasional binges until he developed hypertension. Dr Keshava opined that Mr Henderson was drinking at least 200 grams of alcohol per week, until the time he developed hypertension and was warned by his then General Practitioner regarding this level of alcohol consumption. Dr Keshava concluded that in view of Mr Henderson's long history of drinking, which escalated during his tour of duty in Vietnam, his inconsistency in drinking pattern and his tendency to binge drink, that Mr Henderson suffers from alcohol abuse. Noting that Mr Henderson now claims that the amount of alcohol which used to relax him in the past has no relaxing effect on him now, this confirmed Dr Keshava's view in relation to Mr Henderson's alcohol abuse. This was further confirmed in Dr Keshava's view when he considered Mr Henderson's short term memory impairment and his admission to having alcoholic blackouts in the past.
Dr Keshava concluded that Mr Henderson suffers from a chronic generalised anxiety disorder and comorbid substance abuse in the form of alcohol abuse. Dr Keshava opined:
"He has low frustration tolerance and he loses his temper, particularly while he is under the influence of alcohol. He cannot relate with people and isolates himself. He gets anxious and agitated in crowded places and suffers from claustrophobia. He is virtually housebound and he has no social life. He has early insomnia and difficulty staying asleep. He has recurrent frightening dreams from which he wakes up sweating heavily. His drinking and smoking increased heavily after joining the army and he still continues to drink alcohol. He lacks insight into his alcohol problems. His short term memory is impaired and he admitted to having alcoholic blackouts. He also suffers from hypertension, gout and tension headaches." (Exhibit A3).
Further noting Mr Henderson's claim that he has limitations in working as an electrician for more than three or four hours a day, four or five days per week because of his anxiety state, Dr Keshava concluded that Mr Henderson is only fit to work less than 20 hours per week as a self-employed electrician.
Dr Keshava assessed Mr Henderson under Chapter 4 of the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide") as having an impairment rating for his generalised anxiety disorder of 41 points, as assessed on 27 March 2000 (Exhibit A3).
Evidence of Dr D Richards, Consultant CardiologistDr Richards provided two reports, dated 14 and 25 November 1999 (Exhibit R1). Dr Richards concluded that, although during his service Mr Henderson had isolated measurements of high blood pressure in excess of 140/90mmHg, he did not have established hypertension prior to 1985. Dr Richards opined that Mr Henderson had labile hypertension before 1985. This finding was consistent with a blood pressure recording in February 1985 of 140-155/80-90mmHg, as reported by General Practitioner Dr Daly, on 18 September 1986. Further, Dr Richards noted a report of 20 October 1986 by Dr Burfitt-Williams (Physician), who noted on 29 September 1986, a blood pressure reading of 150-160/90-95mmHg.
In relation to whether or not Mr Henderson had an alcohol abuse problem, Dr Richards noted that although Mr Henderson consumed 12 to 24 cans of beer per day in 1970, he subsequently consumed less alcohol than this, which led Dr Richards to opine that Mr Henderson did not exhibit alcohol dependency or abuse when hypertension was diagnosed in 1985. If hypertension was found to be war-caused, Dr Richards assessed the impairment rating for this condition, from the Guide, Table 2.1.1, as being 2 points.
Evidence of Dr T Anderson, Consultant Occupational PhysicianOn 13 December 1999, Dr Anderson reported that having examined Mr Henderson on that day, and noting Mr Henderson's claims that his high blood pressure is due to his experiences in Vietnam, Dr Anderson concluded that "there is no indication that this could reasonably be the case.". Dr Anderson noted:
"21. Whilst there are recordings in the (rather badly kept) medical records of his blood pressure being around 90 diastolic there are also occasions subsequent to this when the blood pressure has been well below this at 85. It therefore looks as though he has had a rather labile blood pressure and has literally been "on the borderline" for quite a few years…
27. Although Mr Henderson has had a raised blood pressure since 1985 and there have been occasions before this when the blood pressure has been marginally raised, it looks as though he was virtually on the borderline for several years. By strictly applying the criteria in the statement of principles, Mr Henderson would not qualify for his hypertension to be accepted as "war-related".
28. Mr Henderson was a friendly and co-operative man. Unfortunately his own motivation to look after his health and fitness is not particularly good. This is most unfortunate since with relatively little effort he could be significantly fitter and healthier." (Exhibit R3).
Evidence of Dr Y Skinner, Consultant Psychiatrist
Dr Skinner provided a report dated 17 December 1999 (Exhibit R2), having examined Mr Henderson on 15 December 1999. Dr Skinner noted Mr Henderson's past medical history of gout, obesity and hypertension and his medication of "Tenormin" for hypertension, "Zyloprim" for gout and "Panadol" tablets, two taken on most days, for Mr Henderson's headaches
In relation to the history of alcohol use, Dr Skinner noted Mr Henderson's consumption of alcohol in Vietnam when he drank a minimum of 12 stubbies and up to one carton of beer per night. Dr Skinner noted that Mr Henderson decreased his alcohol intake upon return to Australia, consuming approximately three or four beers per night. Dr Skinner reported that Mr Henderson increased his alcohol consumption approximately four or five years ago when he learnt of his probable retrenchment from the Department of Defence. At that time, he increased his alcohol consumption to six stubbies of beer per day. Dr Skinner further reported Mr Henderson's statement that he had never suffered any medical complications from alcohol consumption such as liver problems, haematemesis, maelena or blackouts. Dr Skinner further reported that Mr Henderson told her that he was never warned in relation to his alcohol use when working, although he believed that his promotion through the Army ranks may have been slower because of his alcohol use. Mr Henderson reported to Dr Skinner no history of domestic violence, although she noted that he would pick arguments with Mrs Henderson if he had been drinking. Mrs Henderson's response to this, Dr Skinner understood, was to walk away or leave the house to go for a walk. Mr Henderson reported to Dr Skinner that his problems had become worse over time because he had become argumentative over more trivial incidents. Dr Skinner noted that Mr Henderson had no criminal charges in relation to assault and has never had a drink-driving charge, noting that Mr Henderson told Dr Skinner that he would not drive if he had been drinking.
Dr Skinner opined:
"Mr Henderson is not suffering from any psychiatric illness or emotional disorder. He is not suffering from an anxiety state. Mr Henderson complains of mild anxiety symptoms with a sleep disturbance, dislike of crowds, heights and enclosed spaces. He states that he has little social interaction outside the family.
It is probable that Mr Henderson's limited social life is related to his personality rather than a feature of a psychiatric disorder. Mr Henderson participated in social functions while he was a serving member of the army, and these activities were readily available. After his discharge from the army he did not actively seek to take up other activities such as joining a golf club. He regularly visits his mother and his wife's relatives visit frequently. He attends a local club with his son and goes to dinner with his wife." (Exhibit R2)Dr Skinner concluded that Mr Henderson is not suffering from alcohol dependence and there is no history of alcohol-related medical conditions. Further, Mr Henderson has never come to the attention of an employer or the legal system because of alcohol-related problems. Dr Skinner further concluded that there was no evidence of cognitive deficits at the time of her examination. Dr Skinner opined that Mr Henderson's prognosis is good and that he has personality strengths and has coped well to date with a supportive family.
Evidence of Mr B O'Keefe, Consultant HistorianMr O'Keefe prepared a report on 6 February 2001, in relation to Mr Henderson's claim for Disability Pension (Exhibit R4).
Mr O'Keefe noted that Mr Henderson's service in the Australian Army in Vietnam from 17 January 1970 to 14 January 1971 was with 161 (Independent) Reconnaissance Flight, where he was employed as an electrical fitter or electrician.
Mr O'Keefe reported conflicting evidence as to whether or not someone, such as in Mr Henderson's position, would have participated in flying missions. Mr G Hill-Smith, a former OC of Mr Henderson's unit for the first half of Mr Henderson's tour of duty, told Mr O'Keefe that such participation was highly unlikely. Alternatively, Mr PJ Calvert, who succeeded Mr Hill-Smith in June 1970 and retained this role until February 1971, just after Mr Henderson's departure from Vietnam, stated that he thought it "highly likely" that someone like Mr Henderson would have been involved in flying operations. Mr Calvert reported that unit flights were usually single-person missions, but that on many flights an extra person was required. Mr Calvert's information was that unit members were asked to volunteer for such flights and the volunteer's names were normally not recorded in unit log books. Mr Calvert provided an example of a volunteer serving on a flying mission, noting that he knew of one flight in which he had been accompanied by a Sergeant cook as observer.
A further opinion as to the likelihood of people such as Mr Henderson being involved in flying operations was provided by Mr R Knight, who was second-in-command of 161 (Independent) Recce Flight from May 1966 to May 1967, which was before Mr Henderson's time in Vietnam. Mr Knight stated that workshop staff such as Mr Henderson "possibly would have taken part in flying operations". Mr O'Keefe concluded:
"From the unit records and other sources, it can thus be seen that no explicit confirmation of Mr Henderson's participation as an observer on unit flights is available. However, it can be said that the unit records referred to above indicate that observers did fly on many missions, while the use of a code to refer to observers in the mission reports tends somewhat to confirm Mr Calvert's statement that the names of observers were generally not recorded. Finally, it may be pointed out that Steve Eather's book ["Target Charlie"] contains the reminiscence of a private from 161(Independent) Recce Flight who flew as an observer on at least one mission aboard a Sioux helicopter." (Exhibit R4).
In relation to the aircraft incident referred to by Mr Henderson, Mr O'Keefe noted two possible instances which resembled Mr Henderson's descriptions. Records of these two events were found in a file containing aircraft incident messages from 12 November 1969 to 15 November 1971. The first incident recorded a Bell 47G-3B-1 Sioux helicopter piloted by Captain WB Flanagan carrying out a low-level marking operation for a bombing strike. After the last bomb exploded, a "severe bang" was heard and a shock felt throughout the aircraft. On returning to base, it was discovered that the Sioux's tail rotor and tail rotor extension had been damaged either by enemy ground fire or by shrapnel. The records point to this event having occurred in late 1969, possibly on 30 December.
A second incident occurred in June 1970 and Mr O'Keefe opined that this incident more strongly resembled the episode as described by Mr Henderson. In this regard, a Sioux helicopter piloted by Lieutenant R Ellwood was involved in marking for a bombing strike. Shortly after the second bomb exploded, a shrapnel strike was felt in the aircraft. When the aircraft returned to base, it was discovered that shrapnel from the bomb blast had lodged in its synchronised elevator.
Mr O'Keefe concluded that while these reports did not confirm whether or not Mr Henderson was involved in such incidents, it could be said that the two reports indicated that the type of incident described by Mr Henderson was entirely possible. Further, by reference to Mr Eather's book, it was clear that aircraft of the 161 (Independent) Reconnaissance Flight were frequently fired upon and/or damaged. This was particularly the case with the Sioux helicopter, which Mr O'Keefe noted was a slow aircraft and one which was required to fly at quite a low level.
In relation to the armament of Sioux helicopters, Mr O'Keefe noted that by the time of Mr Henderson's service in Vietnam, this helicopter was unofficially modified to carry M60 machine guns, while the underwing pods on the Cessnas were used when needed to carry high explosive rockets, rather than normal smoke rockets for marking targets.
Finally, in relation to Mr Henderson's duties in Vietnam, Mr O'Keefe reported that these would have included minor infantry tasks which he has mentioned. Significant in these duties would have been patrols in the areas surrounding the Australian Task Force base at Nui Dat to help maintain its security. Such patrols consisted of up to 12 men, who would rove as far as four kilometres from the base and could be away for periods of two days. Task Force units had to mount two to four such patrols per month. Mr O'Keefe concluded that it was highly likely that Mr Henderson took part in a number of these patrols during his tour of duty in Vietnam. At no time, however, within or outside the base would enemy aircraft have operated over any area in which Mr Henderson served, as the Viet Cong and the North Vietnamese Forces in South Vietnam had no aircraft to use.
SubmissionsMr Dawson submitted in relation to Mr Henderson's alcohol consumption, that he drank heavily in Vietnam as a result of his anxiety and stress experienced there. When Mr Henderson returned to Australia from Vietnam, he continued to consume alcohol to abusive levels at the Sergeant's Mess and also at home. Mrs Henderson's evidence was that it was obvious that Mr Henderson had been drinking when he returned home. Further, Mr Dawson noted Mrs Henderson's evidence that Mr Henderson had, on return from Vietnam, changed to become very moody, anxious, easily moved to temper by the children and generally very irritable.
Considering Mr Henderson's hypertension, Mr Dawson submitted that the date of offset was earlier than 1985, as opined by Dr Richards. Mr Henderson was clearly not hypertensive before Vietnam, Mr Dawson contended and the first test of blood pressure post-Vietnam occurred on 16 November 1971, less than one year after his operational service. That blood pressure reading was 140/90. Mr Dawson submitted that an assessment of the available blood pressure readings indicated that six out of the seven readings of Mr Henderson's blood pressure were indicative of hypertension from November 1971. Mr Dawson noted that the determination of blood pressure on 17 December 1984 of 130/80 was not an accurate determination of hypertension as defined in the Statements of Principles at paragraph 4 of Instrument Number 83 of 1995. That blood pressure reading was taken lying down when the requirement was, unless certain circumstances were evident such as being elderly or diabetic, which was not the case for Mr Henderson, that the blood pressure reading should be taken in a seated position. The only other non-hypertensive blood pressure reading was 130/85, taken on 25 February 1983.
Mr Dawson submitted that supported by the weight of evidence, Mr Henderson had blood pressure readings indicative of hypertension as early as November 1971 and throughout 1980 until 1985, when records note hypertension. Therefore, the opinions of Dr Richards and Dr Anderson that Mr Henderson had labile hypertension were not supported by the facts. In so submitting, Mr Dawson referred the Tribunal to an extract from the Macquarie Dictionary 3rd Edition, which defines "labile" as;
"1. apt to lapse or change; unstable; lapsable…"
Thus Mr Dawson concluded that, as Mr Henderson's blood pressure readings between November 1971 and 1985 were, apart from two readings one of which was not accurately measured, consistently equal to or above the diastolic and/or systolic reading defined as hypertension, then Mr Henderson suffered from hypertension much earlier than 1985.
Referring to Dr Anderson's opinion, Mr Dawson submitted that the blood pressure readings between 1971 and 1985 were not indicative of labile hypertension and on the balance of probability indicated hypertension. Dr Richards reported that Mr Henderson's blood pressure did not exceed 140/90, but in fact the test in the Statement of Principles refers to the systolic and diastolic readings being greater than or equal to 140mmHg and 90mmHg respectively. Thus Dr Richards was not applying the definitional requirement of the relevant Statement of Principles. Clearly, there had been readings from 1971 onwards where Mr Henderson's systolic and/or diastolic blood pressure readings were equal to or greater than the required definitional standard.
Having submitted that Mr Henderson had hypertension prior to 1985, Mr Dawson considered the relevant factor in the Statement of Principles concerning Hypertension, Instrument Number 83 of 1995. Factor 1(b) which states:
"(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;…"
Mr Dawson submitted that Mr Henderson has a war-caused alcohol abuse condition and his circumstances met factors 1(a) and (b) of the Statement of Principles concerning psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994. Factors 1(a) and (b) state:
"(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; …"
"Psychiatric Condition" is defined in the Statement of Principles as any psychiatric illness which attracts a diagnosis under DSM-IV and "psychoactive substance abuse or dependence" means:
"…a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);…"
"Stressful event" means:
"… an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
Dealing with the definitional requirements of alcohol abuse, Mr Dawson submitted that Mr Henderson clearly had and continues to have a maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, thereby satisfying the diagnostic criteria as detailed in DSM-IV. Mr Henderson was using alcohol continuously during his Vietnam service. He has consistently reported having blackouts and this has been confirmed in Dr Keshava's report. Mr Henderson continued to use alcohol abusively, despite knowledge of it impairing his health and probably his promotion. There was also an impact on his family, as described by Mr Henderson and Mrs Henderson in her evidence. Mr Dawson submitted that Mr Henderson was using alcohol to self-medicate. The fact that Mr Henderson reduced his alcohol intake for some period, particularly in the early 1990's, did not mean that his alcohol abuse problem had ceased, Mr Dawson submitted. Mr Dawson contended that there was less money available to purchase alcohol and further, it was highly probable that Mr Henderson's alcohol abuse problem was in remission. Mr Dawson further referred the Tribunal to the Macquarie Dictionary definition of "remission" which states:
"… 7. a temporary decrease or subsidence of manifestations of a disease."
The Tribunal was further referred by Mr Dawson to DSM-IV in relation to substance abuse and dependence and the various clinically recognised types of remission. Mr Dawson submitted that Mr Henderson's reduction of alcohol post-Vietnam did not mean therefore that his substance abuse problem had ceased, but rather, that he was in remission. The diagnosis of alcohol abuse was still accurate as the condition was still present, developed as a result of Mr Henderson's operational service. Mr Dawson used the analogy of an alcoholic attending Alcoholics Anonymous and the acknowledgment that an alcoholic was always an alcoholic, despite abstention from alcohol consumption.
Referring to Dr Skinner's opinion, Mr Dawson submitted that Dr Skinner did not refer to the required definitions in the Statement of Principles for Psychoactive Substance Abuse or Dependence. Mr Dawson contended that Dr Skinner failed to formally recognise Mr Henderson's maladaptive use of alcohol, despite her referring to his continued use of alcohol in circumstances where he had knowledge of its detriment and medical warnings of the harm it could cause him. Further, Dr Skinner did not refer to alcoholic blackouts, nor did she conclude, having discussed Mr Henderson's family problems and general social withdrawal, that there was any link between such behaviour and alcohol abuse. Mr Dawson submitted that the alcohol induced arguments between Mr Henderson and Mrs Henderson provides yet another example of Mr Henderson's maladaptive use of alcohol.
Dr Anderson noted that Mr Henderson drinks too much, yet did not seem able to conclude that such excessive alcohol consumption related to an alcohol abuse or dependence problem, Mr Dawson submitted.
The Respondent, in submissions, challenged whether Mr Henderson was consuming to the level of 24 cans of beer in Vietnam. Mr Dawson submitted that the Respondent had not challenged Mr Henderson during the hearing on this point and therefore Mr Henderson's evidence should stand as unchallenged.
Mr Dawson concluded that a maladaptive pattern of alcohol consumption occurred in Vietnam as a result of stressful service there and continued post-Vietnam, at least until the accurate determination of hypertension, which occurred between 1971 and 1985 at the latest.
Turning to the various factors in the Statement of Principles for Psychoactive Substance Abuse or Dependence, Mr Dawson submitted that Mr Henderson met factor 1(a), in that he experienced a stressful event prior to the clinical onset of psychoactive substance abuse which, Mr Dawson submitted, occurred during Mr Henderson's Vietnam service. The stressful event relied upon by the Applicant was the firing by the enemy at the Sioux helicopter. Mr Henderson's evidence in relation to this incident is supported by the report of historian, Mr O'Keefe, Mr Dawson further submitted.
Mr Dawson also submitted that Mr Henderson had an accepted war-caused psychiatric condition of generalised anxiety disorder prior to the clinical onset of psychoactive substance abuse in the form of alcohol abuse. Mr Dawson contended that Mr Henderson self-medicated with alcohol to try and deal with his feelings of anxiety and stress arising out of his Vietnam experience and the onset of his generalised anxiety disorder.
Thus, there were two reasonable hypotheses raised, that Mr Henderson had a war-caused psychoactive substance abuse condition as a result of either a stressful event he experienced in Vietnam, or as a result of his war-caused psychiatric condition. Mr Dawson submitted that there were no facts to disprove these reasonable hypotheses beyond reasonable doubt and in such circumstances the Tribunal should determine that Mr Henderson had a war-caused alcohol abuse problem.
If the Tribunal determined that Mr Henderson had a war-caused alcohol abuse problem then factor 1(b) of Instrument Number 83 of 1995 concerning Hypertension is met, in that Mr Henderson suffered from psychoactive substance abuse involving the daily consumption of alcohol before, or continuing at least, until the accurate determination of hypertension, Mr Dawson submitted.
Thus, in relation to Mr Henderson's entitlement matters, Mr Dawson submitted that the Board's decision of 14 July 1999 should be set aside and in substitution the Tribunal should determine that Mr Henderson has a war-caused condition of generalised anxiety disorder and alcohol abuse, with effect from and including 19 December 1997. Further, the Commission's decision of 14 February 1998 should be set aside by the Tribunal and a decision substituted that Mr Henderson has a war-caused condition of hypertension with effect from 1 September 1997.
Turning to the issue of assessment, Mr Dawson submitted that all the evidence provided supported the following ratings from Chapter 4 of the Guide:
"10 (Table 4.1) + 10 (Table 4.2) + 6 (Table 4.4) + 6 (Table 4.6) + 6 (Table 4.7) = 38 points"
In relation to chronic solar skin damage, Mr Dawson submitted that the appropriate rating from Table 11.1 is 5 points.
A combination of 38 points and 5 points provides a combined impairment rating under Scale 18.1 of 41 points rounded to 40 points, which then converts to a degree of incapacity from Scale 23.1 of 70 per cent, with a lifestyle of 3 points from the shaded area of Scale 23.1.
With a Disability Pension at 70 per cent of the General rate, Mr Henderson has met one of the criteria for qualification for an earnings related pension at the Intermediate rate. Mr Dawson submitted that Mr Henderson is unable to work more than 20 hours per week, he has suffered loss of remuneration and because of his war-caused disabilities alone, he is unable to work full-time. The fact that Mr Henderson continues to work is to his credit, Mr Dawson asserted, but he has had to moderate his working situation because of his inability, with a generalised anxiety disorder preventing him from working any more than three or four hours per day, on three or four occasions each week. Thus, Mr Dawson concluded his submissions by contending that Mr Henderson is qualified to receive the Intermediate rate of pension.
Ms Pacey, representing the Respondent, submitted that in relation to Mr Henderson's hypertension, he did not have hypertension recorded at the time of his discharge from the Army in early 1985. While Ms Pacey acknowledged there were some blood pressure readings before 1985 which might have indicated hypertension, Ms Pacey submitted that at best such fluctuations of recordings indicated labile hypertension and this contention was supported by the opinions of Dr Richards and Dr Anderson.
Ms Pacey further submitted that Mr Henderson did not have a war-caused alcohol abuse or dependence problem, as was determined by the Board. While the Respondent accepted that Mr Henderson drank heavily in Vietnam, it did not accept that he consumed alcohol to the level of 24 cans of beer per day. Ms Pacey questioned the veracity of Mr Henderson's evidence on this point.
Ms Pacey referred the Tribunal to the definition of "abuse" from the Oxford Paperback Dictionary, Australian Edition, which included "misuse" or "to make a bad or wrong use of". Further, the Oxford Paperback Dictionary defined "dependent" as "unable to do without". Ms Pacey stated that, not withstanding the restrictive definitions of alcohol abuse and dependence as contained in DSM IV, Mr Henderson did not even meet the ordinary dictionary meaning of abuse or dependence.
Further, Ms Pacey contended that Mr Henderson had not been in trouble with the law as a result of his alcohol consumption, there had been no alcohol related occupational problems and he was able to control his actions while drinking, for example, by not driving following alcohol consumption. Further, Mr Henderson's evidence is that he had been able to cope with work and his alcohol consumption. While the Respondent accepted that Mr Henderson had and has a difficult family life at times, there is nothing arising out of this to suggest he had a maladaptive pattern of alcohol use, nor that the problem continued. To support her contention, Ms Pacey submitted that the Tribunal should note Mr Henderson's history of alcohol consumption, commencing in 1964 with a history of consuming two or three cans of beer less than once per week. In January 1967, the level of consumption remained at two or three beers once or twice per week and in July 1968, the consumption was two or three beers less than once per week. In January 1970, from the time Mr Henderson was in Vietnam, he states that he drank between 12 and 24 cans of beer per day, this higher amount not being accepted by the Respondent. In January 1971, the level of beer consumption was reduced to four or six cans of beer, three or four times per week and then in 1976 in the Sergeant's Mess, twice per week at the level of four drinks and during the week a carton of beer per week containing 24 cans.
Ms Pacey submitted that Mr Henderson's alcohol consumption rose and fell according to his life and work circumstances. This submission was supported by Mr Henderson's current level of alcohol consumption depending on what has happened during his day.
Further, Ms Pacey noted that the majority of the medical evidence pointed to no alcohol abuse or dependence problems. There is no evidence of any alcohol-related medical problems, Ms Pacey submitted, concluding that there could be no war-caused alcohol related links to Mr Henderson's hypertension.
In relation to the Applicant's submission on the assessment of the correct rate of pension, Ms Pacey conceded that Mr Henderson's solar skin damage should be rated at 5 points from Table 11.1 of the Guide. The Board's assessment under Chapter 4 for Mr Henderson's generalised anxiety disorder remained appropriate at 14 points, Ms Pacey contended. Thus a combined impairment rating of 18 points was reached from Scale 18.1. The final rate of pension would remain at 40 per cent of the General rate using the combined impairment rating, with a lifestyle of 2 points from the shaded area of Scale 23.1. Therefore the Board's decision should be affirmed, that the correct rate of Mr Henderson's Disability Pension is 40 per cent of the General rate. Given this level of Disability Pension, Mr Henderson is not qualified for payment of an earnings-related pension at the Intermediate rate.
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, legislation and case law. The Tribunal is required to determine a number of issues, namely whether or not Mr Henderson has entitlement to Disability Pension for a war-caused alcohol abuse or dependence condition and/or hypertension. Further, the Tribunal must determine the correct rate of pension payable to Mr Henderson.
At the outset the Tribunal finds that Mr Henderson was a credible witness, as was noted by the Board in its decision of 14 July 1999 (T2 – N1999/1554).
Turning to the issue of whether or not Mr Henderson has a war-caused condition of alcohol abuse or dependence, the Tribunal notes the steps set out in Deledio v Repatriation Commission (1997) 47 ALD 261. The Tribunal first examined whether a general hypothesis is raised pursuant to subsection 120(3) of the Act. The hypothesis put by Mr Dawson is that Mr Henderson suffers from a war-caused alcohol abuse problem as a result of his service in Vietnam, and that this condition occurred as Mr Henderson self-medicated himself for his generalised anxiety disorder with alcohol to an abusive level. In addition, Mr Dawson submitted that Mr Henderson experienced at least one stressful event arising out of his being in a helicopter which was shot at and which sustained shrapnel damage. These hypotheses are not fanciful or unrealistic and accordingly, the Tribunal turned to consideration of the Statement of Principles, Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence, to ascertain whether or not a reasonable hypothesis could be raised. The factors relied on by Mr Dawson are factors 1(a) and (b) as detailed above.
Mr Henderson has a war-caused generalised anxiety disorder arising out of his service in Vietnam. He also experienced a stressful event in Vietnam as described above and accordingly, the Tribunal finds that factors 1(a) and (b) are met and a reasonable hypothesis has been raised. The Tribunal turns to the application of subsection 120(1) of the Act, to determine whether it is satisfied beyond reasonable doubt that there are sufficient facts to support the raised hypothesis.
As has been determined, the Tribunal finds that Mr Henderson was a credible witness. His evidence was straightforward and consistent. The Tribunal further found that Mrs Henderson's evidence was unembellished and truthful. The Tribunal accepts that Mr Henderson drank to an abusive level in Vietnam, and this level of consumption occurred as a result of the stress he experienced there and as a result of his self-medicating on beer to try and deal with the stress and anxiety he experienced. The Tribunal notes that Mr Henderson reduced his alcohol consumption on return from Vietnam. The Respondent has contended that this reduction in alcohol consumption is not indicative of an alcohol abuse problem. The Respondent further contended that Mr Henderson could control his alcohol consumption and that this would rise or reduce according to the circumstances operating in Mr Henderson's life at any particular time. The Tribunal has gained some guidance in the matter by reference to Borrett v Repatriation Commission [2000] FCA 1829, in which the Federal Court found that the pressure of Mr Borrett's work may well have been a contributing factor to the veterans' drinking problem, but that this did not preclude that veterans' war-service from being a cause in the increase in his use of alcohol. In Mr Henderson's case, the Tribunal considers that his lack of finances was an objective reason for the reduction in alcohol consumption, but nevertheless did not diminish the fact that there was an alcohol abuse problem present.
The Tribunal notes Dr Skinner's and Dr Anderson's opinions that Mr Henderson did not have a war-caused alcohol abuse problem. Dr Skinner stated that there was no evidence of medical problems as a result of Mr Henderson's consumption of alcohol, yet there is evidence provided by Mr Henderson as accepted and confirmed by Dr Keshava, that Mr Henderson has suffered from blackouts, short term memory impairment and a lack of insight into his alcohol abuse problem. Dr Skinner noted in her report family problems and general social withdrawal, but did not consider whether or not these problems were alcohol related. Dr Anderson in his report of 3 December 1999, noted that Mr Henderson's alcohol consumption is "a bit excessive", but does not seem to consider or evaluate the reasons behind this excessive alcohol use. In contrast, Dr Keshava, Mr Henderson's treating Psychiatrist, notes Mr Henderson's lack of insight. The Tribunal also notes and accepts evidence that in 1985, Mr Henderson's local doctor urged Mr Henderson to reduce or cease his alcohol consumption, as this excessive level of alcohol consumption was detrimental to his then diagnosed condition of hypertension.
Dr Richards' view of alcohol abuse or dependence is that it was not present in 1985 at the time of determination of hypertension, but he is silent as to whether there ever was an alcohol abuse or dependence problem prior to 1985 or subsequently.
The Tribunal prefers the evidence of alcohol abuse as provided by Dr Keshava. Dr Keshava has been treating Mr Henderson since April 1998 and has a good understanding and insight into Mr Henderson's problems gained over a period of treating Mr Henderson. The Tribunal is confirmed in its finding that on the facts and evidence available to it, there is a history of alcohol abuse which has occurred since 1971, as a result both of having a generalised anxiety disorder and experiencing a stressful event. The fact that Mr Henderson reduced his alcohol consumption on return from Vietnam does not diminish the Tribunal's view that Mr Henderson had and continues to have, an alcohol abuse problem. There are cogent reasons for reduction, for example, the reduction of funds and indeed, the Tribunal considers that there may well have been remission of his symptoms as discussed in DSM IV. It is also quite likely that because of the threat of retrenchment or pressure of work, Mr Henderson's alcohol consumption increased. However, in the Tribunal's view, the contribution to Mr Henderson's alcohol abuse problem post-service by non service related reasons, must take into account the genesis of his alcohol abuse problem on service, arising out of the stressful event(s) and his war-caused general anxiety disorder. The Tribunal finds that alcohol abuse commenced as a consequence of Mr Henderson's psychological disturbance caused by his war time experience, which then produced a maladaptive pattern of alcohol use which has continued throughout his life. As required by the relevant Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994, the Tribunal determines that the facts support a finding that Mr Henderson continued the use of alcohol, despite having persistent or recurrent social, family, psychological and physical problems, such as blackouts and memory problems. The reduction, or indeed the increase in alcohol consumption from time to time after service, does not disprove beyond reasonable doubt the existence of a war-caused alcohol abuse problem as a result of generalised anxiety disorder and/or a stressful event.
Therefore, on all the evidence, the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Henderson's condition of alcohol abuse is war-caused. Thus, the Tribunal sets aside the decision of the Board of 14 July 1999 and substitutes its decision that Mr Henderson suffers from the conditions of generalised anxiety disorder and alcohol abuse and that these conditions are war-caused, as defined in section 9 of the Act. The Tribunal further decides that pension is payable pursuant to section 13 of the Act from and including 19 December 1997.
Turning to the issue of the appropriate assessment of Mr Henderson's accepted conditions of generalised anxiety disorder and alcohol abuse and chronic solar skin damage, the Tribunal considers the following ratings appropriate.
Generalised Anxiety Disorder and Alcohol AbuseIn relation to generalised anxiety disorder and alcohol abuse, this condition is rated under Chapter 4 of the Guide.
Table 4.1, Subjective Distress – 10 points. The Tribunal considers that Mr Henderson has frequent symptoms causing moderate distress and is often unable to distract himself. He experiences feelings of anxiety, nightmares, sleeplessness and anger. The Tribunal does not consider that the evidence suggests a level of distress as covered by the higher rating of 15 points.
Table 4.2, Manifest Distress – 6 points. The Tribunal considers that Mr Henderson's distress is apparent and is noticeable to astute observers. Mr Henderson consumes alcohol excessively, is sometimes aggressive and cannot deal with crowds and queues. He is, however, able to follow a conversation and organise his environment without obvious distress to suit his particular needs.
Table 4.3, Functional Effects - 2 points. The Tribunal considers that Mr Henderson has a moderate interference with his ability to function in some every day situations. He avoids crowds and queues and does not like confined spaces. He is, however, able to care for himself and Mrs Henderson is not concerned about him being alone and looking after himself when she is at work. Mr Henderson is able to deal with his personal hygiene, use electrical appliances, find his way around and drive his car.
Table 4.4, Occupation – 5 points. Mr Henderson is working but has had to modify his employment to suit his psychiatric condition. He is able to organise his business and work at a controlled pace.
Table 4.5, Domestic Situation – 5 points. There is continual conflict with family members, although the family and in particular, Mrs Henderson, remain supportive to Mr Henderson. The possibility of estrangement or divorce is unlikely.
Table 4.6, Social Interaction – 5 points. The Tribunal considers that Mr Henderson does suffer from a substantial reduction in his social interaction. His relationships are mainly with his family, although he does see friends on rare occasions. He is able to interact with people in a business sense, as required by his electrical business. The Tribunal notes, however, Mrs Henderson's evidence that whenever she is out with Mr Henderson, there is concern as to how he will interact with people and whether or not there may be aggressive outbursts.
Table 4.7, Leisure Activities – 3 points. Mr Henderson has had a significant reduction in his leisure activities. He sees his friends rarely, but does go out once a month for dinner with his wife. He is able to participate in holidays and most recently was about to embark on a holiday to Tasmania with his wife. Mr Henderson does not attend cricket or rugby matches and does not play sport. His main leisure activities include watching television, reading occasionally and very rarely undertaking some woodwork
Table 4.8, Current Therapy – 3 points. Mr Henderson does not take psychotropic medication, but does from time to time take "Normison" to assist him in sleeping. Mr Henderson has regularly attended counselling with his treating psychiatrist, Dr Keshava and self-medicates with alcohol.
The final rating for generalised anxiety disorder and alcohol abuse is;
10 + 6 + 5 + 5 + 5 =31 points
Chronic Solar Skin Damage
The Tribunal considers that the correct rating for this condition from Table 11.1 is five points, to reflect the Medical Impairment Assessment of Dr N Rasiah on 30 April 1998 (T6, p51a – N1999/1554).
The combined impairment rating from Scale 18.1 is 34 points, rounded to 35 points. A combined impairment rating of 35 points with a lifestyle rating from the shaded area of Scale 23.1 of 3 points, produces a Disability Pension at 60 per cent of the General rate, with effect from and including 19 December 1997. The Intermediate rate of pension is not payable as Mr Henderson does not meet the qualifying criteria contained in section 23 of the Act.
The Tribunal next turns to consider whether Mr Henderson has a war-caused condition of hypertension. Mr Henderson currently suffers from hypertension, which according to Cardiologist, Dr Richards, had its onset in 1985. The general hypothesis put by Mr Dawson is that Mr Henderson's hypertension was caused by a war-caused alcohol abuse problem. In such circumstances, the Tribunal considers the relevant Statement of Principles for Hypertension, Instrument Number 83 of 1995. Factor 1(b) deals with suffering from psychoactive substance abuse involving the daily consumption of alcohol, before, and continuing at least until, the accurate determination of hypertension. Mr Dawson's contention on behalf of the Applicant is that the accurate determination of hypertension occurred prior to 1985 and was more likely to be around the period 1971. The Tribunal has already found that Mr Henderson has a war-caused alcohol abuse condition, which had its onset soon after Mr Henderson's completion of his operational service in Vietnam in 1971. Certainly, there are a number of blood pressure readings indicating hypertension prior to 1985.
While the Tribunal accepts that Dr Richards may not have applied the definition in the Statement of Principles concerning the determination of hypertension and Mr Henderson suffered hypertension earlier than 1985, the difficulty however for Mr Henderson is that the Statement of Principles requires a level of alcohol abuse which is manifested by drinking on a daily basis. Mr Henderson's consistent evidence in relation to the period between 1971 and 1985, is that his drinking was at various levels of consumption a number of times per week. The consistently provided evidence does not suggest a daily consumption of alcohol. Accordingly, the Tribunal finds that the evidence of this case does not meet the level of alcohol consumption as required by factor 1(b) of Instrument Number 83 of 1995. Thus in terms of subsection 120(3) of the Act, the Tribunal finds that the material does not raise a reasonable hypothesis. It follows that the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Henderson's hypertension was war-caused.
Accordingly, in all the circumstances the Tribunal must affirm the Commission's decision of 14 February 1998, thus deciding that Mr Henderson's condition of hypertension is not war-caused.
For all the reasons set out above and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review in relation to hypertension (N1999/879), and in relation to the Board's decision of 14 July 1999 concerning generalised anxiety disorder (N1999/1554), sets that decision aside and substitutes the decision that generalised anxiety disorder and alcohol abuse are war-caused conditions. Disability Pension is assessed at 60 per cent of the General rate, with effect from and including 19 December 1997.
I certify that the 119 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed: ..........………...................................................................
Stella Vaughan, AssociateDate of Hearing 8 February 2001
Date of Decision 11 May 2001
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant RL Whyburn and AssociatesSolicitor for the Respondent Ms G Pacey, Department of Veterans' Affairs