Hendrie and Repatriation Commission
[2004] AATA 1174
•9 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/84
VETERANS’ APPEALS DIVISION )
Re RONALD THOMAS HENDRIE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date9 November 2004
PlaceRockhampton
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and alcohol abuse or dependence are war-caused within the meaning of the Veterans’ Entitlements Act 1986 with effect from 10 November 2002. The Tribunal remits the matter for assessment of rate of pension. .....................[Sgd].........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – anxiety disorder – alcohol abuse or dependence – whether disease connected to operational service – definition of “severe psychosocial stressor”
Veterans’ Entitlements Act 1986 ss 9, 120, 120A
Repatriation Commission v Deledio (19980 83 FCR 82
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
White v Repatriation Commission [2004] FCA 633
Re Stonehouse and Repatriation Commission [2004] AATA 707
Holthouse v Repatriation Commission (1982) 1 RPD 287
Roncevich v Repatriation Commission [2003] FCAFC 146
Repatriation Commission v Hill [2002] FCAFC 192
Lees v Repatriation Commission [2002] FCAFC 398
Byrnes v Repatriation Commission (1993) 177 CLR 564REASONS FOR DECISION
9 November 2004 Ms M J Carstairs, Member 1. This is an appeal by Ronald Thomas Hendrie (the applicant) for review of a decision of the Repatriation Commission (the respondent) dated 29 April 2003 which rejected the applicant’s claims for post traumatic stress disorder (PTSD) and alcohol abuse or dependence. This decision was affirmed by the Veterans’ Review Board (VRB) on 17 November 2003.
2. At the hearing in Townsville on 5 November 2004 the applicant was represented by Mr D Honchin of counsel, instructed by Purcell Taylor Lawyers and the respondent by Mr J Stoner, a departmental advocate.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and exhibits A1-A3 for the applicant and R1-R3 for the respondent
BACKGROUND
4. The applicant served with the Australian Army from 4 October 1967 to 3 October 1969 after being called up for National Service. He deferred his call-up while he completed his apprenticeship as a chef in Brisbane. After his call-up he undertook general Army training before being allotted to service in Vietnam in the period 3 September 1968 to 27 August 1969. The applicant served as a cook with 161st (Independent) Reconnaissance Flight based at Nui Dat. This period was operational service under the Veterans’ Entitlements Act 1986 (the Act).
5. On 10 February 2003 the applicant claimed for a stress disorder. He had lodged two earlier claims for stress attacks on 30 June 1988 (T4 page 93) and 30 December 2000 (T4 pages 71-72) diagnosed on the basis of medical evidence obtained in the course of the two claims as dysthymic disorder with anxiety/depressive symptoms (first claim) and generalised anxiety disorder (second claim). Two VRB decisions were in the papers before the Tribunal (T4 pages 8-11 and T5 pages 103-110).
6. When the applicant’s third claim (based on a diagnosis of PTSD and alcohol abuse or dependence) was rejected by the VRB on 17 November 2003, the applicant sought review with this Tribunal on 2 April 2004.
EVIDENCE
7. In the first VRB decision the applicant had given evidence about 3 stressful events that occurred in Vietnam. The first of these was when the applicant was travelling in a landrover to Vung Tau when the party stopped to observe the bodies of 4 dead Viet Cong propped by the roadside (the dead VC incident). The second was when he was accompanying a helicopter pilot undertaking a reconnaissance flight over the jungle. The applicant heard what he believed to be ground fire directed at them (the helicopter incident). The third occurrence was during rocket attacks on Nui Dat when he had to urgently take cover in a bunker (the rocket attack incidents). In the claim to which the first VRB decision related, the applicant had referred to the 3 incidents addressed by the VRB as well as a fourth, which he stated as being overnight patrols around perimeter.
8. In his claim dated 4 February 2003 (T4 pages 16-23) the applicant referred only to the rocket attack incidents. However, in a written statement dated 11 October 2004 (exhibit A1) he set out the details concerning the dead VC incident, the helicopter incident and the rocket attack incidents. In oral evidence the applicant expanded on his written statement saying that the rocket attack incidents occurred randomly, sometimes at night, and without any warning. His unit was located beside the airstrip at Nui Dat. He said that when the alert was sounded they would all make a made dash to bunkers; that he was nervous in the course of the alert; and that he was relieved when they were over. He described being very fearful during an incident when he was on picket duty one night (the fireflies incident) when he assumed that what turned out to be the random movement of fireflies were the lights of approaching Viet Cong. He said that he cocked his gun in readiness and was very afraid.
9. The applicant described the dead VC incident in essentially the same terms as were recorded in the 2 VRB decisions. He said he was the most senior of those travelling in the vehicle when they came upon the bodies propped by the roadside as a warning to locals in the area; he did not get out while the others travelling in the party did so. He said that he felt nauseous at the sight of the bodies and he directed that the vehicle travel on rather than stay looking at the sight.
10. In relation to the helicopter incident he said that he was conscious that as the observer on board the helicopter he did not have the benefit of the armour plating that the pilot had under his seat and he was aware that aircraft had been shot down by ground fire. He described their flight at a low altitude over the tree tops in search of possible enemy targets when they heard 2 large cracks. He said both he and the pilot assumed this was gunfire directed at them. The applicant noted in his oral evidence that the pilot brushed the incident aside but the experience was new to him and he said he was terrified. In his written statement he said that when the helicopter returned to base he sat on his bed thinking about the danger they had been in and his hands were shaking. He said he did not volunteer for about another month to go on a reconnaissance flight as he was much more apprehensive. When asked why he had volunteered at all the applicant said he considered that he should be doing something towards the war effort. He said that of the 4 incidents he experienced the helicopter incident was the most frightening and he had similarly described it to those medical practitioners to whom he reported the helicopter incident.
11. In a report dated 23 July 1998 (T4 page 86) Dr G Freed, consultant psychiatrist, said that he examined the applicant at the request of the respondent in relation to a claim for stress to establish what, if any, psychiatric illness was present. Dr Freed referred to the applicant’s post-service history including that he was unsettled when he returned from Vietnam and lived in a tent by the river near Townsville for a period of 9 months. Dr Freed noted that the applicant was very upset that he was not able to return to work as a cook once he came back from Vietnam and harboured significant resentment about how his service had interrupted his career. Dr Freed diagnosed the applicant as having a dysthymic disorder with anxiety/depressive symptoms and likely alcohol dependence, both of which conditions Dr Freed considered were related to the applicant’s Vietnam service.
12. In a report dated 29 March 2001 (T4 pages 60-68) Dr R Athey, consultant psychiatrist, reviewed the applicant in relation to the second claim. He noted that the dead VC incident caused the applicant considerable distress and the applicant stated to him that he felt totally disgusted about it and had experienced nightmares ever since. He stated that the applicant had problems in Vietnam which persisted after he was discharged from the Army. Dr Athey said that the applicant obtained work on a farm where he could stay by himself and contain the situation. Dr Athey considered that the applicant exhibited features of social phobia, but he considered that the diagnosis which best fitted his symptoms was generalised anxiety disorder characterised by excessive anxiety and worry, feelings of restlessness, being on edge, irritability and sleep disturbance.
13. Dr Athey said that he specifically considered whether the applicant had PTSD because the applicant had experienced traumatic events. He said, however, that the applicant did not identify a threat to his own physical integrity or responses of fear or helplessness, and other critical diagnostic elements were absent. He concluded that a diagnosis of PTSD was not warranted. He summarised by stating that the diagnosis of generalised anxiety disorder was closer to the truth and that the applicant, not then receiving psychiatric help, would certainly benefit from receiving such help.
14. In a report dated 7 April 2003 (T4 page 41) Dr M Likely, consultant psychiatrist, said that he had treated the applicant since January 2002. Dr Likely considered that the applicant suffered from PTSD and alcohol abuse. Referring to the dead VC incident and the rocket attack incidents, Dr Likely said that the applicant had reacted with horror to the dead VC incident and with fear and helplessness in the rocket attack incidents. He considered that the applicant re-experienced the traumatic events, was reactive to reminders of Vietnam and showed avoidance behaviour with regard to unit reunions, Anzac Day and commemorative functions. He said the applicant was socially withdrawn, experienced arousal and had difficulty initiating and maintaining sleep, and was prone to anger and irritability.
15. In a report dated 15 October 2004 (exhibit A3) Dr Likely confirmed his original diagnosis of PTSD and addressed the queries raised by other medical practitioners about such a diagnosis. Dr Likely reiterated that the applicant had the necessary level of reaction in the dead VC incident and to the rocket attack incidents. Dr Likely said that the applicant showed symptoms of re-experiencing the traumatic event and of persistently avoiding stimuli associated with the trauma. He also referred to his difficulties with sleep, with concentrating, with irritability, hypervigilence and exaggerated startle response as other features which, he said, supported the diagnosis of PTSD. He said that the applicant had symptoms of the disorder since the time of his service in Vietnam. He said that the applicant’s alcohol abuse dated also from Vietnam as he drank with a specific intention of self-medicating his symptoms of anxiety. He noted in particular that alcohol-related dysfunction was indicated by 2 disciplinary penalties that the applicant incurred during his service in Vietnam.
16. In a report dated 27 August 2004 (exhibit R1) Dr D Alcorn, forensic and occupational psychiatrist, diagnosed the applicant as having an anxiety disorder not otherwise specified in preference to a diagnosis of generalised anxiety disorder. He also diagnosed mood disorder related to alcohol abuse. In his report Dr Alcorn addressed the question of whether the applicant had PTSD.
17. In his oral evidence Dr Alcorn said that the applicant did not appear to exhibit the features of distress in relating any of the incidents that he would expect from someone who has PTSD. He noted that the applicant was not able to remember salient aspects of the incidents that he would expect someone exposed to sufficient trauma would remember. He noted that the applicant regarded the helicopter incident as the most frightening for him but he did not regard him as having had sufficiently acute reactions to it. He did note, however, that the applicant has a subsequent history of being unable to board light aircraft without consuming alcohol. Dr Alcorn said that the applicant reported to him that he was very scared during the fireflies incident, but Dr Alcorn noted the short duration in which the applicant was exposed to that event.
18. In regard to other aspects concerning a diagnosis of PTSD, Dr Alcorn noted that the dreams that the applicant started to experience about 1971 when living in Pilton in NSW did not involve the incidents that had happened to him. There were no dreams of being fired upon or of helicopters, and Dr Alcorn said that the applicant’s sleep disturbance was not of the kind that he would expect with PTSD. He said also there was no strong evidence of avoidance observed with those who suffer PTSD, noting in particular that when the applicant had a retail business in Caboolture and was concerned about dealing with Vietnamese who came to his shop, it was not a reaction of avoidance but of mistrust.
19. Dr Alcorn said there was limited evidence of hyper-arousal or of re-experiencing. He said while PTSD may be of variable intensity in different individuals, those who suffer from PTSD will always demonstrate a degree of specificity with the trauma, which he said was absent in the applicant’s case. Dr Alcorn acknowledged that the applicant may have had an anxiety disorder and alcohol problems during his service in Vietnam.
CONSIDERATION AND ISSUES
20. The parties agreed that the medical evidence supported the applicant suffering from a alcohol abuse or dependence. The Tribunal was reasonably satisfied that the applicant suffers from alcohol abuse because the medical evidence was consistent on this point. However, there was dispute about the characterisation of any other psychiatric condition from which the applicant might suffer. This is the first issue that the Tribunal is required to address and it is a matter which it must address under section 120(4) of the Act, to its reasonable satisfaction.
21. The Tribunal considered the competing evidence concerning whether the applicant suffers from PTSD or, in the alternative, an anxiety disorder. The Tribunal did not have the advantage of hearing from Dr Likely who is the applicant’s treating psychiatrist and who diagnosed the applicant as suffering from PTSD. The Tribunal accepts that he is the one who has the most frequent contact with the applicant. However, when his written reports are considered after hearing the applicant describe his reactions to each of the incidents, and when account is taken that Dr Likely relies only on the dead VC incident and the rocket attack incidents as the bases of possible trauma, the Tribunal was not satisfied that Dr Likely is correct in diagnosing PTSD.
22. There have been a number of opportunities for the applicant to describe his reaction to all of the incidents, including in histories given to medical practitioners, in written claim forms, in evidence before 2 VRB hearings and before this Tribunal. It could not be said that when describing the incidents that the applicant uses terms that accord with the requirement that he experiences a reaction of fear, helplessness or horror. The reaction of the person is a fundamental part of the diagnosis and Dr Alcorn pointed to the deficiencies of the supporting evidence in Dr Likely’s report in this regard. The Tribunal accepts the evidence of Dr Alcorn that there are fundamental features of the applicant’s current symptoms that indicate that he does not have symptoms that are typical of PTSD. The Tribunal accepts the evidence of Dr Alcorn that Dr Likely has mis-diagnosed PTSD in the applicant’s case, where there is no clear evidence that the applicant’s reaction to the incidents at the time was that of fear, helplessness or horror and also taking into account his current symptoms. Dr Athey and Dr Freed are in agreement with Dr Alcorn that the applicant does not suffer from PTSD. The Tribunal accepts the evidence of Dr Athey, Dr Freed and Dr Alcorn that the applicant does not suffer from PTSD.
23. This leaves the question of characterising what psychiatric disorder, if any, that the applicant does suffer. Dr Freed considered the applicant had dysthymic disorder with symptoms of anxiety, mood and sleep disturbance. Dr Alcorn considered that the correct diagnosis was anxiety disorder not otherwise specified though he acknowledged in his oral evidence that the applicant may have had generalised anxiety disorder during his Vietnam service on the basis of the applicant’s evidence before the Tribunal about his symptoms experienced at the time, particularly in regard to the helicopter incident.
24. The Tribunal considers that the written reports of Dr Athey and Dr Alcorn show that the applicant’s predominant symptoms are those of anxiety rather than those of depression as identified by Dr Freed. Dr Alcorn had the advantage of seeing the applicant after he has been on a regime of treatment under Dr Likely’s care, which was not the case when Dr Athey saw the applicant. In the end the subtleties of the diagnosis are not as important as identifying the nature of the condition which, on the basis of accepting Dr Athey’s and Dr Alcorn’s evidence, is an anxiety condition rather than the depressive condition identified by Dr Freed.
25. For both anxiety conditions, one Statement of Principles (SoP) applies, that is, the SoP for anxiety disorder, Instrument No 1 of 2000. For present purposes the Tribunal accepts Dr Alcorn’s diagnosis of anxiety disorder not otherwise specified, whilst noting that his oral evidence acknowledged that the applicant may have had a generalised anxiety disorder at the time of his Vietnam service.
26. The issue in dispute is whether the applicant’s anxiety disorder is related to his service, limited to his operational service, as referred to in s9 of the Act. Section 9 prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(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…
27. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Section 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a SoP determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force a SoP that upholds the hypothesis.
28. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
29. The hypotheses raised by the applicant are -
· that during the helicopter incident the applicant experienced that he was being shot at by the enemy and his response was one of intense fear and helplessness;
· that during the dead VC incident the applicant experienced a macabre event and his response was intense horror;
· that during the rocket attack incidents he experienced intense fear;
· that during the fireflies incident he experienced intense fear;
and that on the basis of any or all of these incidents these were either severe stressors or, for purposes of PTSD, they were severe psychosocial stresses for anxiety disorder. Having excluded PTSD, the issue is confined to anxiety and whether the incidents, or any of them, are severe psychosocial stressors within the definition provided in the SoP for anxiety disorder. The question of alcohol abuse is dealt with separately, below.
30. The four hypotheses reflected factor 5(a)(ii) in the SoP for anxiety disorder which provides as a factor raising a reasonable hypothesis of connection between anxiety disorder and relevant service (s120(3) of the Act), experiencing a severe psychosocial stressor within the two years before the clinical onset of anxiety disorder. Severe psychosocial stressor is defined in the SoP in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
31. The parties referred the Tribunal to Federal Court and Tribunal authorities that provide the interpretation of the test for severe psychosocial stressor:Stoddart v Repatriation Commission [2003] FCA 334, Repatriation Commission v Stoddart [2003] FCAFC 300, White v Repatriation Commission [2004] FCA 633 and Re Stonehouse and Repatriation Commission [2004] AATA 707.
32. Mr Stoner submitted that the applicant’s response to the incidents relied upon were not of such an intensity as to form the basis of the continuing psychiatric condition. He noted that the fireflies incident was no more than 5 minutes in duration and the applicant realised quite quickly that he was not in real danger. Mr Stoner conceded the significance of the helicopter incident taking into account the applicant’s evidence about its impact on him, the Federal Court’s decision in Stoddart and Dr Alcorn’s evidence about the significance of this incident to the applicant. However, Mr Stoner submitted that in the course of the helicopter incident the applicant was acting within his own personal milieu; he referred to the applicant’s presence on the flight as being on a frolic of his own. He submitted that the Tribunal should apply Holthouse v Repatriation Commission (1982) 1 RPD 287 and Roncevich v Repatriation Commission [2003] FCAFC 146 and find that the applicant could not rely at all upon such an incident for any psychiatric condition that arose from it.
33. The Tribunal takes into account that both Mr Honchin and Mr Stoner said the case law supports the proposition that the definition of severe psychosocial stressor concerns an occurrence that objectively is an occurrence that by its nature may evoke feelings of substantial distress in a person exposed to that occurrence and which subjectively evokes those feelings in the particular person: White.
34. After consideration of all evidence the Tribunal accepts that the raised facts point to hypotheses connecting the applicant’s anxiety disorder with the circumstances of his service: Step 1 of Deledio. The Tribunal must then consider whether the hypotheses are consistent with any of the factors set out in the SoP: Step 3 of Deledio. If so, then the hypotheses are deemed to be reasonable.
35. The meaning of experiencing a severe psychosocial stressor was considered in White v Repatriation Commission [2004] FCA 633. The Court said:
…the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.
The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated.
The reference to "experiencing" a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase "experiencing a severe stressor" in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence "that evokes feelings of substantial distress in an individual" also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase "experiencing a severe stressor".
In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
36. In the fireflies incident the applicant believed the lights might be approaching Viet Cong and was expecting the worst but he said 5 minutes and it was all over and that he felt like a bit of an idiot. The applicant also said that he was very much afraid but prepared himself for what was to come. This evidence describes fear briefly experienced but he was also able to carry out what his training led him to do and in the context of a war setting it could not be said that his reactions went beyond what could be described as normal and they do not meet the requirements of showing him in substantial distress. With respect to the rocket attack incidents, the applicant said that he was nervous and he knew he needed to quickly get to a safe position but he did not describe feelings of substantial distress. Taken as a whole, the applicant’s evidence about the rocket attack incidents suggested an even lesser response on his part than to the fireflies incident.
37. In describing the dead VC incident, the applicant spoke of feeling squeamish at the sight of the bloated bodies. Evidence given at other times referred to his feeling curious about what was happening. He was the most senior in the party and ensured that they quickly departed, and they did so. The Tribunal took account of Dr Alcorn’s evidence about the importance of the distinction to be made between something that is horrible and something that is horrifying and, taken as a whole, the applicant’s evidence about his reactions were the expected reactions to something that was horrible to observe.
38. The evidence, taken as a whole, suggests that the helicopter incident, both of its nature and in the applicant’s described reaction to it, was more extreme and meets the definition of severe psychosocial stressor in the SoP for anxiety disorder. The applicant has repeatedly told medical practitioners (apart from Dr Likely) that he found this incident the most frightening. His described reaction suggests feelings of substantial distress. The Tribunal also took into account that he was unable to return to acting as an observer volunteering on these flights, albeit for a relatively short time, and takes into account that Dr Alcorn considered it significant that he is unable to undertake flights on light planes without the assistance of alcohol.
39. In respect of the third step set out by the Federal Court in Deledio, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192. In relation to factor 5(a)(ii) of SoP No 1 of 2000 as raised in this case, it is necessary that the evidence points to an incident that meets the definition of severe psychosocial stressor.
40. A further element of factor 5(a)(ii) is the issue of clinical onset of anxiety disorder. Clinical onset is when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time (Lees v Repatriation Commission [2002] FCAFC 398).
41. Both Dr Likely and Dr Athey have addressed the issue of clinical onset in their reports, and Dr Alcorn considered it in the course of his oral evidence. Both Dr Likely and Dr Athey stated that the applicant’s psychiatric problems dated from the applicant’s Vietnam service. Dr Freed did not diagnosis anxiety disorder but he did consider that the applicant’s psychiatric disability and alcohol dependence were service-related and he refers to symptoms at or about the time. The Tribunal considered that the medical evidence and the applicant’s evidence pointed to the clinical onset of anxiety disorder and alcohol dependence being within 2 years of the applicant’s service.
42. The applicant’s evidence included the history given to Dr Likely that when he returned from Vietnam he was unable to settle and drifted around Australia changing jobs frequently and having lived on the banks of a river in an isolated setting. This history was the same as given to Dr Freed in 1998. Dr Likely stated that the applicant spent approximately 9 months riding up and down the east coast of Australia on a motor cycle and sitting by a river in Northern Queensland for several months. Dr Likely said that he was then able to move on, working in rural occupations as a farm worker but disliked contact with other people and that he had increasing difficulties with anxiety and bad temper. These aspects of the history need to be seen in the context of other stressors that occurred to the applicant at about this time. These included that the applicant’s fiancé broke off their engagement when she met an American serviceman while the applicant was away in Vietnam and also that when he returned he appears to have lost his opportunities with his previous employer to continue his career as a cook.
43. It was not part of the applicant’s case that these were matters that related to his service, despite the fact that they are identified examples of possible severe psychosocial stressors in the definition provided in the SoP for anxiety disorder. In the Tribunal’s view they may be taken into account in suggesting an accumulation of circumstances which, along with the psychosocial stressor in the helicopter incident, contributed to the applicant’s anxiety symptoms at the time. The Tribunal took account of the consistent medical evidence that the applicant had psychiatric symptoms very soon after his return from Vietnam and that there was evidence pointing to symptoms of anxiety immediately after the helicopter incident.
44. Applying the third step in Deledio, the Tribunal formed the opinion that the hypothesis raised by the helicopter incident is reasonable as it is consistent with the template in the SoP for anxiety disorder as it contains factors that are related to the applicant’s service.
45. In regard to the fourth step in Deledio, pursuant to s120(1), after having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s anxiety disorder is war-caused. Under s120(1) the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved inconsistent with those raised by the hypothesis.
46. The applicant’s case rests on the impact which the helicopter incident had and its subsequent effects upon him. The occurrence of the helicopter incident was not seriously disputed by the respondent and was not addressed in historical research undertaken by the respondent. The applicant’s evidence was supported by the evidence of Mr G Engleby (T4 pages 52-54) that the 161st Reconnaissance Flight was undermanned for tasks of visual reconnaissance and that it was usual for all unit personnel to act as observers at the request of pilots if they were off duty. He noted in his supporting letter that there was a readiness to volunteer arising from their pride in assisting their unit and the need for pilots to have an observer with them on a flight. His evidence was consistent with the applicant’s evidence that this routinely occurred. There is no basis for the Tribunal to find that facts supporting the hypothesis are disproved beyond reasonable doubt: Byrnes v Repatriation Commission (1993) 177 CLR 564.
47. With regard to the claim as it relates to alcohol abuse or dependence, the applicant’s evidence and medical evidence points to a significant increase in alcohol consumption during the applicant’s service in Vietnam. The evidence was that he drank to relieve symptoms of anxiety and of stress and that prior to National Service he was below the legal age at the time to consume it as a civilian.
48. Both the applicant and the respondent made submissions about the applicant satisfying the factor at 5(b) of the SoP for alcohol dependence or alcohol abuse, Instrument No 96 of 1998. Satisfying this factor would require that the applicant be able to show that he experienced a severe stressor defined in similar terms to severe stressor in the SoP for PTSD. For reasons outlined above, it would be difficult for the applicant to establish this. However, in the Tribunal’s view the factor that is relevantly raised, on the evidence in this case, is factor 5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. The evidence points to this factor being met on the applicant’s evidence that he was drinking in Vietnam in order to settle his anxiety and his evidence is supported by the medical evidence in this case. The evidence points to him suffering a psychiatric disorder of generalised anxiety disorder that, for reasons given above, is related to his war service.
49. Taken as a whole the applicant has had a pattern a dysfunctional use of alcohol established during his Vietnam service and continued thereafter. The connection of his alcohol abuse or dependence to his service is not disproved beyond reasonable doubt.
50. The Tribunal does not accept Mr Stoner’s submission that the Federal Court authorities of Holthouse and Roncevich apply to disentitle the applicant on this claim. Those decisions deal with defence service and the provisions for defence service are in a different part of the Act. The Tribunal accepts the applicant’s evidence, supported by the evidence of Mr Engleby that it was usual practice in Vietnam for those who are off duty to undertake other duties that went beyond those for which they were specifically allotted. The evidence supported that there was a need for these roles to be filled and there was no evidence that this was not condoned by the applicant’s superiors. Volunteering for additional duties, particularly in a theatre of war, does not take these volunteer activities into the sphere of private activities or into the personal sphere rather than in the line of duty. The Tribunal is reasonably satisfied that the applicant’s actions in agreeing to volunteer as an observer on helicopter reconnaissance missions was an occurrence that happened while the veteran was rendering operational service within the meaning of s9(1)(a) of the Act.
DECISION
51. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s anxiety disorder and alcohol abuse or dependence are war-caused within the meaning of the Act with effect from 10 November 2002. The Tribunal remits the matter for assessment of rate of pension.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 5 November 2004 (Townsville)
Date of Decision 9 November 2004 (Rockhampton)
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Counsel for the Respondent Mr J Stoner, Departmental Advocate
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