Hoogkamer and Repatriation Commission
[2003] AATA 1318
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1318
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/568
VETERANS’ APPEALS DIVISION ) Re HARRY HOOGKAMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date22 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether applicant’s conditions were caused by his war service – PTSD – generalised anxiety – depressive disorder – alcohol abuse / dependence – diagnosis – whether applicant has suffered a severe stressor – whether reasonable hypothesis established
Veterans’ Entitlements Act 1986, ss 9, 120, 120A, 196B
Stoddart v Repatriation Commission [2003] FCA 334
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Re Cranage and Repatriation Commission [2000] AATA 1119
Re Mulvaney and Repatriation Commission [2000] AATA 535
Re Budworth and Repatriation Commission [2000] AATA 127
Repatriation Commission v Deledio (1998) 83 FCR 82
O’Neil v Repatriation Commission (2001) 24 AAR 290
Re Hyland and Repatriation Commission [2003] AATA 597
Re Hurn and Repatriation Commission [2001] AATA 907REASONS FOR DECISION
22 December 2003 Mr O.Rinaudo, Member 1. This is an application by Harry Hoogkamer (“the applicant”) for a review of a decision of the Veterans’ Review Board, dated 8 June 2001, which determined that the applicant suffers from generalised anxiety disorder with alcohol dependence, and not from post traumatic stress disorder (“PTSD”). The Board found that the applicant’s generalised anxiety disorder with alcohol dependence was not causally related to his eligible service within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (“the Act”). In reaching that decision, the Board varied a decision of the Repatriation Commission, dated 20 October 2000, which had refused the applicant’s claim for PTSD.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and documentary evidence as follows:
§Exhibit 2 Applicant’s statement dated 16 November 2001
§Exhibit 3 Applicant’s supplementary statement dated 13 May 2002
§Exhibit 4 Report of Dr Brian Kimbell dated 24 June 2002
§Exhibit 5 Report of Dr Mulholland dated 26 March 2002
§Exhibit 6 Transcript of Veterans’ Review Board proceedings
§Exhibit 7 Report of Professor John McCarthy dated 2 July 2002
3. The applicant was represented by Mr A Harding of Counsel and the respondent was represented by Mr J Stoner, a Departmental Advocate. The applicant gave oral evidence, as did Professor McCarthy.
4. The applicant’s non-service related disabilities are:
§Generalised anxiety disorder with alcohol dependence;
§Alcohol dependence or alcohol abuse; and
§Acoustic neuroma.
5. The applicant was born on 5 September 1948. He served as a National Serviceman in the Australian Army from 22 April 1970 to 9 December 1971, including operation service in Vietnam from 10 November 1970 to 7 October 1971.
6. The applicant served in 1 Psychological Operations Unit where he was involved in printing photographs and statements of captured or defected Viet Cong onto leaflets. This propaganda material was then distributed over the countryside from an Iroquois helicopter. The applicant was sent on trips in the helicopter to distribute these pamphlets.
7. There is no disagreement that the applicant’s “emotional and behavioural problems” are symptomatic for the psychiatric conditions of PTSD, alcohol abuse or dependence, generalised anxiety disorder and depressive disorder. The issue for the Tribunal is whether any of these conditions were caused by the applicant’s war service.
Legislative Framework
8. Section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) provides that an injury or disease is war-caused if the injury or disease resulted from an occurrence which occurred whilst the veteran was rendering operational or eligible war service.
9. The applicant contends that he experienced a severe stressor during his operational service in Vietnam, which has caused his psychiatric conditions and alcohol dependence. In order to succeed in his claim for pension, the applicant must demonstrate that there is a reasonable hypothesis connecting his condition with his war service. Section 120 of the Act states that where such a reasonable hypothesis has been established, the Tribunal must determine that the condition is war caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
10. In determining the reasonableness of a hypothesis, section 120A(3) provides:
“(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.”
11. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides the Authority with the power to determine Statements of Principles in respect of injuries, diseases or death, setting out the factors which must as a minimum exist before it can be said that an injury, disease or death was caused by a veteran’s war service.
12. The RMA has, pursuant to section 196B(2) of the Act, determined Statement of Principals (“SoPs”) in respect of PTSD, alcohol dependence or alcohol abuse, generalised anxiety disorder and depressive disorder. The relevant SoPs in this matter are:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
§Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
§Generalised Anxiety Disorder – Instrument No 1 of 2000
§Depressive Disorder – Instrument No 58 of 1998
13. In relation to Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999) (PTSD), the applicant has indicated that he relies on factor 5(a) of the SoP, which relevantly provides:
“(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …”
14. The SoP defines the phrase “experiencing a severe stressor” as meaning:
“…the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence”
15. The test to be applied, when considering whether an event amounts to a severe stressor, was stated by Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334 at paragraph 55, as follows:
“In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or threat to physical integrity, of the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.”
16. In relation to Instrument No 76 of 1998 (Alcohol Dependence or Alcohol Abuse) the applicant relies on the following factors:
“5. (b) experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; …”
17. The applicant relies on factor 5(a)(ii) in relation to Instrument No 1 of 2000 (Generalised Anxiety Disorder), which provides:
“(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or…”
18. In relation to Instrument No 58 of 1998 (Depressive Disorder), the applicant relies on the following factors:
“5. (b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; …”
19. The term “experiencing a severe psychosocial stressor” is defined in the SoPs as meaning:
“…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.”
Applicant’s Evidence
20. In his written statement dated 16 November 2001 (Exhibit 2) and his supplementary statement dated 13 May 2002 (Exhibit 3), the applicant described dropping propaganda leaflets from Iroquois helicopter’s during his operational service and which he contends has resulted in him experiencing a severe stressor.
21. In his statement dated 16 November 2001 the applicant described the experience as follows:
“2.The leaflet drops were terrifying experiences and I was stressed and in fear of my life.
3.We used to load the helicopters quickly, fill them up with boxes of leaflets and jump in.
4. I never remember that anyone was ever strapped in at all.
5.I was never told or ordered to strap myself in. No-one ever advised or encouraged me to strap myself in. I don’t remember seeking any straps.
6.I was always alone apart from the gunners and I never noticed that they had any straps.
7. Things happened very quickly. I would jump in the middle of the helicopter and do what everyone else did. The copter was full of boxes and you could not even see much of anything in the copter. I could not even tell you if there were straps in there.
8. Even if there were straps you would not have been able to use them. They would have been too restrictive. I had to move around and get the leaflets out of the boxes. If I had been strapped in then it simply would have been impossible for me to do my job. You would not have been able to throw the leaflets out of the copter.
9. Other soldiers stood on the edge of the copters when they flew into battle”.
22. In his supplementary statement the applicant further described the experience as follows:
“2. During my time in Vietnam, I was deployed with the psychological operations unit. Whenever an enemy soldier surrendered, a statement and picture were taken on him after he was interrogated.
3. This would them be printed up onto flyers.
4. This propaganda was designed to encourage the Viet Cong to surrender.
5. I would have to go out in the helicopter to distributed these pamphlets. We would fly out to the area where the Viet Cong person had surrendered from. We would fly down very low and the helicopter would start banking on a fairly sharp angle. I would estimate that this would have been at least a 45 degree angle that the helicopter banked to.
6. If you weren’t holding on at this time, you would have fallen out of the helicopter.
7. We had to hold on with one hand and thrown the leaflets out of the helicopter with the other.
8. You would grab a box of leaflets and try to tip it out of the helicopter. No safety harness or other safety equipment was ever provided to me on these trips.
9. I was always absolutely terrified of falling out of the helicopter.
10. I was also aware that we were over enemy territory and could come under attack at any time. I was extremely frightened that this would occur. On both sides of the helicopter there was a manned machine gun and these would not have been there is it had not been an extremely dangerous situation.
11. I was always very glad to get bach unarmed from these trips. However, I was always very very nervous, and still quite shaky when I returned.
12. I would always go and have a few beers after I got back from these trips. On most occasions after the flight, I would get intoxicated.”
23. In his oral evidence the applicant confirmed the contents of his statements. In cross-examination the applicant stated that he occasionally drank before a flight and when he returned went straight to the pub and was drinking between 6 and 8 cans of beer per day. He further stated that when he returned from Vietnam he experienced flashbacks and was consuming considerable amounts of alcohol but never saw a doctor about his drinking or other problems.
Professor McCarthy’s Evidence
24. Professor McCarthy confirmed his report of 2 July 2002 and did not seek to make any amendments, but reiterated that the helicopters were extremely vulnerable to ground fire. He stated that the Viet Cong were extremely aggressive and “loved to have the target practice” and when under attack there was no warning before the helicopter began banking. On one occasion the sudden banking almost resulted in Dr John Mordike, a member of the Royal Australian Regiment, being thrown from the helicopter because he was not restrained.
Submissions
25. Mr Harding for the applicant submitted that all four conditions suffered by the applicant namely, PTSD, alcohol dependence or abuse, generalised anxiety disorder and depressive disorder were causally related to the applicant’s service in Vietnam as required by section 9 of the Act.
26. It was submitted that the applicant meets factor 5(a) of Instrument No 3 of 1999 (PTSD), namely experiencing a severe stressor, and therefore the applicant suffers from war-caused psychiatric conditions. It was further contended that he meets factors 5(b) and (c) of Instrument 76 of 1998 (Alcohol Dependence or Abuse), factor 5(a)(ii) of Instrument No 1 of 2000 (Generalised Anxiety Disorder) and factors 5(b) and (c) of Instrument No 58 of 1998 (Depressive Disorder).
27. The applicant submitted that the definition of “severe stressor” contains three essential elements. Firstly, the applicant must have “experienced”, “witnessed” or been “confronted” with the relevant event. Secondly, the nature of the event and that this requires the event “objectively” involve actual or threatened death or serious injury, or threat to the physical integrity of self or others. Thirdly, the person’s response to the event must have “involved intense fear, helplessness or horror”.
28. With regard to the first element Mr Harding submitted that the applicant had “experienced”, “witnessed” and was “confronted” with the relevant event since there was no suggestion that the applicant was not present during the helicopter flights. In consideration of this element Mr Harding referred the Tribunal to Re Slattery and Repatriation Commission (1998) 52 ALD 90.
29. With regard to the second element, the nature of the event, the applicant submitted that the threat posed to the applicant was the threat of being shot down by the enemy and from the helicopter flight itself. It was submitted that the helicopter missions flew into Viet Cong positions and dropped propaganda leaflets and materials. The propaganda was designed to encourage the Viet Cong to surrender. This material was highly inflammatory to the Viet Cong leadership making the helicopters, which flew at low altitudes, a target to be shot down. It was further submitted that these flights were not ordinary flights involving low level flying and sharp banking without warning when flying in enemy territory. The flights were unsafe and there was a real risk of being thrown from the helicopter because the doors had been removed and there were no safety harnesses. In respect of this element Mr Harding referred the Tribunal to Re Cranage and Repatriation Commission [2000] AATA 1119 and Re Mulvaney and Repatriation Commission [2000] AATA 535.
30. In relation to the third element, the applicant’s objective response to these events, the applicant said he was “absolutely terrified of falling out of the helicopter”, he was “extremely frightened” that he would come under attack and was “very very nervous”. It was submitted that these responses involved intense fear, helplessness or horror.
31. The applicant further submitted that since the definition of “experiencing a severe stressor” was satisfied, factor 5(b) of Instrument No 76 of 1999 (Alcohol Dependence or Abuse) was met, the severe stressor being experienced within two years immediately before the clinical onset of alcohol dependence and abuse. The applicant submitted that prior to participating in the flights in Vietnam he was only a very occasional drinker, consuming 2 to 3 drinks per month. Over the course of his time in Vietnam his drinking habits changed. It was submitted that the applicant drank 4 to 5 cans of beer per day for 3 months, 5 to 12 cans per day for 6 to 7 months and in excess of 12 cans in his last months in Vietnam.
32. Finally, the applicant submitted that factor 5(a)(ii) of Instrument No 1 of 2000 (Generalised Anxiety Disorder) and factor 5(b) of Instrument No 58 of 1998 (Depressive Disorder) are satisfied since the event amounted to a severe psychosocial stressor. It was submitted that the distribution of propaganda leaflets from the helicopter was an identifiable occurrence that evoked feelings of substantial distress in an individual. It was submitted that there was the risk that the helicopter would be shot down by Viet Cong and that the applicant would be thrown from the helicopter.
33. The respondent submitted, that factor 5(a) of Instrument No 3 of 1999 (PTSD) is not satisfied in that the event relied on by the applicant does not objectively constitute “experiencing a severe stressor”. Mr Stoner argued that the stressors themselves must have an objective existence and there is no scope for personal assessment of stressors except in assessing a person’s response to the event. Events that could amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture and incarceration as a prisoner of war or in a concentration camp. In making this submission Mr Stoner referred the Tribunal to Re Budworth and Repatriation Commission [2000] AATA 127.
34. The respondent submitted that there are important predisposing factors in the applicant which would have led to him developing a psychiatric condition, rather than the event relied on in this case. Those predisposing factors include the following:
§he did not expect to be called up for national service;
§having been called up he did not expect to go to Vietnam because of his trade calling as a printer; and
§having been assigned to duty in Vietnam he though that the medical problems that he had developed would preclude him from actually being sent to Vietnam.
35. It was submitted that, as the applicant did not satisfy the definition of “experiencing a severe stressor”, he could not satisfy factor 5(b) of Instrument No 76 of 1998 (Alcohol Dependence or Abuse). With regard to factor 5(c) of this instrument the respondent submitted that this factor is not met on the basis that the applicant began to use alcohol at the time of his service in Vietnam and there is no evidence he was suffering from a psychiatric condition at the time of the clinical worsening of alcohol dependence or abuse.
36. With regard to factor 5(a)(ii) of Instrument No 1 of 2000 (Generalised Anxiety Disorder) the respondent submitted that this factor is not satisfied since the event relied upon by the applicant, namely distributing propaganda leaflets from a helicopter, does not constitute “experiencing a severe psychosocial stressor” within the meaning of the SoP. Further, it was submitted that since the applicant does not satisfy the definition of “experiencing a severe psychosocial stressor” factor 5(b) of Instrument No 58 of 1998 (Depressive Disorder) is not met.
37. The respondent submitted that there were other experiences that qualify as “severe psychosocial stressor” namely:
§In 1972, the applicant was involved in a motor vehicle accident in which his (then future) wife was seriously injured, and his sister-in-law killed;
§The applicant’s youngest son has suffered from serious psychiatric illness since 1996; and
§The applicant becomes distressed and frustrated about his hearing loss and has withdrawn from social activities as a result.
Consideration
38. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Full Court of the Federal Court summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Post Traumatic Stress Disorder
39. Before considering whether a reasonable hypothesis has been raised, the Tribunal must be satisfied that a diagnosis of PTSD exists. The Tribunal has had regard to the reports of Dr Cantor dated 15 September 2000, Dr Mulholland dated 26 March 2002 and Dr Kimbell dated 15 March 2001 and 24 June 2002 and, having considered these reports, is of the view that the applicant is not suffering from PTSD.
40. While Dr Cantor was of the view that the applicant suffers from DSM–IV Axis I PTSD, he notes that this is of a mild severity. Dr Mulholland, in his report states that the applicant described symptoms over the years consistent with depressive disorder, PTSD, generalised anxiety disorder and alcohol abuse but emphasised “that these issues all run into each other”. He opined that it was arguable as to exactly what psychiatric conditions the applicant is suffering from. Dr Mulholland considered that the applicant was suffering from PTSD, alcohol abuse or dependence, generalised anxiety disorder and depressive disorder.
41. Dr Kimbell in his report dated 15 March 2001, disagrees with Dr Cantor’s final diagnosis and expresses the opinion that the applicant does not suffer from PTSD. In his report he states:
“Mr Hoogkamer fails the Davidson’s Structured Interview for Post Traumatic Stress Disorder with the first Q. A1: namely ‘Has the subject experienced, witnessed or been confronted with an event or events that involved actual threatened death or serious injury, or threat to the physical integrity of self or others and the person’s response involving intense fear, helplessness or horror’..”
42. Dr Kimbell diagnosed the applicant as suffering generalised anxiety disorder with associated alcohol dependence. The report of 15 March 2001 was generated from two consultations with the applicant of 6 February 2001 and 6 March 2001. Dr Kimbell subsequently saw the applicant on 5 April 2001 and 2 May 2001 (T4 Folio 83) and has remained his treating psychiatrist.
43. In his report dated 24 June 2002, Dr Kimbell elaborates on his diagnosis as follows:
“I would suggest that the psycho-social stressors that Mr Hoogkamer experienced in Vietnam were very significant and led to the development of the anxiety disorder but not of a strong enough degree of actual severity to lead to the production of a Post Traumatic Stress Disorder. I would suggest that the vast majority of people flying in a helicopter, usually at night-time, and throwing leaflets out of anywhere between five and ten boxes and then throwing the boxes out subsequently, whilst not strapped in and fearing that a person could be shot at or fall out of the helicopter, would develop marked psychophysiological symptoms of anxiety.”
44. The Tribunal prefers the report of Dr Kimbell and his diagnosis of generalised anxiety with alcohol dependence. The Tribunal has reached this view on the basis that, as the applicant’s treating psychiatrist, he is in the best position to make an accurate diagnosis.
45. Accordingly, the Tribunal is satisfied, on the balance of probabilities, that the applicant does not suffer from PTSD.
Generalised Anxiety Disorder
46. As stated above the Tribunal is satisfied that the applicant suffers from generalised anxiety disorder. The Tribunal must then consider whether a reasonable hypothesis has been raised by the applicant connecting his war service with his psychiatric condition.
47. The applicant contends that the events involving the helicopter amount to a “severe psychosocial stressor” within the meaning of the SoP. The term is defined in Instrument No 1 of 2000 as meaning:
“…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.”
48. This definition is similar to the definition of “stressful event” considered by the Federal Court in O’Neil v Repatriation Commission (2001) 24 AAR 290. The definition provided that a “stressful event” meant “an occurrence which evokes feelings of anxiety or stress”. In that case North J stated that the decision-maker must look at the experience, which will be something peculiarly personal and dependent upon subjective feelings. His Honour said, at p292:
“…It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open to the SoPs.”
49. Thus, the decision-maker is to be satisfied, to the relevant degree, that there was an identifiable occurrence and that the person experienced substantial distress in reaction to it: see Re Hyland and Repatriation Commission [2003] AATA 597.
50. This approach was taken by Senior Member Kiosoglous in Re Hurn and Repatriation Commission [2001] AATA 907. The Senior Member said that the definition of “experiencing a severe psychosocial stressor” in the SoP should not be considered an exhaustive list but rather is intended to illustrate that the occurrence must objectively be identifiable and must be subjectively cause substantial distress to an individual.
51. The Tribunal is of the view that the distribution of propaganda material in enemy territory from a helicopter at low levels, where the doors and been removed and no safety harness were available would present a risk of being shot down by the Viet Cong or thrown out of the helicopter. The Tribunal accepts that this cause the applicant substantial distress and can be objectively identifiable as causing an individual substantial distress.
52. The issue that remains to be determined by the Tribunal is whether this was a “severe” psychosocial stressor as contemplated by the definition in the relevant SoP.
53. In the context of the definition of “experiencing a severe stressor” the Tribunal in Budworth’s case examined the provisions of the DSM-IV where the manual includes PTSD diagnostic criteria with respect to being exposed to a traumatic event. The Tribunal detailed the author’s comments with respect to traumatic events as follows:
“The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; …
Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness… Witnessed events include, but are not limited to, observing the serious injury or unnatural death of another person due to violent assault, accident, war, or disaster or unexpectedly witnessing a dead body or body parts.”
54. The Tribunal commented on this as follows:
“…the nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective ‘extreme’. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of ‘intense fear, helplessness or horror’. This is an extremely high level of reaction to extremely traumatic stressors.”
55. The grave or serious nature of a traumatic stressor as envisaged by the authors of DSM-IV is analogous to the definition of experiencing a “severe psychosocial stressor” (Tribunal emphasis). The response to the stressor must be more than relief to be out of a perceived dangerous situation or one of general apprehension. Based on the material before it the Tribunal is of the view that the stressor experienced by the applicant is not of the gravity and severity contemplated by the relevant SoP. Accordingly, the Tribunal finds that the applicant’s incapacity did not arise from a war-caused injury.
Alcohol Dependence or Alcohol Abuse
56. In respect of factor 5(b) of Instrument No 76 of 1998, the Tribunal must be satisfied that the applicant “experienced a severe stressor”. The applicant is relying upon the same event as that relied on for his psychiatric conditions. For the same reasons as stated above, while the Tribunal accepts that the event amounts to a stressor, it is not a severe stressor as contemplated by the relevant SoP. Therefore, the Tribunal is satisfied that the applicant does not satisfy factor 5(b) of Instrument No 78 of 1998.
57. With regard to factor 5(c) of Instrument No 78 of 1998, the applicant must be suffering from a service-related psychiatric disorder at the time of clinical worsening of alcohol dependence or abuse. Although the Tribunal accepts that the applicant suffers from a psychiatric disorder, namely generalised anxiety disorder, this incapacity did not arise from a war-caused injury. Accordingly, the applicant does not satisfy factor 5(c) of the relevant SoP.
Depressive Disorder
58. In considering the application of factor 5(b) of Instrument No 58 of 1998, the Tribunal must be satisfied that the applicant has experienced a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. The Tribunal has already determined that the event being relied upon by the applicant does not constitute a severe psychosocial stressor. Therefore, the applicant does not satisfy factor 5(b) of SoP for depressive disorder.
59. With regard to factor 5(c) of Instrument No 58 of 1998, while the Tribunal does accept that the applicant does suffer from a clinically significant psychiatric condition, being generalised anxiety disorder, for the reasons already stated, the incapacity is not a war caused injury. Accordingly, the applicant does not satisfy factor 5(c) of the SoP.
Decision
60. For the reasons stated above, the Tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O.Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 23 January 2003
Date of Decision 22 December 2003
Counsel for the Applicant Mr Harding
Solicitor for the Applicant Gilshenan & Luton
For the Respondent Mr Stoner, Departmental Advocate
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