Hoopert and Repatriation Commission - [2002] AATA 1304

DECISION AND REASONS FOR DECISION [2002] AATA 1304

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/809

VETERANS' APPEALS DIVISION          )
           Re      GARRY HOOPERT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date17 December 2002
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the following decisions: (a) the condition PTSD is a war-caused disability; (b) the condition Alcohol Abuse is a war-caused disability; (c) the effective date of these decisions is 4 June 2000; (d) assessment of pension is remitted to the respondent; and (e) liberty to apply is reserved to both parties.

……(Sgd) KL Beddoe…..
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – pension – entitlement - whether applicant's conditions are war caused – whether reasonable hypothesis established - assessment
Veterans' Entitlements Act 1986

REASONS FOR DECISION

17 December 2002 Senior Member K L Beddoe

The applicant seeks review of a decision of the respondent which decided that the claimed conditions of Post Traumatic Stress Disorder ("PTSD") and Alcohol Dependency or Alcohol Abuse were not war-caused. That decision was subsequently affirmed by the Veterans' Review Board. The respondent had also decided that disability pension was assessed at 30%. The Veterans' Review Board increased the assessed pension to 40%.
At the hearing Mr Honchin appeared for the applicant and Mr Stoner appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the "T" documents and two further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and Dr Likely, Consultant Psychiatrist.
The applicant was born on 26 April 1949 and was called up under the National Service Act for service in the Army. His Army service included service in South Vietnam from 25 November 1970 to 7 October 1971.
Service in South Vietnam was as a motor mechanic at 2 Advanced Ordnance Depot at Vung Tau working on maintenance of heavy vehicles. He was also required to do sentry duty and patrols. The Ordnance Depot was located within the 1st Australian Logistic Support Group installation at Vung Tau. Within that installation, the Ordnance Depot was situated next to the hospital and the hospital helipad was contiguous to the applicant's working area.
The consequence was that the applicant witnessed medivac helicopters landing at the helipad and discharging wounded soldiers. This activity took place fifty to one hundred metres from the applicant's workplace so that he was unable to recognise faces or see wounds etc, but he did see the injured soldiers on stretchers and attached to drips. The applicant had a clear picture of injured soldiers being evacuated to the hospital. As a consequence he experienced feelings of helplessness in the circumstances.
There is evidence in a report by John Tilbrook about battle damaged vehicles but the applicant does not rely on any reaction to those vehicles being brought to the Ordnance Depot. Rather, he referred to a number of specific incidents.
One of those incidents involved a soldier shooting himself in the foot in the adjoining hut at night time. The applicant apparently apprehended an attack because he "grabbed" his weapon and went outside (it was a dark night) before he realised that the shot had been fired in the adjoining hut and was not fired in hostile circumstances. He witnessed the shot foot which he said had been blown to bits, was badly shaken by the experience and was shaking so badly that he could only just hold a cigarette.
Another incident occurred while the applicant was on guard duty. He was stationed, at night, in a tower on the outer wire when flares lit up the area. His bunker was below the tower so that he was fully exposed while in the tower and the flares were functioning. He heard shooting in the immediate vicinity and became very scared for his personal safety. He discovered some time later that an American solider had "gone troppo", had barricaded himself in a nearby bunker and was "taking pot shots".
A further incident occurred in relation to the Ordnance Depot warehouse. At night time intruders were noted and the applicant and others went to investigate. A shootout resulted but the applicant did not fire any rounds. He said that the sergeant in charge had given the order to fire on the intruders but he was not in the line of fire because of the layout of the warehouse. He was unable to say who the intruders were. The applicant said he had no previous experience of such a situation and was "pretty shaky" after it was all over.
The applicant said that he had flashbacks in relation to all these incidents but the soldier's shot foot was the most significant event in these flashbacks. He also told Dr Likely that severely damaged vehicles in which soldiers had died and returned to the Ordnance Depot were also unsettling for him.
The applicant said he commenced drinking alcohol in increased quantities after work finished, while he was in South Vietnam. He found alcohol consumption to be the only way he could get to sleep in South Vietnam, he said, by wiping himself out.
The Medical Evidence
Document T4/14-21 is a pro forma report by Dr Fraser dated 23 October 1997. Dr Fraser describes nightmares, flashbacks, depression, anxiety, irritability which he said were moderate to severe. He also said that the applicant's alcohol consumption had affected all aspects of his social, occupational, domestic and recreational activities including reduced attendance at work. He attributed the substance abuse to the applicant's "war experiences".
Dr Likely, Consultant Psychiatrist, has made four reports, copies of which are before the Tribunal. The report dated 28 October 1997 (T4/32) describes a history generally consistent with the applicant's evidence to the Tribunal.
In this report, Dr Likely diagnosed alcohol abuse, alcohol dependence with physiological dependence. He found that the applicant did not meet all the criteria for PTSD because he thought it was problematic as to whether the applicant had experienced events involving actual or threatened death or serious injury or threat to the physical integrity of others or himself. He thought the events related were more correctly characterised as sequelae of such events, there being problematic issues as to proximity and quantum.
Dr Likely made a further report to the applicant's solicitors dated 14 April 2000 (T4/56). That report gives further descriptions of the events in South Vietnam as related by the applicant. While generally consistent with his earlier report Dr Likely was of the opinion, based on 2½ years treatment since the earlier report, that the applicant suffered from PTSD complicated by alcohol dependence, and set out his reasons for his opinion. Further, Dr Likely described the PTSD as combat-related.
In a further report dated 12 July 2000 addressed to the applicant's solicitors (T4/70), Dr Likely confirmed his diagnosis and the hypothesis connecting PTSD with service in South Vietnam. He also stated that the substance abuse was related to the PTSD.
Dr Likely gave a further report "To Whom It May Concern" dated 16 February 2001 (T4/101-2). In particular, Dr Likely describes the warehouse incident for the first time. He confirmed his diagnosis of PTSD and added that alcohol abuse was also service related.
In his oral evidence, Dr Likely said that each of the stressors was an event outside the normal range of human experience. While he had not diagnosed an Axis 1 condition initially, on the basis of subsequent consultations, he was satisfied that the diagnosis of PTSD was correct.
Consideration
Dr Likely raises an hypothesis connecting the applicant's PTSD, and Alcohol Abuse arising therefrom, with the applicant's service in South Vietnam.
It is agreed that the relevant Statement of Principles is No 3 of 1999 in relation to PTSD as amended by Instrument No 54 of 1999. PTSD is defined in Clause 2 in terms derived from DSM-IV. In this case the diagnosis by Dr Likely in terms of DSM-IV meets the defined meaning of PTSD so that I can be reasonably satisfied that the diagnosed condition is within the terms of paragraph 2 of the Statement of Principles.
It was also agreed, and I agree, that the factor in Clause 5 that must be shown to be related to the applicant's service in South Vietnam is (a), which reads as follows:
"(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;"
The definition of "experiencing a severe stressor" was amended by Instrument No 54 of 1999 and now means:
"…the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence."
The applicant contends that each of the events described fall within the definition of "experiencing a severe stressor". The applicant submits that under the extended definition each incident described shows that the applicant experienced, witnessed or was confronted with an event or events that fall within the extended definition.
The applicant says that the observation of the unloading of wounded and dying soldiers adjacent to where he was working falls within the concept of experiencing or being confronted with an event that involved the actual serious injury of another person. He saw the consequences of severe injuries.
The shooting incident which occurred while on sentry duty amounted, the applicant submits, to experiencing the threat of death or serious injury and falls within the range of experiences contemplated by the normal definition of experiencing a severe stressor as an incident outside the range of normal human experience.
It was also submitted that the incident involving the soldier who shot himself in the foot falls within the range of experiences contemplated by the normal definition of experiencing a severe stressor as an incident outside the range of normal human experience.
The incident where shots were fired at the warehouse would, it was submitted, fall within either experiencing the threat of death or serious injury and engagement with the enemy or it would fall within the range of experiences contemplated by the normal definition of experiencing a severe stressor as an incident outside the range of normal human experiences.
The applicant reported feelings of helplessness and horror arising from these events and that he believed his life was in danger. I accept the applicant's evidence as to his subjective responses.
The applicant contends that each of the events described, though varying in severity and duration are traumatic events within the terms of the definition of "experiencing a severe stressor".
The respondent submitted that the definition of experiencing a severe stressor is in two parts and both parts of the definition must be satisfied.
While I accept that a stressor coming within the terms of the second paragraph of the definition may not come within the more general but restrictive first paragraph, I do not accept that will be fatal to the claim.
The first paragraph is a "means" definition necessarily, in this context, seeking to embrace all severe stressors which are relevant and likely to be experienced on operational service. The first paragraph has the purpose of giving meaning to "experiencing a severe stressor".
The second paragraph, by using the word "include" is intended to enlarge the defined meaning so as to include events that might not be within the first paragraph. It is quite wrong, in my view, to say that the second paragraph reads down the meaning of the first paragraph. In particular, I am not satisfied that the second paragraph is an exhaustive definition.
The Statement of Principles, like the Act, is intended to be beneficial and the second paragraph brings into the defined meaning events that may be thought to be outside the terms of the first paragraph.
While I have been unable to come to a favourable view in relation to the warehouse incident, I am reasonably satisfied that the witnessing of casualties being removed to hospital, the shot foot, and the incident on the tower were, on an objective view, events coming within clause 2(b)(A) of the Statement of Principles.
Those events were within the definition of experiencing a severe stressor. The applicant had, I am satisfied, subjective responses to those events so as to bring him within the paragraphs (B) to (E) of clause 2(b) of the Statement of Principles as explained by the evidence of Dr Likely. It follows that I can be reasonably satisfied that factor 5(a) has been satisfied, there being no suggestion that the onset of PTSD occurred other than after the applicant's service in South Vietnam when he experienced the severe stressors.
I am satisfied that there is a reasonable hypothesis connecting the applicant's PTSD with his operational service and I so find. I also find that the evidence is consistent with the hypothesis.
It was conceded that if the Tribunal found PTSD to be war-caused, as I do, it would follow that alcohol abuse is also war-caused. I so find.
It is my understanding that the respondent accepts that if the conditions PTSD and alcohol abuse are accepted as war-caused disabilities then the terms of section 24 of the Veterans' Entitlements Act 1986 have been satisfied and special rate pension would be payable with effect from 4 March 2000. I have not been able to be reasonably satisfied, on the material before me, that all aspects of section 24 have been satisfied. It is therefore more appropriate that the issue of assessment be remitted to the respondent to give effect to its concession.
The decision under review will be set aside and the following decisions substituted:
(a)the condition PTSD is a war-caused disability;
(b)the condition Alcohol Abuse is a war-caused disability;
(c)the effective date of these decisions is 4 June 2000;
(d)assessment of pension is remitted to the respondent; and
(e)liberty to apply is reserved to both parties.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe
Signed:         Sarah Oliver
  Associate
Date of Hearing  21 May 2002 (at Townsville)
Date of Decision  17 December 2002
Counsel for the Applicant        Mr D Honchin
Solicitor for the Respondent    Mr J Stoner, Departmental Advocate