HUGH JAMES and REPATRIATION COMMISSION
[2013] AATA 376
[2013] AATA 376
Division VETERANS' APPEALS DIVISION File Number
2012/3512
Re
HUGH JAMES
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 5 June 2013 Place Brisbane The Tribunal affirms the decision under review.
.........................[SGD]..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statements of Principles – Diagnosis of conditions – Clinical onset – Reasonable hypotheses of relevant relationship to service raised – Hypotheses disproved beyond reasonable doubt – Alcohol abuse, dysthymic disorder, hypertension and ischaemic heart disease not war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A, 196B
CASES
Border v Repatriation Commission(No 2) [2010] FCA 1430
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles: Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 Statement of Principles: Instrument No. 89 of 2007 Statement of Principles: Instrument No. 27 of 2008 Statement of Principles: Instrument No. 1 of 2009
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
On 10 June 2010, Hugh James lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), an informal claim for a disability pension for “anxiety/stress”, “heart problems”, “dermatitis” and “high blood pressure.[1] A formal claim was then lodged by Mr James for those conditions on 2 August 2010.[2] He contended that these conditions were related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
[1] Exhibit 1, T-documents, p. 23(a).
[2] Exhibit 1, T-documents, pp. 24-35.
In response to the claim, the respondent determined, on 23 December 2010, that conditions diagnosed as dysthymic disorder, ischaemic heart disease, hypertension, alcohol abuse and contact dermatitis were not related to his service.[3] On 17 July 2012, the Veterans’ Review Board affirmed the decision.[4] This review relates to Mr James’ claims in relation to dysthymic disorder, ischaemic heart disease, hypertension and alcohol abuse.
[3] Exhibit 1, T-documents, pp. 72-79.
[4] Exhibit 1, T-documents, pp. 147-153.
ISSUES AND SERVICE
Mr James served in the Army from 5 November 1969 until 4 November 1978 and this included a period of eligible war service in the form of operational service in South Vietnam, as provided for in s 7 and s 6C of the Act, respectively, from 15 February 1971 until 10 May 1971. He also served a period of defence service which is not relevant to his claim. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[5] For issues of causation for operational service, the standard of proof is set out in s 120(1) of the Act. It reads:
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.
[5] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.
The application of that provision is affected by the terms of s 120(3) and s 120A of the Act, which require that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority (“RMA”).
SUBMISSIONS
For Mr James, Mr Andrew McDonald submitted that, during his operational service, Mr James experienced a “category 1A stressor” out of which arose his alcohol abuse and his dysthymic disorder and that these conditions were causative in the development of his hypertension and ischaemic heart disease. The relevant stressor, he submitted, was the experiencing of a life-threatening event when a vehicle in which Mr James was travelling came under fire. Alternatively, he submitted that alcohol abuse, which had its onset immediately after Mr James’ Vietnam service because of the category 1A stressor, was causally related to dysthymic disorder, hypertension and, in turn, ischaemic heart disease.
For the respondent, Mr Bruce Williams submitted that the event referred to by Mr McDonald did not happen in the manner described by Mr James or at all and, accordingly, was not responsible for his alcohol abuse or dysthymic disorder. Alternatively, he conceded that, if the event had occurred as described, Mr James’ alcohol dependence abuse would be war-caused under s 9 of the Act. This concession did not apply to dysthymic disorder which, in his submission, had its clinical onset many years after Mr James’ operational service. Mr Williams submitted that neither hypertension nor ischaemic heart disease were related to Mr James’ service because they had their clinical onset after Mr James had substantially reduced his alcohol consumption and before his dysthymic disorder became manifest.
EVIDENCE
Mr James
The event relied upon by Mr James as being responsible for his claimed conditions occurred in about week seven of his 12 weeks in Vietnam. His main duties were as a cook but, from time to time, he undertook other duties. On the day of the event, he was required to “ride shotgun” with the driver of a Land Rover vehicle en route from Nui Dat to Baria with a load of laundry items. The vehicle was unaccompanied for the 20 to 30 minute journey. When passing through an open area of rice paddy-fields, Mr James heard a gunshot. He heard the bullet strike the rear of the vehicle. The driver called to him to “get down” as the speed of the vehicle increased. Mr James described himself at the time as feeling “frightened”, as having “panicked”, as “shaking like a leaf” and as becoming “frozen”. He also said that he started laughing at the time and believed that this was due to “nerves”. On arrival at Baria without further incident, Mr James, the driver and other soldiers inspected the vehicle and located a bullet hole. They all laughed about the incident. The return journey to Nui Dat was uneventful but no special precautions were taken and the Land Rover was accompanied by several other vehicles. On arrival at Nui Dat, Mr James explained to a corporal what had happened and he heard nothing more about it. He understood that the driver had taken the Land Rover to the workshop.
Mr James said that he received very little training before he went to Vietnam. He was a cook at Canungra, had no battle efficiency training, had one exercise at Puckapunyal, had one session on a rifle range where the M60 machine gun was demonstrated and received no further training in Vietnam
Before enlisting in the army, Mr James limited his alcohol consumption to group activities such as barbecues and parties. After joining the army, he started to take alcohol regularly and on an increasingly heavy basis. On 7 September 2010, he completed a questionnaire[6] which he agreed was accurate in its references to his consumption levels. Therein, he declared that he started to consume alcohol at age 20/21, mostly in the form of beer but with spirits sometimes and wine rarely. He wrote that he had 6 to 8 cans per day before going to Vietnam and 2 to 3 large cans per day in Vietnam. The reasons given were “peer pressure, being tense and nervous, cheap, fear for my life, living continuously in a war, when home drank to forget”. He completed the following table in relation to changes in consumption:
[6] Exhibit 1, T-documents, pp. 48-50.
Date of change
New amount consumed
Reasons for change
May 71
6-8 stubbies per day
Return to Australia
October 78
1-1½ carton of stubbies per week
Marriage breakdown. Discharge from army.
82-83
Binge drinking. 1 carton of stubbies plus spirits/weekend
Change of employment
85-86
½ carton of stubbies per week
Remarried
Currently
6-8 standard drinks per day
Stress
Mr James said that, on the evening after the shooting incident, he drank more than usual and estimated that this comprised “four or five cans that night”. He also said that he drank more heavily when he returned to Australia and described his consumption at “one carton of stubbies per night”. He said that he was having marriage problems at that stage and would remain at the camp in the “boozer” in the company of cooks and other soldiers for long periods rather than go to his home. Mr James did not seek any form of psychiatric assistance after returning from Vietnam but recalled getting into fights frequently. He was unable to say why they occurred but put it down to differences of opinion. He served in a transport section from 1972 until his discharge.
Before joining the Army, Mr James completed a motor-mechanic apprenticeship and then drove trucks locally. He married his first wife in 1967 but learned that she had been going out with other men while he was in Vietnam and after he returned to Australia. He left the army in 1978 and he and his wife purchased a take-away food shop in Rockhampton. One week after his discharge, his wife began to co-habit with another man but he and his wife continued to run the shop in alternating shifts until they were able to sell the business 15 months later. He then moved to Victoria for a few years where he worked on the Hume highway and a turf farm before returning to Rockhampton. He drove trucks on the Brisbane-Rockhampton route and, to protect his driver licence, reduced his alcohol consumption at that time by limiting his drinking to weekends. He met his second wife in about 1984 and they were married in 1987. He had a heart attack in that year and, as a result, further reduced his alcohol consumption. He had not been diagnosed with hypertension until then despite having his blood pressure tested from time to time during various consultations with his doctor. In recent years, he operated another take-away food shop from 2003 and then worked as a truck detailer for about two years before retiring.
Medical evidence
In evidence were reports from psychiatrists Dr John Flanagan, Dr Wasim Shaikh and Dr Peter Mulholland. Dr Flanagan, who treated Mr James in 2005 and 2006 and again from 2010, and Dr Shaikh also gave evidence.
Dr Mulholland
Dr Mulholland saw Mr James in February 2006. In his report, dated 28 February 2006,[7] he set out Mr James’ relationship and work history, noting that he had been a truck driver for many years with no associated psychological problems, and, more recently, had operated a takeaway food shop which occupied a lot of time. Long work hours, rather than psychiatric problems, limited his social activities such as playing golf and building hot-rod cars. Alcohol consumption was noted to be 2-3 stubbies on about 5 days per week with a history of heavy drinking when he was in the Army. Dr Mulholland noted that Mr James had received no psychiatric treatment before seeing Dr Flanagan in 2005.
[7] Exhibit 2.
Dr Mulholland recognised no history of continuing depressiveness or depression over the years and referred to Mr James’ irritability in the immediate post-Vietnam period of his service as being attributable to his heavy alcohol consumption at that time.
Dr Mulholland was aware that Mr James had consulted psychiatrist Dr Robert Athey in November 2001 in relation to an earlier claim under the Act. On reading Dr Athey’s report, Dr Mulholland noted a reference to dysthymic disorder at that time and a more extensive record of symptoms with a temporal connection with Mr James’ service in Vietnam. Dr Mulholland also read the first report of Dr Flanagan, prepared in January 2005. He noted that Dr Flanagan diagnosed major depressive disorder and commenced treatment with medication which, in Dr Mulholland’s opinion, had been effective in reducing symptomatology by the time he saw him.
Dr Mulholland diagnosed dysthymic disorder in partial remission because of Dr Flanagan’s treatment but which had been more pronounced in the past. He referred to the shooting incident described by Mr James but his opinion was that this would not have amounted to a severe stressor. He recognised that Mr James had been diagnosed with alcohol abuse but considered that to be in remission since 1987. His opinion was that the high level of consumption during Army service was due to “custom and practice” in doing what others were doing rather than to any specific stressors. Dr Mulholland was unable to estimate the time of commencement of Mr James’ dysthymic disorder because of the effects of excessive alcohol consumption but his opinion was that it was secondary to the alcohol intake.
Dr Shaikh
Dr Shaikh saw Mr James on 12 February 2013 and completed his report on 6 March 2013.[8] He noted the shooting incident described by Mr James and his heavy alcohol consumption until 1987. Dr Shaikh wrote that Mr James had not attributed any particular reason to his increasing alcohol use in and after Vietnam. Dr Shaikh accepted that the appropriate diagnosis for Mr James was dysthymic disorder but he was not able to identify a time of onset or any relationship between that condition and Mr James’ Army service. His opinion was that there was likely contribution to his mood disorder from his alcohol abuse and from the effects of his ischaemic heart disease.
[8] Exhibit 3.
Dr Flanagan
Dr Flanagan completed reports on 21 January 2005, 21 October 2010 and 30 November 2011.[9] Dr Flanagan referred to Mr James’ frequent involvement in arguments and fighting after his Vietnam service for about three years and to his heavy alcohol consumption at that time. His opinion was that alcohol abuse was probably present at that time and that dysthymic disorder may have developed then as well. However, he conceded that it was difficult to assess that in the presence of the alcohol abuse. In his evidence, he said that the alcohol-related condition may have been the primary problem with dysthymic disorder a secondary development from that. Nonetheless, Dr Flanagan thought that dysthymic disorder was likely to have been present in 1972 or 1973 and that it was probably severe enough for him to have undergone treatment at that time. He described acute dysthymic disorder in the context of his marital problems in 1978-1979 but noted that it seemed to settle down in the 1980s when he was driving a truck and had significantly reduced his alcohol consumption. Dr Flanagan also noted that Mr James’ wife had described depressive symptoms beginning in the late 1980s after his first heart attack in 1987. Dr Flanagan concluded that Mr James had suffered from recurrent depression with periods of remission between its manifestations.
[9] See Exhibit 1, T-documents, pp. 5-11, 51-69 and 92-93, respectively.
Dr Flanagan noted that Mr James had been engaged in a range of socially-oriented activities in the late 1970s and early to mid-1980s, which included football, golf, fishing and working with hot-rod cars.
Dr Flanagan referred to the shooting incident in Vietnam and noted that Mr James had described laughter as a reaction to it. He described this as unusual but believed that he was frightened and was putting on a “brave face”. His opinion was that it was likely that Mr James’ dysthymic disorder was related to aspects of his Vietnam service including the shooting incident.
Other evidence
The respondent utilised Mr Peter Langford (Colonel, Rtd), from Writeway Research Service Pty Ltd (“Writeway”), to obtain responses to four specific questions raised by the respondent concerning Mr James’ Army service. These were:[10]
a.The veteran claims that he was ill-prepared for the events he experienced in Vietnam. Report on the likelihood that a soldier would be sent to Vietnam without having been properly trained and in particular without having undertaken a battle efficiency course at Canungra and without having fired a weapon since basic training.
b.Whether the camp referred to by the veteran was Nui Dat.
c.Whether there is any record of a vehicle being fired at and damaged in the period April-May 1971.
d.Details relating to road resupply of the “Horseshoe” position.
[10] Exhibit 4.
In his detailed report, Mr Langford listed the authorities consulted in researching the responses to those matters. These comprised war diaries and records of Mr James’ unit; a database relating to vehicle ambushes and road convoy incidents; the officer commanding the company who was responsible for the training of Mr James prior to his time in Vietnam; the officer commanding the company to which Mr James was attached during his time in Vietnam; the company quartermaster sergeant who had direct control of the Land Rover and responsibility for arranging laundry runs to Baria and resupply of the Horseshoe position; and the author of a history of 3 RAR’s tour in Vietnam during 1971.[11]
[11] It is common ground that Mr James served with C Company 3 RAR in Vietnam.
As for the first issue, Mr Langford concluded that it was theoretically possible for Mr James not to have been properly trained but that it was extremely unlikely. For the second issue, he reported that the base where Mr James was located was Nui Dat. For the third issue, he reported that the run from Nui Dat to Baria was regarded as routine and not hazardous; that any incident as described by Mr James was required to be formally reported in a Contact/Incident Report but no such record was made; and that at no stage did the C Company Land Drover have a bullet hole in it. Mr Langford concluded that the incident did not happen. As to the final issue, he concluded that Mr James would not have been involved in a road supply convoy in a single vehicle.
DIAGNOSES AND STATEMENTS OF PRINCIPLES
The diagnoses for the conditions in this matter are not in dispute; they are dysthymic disorder, alcohol abuse, ischaemic heart disease and hypertension. The Statements of Principles relevant to those conditions are:
·for dysthymic disorder: Instrument No. 27 of 2008;[12]
·for alcohol abuse: Instrument No. 1 of 2009;
·for ischaemic heart disease: Instrument No. 89 of 2007;[13] and
·for hypertension: Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004.[14]
[12] As amended by Instrument No. 40 of 2010 in a way not material in this matter.
[13] As amended by Instruments No’d. 43 of 2009, 96 of 2010 and 125 of 2011 in ways not material in this matter.
[14] As amended by Instrument No. 11 of 2008 in a way not material in this matter.
The relevant factors in those Statements of Principle and associated definitions read:
Alcohol abuse (Instrument No. 1 of 2009)
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
Dysthymic disorder (Instrument No. 27 of 2008)
(a) …
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
…
(vii) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
Hypertension: (Instrument No. 35 of 2003)
(b) consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension; or
…
(o) suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension;
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
“clinically significant depressive disorder” means any depressive disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
(Instrument No. 3 of 2004)
(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol;
Ischaemic heart disease (Instrument No. 89 of 2007)
(a) having hypertension before the clinical onset of ischaemic heart disease; or
…
(o) having clinically significant depressive disorder for at least five years, before the clinical onset of ischaemic heart disease; or
"clinically significant" means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.
CLINICAL ONSET
Each of the factors in the Statements of Principles requires consideration of the concept of clinical onset in the context of the particular condition. In Kaluza v Repatriation Commission,[15] Jacobson J summarised, at [92]-[93], the effect of the decision of the Full Federal Court in Lees v Repatriation Commission[16] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[15] [2010] FCA 1244.
[16] (2002) 125 FCR 331.
PRINCIPLES OF CAUSATION
In Repatriation Commission v Deledio[17] (Deledio), the Federal Court set out a four-step procedure for considering issues of causation in relation to operational service. The first of these requires that there be material which points to an hypothesis connecting a claimed condition with service. I am satisfied that the shooting incident meets that requirement. The second of the four Deledio steps requires identification of the relevant SoP determined by the RMA under ss 196B(2) or (11) of the Act. It is not disputed that these are the Instruments noted above. The third Deledio step does not involve fact-finding but requires a consideration of the hypothesis to determine whether it is reasonable. This requirement will be met if the hypothesis fits or is consistent with the template provided by a relevant factor in the SoP. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
[17] (1998) 83 FCR 82 at 92.
HYPOTHESES
I have set out the submissions of Mr McDonald above[18] and I accept that they comprise hypotheses of a relationship between the four claimed conditions and Mr James’ service. In relation to hypertension, the reference to alcohol in factor (b) of the Statement of Principles is in terms of a quantity per week rather than the presence of alcohol abuse.
REASONABLENESS OF HYPOTHESES
[18] See para 6 (above).
The stressor
A category 1A stressor is relevant to Mr James’ alcohol abuse and his dysthymic disorder. The element of the definition of that term relied on by Mr McDonald is the experiencing of a life-threatening event. In the event that Mr James’ description of the shooting incident and some aspects of his reaction to it are accepted, it would point to the requirement in each of the two Statements of Principles. In that regard, the psychiatric material before me points to alcohol abuse having a clinical onset within five years of the shooting incident. That material is less clear in relation to the clinical onset of his dysthymic disorder. However, some aspects of Dr Flanagan’s evidence point to this as occurring within a short period after Mr James returned to Australia from Vietnam. Accordingly, if Mr James experienced a life-threatening event, a reasonable hypothesis is raised under factor (b) for alcohol abuse and factor (ii) for dysthymic disorder. Some psychiatric material points to dysthymic disorder as developing from his alcohol abuse within the two year time-frame required and to the alcohol abuse being a clinically significant psychiatric condition as that term is defined in Instrument No. 27 of 2008 for dysthymic disorder. Accordingly, if alcohol abuse is war caused, a reasonable hypothesis is raised under factor (vii) for dysthymic disorder.
The earliest records of Mr James’ hypertension are those associated with his treatment for his heart attack in 1987. Until that time, material before me points to Mr James consuming the amount of alcohol described in factor (b) of Instrument No. 35 of 2003 and Instrument No. 3 of 2004. Accordingly, if that alcohol consumption is found to be service-related, a reasonable hypothesis is raised under that factor for Mr James’ hypertension. Again, some of the psychiatric material before me points to Mr James’ dysthymic disorder being a clinically significant condition for the period required in factor (o) of Instrument No. 35 of 2003 for hypertension. Accordingly, if his dysthymic disorder is found to be service-related, a reasonable hypothesis is raised under that factor for Mr James’ hypertension.
In respect of ischaemic heart disease, the material before me points to the clinical onset in 1987 when Mr James had a heart attack. It also points to hypertension being present at that time and, in the event that hypertension is found to be service-related, factor (a) of Instrument No. 89 of 2007 is raised for ischaemic heart disease. As previously noted, some of the psychiatric material before me points to Mr James’ dysthymic disorder being a clinically significant condition for the period required in factor (b) of Instrument No. 89 of 2007 for ischaemic heart disease. Accordingly, if his dysthymic disorder is found to be service-related, a reasonable hypothesis is raised under that factor for Mr James’ ischaemic heart disease.
ARE THE CONDITIONS WAR-CAUSED?
In this matter, if Mr James did not have a severe traumatic event in the form of experiencing a life-threatening event during his Vietnam service, it will follow that alcohol abuse and dysthymic disorder will not be war-caused. Both dysthymic disorder and alcohol abuse are said to be directly related to that event. Alternatively, dysthymic disorder is said to be related to Mr James’ alcohol abuse. Hypertension is said to be related to the consumption of the level of alcohol described in the Statement of Principles but the only contention advanced in relation to the continued consumption of alcohol was the effect on Mr James of the shooting incident. Ischaemic heart disease is said to be related to hypertension and also to dysthymic disorder.
I accept the detailed analysis by Mr Langford of the circumstances relating to Mr James’ service, in particular that concerning the Land Rover incident, to be reliable and one arrived at in an objective manner. The source material relied upon by him provided an authoritative basis for the conclusions he reached. I am satisfied beyond reasonable doubt that Mr James did not receive only the limited amount of training he alleged to prepare him for his service in Vietnam. Even if he had limited training, the absence of any reference to the shooting incident in the Company records raises more than a reasonable doubt about the incident having occurred. His evidence was not only that a shot was fired; he claimed that it resulted in a bullet hole in the vehicle which was observed by him and other soldiers on arrival at Baria. Any such damage to the Land Rover was denied by the person who had the charge of the vehicle. The only evidence of the incident came from Mr James. This evidence was contradicted in material particulars in the research recorded in the Writeway report. This means that there are facts inconsistent with those which pointed to the reasonableness of the hypotheses raised in this matter. On consideration of all of the evidence, I am satisfied beyond reasonable doubt that the shooting incident did not occur and that, therefore, none of the claimed conditions are war-caused.
While there are cases where the Federal Court has referred to the objective and subjective aspects to be considered in relation to experiencing a life-threatening event,[19] such considerations do not arise in this matter because I am satisfied beyond reasonable doubt that the event did not occur.
[19] For example see Border v Repatriation Commission (No 2) [2010] FCA 1430 at [67].
There were inconsistencies in Mr James’ evidence in relation to his alcohol consumption. He gave evidence that his daily consumption prior to his Vietnam service was six to eight stubbies of beer. He accepted as correct the content of his Questionnaire and it described him as using that same amount after he returned from Vietnam. He also gave evidence that he drank very heavily when he first returned to Australia and gave an example of consuming a carton of stubbies per night. His reason for drinking heavily was not related to any incident on service. Rather, it was due to his marital problems in that he chose to stay in the mess rather than go home.
Dr Mulholland was unable to attribute Mr James’ alcohol consumption to any trauma of service, stating that it appeared to be due to the “custom and practice” of the service. Dr Shaikh wrote that Mr James did not attribute any particular reason for his increasing alcohol use. Dr Shaikh was unable to determine any relationship between dysthymic disorder and Mr James’ service but considered there was contribution to it from his heart condition. I found Dr Flanagan’s evidence about the onset of dysthymic disorder to be unhelpful. Unlike the other psychiatrists, he considered that dysthymic disorder was connected to Mr James’ service including the shooting incident. However, he also considered that it may have developed as a result of his alcohol abuse. He stated that it may have been present in 1971/72 but appeared to have gone into remission only to reappear when marital problems became acute in 1978 and when his second wife noted symptoms of depression at the time of his heart attack in 1987.
As noted, I have determined beyond reasonable doubt that the shooting incident did not occur. It follows that alcohol abuse and dysthymic disorder did not arise out of and are not attributable to Mr James’ war service on the basis of a category 1A stressor; that dysthymic disorder did not arise out of and is not attributable to his service on the basis of service-related alcohol abuse; that hypertension did not arise out of and is not attributable to his service on the basis of service-related alcohol consumption or dysthymic disorder; and that ischaemic heart disease did not arise out of and is not attributable to Mr James’ service on the basis of service-related hypertension or dysthymic disorder.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
............................[SGD]............................................
Associate
Dated 5 June 2013
Date of hearing 29 May 2013 Advocate for the Applicant Mr Andrew McDonald Advocate for the Respondent Mr Bruce Williams
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