Hughes and Repatriation Commission

[2008] AATA 253

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 253

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2007/1292

VETERANS’ APPEALS DIVISION		)
Re		Jeffery Neil Hughes

Applicant

And  Repatriation Commission

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Associate Professor J B Morley RFD, Member

Date1 April 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – service-related conditions – applicant claimed alcohol dependence, anxiety disorder and depressive disorder as service-related conditions – whether reasonable hypothesis between service and  claimed conditions – date of onset of claimed conditions – no reasonable hypothesis – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 120

Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193, applied.

REASONS FOR DECISION

1 April 2008 Senior Member Bernard J McCabe
Associate Professor J B Morley RFD, Member 

1.      Mr Jeffrey Hughes was a national serviceman. He claims to suffer from psychiatric conditions and alcohol dependence as a consequence of his service in Vietnam. He has sought a disability pension under the Veterans Entitlements Act 1986 (“the VEA”). The Repatriation Commission (“the Commission”) claims Mr Hughes is not entitled to a pension because there is no connection between his health conditions and the circumstances of his service. Mr Hughes has asked the Tribunal to reconsider the Commission’s decision.

2.      We do not accept the applicant’s conditions are connected with his service. Our reasons are set out below.

The factual background to the dispute

3.      Mr Hughes was conscripted in 1969. He undertook operational service in Vietnam between May 1970 and May 1971. The applicant was originally trained as an infantryman. He was sent to an infantry unit with other reinforcements when he arrived in South Vietnam in 1970. Within a few weeks of his arrival, he was posted to an Army aviation unit. He remained with that unit until he returned home.

4.      The applicant gave oral evidence that he was unhappy about being conscripted, and he was deeply unhappy about being required to go to Vietnam. He said he felt it was unfair that he was selected. He had recently finished his apprenticeship as a boilermaker at Queensland Rail, and he regarded military service as an unwelcome distraction.

5.      Mr Hughes’s oral testimony suggests he took his basic training and corps training seriously. While he was a reluctant soldier, he made it clear that he took pride in being fit and well-trained. But he said his commitment was tested soon after his arrival in Vietnam.

6.      Mr Hughes’s platoon was despatched on a three-day patrol shortly after he arrived at the Australian taskforce in Nui Dat. According to the applicant’s statement, three troop helicopters, escorted by two helicopter gunships, were used to ferry the troops to the patrol area. The size of the patrol meant the helicopters made two trips; Mr Hughes says he was in the second group. He gave evidence at the hearing that one of the troop helicopters was taken out of service and loaded on a truck after the first trip. He said he heard someone say shots had been fired at the craft. The applicant said he was told the helicopter gunship escorts had returned fire and killed at least two Viet Cong guerrillas who were last seen lying face-down in a river. He said he subsequently asked his comrades who had travelled in the damaged helicopter what had happened. None of them was aware of the shooting. He took the damaged helicopter as a bad sign of what was to come. He testified the platoon sergeant had suggested the patrol area was dangerous. The sergeant also said there was a possibility of the platoon encountering a much larger force of North Vietnamese troops. Mr Hughes said he did not have any faith in the officer commanding the patrol, whom he described as “a bit gung-ho”. He gave several examples of the officer’s apparent disregard of dangers while the patrol continued.

7.      The applicant was instructed to take up a position at the rear of the platoon as it made its way through the bush on that first patrol. He told the Tribunal at the hearing that he thought he was in a relatively safe position until he was told by his sergeant that the Viet Cong often ambushed patrols from the rear. Mr Hughes took that to mean he was in real danger. He said there was evidence of recent enemy activity, but the patrol was otherwise uneventful.

8.      Mr Hughes developed a persistent cough during the mission. Within a week of the patrol, he was posted to the Army aviation unit—perhaps because his cough made him unsuitable for infantry work. He gave evidence that he was delighted with his new posting at first; he felt it was safe. But he explained he soon grew to dislike the job because he was required to perform a range of menial tasks, including serving dinner and attending to the laundry. He testified he was mocked by some of his comrades, although he also noted in his statement that he was “fit” and apparently stood up for himself in such a way that he was not regularly targeted for criticism. He said the work was demeaning and suggested in his statement and oral testimony that he preferred being in the bush—a curious perspective, given his earlier evidence that the three days spent on patrol (his only experience of active service in Vietnam) were “the worst days of my life”.

9.      The aviation unit was located at the centre of the taskforce compound in Nui Dat. Mr Hughes lived in a four-man tent protected by sandbags. He said he was in constant fear of a mortar round landing nearby. He said he had heard the Viet Cong occasionally fired mortars from outside the perimeter, although he acknowledged in his testimony that there were no attacks of this nature during his time in Vietnam. He also said his sleep was constantly disturbed as aircraft took off from the nearby airfield. Artillery fire from the fire-support bases and mini-gun fire from Hercules gunships were also common.

10.     Mr Hughes remained “behind the wire” in the relative safety of the taskforce most of the time. He did not go out on patrols, although he made a weekly trip to a nearby town to deliver the unit’s laundry to a local business. Mr Hughes said he always felt tense during these trips. The men who accompanied him were not trained infantrymen, and he said they tended to underestimate the danger. He doubted they could defend themselves if anything occurred. But nothing did occur. He told the Tribunal at the hearing that he would deliver the laundry, visit the local shops and return to base without incident.

11.     The applicant did refer in his statement and his oral testimony to a car accident he had witnessed. A vehicle full of drunken sergeants rolled off the road. He assisted the men from the vehicle. He said there was a good deal of blood and at least one or two of the men had to be evacuated to hospital. In his oral evidence, he suggested the men were in bad shape, but then described the injuries they sustained as “some broken bones”. The victims were not critically injured, it would seem. We also note the applicant laughed when recounting the story at the hearing, a reaction which is inconsistent with the recollection of an especially distressing event.

12.     Mr Hughes said he was not a heavy drinker before he arrived in Vietnam. He started to drink heavily while he was there as a result of the combination of heat, peer-pressure and the ready availability of alcohol. He says he was also motivated by a sense of fear. He said drinking heavily helped him to sleep at night. His pattern of heavy drinking continued when he returned home. He said his wife became increasingly upset by what she saw, and their marriage became strained.

The diagnosis

13.     We are satisfied the applicant suffers from alcohol dependence. That diagnosis is agreed between the doctors. The date of onset is unclear. We accept he began to drink heavily during his time in Vietnam. We also accept his condition started to become clinically significant upon his return from south-east Asia when his behaviour began to impact on his marriage—although we note the marriage remained intact and the applicant resumed a successful career at Queensland Rail. For present purposes, we are prepared to accept the applicant might have been diagnosed with the alcohol condition in the early 1970s.

14.     Drs Rose and Wong gave evidence to the Tribunal at the hearing. The respondent relied on Dr Rose’s opinion. Dr Rose says the applicant now suffers from dysthymic disorder, a form of depression. Dr Wong, the treating psychiatrist, agrees the applicant is suffering from depression. Both Drs Wong and Rose agree the applicant has experienced symptoms of depression for about 10 years, although Dr Wong says it might be longer. Dr Rose opined the depression may be linked to the drinking. Dr Wong appears to associate Mr Hughes’ depression with the anxiety disorder, although he agrees that a diagnosis of depression would ordinarily displace or trump a diagnosis of anxiety.

15.     The real dispute on the medical evidence relates to the diagnosis of anxiety disorder. Dr Wong testified that the applicant began suffering from anxiety disorder while he was serving in Vietnam. He said the applicant’s anxiety disorder and alcohol dependence developed at the same time. In his opinion, the conditions fed off each other.

16.     Dr Rose says it is impossible to make a diagnosis of anxiety disorder because the symptoms are not evident at present. Mr Clutterbuck, for the applicant, pointed out Dr Rose did not have access to the same history as Dr Wong. The history provided to Dr Wong does speak of symptoms of anxiety that were not pointed out to Dr Rose. But even if we accept the applicant currently suffers from generalised anxiety disorder, we are satisfied the date of onset was some time after the applicant served in Vietnam. We note Dr Wong struggled to identify symptoms which would justify making a diagnosis of a psychiatric condition at the time of the applicant’s service. We accept the applicant was anxious and frightened. We accept he may have had trouble sleeping because of the movement of aircraft and gunfire. But those reactions do not necessarily suggest the applicant was suffering from a psychiatric condition at that time. That was Dr Rose’s point: he saw nothing in the history which justified a finding that there were clinically significant symptoms of a psychiatric condition present during the course of the applicant’s service in Vietnam. We were not provided with convincing evidence that the applicant experienced clinically significant symptoms of anxiety (as opposed to symptoms of his emerging alcohol dependence condition) in the five years that followed his service.

17. Considering Drs Rose’s and Wong’s evidence as a whole, we prefer the evidence of Dr Rose, subject to the qualification that we accept the applicant may now suffer from generalised anxiety disorder. Although he only saw the applicant for a short time, Dr Rose’s evidence reflected careful and objective analysis of what occurred during the applicant’s service in Vietnam and in the years that followed. Dr Wong appeared to be more inclined to interpret the applicant’s history in a way that was unduly favourable to the applicant. We are not criticising Dr Wong’s professionalism in this regard; we merely observe that we prefer the evidence of an independent expert who was in a better position to reach an objective view having regard to the limited evidence available. In reaching that conclusion, we acknowledge the difficulty of the task being attempted. The events in question occurred nearly forty years ago. It is impossible to be certain of what occurred, or how the applicant felt at the time. Section 120(4) of the VEA requires that we decide the issue to our reasonable satisfaction. For the reasons we have given, we are reasonably satisfied that we should prefer the analysis of Dr Rose in the circumstances.

18.     It follows we accept the applicant suffered from alcohol dependence from the early 1970s. We also accept he suffers from dysthymic disorder dating back approximately 10 years. We also accept the applicant suffers from generalised anxiety disorder, but we conclude that condition is of more recent origin, perhaps in the last 10 years. We are not persuaded that generalised anxiety disorder could have been diagnosed during the course of the applicant’s service or in the five years that followed when the alcohol dependence condition began to manifest itself.

Is there a reasonable hypothesis?

19. Having established diagnoses, the claim must now be assessed according to the standard of proof set out in s 120 of the VEA. The legislation requires that there be a reasonable hypothesis linking the applicant’s diagnosed conditions with the circumstances of his service. The assessment process was discussed by the Full Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193. We shall follow the process suggested by the Court in that case.

20.     The first step is to identify the hypothesis establishing a causal link between the applicant’s condition and the circumstances of his service. We think Mr Hughes encounters some difficulty at this point. Mr Clutterbuck presented the applicant’s case on the basis that Mr Hughes suffered from generalised anxiety disorder as a direct result of the stress arising out of his service. That condition led to his alcohol dependence and, in due course, to his depression. Our finding that the applicant did not suffer from generalised anxiety disorder until some time after he left Vietnam and developed alcohol dependence suggests there is not enough evidence pointing to the hypothesis. It follows the claim should fail at this stage.

21.     Nevertheless, out of an abundance of caution, we shall proceed to analyse the claim in accordance with the reasoning in Deledio as if we were satisfied Mr Hughes was manifesting symptoms of an anxiety condition at the time of his service, or within a few years of that point.

22.     The applicant’s claim falls to be assessed with reference to the following Statements of Principles (“SoPs”):

·Anxiety Disorder – Instrument No 101 of 2007 (although it may also become necessary to consider Instrument No 1 of 2000);

·Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998; and

·Depressive Disorder – Instrument No 17 of 2007 (although it may also become necessary to consider Instrument No 58 of 1998)

23.     Since Mr Hughes’s case hinges on the existence of the anxiety disorder, we will deal with that SoP first. The applicant’s story must fit the template provided by the SoP if his claim is to succeed. We do not make findings of fact at this point; we simply take the story he told and assess whether or not the story can satisfy the criteria. As a practical matter, we must be satisfied the events described by the applicant are capable of being regarded as category two stressors within the meaning of the SoP. (There is no suggestion the applicant experienced any category one stressors, so we will not deal with that factor in the SoP.)

24.     We have considered the applicant’s account of his experiences in Vietnam. We have already referred to a number of specific features of that service, including the three-day patrol, the laundry runs, the vehicle accident, his disenchantment with his posting to the aviation unit, the fear or being injured in a mortar attack and being kept awake at night by various operations. We are not satisfied any of the experiences he described fit the examples given in the SoP. We acknowledge Mr Hughes did experience disharmony in the workplace, but the evidence does not suggest it was persistent. He referred to a few isolated examples of conflict, but it appears he was able to settle the disputes because he was “fit”. We also note he was unhappy with the work he was doing, which might imply a lack of control. However, while we accept the applicant was dissatisfied with the work and felt it was demeaning, that is not the same as experiencing chronic “distress, concern or worry”.

25.     We are not satisfied Mr Hughes (or a person in Mr Hughes’s position with his training, background and experience) could be said to have experienced category two stressors associated with his service within five years before the onset of an anxiety condition. For the sake of completeness, we have considered the applicant’s claim having regard to the SoP that was previously in force (Instrument No 1 of 2000). That SoP refers to “severe psychosocial stressors”. The definition of severe psychosocial stressor is similar to the definition of category two stressors in the more recent SoP. We do not accept the matters referred to in the course of the applicant’s story qualify as severe psychosocial stressors.

26.     As the applicant’s story cannot fit within the template provided by the relevant SoP or its predecessor, the claim must fail. The claims in respect of alcohol dependence and depression (which depend on the existence of a war-caused anxiety disorder) must also fail.

Conclusion

27.     The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member.

Signed: ...................................[Sgd]..................................................
  Michael Buckingham, Associate

Date of Hearing  13 March 2008
Date of Decision  1 April 2008
Counsel for the applicant          Mr R Clutterbuck
Solicitors for the applicant        Haney Lawyers
Solicitors for the respondent    Departmental advocate