Lambert and Repatriation Commission

[2005] AATA 883

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 883

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1017

VETERANS’ APPEALS DIVISION		)
Re		GORDON LAMBERT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Ms MJ Carstairs, Member

Date 12 September 2005

Place Brisbane

Decision  The decision under review is affirmed.

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

MJ Carstairs

Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – PTSD, alcohol abuse – operational service – diagnosis of psychiatric condition – decision affirmed

Veterans’ Entitlements Act 1986 ss 9, 120,

Repatriation Commission v Budworth [2001] FCA 1421
Mines v Repatriation Commission [2004] FCA 1331

REASONS FOR DECISION

12 September 2005   Ms MJ Carstairs, Member

1.      Gordon Lambert joined the Australian Army in 1966 at the age of thirty-five and served for twenty years, which included war service in Vietnam from 30 March 1967 to 12 February 1968.  In civilian life Mr Lambert was a qualified carpenter and joiner, and this was also his main work in the army.  In 2003 he lodged a claim to have a condition, which he described in the claim form as nerves, accepted as due to his war service. 

2.      Mr Lambert maintains that during his war service he experienced a number of stressful events that account for the state of his health.  He has been diagnosed by one doctor as having post traumatic stress disorder and an alcohol disorder. However the respondent’s delegate and the Veterans’ Review Board thought that he did not.

3.      Before I can decide whether Mr Lambert has any medical or psychiatric condition that might have a connection with his war service, I have to be satisfied that there is a diagnosable condition.  The issues therefore are:

§  Does Mr Lambert suffer from post traumatic stress disorder?

§  Does he suffer from alcohol abuse?

§  Does he suffer from any other psychiatric disorder?

4.      In regard to these questions I had the oral and written evidence of Dr F New, psychiatrist; Dr A Young, consultant psychiatrist; and Dr W Kingswell, consultant psychiatrist.  These doctors differed in their views.  There was a wide disparity between the views of Drs Young and Kingswell, on the one hand, and those of Dr New.  Dr Kingswell and Dr Young were in agreement in their conclusion that Mr Lambert suffers from no psychiatric disorder.  Dr New on the other hand diagnosed him as suffering from both post traumatic stress disorder and alcohol and nicotine abuse and at least psychological dependence. 

THE LEGISLATION

5. There was no dispute between the parties that the applicant had rendered operational service during his service in Vietnam, and Mr Lambert relied upon only that service as the basis of his claim. Section 9 of the Veterans’ Entitlements Act 1986 (the Act) provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service (that is, Mr Lambert’s Vietnam service), or where it arose out of, or was attributable to that service, it will be taken as being war-caused and will attract pension entitlements.

6. Where there are disputes about diagnosis, I must consider the characterisation of any disease or injury from which the applicant might suffer and be reasonably satisfied that there is a medical condition as claimed: s120(4) of the Act.

DOES MR LAMBERT SUFFER FROM PTSD?

7.      When preparing written statements (for instance his statement at exhibit A1) and in discussions with doctors (exhibit A2, R1 and T4, p49-55), Mr Lambert has referred to a number of incidents or stressors that occurred both before and during his Vietnam service.  These included the following:

§  He was shocked when another recruit fired a blank close to his ear during a training exercise when he was with the citizens’ military forces (before he joined the army full-time).

§  During his army training at Canungra a bird spider landed on him during the night.

§  There were rats in bunkers when the applicant was assigned to guard duty at night in Vietnam.

§  He was distressed by the constant firing of artillery in Vietnam, and the noise of destroyers firing off-shore.

§  Twice he rode shotgun, armed with a loaded rifle, on trucks travelling to Vung Tau and he said he was apprehensive because it was uncertain whether peasants they passed in the fields were enemy or not.

§  On one occasion when he was in Vung Tau a bullet ricocheted past him.  He dived for cover over a fence and lay there for some time before emerging and paying a Vietnamese local to drive him back to camp.

§  He recalled three occasions when there were accidental discharges of weapons while others cleaned their guns:  We all dived to the ground as quick as possible in fear that we were going to be shot through the canvas by accidental discharging bullets: exhibit A1.

8.      Mr Lambert said that he was scared most of the time in Vietnam, though he tried to put on a brave face as he was ten years older than other servicemen there.  He said that guns were going off morning and night and it was never clear whether this was incoming or outgoing fire.  He said his nerves were on edge when he was detailed to ride shotgun on trucks.  The applicant said that noise now bothers him and makes him irritable. He is easily angered by the music of noisy neighbours.

9.      Mr Lambert said that he dreams intermittently of being shot at. He has sleeping pills, but dislikes taking medication.  He said he has few friends apart from one close ex-Army mate.  He said he likes to talk to people but has little to talk about except his army experiences.

10.     The question of whether the applicant suffers from post traumatic stress disorder must be assessed on the available medical evidence.  There are several criteria (criteria A-F) that must be met for a diagnosis of post traumatic stress disorder to be made out.  These are set out in the Statement of Principles for the condition, using the terms provided for in the Diagnostic and Statistical Manual of Mental Disorders 4^th Edition (DSM IV).  The first of these – Criterion A – provides that a significant traumatic event has occurred and the person’s reaction is at a certain level of severity, as follows: 

(A)      the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person’s response involved intense fear, helplessness, or horror….

11.     Mr Lambert’s case raised issues that have been considered in Mines v Repatriation Commission [2004] FCA 1331, where the Federal Court said:

If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational serve it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.

12.     I note that only those stressors that occurred during Mr Lambert’s Vietnam service are relevant to this claim.  It is a fair reflection of the submissions of Mr Lambert’s counsel that he relied on the bullet ricocheting in Vung Tau and the accidentally discharged rifles as the substantive stressors in Mr Lambert’s claim.

13.     In forming a view on whether Mr Lambert had been exposed to a traumatic event of the kind contemplated by the diagnostic criteria, and had a severe reaction to it (the second limb of the definition), I took into account Dr New’s comments that Mr Lambert is a reserved and reluctant historian who prefers to take a stoic line rather than complain and that this reluctance is reflected in the limited information that he gives to doctors.  I also took into account that Dr New, having seen the applicant more often than other doctors, might be in a better position to obtain a comprehensive history.  Nevertheless, I consider that Mr Lambert’s evidence about the nature of the stressors he experienced supports the view taken by Drs Kingswell and Young that he was not exposed to an event that could be described meaningfully as a traumatic event as is required for a diagnosis of post traumatic stress disorder.

14.     I accept that Mr Lambert was fearful with particular incidents and scared most of the time when he was in Vietnam.  Nevertheless, a diagnosis of post traumatic stress disorder requires a particular kind of stressor and a level of severity that is absent from the incidents that the applicant relies upon. 

15.     Both Drs Young and Kingswell note that Mr Lambert did not describe to them the expected thought-content of a person who had feared for his life or feared for the physical integrity of others.  In giving his oral evidence Mr Lambert spoke of his general feeling of being on edge, and this aspect of his described experience was noted also by both Dr Kingswell and Dr Young in their reports.   However, that general feeling of apprehension would not necessarily meet the requirements of the first limb of criterion A(i) and I am satisfied that in Mr Lambert’s case it did not. 

16.     Mr Lambert’s potentially more severe stressors were when the bullet whistled by him in Vung Tau, and the instances of accidental discharge of rifles.  In regard to each of these Mr Lambert did not describe in his evidence sensations or reactions of severe fear or helplessness (the second limb).  Rather, what he described was a lesser level of reaction, which was within the range of normal reactions to perceived danger, including ducking for cover.  His subsequent action after the richoeting bullet incident in Vung Tau, of organising a lift home with local Vietnamese, suggests that he recovered with composure from his immediate reaction to protect himself. 

17.     I preferred the interpretations by Dr Young and Dr Kingswell to that of Dr New.  Both doctors thought that Mr Lambert did not have the exposure to a sufficiently traumatic event or the required intense reaction to it dictated under Criterion A.  Dr New repeatedly reiterated that Mr Lambert’s failure to give detail was an aspect of his personal style, which he said is marked by limited skills of communication.  I did not observe Mr Lambert as having limited communication skills.  He was quite forthcoming in his descriptions, did not exaggerate, and appeared to have good recall.

18.     However it was also in the symptoms of PTSD (that is Criteria B to F) that I preferred the evidence of Dr Young and Dr Kingswell.  Both doctors pointed out that Mr Lambert does not have significant symptoms under Criteria B, C and F.  These criteria provide as follows:

(B)      the traumatic event is persistently re-experienced ….

(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma)…..

(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning….

19.     Dr Young noted in her oral evidence that Mr Lambert was not persistently re-experiencing the events, nor was he avoiding situations associated with them.  She pointed out in her oral evidence that his reduced social contact is not unusual in a man of his age, and she noted that he had told her that his reduced outside social activities, including golf, was due to pain, rather than psychiatric disturbance.  She noted also that his wakefulness at night was due to pain, a point reiterated by Mr Lambert at the hearing.  Mr Lambert also told Dr Young that he only had occasional dreams.  I accept her evidence that his intermittent dreams did not warrant a psychiatric diagnosis.  

20.     Dr Kingswell also noted the absence of nightmares and other reliving phenomena (Criterion B) and the absence of significant distress or impairment in social occupation or functioning (Criterion F).

21.     I accept the evidence of Dr Kingswell and Dr Young.  Their evidence was consistent with Mr Lambert’s evidence.  Both doctors took into account the whole of the criteria for a diagnosis of PTSD.  Dr New’s report did not accord with the evidence as Mr Lambert gave it.  His report and oral evidence relied on inferences that Dr New suggests should be drawn from the applicant’s failure to comment or elaborate in detail.  He warned against accepting Mr Lambert’s information at face value.  I was not satisfied that this was a proper basis for diagnosing a condition such as post traumatic stress disorder where a number of criteria must be met and must rely on what the person says.  Mr Lambert had mentioned on various occasions a number of incidents that affected him, but never consistently, and this suggests that there was no single incident that was so significantly affecting to him as to fulfil one of the main criteria that underpins a diagnosis of the disorder.

22.     I was not satisfied that the applicant suffers from post traumatic stress disorder and so his claim for nerves – so far as it was diagnosed as post traumatic stress disorder - fails.

IS A DISGNOSOS OF ALCOHOL ABUSE ESTABLISHED?

23.     Mr Lambert stated (exhibit A1) that prior to his deployment to Vietnam he was a social drinker only, but that in Vietnam his drinking increased because alcohol was cheap and readily available and it was part of social interaction there.  He said that at times he was so badly inebriated after drinking sessions that he could not make it back to his tent. 

24.     Mr Lambert stated that his heavy drinking continued when he returned from Vietnam and affected his marriage.  However he agreed in cross-examination that he reduced his consumption after the war as he had a family to keep, and generally agreed with the notation alcohol – moderate (6 schooners/week) since young adult:  T4, p13. He added however that he would drink more at the weekend when watching football.  In regard to his alcohol consumption being a problem in his social relationships, Mr Lambert recalled one occasion when his wife contacted his commanding officer.  Mr Lambert was ordered to report to an officer at Victoria Barracks whom he believed was a psychiatrist.  Mr Lambert said that he did not adopt the officer’s advice that he reduce his drinking. 

25.     Mr Lambert said that these days he has two to four glasses of home brew at night, though not recently as he is taking medication.

26.     The diagnostic criteria for this condition are specified in DSM-IV.   DSM-IV sets out as the general criteria for substance abuse:

A maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by one (or more) of the following, occurring within a twelve month period:

1. recurrent substance use resulting in failure to fulfil major role obligations at work school or home…

2.        recurrent substance use in situations in which it is physically hazardous…

3         recurrent substance related legal problems….

4 continued substance use despite having persistent or recurrent social or interpersonal problems…

27.     The doctors again differed on the question of alcohol disorder.  Dr New conceded that Mr Lambert does not suffer from alcohol dependence, but believes that he does suffer from alcohol abuse.  Dr Kingswell said that no diagnosis of alcohol abuse can be made.  Dr Young acknowledged that in her written report in 2003 she had neglected to explore Mr Lambert’s alcohol history in any depth, but she said that Mr Lambert did not indicate that there were negative consequences from his consumption of 4-6 stubbies of home brew, except his increased irritability with his wife.  She, like Dr Kingswell, thought that while this level of consumption exceeded a recommended intake, it was not a level that required a diagnosis of alcohol abuse. 

28.     Dr Kingswell took into account that Mr Lambert had a current safe level of intake, and whist he had one occasion of coming to the attention of his superiors, and had one drink-driving offence, Dr Kingswell said that these did not warrant a diagnosis of an alcohol problem.  He said that there were no demonstrated social or occupational limitations arising from his alcohol use, which Dr Kingswell described as being a safe drinking pattern.

29.     I prefer the evidence of Dr Young and Dr Kingswell to that of Dr New, because their analysis fits more closely with the evidence given by Mr Lambert.  It is plain that the DSM-IV criteria emphasise recurrence of problems and the evidence here does not reflect that Mr Lambert has recurrent problems related to alcohol.  Dr New resiled in his oral evidence from including the diagnosis of alcohol dependence that he used in his written report: alcohol and nicotine abuse and at least psychological dependence.  His report is notable for how little he says about the basis for his diagnosis.  Dr New mentions the single drink driving offence, and the complaint Mr Lambert’s wife made to his commanding officer but nowhere does he explain how these instances over a lifetime of regular drinking amount to a maladaptive pattern of substance use leading to clinically significant impairment or distress.  I do not accept that they do.  I note also that Dr New acknowledged in his oral evidence that he was not aware of whether the Mr Lambert has problems with alcohol now that warrant the use of the term alcohol abuse.

30.     Taken as a whole the evidence suggests that Mr Lambert does not demonstrate a maladaptive pattern of alcohol use which supports the diagnosis of alcohol abuse that Dr New made.  I was not satisfied that the applicant suffers from alcohol abuse and so his claim for nerves – so far as it is diagnosed as alcohol abuse also fails.

31.     Dr Young concluded that Mr Lambert had no psychiatric disorder.  She summarised him as being a pleasant, affable man, who was experiencing little interference with his life, and though he might complain of being irritable and short tempered at times, she noted that this reflects his advancing age, and is related to his high sensitivity to noise, and his general frustration with his physical limitations.  Dr Kingswell said that Mr Lambert had led an adequate life, never reported for treatment, and he described him as quite cheerfully engaged about his future.  There is no suggestion on the evidence before me that there is a collection of relevant symptoms that constitute disease that needs to be further explored: Repatriation Commission v Budworth [2001] FCA 1421.

32.     In summary I preferred the evidence of Dr New and Dr Young that Mr Lambert is an essentially normal seventy-five year old who does not have any psychiatric condition. 

DECISION

33.The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  4 May 2005 and 14 June 2005
Date of Decision  12 September 2005
Counsel for the Applicant         Mr A Harding
Solicitor for the Applicant          Gilshenan and Luton
For the Respondent                  Mr M Smith, Departmental Advocate