Lamont and Repatriation Commission

[2005] AATA 149

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/1131

VETERANS’ DIVISION		)
Re		ROBERT WILSON LAMONT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date17 February 2005

PlaceBrisbane

Decision The decision with respect to alcohol abuse or dependence is affirmed.
The decision with respect to the psychiatric condition is set aside.
In substitution thereof the Tribunal decides the applicant suffers from PTSD that is attributable to his war service.

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

SENIOR MEMBER

CATCHWORDS

VETERANS' AFFAIRS – veterans’ entitlements - disability pension - post-traumatic stress disorder – generalised anxiety disorder – applicant did suffer a severe stressor which triggered post-traumatic stress disorder – decision under review set aside and substituted

VETERANS' AFFAIRS – veterans’ entitlements - disability pension – alcohol dependence – alcohol abuse – applicant alcohol dependant prior to relevant service period – decision under review affirmed

Veterans’ Entitlements Act 1986, s 120

Deledio v Repatriation Commission (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313

REASONS FOR DECISION

17 January 2005

introduction

1.      Mr Robert Lamont says he suffers from alcohol abuse and dependence and a psychiatric condition – either post traumatic stress disorder (PTSD) or generalised anxiety disorder (GAD). He says those conditions are attributable to his operational service in Vietnam. The Repatriation Commission disagrees, and his claim was rejected. The Veterans’ Review Board affirmed the Commission’s decision, and Mr Lamont has now asked the Tribunal to consider his case.

2.      This case is complicated by disagreement between the medical experts over diagnosis. There are also some difficulties in establishing the causal link between the applicant’s operational service and the condition or conditions which are found to exist.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

·Statement of Robert Wilson Lamont dated 3 July 2003 (exhibit 2)

·Statement of Robert Wilson Lamont, undated and received in the Tribunal 6 April 2004 (exhibit 3)

·Statement of Robert Dinnin James dated 2 December 2003

4.      Dr McIntyre’s medical report was included in the T documents. Dr Carter and Professor Jones both provided written reports and gave oral evidence.

5.      The applicant gave evidence in person. Mr Robert James also gave oral evidence.

6.      The applicant was represented by Mr Jarro of counsel. Mr Kelly represented the respondent.

the factual background

7.      Mr Lamont joined the Army in 1958 when he was 18. He remained in the service until he was discharged in 1978. He undertook operational service on two occasions. On the first occasion, he served with Far East Strategic Reserve in Singapore and Malaysia. I note his wife and young family lived with him while he rendered that service. On the second occasion, he rendered operational service in Vietnam from 5 May 1967 to 30 April 1968. He was based in Nui Dat. His family remained in Australia.

8.      The applicant was a radio operator serving with a signals unit in Vietnam. His job entailed listening to enemy transmissions of code. He had to write down what he heard so that it could be decrypted. It was essential that he recorded the coded transmissions accurately. The intelligence that he was instrumental in gathering was used by the task force commanders to despatch SAS patrols to ambush and interdict enemy forces.

9.      The applicant said this work was very stressful. He noted there were daily reports of enemy casualties resulting from the work of his unit. He says he worried that if his work was not done accurately, people might die. If he did not copy down transmissions accurately, code breakers would not be able to make sense of the message and enemy activity might go on without detection or interdiction.

10.     Around the time of the Tet offensive at the beginning of 1968, the applicant said he was growing increasingly bored at Nui Dat. Personnel were not allowed to leave the base for recreational purposes. He heard of a vehicle making the trip to Vung Tau. The road was dangerous and vehicles were ordinarily accompanied by one or more soldiers “riding shotgun”. He volunteered to provide security for the vehicle and it set out for Vung Tau. The vehicle slowed down as it passed a small group of dead bodies lying on the side of the road near the village of Hoa Long. The applicant said everyone inside the vehicle looked at the pitiful sight. Mr Lamont said there were three or four dead Vietnamese persons, all of whom had apparently been shot to death. (He later said he did not specifically recall seeing bullet holes.) Mr Lamont said the dead Vietnamese were all very young men or boys. He said it was hard to be sure how old they were: he guessed they were 12 years old, or perhaps older. There were placards on their bodies with writing in Vietnamese. Mr Lamont said he understood the young people to be Viet Cong or their sympathisers, and he thought the signs were a warning to their families and villagers about dealing with the Viet Cong. He acknowledged he did not read Vietnamese, so he could not be sure.

11.     The vehicle did not stop because of the danger. The applicant said the occupants of the vehicle talked about what they had just seen. He wondered whether his work had anything to do with the death of these individuals. Everyone soon fell silent. He said he felt numb. He went to the beach and got a drink when he arrived in Vung Tau. He said he felt a sense of horror when he reflected on what he had seen. But he said there was no one he could talk to about the incident, and he said he was reluctant to show his distress. Mr Lamont said soldiers did not complain about that sort of thing.

12.     The applicant said he started to drink more heavily following the incident. Prior to Vietnam, he said he drank occasionally. He said he started to have nightmares about the scene with the bodies. He experienced flashbacks, sweats and felt anxiety.

13.     Dr Carter notes the applicant’s wife said Mr Lamont was a changed man when he returned from Vietnam. His family life became more difficult. He continued to drink heavily. The nightmares, sweats, anxiety and exaggerated startle response persisted.

14.     Mr Lamont left the Army in 1978. He worked as a psychiatric nurse for a while. He left that job but in due course he worked as a medical orderly in a hospital. He became an enrolled nurse. He has now left work because of his health.

Diagnosis

15. The Tribunal must settle on a diagnosis. In doing so, I must consider the medical evidence and decide a diagnosis to my reasonable satisfaction: s 120(4) of the Veterans’ Entitlements Act 1986 (the Act).

16.     I heard from three medical experts: Dr McIntyre, Dr Carter and Professor Jones. All three experts agree the applicant suffers from alcohol abuse or dependence. I accept that diagnosis, as does the respondent, but it is difficult to determine the date of onset of the condition. Mr Lamont says his alcohol intake increased sharply while he was in Vietnam, around the time he saw the bodies near Hoa Long. Mr Kelly produced evidence suggesting the applicant was a heavy drinker many years before. His service disciplinary records (document T4 page 5) suggest he was fined for offensive behaviour in an alcohol related incident in 1958. In his alcohol questionnaire (T documents page 53) he said he was drinking at least 3 or 4 tall bottles of beer each night in 1962. Dr Carter agreed in her evidence that a person drinking that amount of alcohol was probably already dependent on alcohol.

17.     The applicant acknowledged in his questionnaire that there was strong peer group pressure to drink in the Army. He also acknowledged there was a culture of drinking heavily when he served in Singapore.

18.     While the applicant may have increased his level of alcohol consumption during his time in Vietnam (and continued to increase his consumption after he returned home), it seems to me there is ample evidence he was already dependent on alcohol by 1967. In other words, I am satisfied the onset of the condition pre-dated the applicant’s service in Vietnam.

19.     There was a dispute between the experts over whether the applicant suffered from a psychiatric condition, and if he did, how it should be diagnosed. Dr McIntyre said the applicant suffers from PTSD.  Dr Carter said in her report that she doubted whether the applicant had PTSD because she was unsure whether his subjective response satisfied the criteria in Axis A of the DSM-IV definition of the condition. She said he had GAD. In her oral evidence, however, she retreated from that position. She suggested a diagnosis of PTSD was available, although she apparently had a weak preference for GAD.

20.     Professor Jones declined to diagnose an anxiety condition. He said the applicant’s symptoms were adequately explained by his alcohol abuse and dependence condition. Professor Jones conceded one could make out an argument for a minor case of PTSD, but he insisted that alcohol abuse was a superior explanation.

21.      I am satisfied the bulk of the medical evidence supports a finding that the applicant suffers from an anxiety disorder, albeit one that is almost certainly complicated and accentuated by alcohol abuse. Dr McIntyre says it is PTSD; Dr Carter agrees it could be. Her preference for GAD is based on her concern that the applicant’s response may not satisfy the diagnostic criteria. That is certainly an issue, but I am ultimately prepared to accept his reaction exhibits a sense of helplessness and horror as required by the criteria. I am not persuaded by Professor Jones’s view because of the evidence that the applicant’s “change in personality” (referred to in Dr Carter’s report) did not occur until after he returned from Vietnam, notwithstanding my finding that he was already drinking very heavily at that point.

establishing causation

22.     Section 120 of the Act sets out the process I must follow when assessing claims like those made by Mr Lamont. The operation of the section was explained by the Full Federal Court in Deledio v Repatriation Commission (1998) 49 ALD 193. The first step, once a diagnosis has been made, is to identify the applicant’s hypothesis. Mr Lamont says coming across the bodies of the youths on the side of the road was so distressing that it caused him to develop a psychiatric condition. He adds the condition was a factor in the onset of an alcohol abuse condition, but I have already concluded the date of the alcohol abuse and dependence condition preceded his service in Vietnam. It is therefore unnecessary to consider that aspect of his claim.

23.     The next step is to identify the relevant statement of principles (the SoP). In this case the relevant SoP is No 3 of 1999, amended by No 54 of 1999.

24.     The third step in the Deledio process is to take the applicant’s story and, without making findings of fact, determine whether it is able to “fit” the template of the SoP. If it does not fit the template, the hypothesis is not reasonable and the claim must fail.

25.     I am satisfied that coming across the bodies in the way described by the applicant qualifies as “experiencing a severe stressor” within the meaning of the SoP. I think the youth of the victims sets this case apart from others where bodies might be seen on the side of the road in wartime. I am also satisfied the applicant’s response was characterised by “intense fear, helplessness or horror”. While he was not necessarily fearful, he said he quickly felt numb and wondered if his work had anything to do with the deaths. He said he felt a sense of horror when he reflected on the event later in the day, once the vehicle had made its way to Vung Tau and the tension of the journey wore off. I do not think his failure to report the incident or to discuss it with others tells us very much: he explained that in those days, soldiers did not let on they were distressed by what they saw. They feared their promotion prospects would be affected.

26.     The last step in the process involves fact finding. I accept the applicant was a witness of truth. I accept his description of what he saw on the side of the road. I accept his account that he was distressed and horrified. There is nothing to cause me to call into question the substance of his account, and I am therefore satisfied that his PTSD is properly attributable to his war service.

conclusion

27.     The decision with respect to alcohol abuse or dependence is affirmed. The decision with respect to the psychiatric condition is set aside. I decide in substitution that the applicant suffers from PTSD that is attributable to his war service. The earliest date of effect is 22 July 2001.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .....................................................................................
  Associate: Sam J Appleton

Date of Hearing  4 February 2005
Date of Decision  17 February 2005

The applicant was represented by Mr Jarro.

The respondent was represented by Mr Kelly.