Langlands and Repatriation Commission
[2011] AATA 926
•22 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 926
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5442
VETERANS' APPEALS DIVISION ) Re IAN ANGUS LANGLANDS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date22 December 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
..................[sgd]..........................
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety - alcohol dependence or abuse - stressful events - date of clinical onset - whether conditions diagnosed and war-caused - whether eligible for special rate of pension
Veterans' Entitlements Act 1986 ss 9, 24(1), 120(1)
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
22 December 2011
G. D. Friedman, Senior Member
1. Ian Langlands completed National Service in the Australian Army from 8 July 1970 to 7 January 1972. His service included a period in Vietnam from 31 March 1971 to 8 December 1971, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2. On 23 March 2010 he lodged a claim for incapacity from nervous disorder and alcohol arising from stressful events during his service. The respondent refused his claim for anxiety disorder and alcohol dependence or abuse, and assessed his disability pension at 50 per cent of the general rate on the basis of other conditions that had been accepted as war-caused. The Veterans’ Review Board (VRB) affirmed the decision and Mr Langlands seeks review of the decision. He also seeks disability pension at the special rate.
LEGAL FRAMEWORK
3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4. In the circumstances of this case, where Mr Langlands has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
5. In respect of the application for payment of disability pension at the special rate, s 24 of the Act makes provision for payment at rates higher than 100 per cent of the general rate of pension:
24(1) This section applies to a veteran if:
…
(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity…
ISSUES
6. The issues before the Tribunal are:
·What are the diagnoses for the medical conditions suffered by Mr Langlands?
·Is each diagnosed condition war-caused?
·Is Mr Langlands entitled to disability pension at the special rate?
WHAT ARE THE DIAGNOSES FOR THE MEDICAL CONDITIONS SUFFERED BY MR LANGLANDS?
7. In a report dated 3 June 2011 Dr G White, consultant psychiatrist, diagnosed a mild chronic generalised anxiety disorder characterised by a tendency to worry excessively and other physical, psychological and social symptoms of anxiety that have caused significant distress but have not interfered unduly with Mr Langlands’ activities of daily living or work capacity.
8. In a report dated 6 June 2010 Dr D Baron, consultant psychiatrist, diagnosed generalised anxiety disorder based on symptoms of anxiety after Mr Langlands’ return from Vietnam including restlessness, heavy drinking and anxiety.
9. In a report dated 6 April 2011 Dr L Walton, consultant psychiatrist, diagnosed a mild adjustment disorder based on Mr Langlands’ history of intermittent anxiety, sustained depressed mood, insomnia with nightmares, poor attention span and feelings of anger when reminded of events he considered to be traumatic. Dr Walton did not believe that the central clinical criteria for anxiety disorder were made out because Mr Langlands did not experience troublesome anxiety more often than not. However at the hearing he acknowledged that after completing his report he became aware that Mr Langlands had given to another medical practitioner a history of such frequency of anxiety.
10. The Tribunal takes into account that Dr White noted in a further report dated 2 August 2011 that Mr Langlands specifically mentioned that he did experience such anxiety. In all the circumstances the Tribunal accepts the diagnosis by Dr White and Dr Baron and is reasonably satisfied that the appropriate diagnosis is generalised anxiety disorder.
11. In respect of alcohol consumption Mr Langlands told the Tribunal that he was a social drinker from the age of 18 years until he joined the army. His consumption then increased markedly because of boredom and peer pressure, particularly while he was serving in Vietnam. He said that the high level of consumption continued when he returned to Australia, and he now consumes four to five cans of full-strength beer each night, plus whiskey and wine each week. Mr Langlands emphasised that he does not experience withdrawal symptoms when deprived of alcohol and has no alcohol-related social problems or alcoholic blackouts.
12. Dr Walton stated that although Mr Langlands consumes alcohol at a level that is potentially injurious to his health, there was no evidence that alcohol use has resulted in a failure to fulfil major role obligations and no history of recurrent alcohol use in hazardous situations or circumstances resulting in recurrent relationship difficulties. Dr Walton could not make a diagnosis of alcohol abuse or alcohol dependence. Dr White took a history of alcohol consumption that increased significantly after joining the army and is now at an excessive level, but he did not diagnose alcohol dependence or abuse for reasons similar to those given by Dr Walton. The Tribunal is reasonably satisfied that Mr Langlands does not suffer from alcohol dependence or abuse.
IS GENERALISED ANXIETY DISORDER WAR-CAUSED?
13. Mr Langlands stated that his operational service led to his anxiety disorder. He told the Tribunal that he was born in Scotland and came to Australia with his family at the age of 5 years. He said that after completing Year 11 he joined the Commonwealth Bank until he was selected for National Service. He said that after recruit training he qualified as a Storeman Technical in the Royal Australian Army Service Corps (RAASC) and was sent to Vung Tau, Vietnam where he worked in that capacity, loading and unloading supplies for other Australian units. When he was discharged from the army he returned to the Commonwealth Bank, where he remained until 1998 when he was retrenched. He resumed working with the bank as a contracted data input operator until he ceased work in March 2009 because of concentration and vision problems.
14. Mr Langlands stated that prior to service in Vietnam he had not experienced any emotional problems, but that the first signs of anxiety followed three stressful events while he was serving in Vietnam. The first occurred when he was a passenger in a dump truck travelling between Nui Dat and Vung Tau using a back road after delivering a load of sand for construction work (the dump truck event). He explained that the truck was in an informal convoy without armed protection and a mate was driving, and that he could hear the bullets striking the rear of the vehicle even though the vehicle was noisy. He said that the vehicle came under fire near the Long Hai mountains along the coast and about three or four shots were fired. The driver accelerated and no-one was injured, but he said that he was frightened at the time because the event was unexpected.
15. Under cross-examination Mr Langlands agreed that he told the VRB that, in relation to the incident: …life over there was just full of interesting experiences so it was just another one, I guess. He said that he did not report the incident to anyone because he was only a passenger in the truck, and he did not consider the incident to be serious enough to justify a formal report. He did not give the incident much thought afterwards. He stated further that the official record of an incident that occurred on 19 July 1971, when an armed convoy of dump trucks was fired upon by friendly South Vietnamese forces, must have been a different event, even though his representative at the VRB hearing had relied on that document to support his application.
16. The second event occurred when he and several other personnel were told to remove deteriorating meat from a refrigerator in Vung Tau and to burn it at a beach and bury the remains (the meat event). The intention was to prevent the meat from becoming a health hazard because rubbish removal occurred only every few days, and because if the meat was acquired by South Vietnamese soldiers it might end up in restaurants in Vung Tau. Mr Langlands stated that they took the meat past the area of the beach where people were swimming to a place near a South Vietnamese army base. During this process they were approached by South Vietnamese Army reservists who wanted to acquire the meat with a view to selling it. When the Australians declined, the South Vietnamese left, but after a few minutes several shots were heard from nearby bushland. Mr Langlands said that he concluded that the soldiers were trying to scare the Australians into abandoning the meat. The burying party sought shelter behind a truck, and no injuries occurred. He said that he felt vulnerable because he was the only one in his group who was armed, although he had only three rounds of ammunition for his rifle. He said that eventually other Australians heard the noise and rescued them. Mr Langlands emphasised that he was somewhat frightened, although this was just another incident during his service in Vietnam.
17. The third event occurred when he and a fellow soldier were intoxicated in the back streets of Vung Tau township. He was waiting for his colleague when he was confronted by three South Vietnamese soldiers who produced knives (the pursuing soldiers event). Mr Langlands said that believed the soldiers were trying to rob him and pushed one of them. He called to his colleague and they ran from their pursuers, who gave up the chase after a couple of hundred metres. Mr Langlands said that this incident made him feel apprehensive.
18. Mr Langlands told the Tribunal that since his service in Vietnam he has been left with ongoing anxiety, although he has never sought professional help with his psychological issues, and the problems occur with varying degrees of severity. Under cross-examination he acknowledged that at the VRB hearing his representative referred to the three claimed stressors but only described the dump truck event: Mr Langlands has spoken of three stressors: two we can’t prove but from the war diary, we can certainly prove the incident with the dump truck. Mr Langlands agreed that he did not mention the other two stressors at the hearing, although he told the Tribunal that the pursuing soldiers event was probably the scariest of the three incidents.
19. Mr Langlands also mentioned to the Tribunal that when he was sent to Vietnam at the age of 21 years he had a girlfriend in Australia, but that the relationship had ended while he was away and that she had found someone else.
20. Dr Walton noted that Mr Langlands believed that he was exposed to a significant stressor, particularly the dump truck event which amounted to a life-threatening event. Dr Walton said that Mr Langlands did not rate the other events as markedly stressful.
21. Dr White said that it is difficult to establish the causative factors of Mr Langlands’ anxiety condition. He said that these might have included growing up with an unwell father; being an only child; having had a series of unsuccessful relationships; heavy alcohol use; resentment about his experiences in the Army; certain personality traits; and vocational dissatisfaction. Dr White was not entirely convinced that Mr Langlands’ symptoms were due to Army experiences apart from ongoing resentment and a feeling of dislocation on return to Australia from Vietnam. Dr White stated that Mr Langlands had mentioned traumatic experiences in Vietnam but had described them as: …it was very frightening at the time…it’s all part of the overall experience and you get on with it, it didn’t really traumatise me.
22. Dr Baron took a history that Mr Langlands found the stressful events to be particularly frightening and he feared for his life. In respect of the dump truck event, he said that Mr Langlands’ description was that it: …scared the living Jesus out of both of us. In respect of the meat event, Dr Baron recorded that when the Australian soldiers were reluctant to hand over the meat the South Vietnamese retreated and fired shots over the heads of the Australians to frighten them away so that the meat could be retrieved. The shots were heard at the Australian base and reinforcements arrived. In respect of the pursuing soldiers event, Dr Baron recorded that Mr Langlands and his colleague were in the back streets of Vung Tau when they were threatened by some Vietnamese who produced knives.
23. In a report dated 14 February 2011 for Writeway Research Service Pty Ltd Mr W Barsley stated that, in respect of the dump truck event, the dump truck platoon of 5 Coy RAASC in Vietnam was engaged in providing support to American and Australian construction projects. He said that official records show that there was one such incident, which occurred on 19 July 1971, when a convoy of 21 dump trucks, accompanied by two gun jeeps for protection, was delivering road material to Nui Dat from a rock quarry near Long Binh. One vehicle in the convoy received small arms fire and was struck by six rounds. Mr Barsley said that the incident occurred on the main highway near Thai Thien and not on a back road or near the Long Hai mountains, and the shots were found to have been fired by friendly South Vietnamese forces, not the enemy, at a check point when the driver attempted to brake on a wet road and crashed through the wire barrier. Mr C Barratt, the driver of the vehicle, said to the researcher after reviewing the official report into the incident that at no time was anyone else in the vehicle on the day in question.
24. In respect of the meat event, Mr Barsley stated that no official record of the event, including reinforcements rushing to his aid, could be located. He described the beach at Vung Tau at the time and said that it was highly unlikely that the disposal of any type of garbage would be permitted or ordered in the beach area. Mr Barsley said that disposal and collection of garbage was the responsibility of 21 Supply Platoon, rather than a Storeman Technical such as Mr Langlands, and that food supplies were not held in the unit Q store where Mr Langlands would have been employed. Further, a garbage and disposal service was provided by a company contracted by the United States Army, which operated a dedicated garbage disposal area at the Vung Tau rubbish tip controlled by the United States Corps of Engineers.
25. In respect of the pursuing soldiers event, Mr Barsley stated that he could find no documentary evidence of this incident, and Mr Langlands had made no reference to the matter being reported to authorities.
26. In relation to the first step from Deledio, after considering all the material including evidence from Mr Langlands and the psychiatrists about his generalised anxiety disorder and its connection to operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Langlands. Therefore he satisfies the first step.
27. In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, being SoP Nº 101 of 2007 (as amended by SoP Nº 42 of 2010) concerning anxiety disorder, so Mr Langlands satisfies the second step.
28. In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Langlands and the medical evidence. The Tribunal considers that the hypothesis linking Mr Langlands’ operational service with his anxiety is a reasonable one. Therefore Mr Langlands satisfies the third step.
29. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Langlands’ anxiety disorder was due to his operational service within the meaning of s 9 of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
30. Factor 6 in SoP Nº 101 of 2007 concerning anxiety disorder provides:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder;
…
(v) experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder;
In paragraph 9 of the SoP:
"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 category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
…
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
31. There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated at [92] and [93]:
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 aclinical onsetof 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.
The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
32. In respect of clinical onset of anxiety disorder, Mr Langlands stated that he told the VRB that the first time he reported his symptoms of anxiety to anyone or discussed the issue was in 2009, and before this date he had not sought treatment, therapy or medication because he had been hiding his condition for 40 years. He said that he self-medicates with alcohol. He emphasised that after National Service he did not want to return to the Commonwealth Bank and did not enjoy the clerical work, even though he had enjoyed the work before his army service. He said that his main problem was a lack of interest rather than any sickness or behavioural issues, and his excessive drinking did not cause him to miss any work commitments. Mr Langlands said that he was restless when he returned from Vietnam and had difficulty adjusting to civilian life, although he told the VRB: As I got older, it sort of mellowed a bit but, you know, for 10,15 years I’ve only just realised it was - it was a big problem. That’s partly because I wasn’t getting anywhere at work…He also told the VRB, when asked whether anything worried him after his army service, that there was not anything that worried him in a persistent way. He explained:
No, not really. At the time, I was – no, I suppose in your early 20s – and it’s a long time ago – you really didn’t – you know, like I was quite happy to eat and drink and, you know, all that sort of thing. And you had friends and you just – life just sort of rolled along really, at the time. I wasn’t really – and it was 40 years ago too, so…I can’t really pinpoint any sitting down thinking, you know, too seriously about the whole thing.
33. Dr Baron stated that Mr Langlands returned from Vietnam suffering from considerable ongoing anxiety which was clinically significant. He was anxious and restless and experienced difficulty concentrating at work.
34. Dr P McCurdy, medical officer, Department of Veterans’ Affairs, stated on 21 July 2010 that although Dr Baron reported that Mr Langlands had anxiety symptoms when he returned to Australia from Vietnam, the condition was not clinically significant because it did not involve ongoing visits to, or management from, a psychiatrist, clinical psychologist or general practitioner. She assessed the date of clinical onset as being March 2009 when Mr Langlands ceased work, because that was the date of the onset of more severe symptoms of anxiety which could benefit from treatment or counselling.
35. Dr White stated in his reports that it is difficult to say when the symptoms would have met the criteria for a psychiatric condition. He referred to Mr Langlands’ evidence to the VRB that he was becoming more aware of anxiety in the last 10 to 15 years, particularly after a panic attack that occurred while he was driving his motor vehicle 15 to 20 years ago. Dr White was not convinced that Mr Langlands’ level of distress and/or impaired functioning had been clinically significant until the last 10 to 15 years. He stated that there was a sense from Mr Langlands that while Mr Langlands had …never been the same… since his return from Vietnam, the symptoms worsened over the years, and probably did not meet the criteria for a psychiatric disorder on immediate return from Vietnam.
36. Although Dr Walton diagnosed adjustment disorder and concluded that the condition occurred within three months of the claimed stressors, he acknowledged that at no stage has Mr Langlands sought any professional assistance in regard to enduring psychological problems. On balance and after considering the medical evidence the Tribunal prefers the evidence from Dr White that the symptoms of mild anxiety began after Mr Langlands’ operational service and reached a point about 10 to 15 years ago when Mr Langlands became aware of the worsening symptoms which later enabled a medical diagnosis of his condition. This is consistent with Mr Langlands’ recollection of restlessness but not of persistent worries, and his evidence that he did not have ongoing psychological issues and was able to work full-time, despite his level of alcohol consumption. It is also consistent with the opinion of Dr McCurdy that the condition was not clinically significant until much later than the service in Vietnam.
37. The Tribunal finds that clinical onset of anxiety disorder is about 1996 to 2001, so Mr Langlands cannot satisfy factor 6(a)(ii) of SoP Nº 101 of 2007 because the claimed stressors occurred more than five years before the clinical onset of the condition; nor can he satisfy factor 6(a)(v) of SoP Nº 101 of 2007 because the claimed stressor occurred more than one year before the clinical onset of the condition. Consequently there is no need for the Tribunal to determine whether any of the claimed stressful events constitute category 1A stressors or whether there was a category 2 stressor.
38. It follows that Mr Langlands does not satisfy the fourth step. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Langlands’ anxiety disorder was war-caused.
IS MR LANGLANDS ENTITLED TO DISABILITY PENSION AT THE SPECIAL RATE?
39. In view of the Tribunal’s findings that Mr Langlands does not suffer from alcohol dependence or abuse, and that his diagnosed condition of generalised anxiety disorder is not war-caused, Mr Langlands’ disability pension remains at 50 per cent of the general rate. Therefore his degree of incapacity is not at least 70 per cent and he cannot satisfy s 24(1)(a) of the Act, so he does not meet the criteria in s 24 for the grant of disability pension at the special rate.
DECISION
40. The Tribunal affirms the decision under review.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
Michael Heffernan
Associate
Dates of hearing: 19 and 20 December 2011
Date of decision: 22 December 2011
Advocate for the applicant: Mr D De Marchi
Solicitor for the applicant: De Marchi & Associates
Advocate for the respondent: Mr K Rudge, Department of Veterans’ Affairs
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