McCutcheon and Repatriation Commission
[2004] AATA 329
•31 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1019, Q2003/871
VETERANS' APPEALS DIVISION )
Re QUENTIN McCUTCHEON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr I R Way, Member Date31 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
(Sgd) IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – claim for medical treatment and disability pension – diagnosis of psychiatric symptoms - no reasonable hypotheses connecting alcohol abuse to operational service in Vietnam – no severe stressor – incorrect diagnosis of post traumatic stress disorder – irritable bowel syndrome was war related – decisions under review affirmed.
Veterans' Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Martin v Repatriation Commission [2003] AATA 1228
Budworth v Repatriation Commission [2000] AATA 127
Cranage & Repatriation Commission [2000] AATA 1119
Woodward & Repatriation Commission (2003) FCA FC160Repatriation Commission v Cooke (1998) 160 ALR 17
REASONS FOR DECISION
31 March 2004 Mr I R Way, Member 1. This is an application by Quentin McCutcheon for review of two decisions of the Repatriation Commission.
2. The first decision, dated 17 January 2002, insofar as is relevant in this matter, determined that post traumatic stress disorder (PTSD) and alcohol dependence (AD) or alcohol abuse (AA) are not war caused. This decision was affirmed by the Veterans Review Board (VRB) on 11 September 2002.
3. The second decision, dated 10 June 2003, determined that irritable bowel syndrome (IBS) is not war caused and this decision was affirmed by the VRB on 16 September 2003.
4. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as follows:
§ Q2002/1019 (PTSD and AD or AA) – Document T1 – T6
§ Q2003/871 (IBS) – Document T1 – T6)
5. Other documentary evidence before the Tribunal was as follows:
Exhibit A1 Statement of Applicant dated 16 March 2003
Exhibit A2 Statement of Applicant dated 20 November 2003
Exhibit A3 Report of Dr Jerome Gelb dated 23 July 2003
6. Mr D O’Gorman of Counsel, instructed by Gilshenan and Luton, appeared for the applicant. Mr M Smith, Departmental Advocate, appeared for the Respondent. The applicant gave oral evidence and Dr J Gelb, consultant psychiatrist, gave evidence by telephone.
7. The applicant was born on 17 December 1948 and served in the Royal Australian Air Force (RAAF) from 24 January 1966 to 23 January 1972, including a period of operational service in Vietnam from 27 August 1969 to 30 July 1970.
8. The applicant’s accepted service related disability is bilateral sensorineural hearing loss. His non-service related disabilities are PTSD, AD or AA (the applicant being eligible for treatment of PTSD) and IBS.
9. The applicant’s hypotheses are that he suffers PTSD because of stressors he experienced in Vietnam; that he suffers AD or AA because of his war caused PTSD and/or stressors experienced in Vietnam; and that he suffers IBS because of his war caused PTSD.
Legislative Framework
10. The relevant provisions of the Veterans’ Entitlements Act 1986 (“the Act”) are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…..
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
11. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(1)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.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
12. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
13. The RMA has, pursuant to section 196B(2) of the Act, determined SoPs in respect of PTSD, AD or AA. It is common ground between the parties and the Tribunal accepts that the relevant SoPs in this matter are:
§Post Traumatic Stress Disorder – Instrument No 3 of 1999 (as amended by Instrument No 54 of 1999)
§Alcohol Dependence or Alcohol Abuse – Instrument No 76 of 1998
§Irritable Bowel Syndrome – Instrument No 103 of 1996
14. Instrument Number 3 of 1999 (as amended by Instrument Number 54 of 1999) relevantly states:
“Kind of injury, disease or death
2.(a) This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b) For the purposes of this Statement of Principles, ‘post traumatic stress disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
(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; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b) experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of post traumatic stress disorder where the person’s post traumatic stress disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
15. Instrument Number 76 of 1998 (Alcohol Dependence or Alcohol Abuse) relevantly provides:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles, “alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)alcohol is often taken in larger amounts or over a longer period than was intended
(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(3)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence. The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse. Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(c) to 5(e) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;”
16. Instrument Number 103 of 1996 (Irritable Bowel Syndrome) relevantly provides:
“Kind of injury, disease or death
2. (a) This Statement of Principles is about irritable bowel syndrome and death from irritable bowel syndrome.
(b) For the purposes of this Statement of Principles, “irritable bowel syndrome” means a heterogeneous group of disorders of diverse symptomatology in which abdominal pain is associated with defaecation or changes in bowel habit, and with features of disordered defecation and with distension, and which is characterised by the following symptom criteria:
At least three months, continuous or recurrent symptoms of:
(A) Abdominal pain or discomfort which is
· relieved by defaecation;
· and/or associated with a change in frequency of stool;
· and/or associated with a change in consistency of stool;
plus
(B) An irregular pattern of defaecation at least 25% of the time, consisting of two or more of the following:
· altered stool frequency;
· altered stool form (lumpy/hard or loose/watery);
· altered stool passage (straining, urgency, or feeling of incomplete evacuation);
· passage of mucus;
· bloating or feeling of abdominal distension,
attracting ICD code 564.1.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that irritable bowel syndrome can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service are:
(a)being a prisoner of war before the clinical onset of irritable bowel syndrome; or
(b)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
(c)suffering an episode of severe diarrhoea within the six months immediately before the clinical onset of irritable bowel syndrome; or
(d) suffering a specified psychiatric condition within the six months immediately before the clinical worsening of irritable bowel syndrome; or
(e)suffering an episode of severe diarrhoea within the six months immediately before the clinical worsening of irritable bowel syndrome; or
(f) inability to obtain appropriate clinical management for irritable bowel syndrome.
Other definitions
7. For the purposes of this Statement of Principles:
“a specified psychiatric condition ” means:
(a) a psychiatric condition with features of anxiety, including:
(i) generalised anxiety disorder, ICD code 300.02; or
(ii) panic disorder, ICD code 300.01; or
(iii)adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv) post traumatic stress disorder, ICD code 309.81; or
(b) a psychiatric condition with depressive features, including:
(i) major depressive disorder, ICD code 296.2 or 296.3; or
(ii) neurotic depression, ICD code 300.4; or
(iii) other depressive disorders, ICD code 311; or
(iv)adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;”
Applicant’s Evidence
17. The applicant provided two written statements (Exhibits A1 and A2) and gave oral evidence.
18. Included in his written statements are the following paragraphs:
“2. I originally enlisted in the RAAF in January 1966, and prior to going to South Vietnam I did not suffer from any psychiatric condition nor did I have any drinking problems.
3. When I went to South Vietnam I went with 9 Squadron helicopters which was a fairly small unit of no more than one hundred and fifty men.
4. We were a fairly close knit mob in as much that we always drank in the bar at the end of the day and we were on first name basis with all of us respective (sic) of rank.
5. On the occasions that we did drink in the bar we would be told by those who were directly involved of that day’s incidents that happened involving our particular squadron.
6. We were told quite often of the details of casualties they shifted on a medivac from where they had been wounded and taken to on to he (sic) Field Hospital, Vung Tau.
7. I was a flight fitter crossed trained in airframes/engines, and that task took me to Nui Dat on standby, by helicopter from Vung Tau. From Nui Dat I would fly out further, if the situation required it, to check aircraft that may have been down and unserviceable in the field.
8. At this time there was a great sense of vulnerability due to the fact that we were not carrying any personal weapons only my tool kit as required to get my job done.
9. This contrasted with those who would be on the helicopter that required our services who were wearing flakjackets and in charge of weapons that were on the helicopter at the time.
10. It was the squadron’s policy to try and fly the chopper to a safe area or base, and Nui Dat was the preferred base away from enemy fire, where we were sitting ducks out there in the field.
11. When back at Vung-Tau at our base, there were many times when I assisted with transferring the wounded servicemen to the waiting medivac Hercules aircraft. The wounded were driven over from back beach field hospital in the hospital bus, and field ambulances.
12. It was fairly easy to talk to these people and in the line up which one of the service people were involved in which instance that you had heard of from your own mates in the aircrew who had flown him to the hospital
13. Around the middle of my tour, when I was up at Nui Dat, I was required to board a chopper on a medivac flight on its way back to Vung Tau field hospital. There was a badly wounded soldier on a stretcher on the floor, who had a shocking leg wound, that was covered in blood. This was my first contact that I had, had with a wounded soldier who had not reach hospital.
14. And even though I was not involved with treatment of that soldier in flight, I felt completely useless and helpless in the whole scene as I did not have any way by which I could help him at that time.
15. Because of the situation I also had a sense of helplessness in as much as we were flying in a helicopter which from time was subjected to ground fire and therefore felt quite vulnerable being in the chopper at that particular time with that wounded soldier on his way down to Vung Tau.
16. That particular incident definitely impacted to the way I reacted to the medical evacuation patients that I subsequently handled on a regular basis helping and assisting getting them onto the Hercules.”
19. In his oral evidence the applicant told the Tribunal that in helicopter medical evacuation, casualties were usually taken direct to Vung Tau, speed of evacuation being essential, however in this case the helicopter carrying the wounded soldier had called in to Nui Dat on its way to the Field Hospital at Vung Tau to drop off someone. He said he took the opportunity to ride back to his unit at Vung Tau in the helicopter and he thought the trip from Nui Dat to Vung Tau would be of about 20 minutes duration.
20. He said there was no medic with the wounded soldier, no medical attention was provided to the wounded soldier by the Field Ambulance located at Nui Dat and there was only himself and the other normal RAAF crew members. He said that he may have spoken to the wounded man briefly to tell him he would be alright but did not really talk to him because of the noise in the helicopter. He told the Tribunal that the helicopter landed at the hospital helipad at Vung Tau and that the soldier was then taken into care by hospital staff and he returned to 9 Squadron Lines.
21. With respect to him assisting in loading patients onto C130 aircraft at Vung Tau, prior to medical evacuation to Australia, he said that he volunteered to help at the time of loading (the aircraft being loaded at the same base as occupied by 9 Squadron) and if his Sergeant agreed he would go across and help. He said the C130 medivacs occurred every second Wednesday and he thought he would have assisted in loading casualties about 10-12 times during his tour of duty. He said that he could recall that wounded servicemen had been cleaned up and were in medical care and they had a range of apparent injuries, some missing limbs and some being obviously seriously wounded and drugged out. However, the protocol was not to ask patients about their condition. He told the Tribunal because of the heat the aim of the exercise was to transfer patients as quickly as possible from an airconditioned bus/ambulances to the aircraft.
22. In answer to questions from the Tribunal, the applicant said he had not been subject to direct enemy fire while travelling by helicopter. In cross-examination the applicant said that the wounded soldier incident was his worst experience in Vietnam where he felt he had no control.
23. In respect of his drinking, the applicant stated:
“23.Prior to going to South Vietnam I did not drink very much at all.
24.I was not a wowser, but I only drank on the rare social occasion such as parties was never more than just a couple of drinks at a time.
25.I never got drunk and I never indulged in binge drinking.
26.After I arrived in Vietnam I found that drinking was part of an acceptable way to deal with the stress of being there and the demands of the job.
27.We drank every chance that we had at the end of the day to try and unwind and to get over the stresses of the day including stressful events and things as I described above.
28.As the time went by in Vietnam, I found that I was drinking more and more as the alcohol helped us to hide how we really felt about just being there and being stressed.
29.My drinking habits had increased I noticed that I was drinking every night I also noticed that we became more and more short tempered and less patient with the people outside our circle.
30.By the time I left Vietnam I was drinking up to a dozen cans of full strength beer a night.
31.And we were pretty much inebriated by the whole process every night before we went to bed, and this really helped us sleep through the night.”
24. In cross-examination, the applicant confirmed the answers he had given in the alcohol questionnaire he had completed (Q2002/1019 – T4/37-39). He said the cans of beer referred to were standard 375ml cans. He said he had started drinking in mid 1966 shortly after joining the Airforce.
25. The applicant told the Tribunal that he was not sure when he first saw Dr Gelb. The Tribunal notes that Dr Gelb reports, on 6 January 2002, seeing the applicant (on referral from his GP, Dr R Scanlan) and that Dr Gelb refers to the applicant as having done a DVA sponsored eight week PTSD course in Maroochydore. When asked about the course in cross-examination, the applicant said he found the course very good in helping him understand what was wrong with him. He said he did the course because he knew there was something wrong him, because he was drinking too much and had a very short fuse and that his GP and other veterans had told him about the course.
Medical Evidence
26. Dr JE Gelb, consultant psychiatrist, provided two written reports (Q2002/1019 – T4/15-22 and Exhibit A3). In his oral evidence Dr Gelb said he first saw the applicant on 3 December 2001, on referral from his GP and that subsequently from April 2003 he had been treating the applicant on a regular basis.
27. He confirmed that in his opinion the applicant met all of the diagnostic criteria, as stated in DSM-IV, for PTSD and AA and that both of these conditions had their clinical onset by the time the veteran completed his operational tour in South Vietnam.
28. When asked what, in his opinion, was the most stressful event the applicant suffered in Vietnam, Dr Gelb told the Tribunal this was the helicopter evacuation event. The Tribunal notes that in his written reports Dr Gelb makes no specific mention of this event. The events mentioned in Dr Gelb’s first report can be summarised by the following extracts from his report.
The problem that used to upset Mr McCutcheon from the very start of his tour was the blood on the floor of the helicopters arriving back each day. Mr McCutcheon would ask straight away what happened and would be told stories of the dead and wounded. The gunners and crewmen would give graphic stories of what went wrong and who got ambushed. These stories would go back to the bar at night, everyone would know the score of the day’s events and who was injured or killed. The aircraft were washed out each day if they came back bloodied, which occurred regularly. They often had to lift the floor panels on the helicopters to find compartments of congealed blood. This discovery always drew a crowd of onlookers 'until someone would turn away to vomit’ Every Wednesday, the C-130 Hercules aircraft would arrive from Australia to do the medivac flight, returning the wounded and dead to Australia. This was a very distressing time. Where possible, Mr McCutcheon would go over and help load the dead and wounded onto the Hercules. Many of the wounded soldiers were ‘in a bad way’, some with drips in their arms and shocking wounds in bandages and some that had limbs or pieces of limbs missing.
On ‘Duty Crew’ they would see the choppers off in the morning and back at dusk, often working late at night to have the aircraft serviceable and on line for the next day’s operations. Blood and bullet holes ‘were a normal thing to see’.
Mr McCutcheon said that there was a lot of pressure on the maintenance crew to keep the helicopters serviceable, and they had to perform at a high level. It was very stressful and Mr McCutcheon would take refuge in alcohol every night that he could. He said that alcohol was his ‘antidote to stress’. As the months went on, he consumed more and more. In the last couple of months of the tour, his squadron started a forward servicing party at Nui Dat. Mr McCutcheon would fly up to Nui Dat in the early morning and return at night, with no overnight stays. On a number of occasions, he flew sorties in the gunships mainly consisting of test firings and test flights. He sat on the ammunition bins between the two pilots as many guns and rockets, along with M-60 machineguns were fired. At Nui Dat he witnessed battle casualties being evacuated to Vung Tau Field Hospital. Once again, he witnessed bloodied bandages, missing limbs, people yelling and general chaos.
On 2 July 1970 they lost a helicopter. Duncan McNair was badly injured and died three weeks later. He had only arrived in Vietnam six months previously and he and Mr McCutcheon were drinking buddies. He found Mr McNair’s death very difficult.”
29. In his second report the following extracts are relevant:
“…Mr McCutcheon witnessed the clearance of battle casualties at close proximity and described significant emotional reactions to what he observed. He describes feeling churned up in his stomach and quite stressed. He certainly gives a history of being significantly traumatised by having to clean out the floor of helicopters that would arrive back from the field each day. He often lifted the floor panels of helicopters to find compartments filled with congealed blood which both horrified and sickened him.
…
Prior to going to South Vietnam, Mr McCutcheon drank very little. He never got drunk and never indulged in binge drinking. After he arrived in Vietnam he found that drinking was part of an acceptable way to deal with the stress and the demands of the job. He said that he drank at every chance at the end of the day to try and unwind and to get over the stresses of the day. As time went by he found that he was drinking more and more as the alcohol helped him to hide how he really felt. He drank every night and became more and more short-tempered and less patient with people outside his circle. By the time he left Vietnam he was drinking up to a dozen cans of full-strength beer each night. He stated that he would be inebriated each night before he went to bed and this really helped him to sleep through the night."
30. In cross-examination, Dr Gelb said that as a treating psychiatrist he took people at face value and that he found the applicant to be an honest and straight forward person. With respect to his administration of the structured interview for PTSD (Davidson 1989) he said the applicant’s war-service raised the possibility of PTSD and he conducted this interview in order to clarify the diagnosis of the applicant’s condition and when asked if the questions in the interview were leading questions, he said that he did not know how to answer the question, other than to say he saw the interview process as a clinical instrument. Dr Gelb acknowledged, as noted in his first report, that the applicant had attended a DVA sponsored PTSD course in Maroochydore prior to his first consultation in December 2001 and that at the time of consultation the applicant had a good understanding of PTSD.
31. It was put to Dr Gelb in cross-examination that the applicant’s symptoms could be explained by AA rather than PTSD. Dr Gelb agreed that many of the symptoms were common but said that he rarely saw PTSD sufferers who did not have a co-morbid alcohol problem and that the applicant’s symptoms of hyper-arousal, avoidance and re-experiencing events could not be explained other than by a diagnosis of PTSD. Dr Gelb agreed that the stressors suffered by the applicant were not as severe as some, however it was the applicant’s symptoms which made him suspect the applicant suffered from PTSD and not from any other anxiety disorder.
32. Further in cross-examination, Dr Gelb described the applicant as currently up tight and anxious, quite unsettled by what might be minor stressors, shaking and sweating. It was put to Dr Gelb by Mr Smith that the applicant had spent some considerable time in the witness box at the Tribunal hearing during which time he had remained calm. When asked why this would be so given his earlier evidence, Dr Gelb said that he was aware that the applicant had been thinking a lot about appearing at the Tribunal hearing and was stressed about the hearing. Dr Gelb said the applicant knew he would be under scrutiny and would be determined to hold together at the hearing, to steel himself to go back over memories and put up a brave front and that in all likelihood he would be in a state of collapse on the day after the hearing.
33. In answer to questions from the Tribunal, Dr Gelb not only confirmed the helicopter evacuation as the principal stressor, but also specifically stated that in his opinion the applicant had been exposed to a traumatic event which satisfied the DSM-IV criteria A and that in respect to forming this opinion, he did not wish to add anything further to what he had stated in his written reports.
34. The Tribunal notes that the VRB records the applicant recalling the helicopter evacuation incident as happening early in his tour of duty, whereas the applicant told the Tribunal it occurred in the middle of his tour and that he thought it was in either December or January. The Tribunal also notes that the VRB records the applicant recalling feeling “completely useless” and shocked because it was the first time he had seen someone who had been wounded and not yet received hospital treatment.
35. In respect of the applicant’s claimed condition of IBS Dr L McKeering, gastro- enterologist provided a written report dated 26 May 2003 (Q2003/871–T4/21) wherein he stated:
“This Veteran does have gut symptoms which fit the pattern to which we term irritable bowel syndrome. The syndrome may be influenced by his emotional state but also can occur secondarily following gastro-intestinal infections which may have occurred during War Service or his subsequent service in the private sector in Indonesia. In this situation it is important to exclude organic disease and I plan to perform an upper GI tract endoscopy, small bowel biopsy and colonoscopy in the near future. I will pass on a report of the findings to the Department and to his general practitioner at that time. “.”
36. Subsequently on 30 May 2003 Dr McKeering undertook a colonoscopy and an upper GI panendoscopy and small bowel biopsy with findings as follows:
“To the caecum.
No abnormality detected”
And:
“Small hiatal hernia
Peptic oesophagitis
No abnormality detected otherwise to D2”
37. There are no further medical opinions before the Tribunal in respect of the applicant’s IBS.
38. The applicant in his written statement (Exhibit A2), states that he started to suffer from a bowel condition in 1973 and initially saw a Dr Ho at the Lim Clinic, Hilton Hotel, Singapore, who organised treatment in the form of a diet with Chinese herbs.
Submissions
39. In summary, Mr O’Gorman submitted that the medical evidence shows that the applicant does suffer from PTSD, AA and IBS and that these conditions can be related to his operational service in Vietnam because of the severe stressors he experienced while rendering such service.
40. It was submitted that the hypotheses put forward by the applicant were consistent with/upheld by the relevant SoPs and were therefore reasonable hypotheses and the Tribunal, on the material before it, would not be satisfied beyond reasonable doubt that:
(a)one or more of the facts necessary to support the hypothesis are disproved; or
(b)some other fact inconsistent with the hypothesis was proved.
41. In respect of severe stressors it was submitted that the applicant had been involved in the helicopter evacuation of a wounded soldier from Nui Dat to Vung Tau and in helping to load wounded soldiers into C-130 aircraft at Vung Tau. These experiences (and other depressing experiences outlined by the applicant in his statement of 2 February 2003) fit within that part of the definition of “witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence”.
42. In its consideration of this matter, Mr O’Gorman referred the Tribunal to Repatriation Commission v Deledio (1998) 83 FCR 82, Stoddart v Repatriation Commission (2003) FCA 334 and Repatriation Commission v Stoddart [2003] FCAFC 300.
43. Mr Smith, for the respondent, submitted a diagnosis of PTSD cannot be made because, as a minimum, diagnostic criteria (A) is not satisfied and that therefore the whole of the applicant’s symptoms should be related to AD or AA. It was further submitted that if the Tribunal were to be satisfied that the applicant suffered from PTSD, the relevant factor in the SoP, “experiencing a severe stressor”, is not satisfied.
44. With respect to AD or AA, it was submitted that the applicant did not suffer from a psychiatric disorder at the time of clinical onset of AD or AA, not did the applicant suffer a severe stressor.
45. Insofar as IBS is concerned it was submitted that none of the factors set out in the relevant SoP were met and therefore there was no reasonable hypothesis connecting the applicant’s IBS to his operational service.
46. On the question of whether the applicant was exposed to a traumatic event, Mr Smith referred the Tribunal to: Martin v Repatriation Commission [2003] AATA 1228, Budworth v Repatriation Commission [2000] AATA 127, Cranage & Repatriation Commission [2000] AATA 1119.
47. With respect to Stoddart (supra) and Woodward & Repatriation Commission (2003) FCA FC160, Mr Smith submitted that these cases were not relevant in that they were principally concerned with threat of death and did not consider the question of severity of the event relied upon. It was submitted that the question of severity must be considered. Mr O’Gorman, in reply, submitted that Stoddart looked at experiencing a severe stressor in respect of threat of serious injury and as such was of relevance.
48. Finally Mr Smith submitted that on the applicant’s own evidence he was abusing alcohol by September 1969 and that the principal severe stressor which he claimed to have experienced did not occur until some months later. In reply Mr O’Gorman submitted that it was unfair to say the applicant got it wrong when the applicant was trying to recall dates so long ago and where September could well have been October and in any event the question of the accuracy of the dates stated by the applicant was never put to the applicant for comment.
49. Following the above submissions, Mr Smith contended the decisions under review should be affirmed.
Consideration
50. In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“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 determined by the authority under s196B(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 s196B(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 s120(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.”
51. At the outset the Tribunal must determine, to its reasonable satisfaction, what are the correct diagnoses of the veteran’s psychiatric and medical condition (see Repatriation Commission v Cooke (1998) 160 ALR 17).
52. In respect of a diagnosis of PTSD, clearly whether such a diagnosis is correct is disputed by the respondent on the grounds that the applicant’s condition does not meet the description of factor 2(A) of DSM IV, principally in respect of factor 2(A)(ii). Factor 2(A)(ii) requires the Tribunal to be satisfied that the stressful events described by the applicant caused him to have a response involving intense fear, helplessness or horror.
53. When it was put to the applicant’s treating psychiatrist, Dr Gelb, whether he was satisfied that the applicant met factor 2(A) Dr Gelb said that there was nothing more that he wished to say about traumatic events further to his reports and what he had already said in his oral evidence.
54. Dr Gelb opinions about the applicant’s response to claimed stressors are that the applicant was upset, quite stressed, felt churned up in his stomach, found the death of a friend very difficult and was horrified and sickened to find compartments filled with congealed blood on lifting floor panels of helicopters.
55. The Tribunal is mindful that many of the stressful events which Dr Gelb records the applicant has experienced are not referred to in the applicant’s written statements nor in his oral evidence. The applicant makes no mention of blood on the floor of helicopters, of witnessing more than one casualty being evacuated from Nui Dat and on the applicant’s oral evidence, while he on occasion voluntarily provided “a lending hand” in loading treated casualties on to C-130 transport at Vung Tau, he was not part of a process of attending to and caring for the wounded soldiers. Furthermore, on his own evidence, he was not subject to any enemy fire while aboard a helicopter. The applicant, in his written statement, described his response to being on the helicopter with the wounded soldier as follows:
“I felt completely useless and helpless in the whole scene as I did not have any way by which I could help him at that time.”
56. In cross-examination the applicant said he felt he had no control. The Tribunal is mindful that the applicant also said that he thought the wounded soldier had come from the field, that a field dressing had been applied to the wound, that there was no medic on board the helicopter and that in transiting through Nui Dat, medical treatment was not sought from or provided by the Field Ambulance Medical Unit established at Nui Dat. Furthermore, the Tribunal notes that the applicant, in his oral evidence stated that it was “protocol” to not ask wounded soldiers being loaded on C-130 aircraft about their injuries or medical condition.
57. The Tribunal is mindful that the opinions of the treating medical practitioner should not be discounted lightly. However, on all of the material before it and taking into account the submissions of both parties, the Tribunal accepts that the applicant found the experiences he described to be unpleasant and distressing. However, the Tribunal is reasonably satisfied that the applicant was not exposed to a traumatic event in which his response involved intense fear, helplessness or horror.
58. The Tribunal therefore finds that the diagnosis of PTSD in this case is not correct.
59. That being so, the issue before the Tribunal is what psychiatric and/or medical conditions does the applicant suffer.
60. Turning first to AD and/or AA. On all of the material before it and taking into account the submissions of both parties, the Tribunal is reasonably satisfied that the applicant suffers from AA and so finds. The question then before the tribunal is when was the clinical onset of his AA. The Tribunal accepts the applicant’s evidence that he commenced drinking in mid 1966 after joining the RAAF and that his drinking increased significantly soon after arriving in Vietnam. On the evidence before the Tribunal, the applicant’s drinking assumed a significant level of consumption the month after he arrived in Vietnam. The applicant stated this in his alcohol questionnaire and when taken to this questionnaire stated that he stood by the answers he had provided in the questionnaire. The Tribunal does not accept Mr O’Gorman’s submission that the applicant “got it wrong”. He has clearly set out a time table of his drinking habit in the questionnaire and has affirmed this timetable in his oral evidence. In view of this the Tribunal is satisfied that the clinical onset of the applicant’s AA was September 1969.
61. The Tribunal accepts that the material before it points to the hypothesis put forward by the applicant, that the applicant’s AA can be connected to his service. The Tribunal must then form the opinion whether the hypothesis is a reasonable hypothesis. In view of the Tribunal’s finding about PTSD, that part of the hypothesis which relies on the applicant suffering from a psychiatric disorder at the time of the clinical onset of AA clearly does not fit the template of the SoP and is not a reasonable hypothesis.
62. The question then is whether the applicant experienced a severe stressor within the two years before the clinical onset of AA.
63. The Tribunal notes that the applicant told the VRB that his experience in the helicopter occurred “early in his tour”. However, in his oral evidence at the Tribunal hearing, the applicant clearly and unequivocally told the Tribunal it happened in the middle of his tour and indeed agreed it would have occurred about the December 1969 or January 1970. The Tribunal accepts this as the time the helicopter evacuation incident occurred and hence the Tribunal finds that the event did not occur within the two years immediately before the clinical onset of AA. That being so the helicopter evacuation incident does not meet the requirements of factor 5(b) of the relevant SoP.
64. This then leaves the question as to whether the applicant did experience any severe stressors within the first month of his service. The Tribunal accepts that the applicant voluntarily provided a helping hand in loading hospital patients on to C-130 aircraft for movement back to Australia and he could have so helped in the first month of his operational service. The Tribunal has carefully considered the applicant’s evidence in respect of such an event and has taken into account the authorities to which both parties have referred the Tribunal. The Tribunal does not accept Dr Gelb’s opinion that the applicant was certainly part of the process of attending to and caring for the wounded.
65. The Tribunal is satisfied that the applicant did not experience, witness or confront an event that involved the threat to his own or other people’s physical integrity, which event evoked in the applicant intense fear, helplessness or horror. Furthermore, on all the material before it, the Tribunal is also satisfied that none of the other experiences referred to by the applicant and which could possibly have occurred in the first month of his service, meet the definition of experiencing a severe stressor in Instrument No 76 of 1988.
66. The Tribunal is mindful that it was the applicant’s evidence that he increased his alcohol consumption during his term of duty in Vietnam. Although the applicant did not argue this, this raises the question of war-caused clinical worsening of his AA (if he suffered AA during, but not arising from, his service). For any such clinical worsening to fit the template of the SoP (and the Tribunal makes no finding in respect of clinical worsening at this stage), the applicant must have suffered from a psychiatric disorder at the time of worsening (factor 5(c)), or experienced a severe stressor within the two years immediately before worsening of his AA (factor 5(a)).
67. After consideration of all of the material before it, the submissions of both parties, including the authorities referred to, and taking into account the Tribunal’s reasons and findings, as set out above, the Tribunal finds that at no time during the applicant’s relevant service did either of these two factors exist.
68. That being so the Tribunal finds that the applicant’s hypothesis connecting his AA with his operational service is not a reasonable hypothesis.
69. Turning then to the question of IBS. Dr McKeering initially opined that the applicant has symptoms which fit the pattern of IBS and subsequently conducted tests to exclude organic disease. It would appear that these tests did not detect any abnormality. The Tribunal is therefore reasonably satisfied that the applicant suffers from IBS. The Tribunal accepts the applicant’s evidence that this condition had a clinical onset in 1973. The factors which must exist to connect the applicant’s IBS with his operational service are set out in Instrument No 103 of 1996 (see paragraph 16 above).
70. In respect of suffering a specific psychiatric condition within the six months immediately before the clinical onset of IBS, the applicant must suffer a war-caused specified psychiatric condition as defined in the SoP. The Tribunal has not found that the applicant suffers from a war-caused specified psychiatric condition. That being so, the hypothesis put forward by the applicant does not fit the template of the SoP and is therefore not a reasonable hypothesis. As such, the applicant’s claim for war-caused IBS cannot be accepted. In so determining, the Tribunal notes that the applicant suffers from AA (albeit not war-caused) and that AA is not a specified psychiatric condition within the meaning of that term in the relevant SoP.
71. The Tribunal therefore affirms the decisions under review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Nicca Grant
Associate
Date/s of Hearing 27 February 2004
Date of Decision 31 March 2004Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
2
8
0