Mines and Repatriation Commission
[2003] AATA 658
•14 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/192
VETERANS' APPEALS DIVISION
Re: JOHN WILLIAM MINES
Applicant
And: REPATRIATION COMMISION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 14 July 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – operational service – post traumatic stress disorder – alcohol abuse – conflicting evidence
Veterans' Entitlements Act 1986 ss.120(1), (3), 120A
Statement of Principles
Instrument Nº 3 of 1999 as amended by Instrument Nº 54 of 1999
concerning post traumatic stress disorder
Instrument Nº 1 of 2000 concerning generalised anxiety disorder
Instrument Nº 76 of 1998 concerning psychoactive substance abuse or dependenceInstrument Nº 52 of 2002 and/or Nº 62 of 1999 concerning gastro‑oesophageal reflux
diseaseInstrument Nº 39 of 1997 concerning sleep apnoea
Instrument Nº 31 of 2001 and/or Nº 64 of 1998 concerning hypertension
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
9 July 2003 Miss E.A. Shanahan, Member
1. This is an application arising from a decision of the Veterans’ Review Board (VRB) dated 13 January 1999 and a second decision dated 30 April 2001, which found that the applicant's hypertension, atrial fibrillation, sleep apnoea, gastrooesophageal reflux disease, bilateral myopia, nervous condition and substance abuse were not war‑caused in accordance with the Veterans' Entitlements Act 1986 (the Act). The VRB had affirmed the previous decisions of the Repatriation Commission. The applicant is in receipt of a 20 per cent of general rate pension for his accepted disabilities of bilateral tinnitus and bilateral sensorineural hearing loss. The applicant did not pursue review of the decisions of the VRB relating to his claim for atrial fibrillation and bilateral myopia.
2. The applicant was represented by Mr D. De Marchi, solicitor, and the respondent by Mr G. Purcell, of counsel, instructed by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. The hearing was conducted over three days, 14 November 2002, 16 December 2002 and 30 January 2003. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents). The parties tendered the following documents:
· Applicant’s statement dated 6 September 2002 Exhibit A1
· Report by Dr E. Cole, psychiatrist, dated 11 June 2002 Exhibit A2
· Report by Mr R. Marshall, general surgeon, dated 6 June 2002 Exhibit A3
· Echocardiogram report by Dr M. Krawczyszyn,
consultant cardiologist, dated 8 February 2002 Exhibit A4
· Clinical notes of Dr R. Searle, numbered 1‑23
received 3 April 2002 Exhibit R1
· Transcript of VRB hearing dated 5 February 2002 Exhibit R2
· WriteWay Research Report dated 30 June 2002 Exhibit R3
· WriteWay Research Report dated 9 August 2002 Exhibit R4
· WriteWay Research Report dated 12 August 2002 Exhibit R5
· WriteWay Research Report dated 28 October 2002 Exhibit R6
· Service medical records relating to the applicant Exhibit R7
· Report by Dr L. Walton, consultant psychiatrist,
dated 2 August 2002 Exhibit R8
· Notice of referral from Dr I. Rossiter to Dr M. Benjamin
dated 25 October 2000 Exhibit R9
· Advice of appointment with Dr Benjamin sent to the applicant Exhibit R10
· Report by Dr W. Heath, consultant physician,
dated 29 January 2003 Exhibit R11
BACKGROUND TO THE APPLICATION
3. The applicant served in the Australian Army (the army) from 12 April 1967 to 2 August 1998. He saw operational service in Vietnam from 22 April 1968 to 11 May 1969 and volunteered for return service in Vietnam during the period 11 February 1971 to 2 February 1972. He was retired from the army on 2 August 1998 on medical grounds, having developed atrial fibrillation.
4. The applicant has a long, and at times controversial, history of excessive alcohol intake and claims that this alcohol intake was increased as a result of several stressors suffered during his first tour of Vietnam. These stressors, he claimed, led to the development of a psychiatric condition variably diagnosed as post traumatic stress disorder (PTSD) or generalised anxiety disorder. The conditions of hypertension, sleep apnoea and gastrooesophageal reflux are linked in the claim to his alleged war‑caused excessive alcohol intake. The applicant continues to work full‑time as a weighbridge operator.
EVIDENCE BEFORE THE TRIBUNAL
5. The applicant gave evidence over a period of two days (14 November 2002 and 13 January 2003). On 14 November 2002, he addressed the claimed stressors experienced on his first tour of duty in Vietnam (trans, p.7). The major event has been referred to as the Saigon firefight during which, he stated, that on returning to his Saigon hotel after a 16 hour shift as a cryptographer, he and others in his group had been fired upon and had returned fire (Exhibit A1). A second incident occurred shortly thereafter when American soldiers returned enemy fire (trans, p.7). Both incidents had left him scared. On his second tour of Vietnam, he described an incident where a Vietnam policeman fired at his party and under a superior officer's direction he had pointed an unarmed machine‑gun at the policeman. The applicant also reported seeing the carnage resulting from a bomb blast of a bus containing Vietnamese citizens.
6. The applicant admitted to nightmares regarding these events but these had occurred only over the past three to four years since the start of these proceedings. The applicant admitted he was a loaner preferring his own company and had always been so. He did not attend RSL events. He attested that his first marriage lasted two days, that is when he returned from his second tour of duty in Vietnam his wife was living with someone else. His second marriage lasted from 1974 to 1982 and then ended in divorce. However, later evidence indicated that his second wife, albeit divorced from him, lives in a separate room in his home. In his statement, the applicant had attributed his marital problems to his excessive alcohol intake.
7. The applicant was asked to outline his drinking habits. He stated that in the early 1960s he would drink only at the weekends. On his first tour of Vietnam he drank to excess because …there was nothing else to do (trans p.11) and alcohol was very cheap. During his second Vietnam tour he was a senior NCO (non‑commissioned officer) and had increased responsibilities and access to the Sergeants Mess. As a result, his alcohol intake increased.
8. On return from Vietnam, this drinking pattern was maintained, his sleep was disturbed, his wife tolerated his behaviour and drinking, but there were conflicts with army officers regarding his behaviour (not detailed).
9. The applicant confirmed he had hypertension, atrial fibrillation and sleep apnoea. Mr De Marchi further pursued the question of the applicant’s atrial fibrillation, although it was not claimed as a disability. The applicant confirmed this condition, that he had undergone a direct current reversion (DCR) and was on Warfarin in the long term. The applicant still suffers from symptoms of gastrooesophageal reflux, namely excessive burping.
10. The applicant told the Tribunal he had volunteered for a second term in Vietnam because his first marriage had ended in a stressful separation.
11. Under cross‑examination, the applicant stated that he did not think that he had a drinking problem when he was seen by Dr Benjamin in the year 2000 and had advised Dr Benjamin that he had stopped drinking when his daughter was born in 1984. However, he had resumed drinking and had subsequently come to realise he was a heavy drinker.
12. During cross‑examination, the applicant became acutely distressed and indicated that he believed that any stress could lead to sudden death because of his underlying atrial fibrillation (trans p.23). The witness was excused following which the parties and the Tribunal discussed the further conduct of the hearing. After considerable debate, it was decided to resume the hearing in a less confrontational setting with the Tribunal putting most of the questions. Both parties agreed to this recommendation despite the fact that such conduct is not within the normal procedural directions of the Tribunal.
13. At the resumed hearing on 30 January 2003, the Tribunal attempted to obtain an accurate picture of the applicant’s drinking history from 1965 to the current time. He stated that, in the early 1960s, he was in his teens and working as a storeman. He would drink at the weekends and occasionally on Friday nights. This evidence was in contrast to the report of Dr I. Parkin, consultant psychiatrist, which stated that the applicant drank to excess at least three times a week and also the applicant’s evidence to the VRB wherein he had stated he would become intoxicated two to three times a week prior to his enlistment. Following his enlistment, he became a regular drinker while on his first tour of duty in Vietnam. He admitted he drank to excess two to three times a week but did not drink while he was on duty, which amounted to four days per week. He indicated that his drinking habit had increased during his second tour of service in Vietnam, predominantly because he was bored and alcohol was freely available.
14. The applicant denied the reports of Dr M. Rosenbaum, consultant cardiologist, stating that he had ceased drinking in 1985, but could not explain why Dr Rosenbaum had reached this conclusion. Throughout, the applicant maintained that he had a drinking pattern of four to five beers per day followed by three to four drinks of spirits and two to three glasses of wine with his evening meal. He admitted he had tried to reduce his alcohol intake when he became the custodian of his daughter and did not drink when he was in her presence. Essentially, his alcohol intake did not reduce in that period. The applicant stated that no medical practitioner had ever advised him to reduce his alcohol intake and, in particular, no one had advised him to that effect since he had commenced Warfarin medication for atrial fibrillation. The applicant did, however, clarify the situation that was concerning the Tribunal regarding his Warfarin dosage and his INR testing. He had advised that, following the diagnosis of atrial fibrillation in 1998, he had been on Warfarin for a period of six months, following which his general practitioner ceased this medication. He remained off Warfarin until July 2002, when a failed DC reversion of his arrhythmia had led his cardiologist to reintroduce anti‑coagulants and had advised the applicant that this medication should be continued for the remainder of his life.
15. The applicant agreed, in response to a question posed by the Tribunal, that the entire proceedings following his application had been extremely stressful and that his atrial fibrillation had caused great anxiety. He reiterated that he did suffer occasional flashbacks, which he quickly put out of his mind. The applicant confirmed he suffered from interrupted sleep, which had been attributed to sleep apnoea and that he used a CPAP machine, although this had not been beneficial. The applicant confirmed that the two episodes of extreme distress occurred during his first tour of Vietnam and related to what has been called the Saigon firefight episode and the Land Rover/Vietnamese policeman incident.
16. The applicant confirmed that he had married in January 1971, some 10 days before he returned to Vietnam on his second tour of duty. One of the reasons he had volunteered to return to Vietnam was because at that stage, the Defence Forces paid an allowance for married men who volunteered for further service. When some 6 months later he returned to Australia on rest and recreation leave (R and R) he felt there was something wrong with his marriage but could not delineate this. When he returned after his second tour of duty, his wife informed him that the marriage was over and that she had met somebody else.
17. Following the Tribunal's questions, Mr Purcell cross‑examined the applicant at length. Mr Purcell first addressed the applicant’s drinking history and the inconsistencies relating to his drinking in statements made to various doctors throughout the period from 1990 to 1998. The applicant denied that he had ever been a rare drinker or a non‑drinker as reported by various medical practitioners. His minimum intake throughout this period had been 6 stubbies of beer per day. The applicant refuted the various medical claims that he had ceased drinking in 1985. There was obviously disagreement between what the applicant felt was excessive drinking and what others might think this to be. He considered his current alcohol intake of 3 to 4 beers per day, 3 to 4 Bacardi and coke or whisky and coke, and 3 to 4 glasses of wine to be a moderate or social drinker. He had informed Dr Parkin that he did not drink at work while a security officer or a weighbridge officer, and this was based on the fact that he only drank at night after he had completed his work duties. The applicant disagreed with Dr Parkin's statement that he started drinking and getting drunk when he first started work in 1965 and became a regular drinker at that stage. The applicant stated that he had confined his drinking to the weekends. He did not think that he was drunk at any time. He confirmed that he had increased his drinking after arrival in Vietnam because of the low cost of alcohol, the stresses he was submitted to and also, to a degree, to boredom. The applicant was taken through all the medical reports wherein he was described as being a social or non‑drinker but stated this was not the case despite his efforts to reduce his alcohol intake. The applicant confirmed that his drinking pattern had been the same as he had told the Tribunal, that is three or four stubbies of beer after work, two to four glasses of whisky prior to his evening meal and during the meal two or three glasses of wine. The applicant also confirmed that he had not run in to any difficulties with the law as a result of his drinking.
18. The applicant acknowledged that there had been disciplinary matters following his return to Australia but he was of the opinion that his drinking was only a small factor in these disciplinary, but informal, hearings. The applicant denied he had ever been given medical advice to reduce his alcohol intake because of his cardiac status and the fact that he was taking Warfarin.
19. Mr Purcell questioned the applicant regarding the treatment for atrial fibrillation. During the interval between the first day of hearing and the resumed hearing on 30 January 2003, the respondent had obtained a report from Dr Heath (Exhibit R11). Dr Heath had suggested that someone drinking the equivalent of 14 or 15 standard drinks of alcohol per day would have electrocardiographic changes which were absent in the case of the applicant; that his triglyceride levels would be higher than reported and that the applicant’s anti‑coagulation control (as evidenced by INR) estimations would have been difficult. The applicant was unable to comment on these factors. The applicant clarified the evidence he had given to the VRB regarding the break‑up of his first marriage and confirmed that this had occurred after his tour of duty in Vietnam. He remarried on 27 December 1974 and that marriage ended in December 1984. The break‑up of the second marriage had been multi‑factorial, including his alcohol usage, but primarily due to his former wife's reluctance to relocate from Canberra to Melbourne. The applicant had subsequently obtained custody of their daughter and he and his former wife remained on amicable terms. His former wife occupies a room in his house. He and his ex‑wife socialise together exclusively in relation to their daughter's needs.
20. The applicant agreed that his level of anxiety had increased since he had developed atrial fibrillation (trans, p.116).
21. Mr Purcell went through the details of all the claimed severe stressors but the applicant asserted his statements given in examination‑in‑chief. He was taken to the report of Mr D. Lambey, the sergeant in charge of the group during the so‑called Saigon firefight. Mr Lambey had provided a statement in which he stated that there was no direct fire on the group, nor had any of the members of his group returned fire. The applicant disagreed and re‑affirmed that he had fired his weapon and, to his recollection, had fired some two to three rounds of ammunition. The applicant denied that he did not have dreams or flashbacks regarding the Saigon firefight incident, as reported by Dr Benjamin.
22. The applicant was taken to his evidence before the VRB wherein he stated that on two occasions, while doing perimeter patrols, he had been fired upon. He corrected this evidence stating that he had not been fired upon but that there was firing in the area (trans, p.127). He further corrected another incident when, before the VRB, he stated that he had seen a Vietnamese policeman shoot a motor cyclist. The applicant said that the policeman had fired at the motor cyclist but he did not see the motor cyclist go down.
23. Mr Purcell took the applicant to the incident described as returning from Nui Dat in a Land Rover, which had been variably described to Dr Cole and to Dr Walton. Both of these doctors had reported that the applicant had told them that a Vietnamese policeman, while crossing a bridge, had fired upon their Land Rover. The applicant had been instructed by his corporal to point an unloaded machine‑gun at the Vietnamese policeman as they exited the site (trans, p.130). The applicant expanded on this incident and told the Tribunal that their vehicle had not been fired upon. The fire had been directed at Vietnamese civilians on motor cycles crossing the bridge behind their vehicle.
24. Further incidents included periods of jungle service, each of a two‑week duration, when the applicant stated that he felt apprehensive. He admitted that, during the two periods, he had not suffered any danger or stressful events. In Saigon he had heard shooting at night but none of this had been directed at him.
25. The applicant confirmed that he had seen a bus that had been blown up during the TET offensive and that he had seen this approximately an hour after the event. The bus was carrying civilians, most of whom had been killed. He had viewed the bus and stated that there were bodies in the bus. He agreed that he had not described this event until he had seen Dr Cole. Mr Purcell suggested that he had not thought about this incident until he saw Dr Cole. The applicant agreed that he had probably not thought about it for a long time. With the exception of the Saigon firefight, the applicant admitted that he had never been directly fired upon, nor had he returned fire.
26. In re‑examination by Mr De Marchi, the applicant confirmed that, prior to enlistment, he had a low alcohol intake confined mainly to Saturday evenings. His alcohol consumption had increased during his first tour in Vietnam. Alcohol had been freely available on American Air Bases and at clubs in Saigon and he would drink every night when he was not on duty. During the second tour of duty in Vietnam, the applicant's alcohol intake had increased further. He attributed this to the stress of the workload at that time. He denied that the alcohol interfered with his ability to perform his duties. The applicant doubted that his drinking had played any role in the breakdown of his first marriage, but it had certainly been a factor in the failure of his second marriage.
27. Mr Lambey gave evidence by telephone. He served in Vietnam between December 1967 and August 1968. He first served with the 103 Signal Squadron and on the second occasion with the 110 Signal Squadron. His service was interrupted by a three‑week period of ill health when he was medivacked from Saigon. Mr Lambey had joined the Citizens Military Forces in 1958 and the regular army in August 1962. Following his Vietnam service, he remained in the regular army for a further 3‑year period, served within Australia. Mr Lambey had served with the applicant in a signal regiment in Australia prior to service in Vietnam. Mr Lambey well recalled the events referred to as the Saigon firefight as he, along with another sergeant, were the two‑supervising sergeants present. The group of signalmen had been returning by bus to their hotel in Saigon after a 16‑hour shift. They were informed of Viet Cong activity at an American hotel some 200 to 300 yards away and decided to return to their hotel on foot rather than continue in the bus. Mr Lambey stated that they were not fired upon at any time; they were not targeted and did not fire any weapons themselves. Helicopters were flying overhead, a couple of hundred feet above the party and were firing rockets and machine‑guns into a building a block behind their hotel (the Canberra Hotel).
28. During cross‑examination, Mr Lambey stated that there had been troops on the roof‑tops to the side and rear of the Canberra Hotel some 200 to 300 yards to the rear of the hotel and his party were 200 to 300 yards away from the front of the Canberra Hotel. Mr Lambey had made a note in his diary that this event had occurred on 11 May 1968. There was certainly the firing of rockets, machine‑guns and small arm rounds but these were all at a distance of some 200 to 300 yards from the party. The party carrying guns, which were loaded with 1 full magazine of ammunition, walked carefully down the street toward the front of the Canberra Hotel, which they entered uneventfully and went to bed. He had not noted that the applicant was scared in any way or had reacted with anxiety. He agreed that buses containing civilians in Saigon were blown up, but he personally had never seen one.
29. Mr Lambey denied that any of the trucks used by his group had been fired upon, nor had such fire been reported to him. While he agreed with Mr De Marchi that different people would have different views or recollection of events, he remarked that soldiers are taught to report very accurately immediately after an episode (trans, p.173).
30. In re‑examination, Mr Lambey confirmed that he had not seen any deleterious reaction by the applicant after the so‑called Saigon firefight event. They had returned to the Canberra Hotel to sleep as they were on duty again the next evening. At different times, both the applicant and Mr Lambey had undergone a battle efficiency course conducted at Canungra in Queensland, which Mr Lambey described as …where generally they try to make or break people under duress, stress levels physically, stress levels mentally, and exposure to battle noises, and to hone up on minor tactics (trans p.176). Mr Lambey reiterated there had been no episode where his group had been fired upon or had returned fire. Any accidental discharge of weapons would have had to have been reported by him.
31. Dr Benjamin had seen the applicant at the respondent's request on 28 November 2000. Dr Benjamin gave his evidence at a specially convened sitting on 16 December 2002, as he was to retire from medical practice on that day and, shortly thereafter, spend several months in Europe. Dr Benjamin said that most of his interviews with the applicant related to the applicant’s fear of a heart attack since the onset of cardiac irregularity in 1998. He had been unable to get the applicant to talk of his Vietnam experiences except for the incident termed the firefight in Saigon. This was the only episode that upset the applicant. Other health problems volunteered by the applicant were tinnitus which disturbed his sleep, and hiccups. Dr Benjamin said the applicant told him he volunteered for his second Vietnam tour of duty because he liked army life. Dr Benjamin obtained the history that the applicant had been a heavy drinker after his tour in Vietnam but stopped 20 years ago when his daughter came to live with him. He did resume drinking alcohol but only to a moderate degree unless he became very worried regarding his atrial fibrillation. Dr Benjamin did not recollect any conversation regarding travel agencies as alleged by the applicant before the VRB hearing.
32. Dr Benjamin advised that he performed 20 to 30 psychiatric assessments of veterans per annum and that the vast majority of these were Vietnam veterans. In cross‑examination, he noted that the applicant gave very few details regarding the Saigon firefight and, while he agreed with Mr De Marchi that it was frequently difficult to extract information from sufferers from PTSD, the applicant had no real symptoms of PTSD. In particular, he did not have dreams of any of the events and did not become hyper‑arouseable when speaking to Dr Benjamin of the Saigon firefight incident. The applicant had remained calm throughout the interview. Dr Benjamin had not explored the applicant’s hypertension and its possible relationship to alcohol intake, as the applicant has stated he had stopped drinking heavily some 20 years previously.
33. Dr Benjamin was of the opinion that involvement in a firefight and the sighting of civilian casualties in a bus bombing would be sufficient stressors to meet the Statement of Principles (SoP) requirements regarding PTSD but he had not obtained such a history from the applicant.
34. Dr Benjamin opined that the applicant's variable history, as related to him and other psychiatrists, may have been due to the applicant’s inability to recall events, the repression of memory of the events or that in the intervening period the applicant had been coached to provide answers which met the relevant SoP (trans p.52).
35. In re‑examination, Dr Benjamin advised that, of the 140 or so Vietnam veterans he had assessed, he had found only 3 to 4 to not suffer from PTSD. He had concluded that there was no psychiatric disorder present and thus the applicant did not satisfy the SoP.
36. As the Tribunal had raised questions regarding the applicant’s treatment with Warfarin and various tests, such as liver function tests, the respondent had obtained an opinion from Dr Heath. Dr Heath had provided a report dated 29 January 2003 (Exhibit R11). He had been asked to address four questions. The first was whether the applicant's daily alcohol consumption would impact on his Warfarin requirement; the second was whether or not normal liver enzymes were consistent with the stated history of alcohol consumption; thirdly, if the full blood examination results, and particularly the mean corpuscular volume, was consistent with high alcohol intake; and fourthly, would high alcohol intake interfere with the control of anti‑coagulation. Dr Heath, having perused the reports of Dr Searle and various pathology results, noted that the liver function tests were all normal as was the applicant’s full blood examination and serum electrolytes. Dr Heath also reviewed the electrocardiogram (ECG), which showed atrial fibrillation, and commented that patients who consume large quantities of alcohol have …abnormal T waves, but these are not present in the tracing (trans p.181). In addition, high alcohol intake was frequently associated with cardiomyopathy and neither of these features were present in the applicant’s tests. Dr Heath noted that the applicant’s triglyceride levels were either normal or lower than normal and he found this incompatible with an alcohol intake of 9 to 12 glasses of alcohol daily. The applicant’s requirement of Warfarin for effective anti‑coagulation had been very stable over a long period of time. Dr Heath was of the opinion that a high intake of alcohol in a patient taking Warfarin is a matter of great concern and that he would have advised the applicant to cease drinking. However, chronic alcoholics, provided they take the same amount of alcohol each day, can be controlled with a stable Warfarin level. A prolonged excessive intake would usually lead to liver problems that could interfere with Warfarin requirements. In summary, Dr Heath believed that the results of the pathology tests over several years were inconsistent with the applicant’s reported alcohol intake.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
37. Dr Parkin had seen the applicant in October 2001 and, based on the history obtained, diagnosed a generalised anxiety disorder present to some degree for all of the applicant’s life and also PTSD attributable to experiences in Vietnam. The latter had led to alcohol abuse up until 1982. Dr Parkin identified two psychosocial stressors, namely the Saigon firefight and an episode where the applicant had been attacked while on night patrol. Dr Parkin noted that the psychiatric conditions were having little impact on the applicant’s work. Dr Parkin made an impairment rating of 22 points.
38. Dr Cole provided a report (Exhibit A2). He obtained a history from the applicant of the incident termed the Saigon firefight, the incident of having been fired upon when crossing a bridge and the blowing up of a bus in Saigon. The applicant stated, he had seen 10 or 15 people injured and that there was blood everywhere. The applicant also mentioned an episode when he had to stand guard at the Australian Embassy and there was firing in the district. While the applicant had claimed his nervous condition had affected his work in that he would lose his temper with members of the army and also with people he saw at the weighbridge he operated, he had never lost time from work. The applicant had attributed the breakdown of his second marriage to his nervous condition and alcohol intake. Dr Cole obtained a history that the applicant had drunk before enlistment but his intake had increased after service in Vietnam. He also told Dr Cole that he had ceased drinking for two years some 25 years ago. Dr Cole diagnosed PTSD directly attributable to the applicant’s wartime experiences in Vietnam. He felt that the SoPs' requirements were met. He also diagnosed alcohol abuse secondary to the PTSD. Dr Cole made an impairment assessment of 37 points.
39. Dr Walton had seen the applicant at the request of the respondent. Dr Walton had obtained a history relating to the Saigon firefight, the incident when crossing a bridge in a Land Rover and, what was described as a separate incident on a bridge, when a Vietnamese policeman started firing. With regard to the applicant’s alcohol intake, Dr Walton noted that he commenced drinking in 1964 but only drank to excess on Saturday nights. After his second tour of Vietnam, his alcohol intake escalated. The applicant had claimed that, following his return from Vietnam, he was intoxicated on almost a daily basis and had experienced alcoholic blackouts as frequently as two or three times a week. The applicant had assessed himself as having suffered anxiety only temporarily following the incidents in Vietnam but had become extremely anxious following the diagnosis of atrial fibrillation in August 1998. The applicant reported interrupted sleep and nightmares relating to work as opposed to the Vietnam incidents. Dr Walton diagnosed an anxiety state, also referred to as a cardiac neurosis. This, he opined, had led to a delayed onset of PTSD. Dr Walton found that the applicant did not suffer from re‑experiencing phenomena, avoidance behaviour, and maladaptive alcohol use. He did not find the applicant’s social withdrawal to relate to alcohol misuse. He was of the opinion that the applicant’s two failed marriages were not attributable to alcohol abuse. Dr Walton concluded that generalised anxiety disorder and post traumatic stress symptoms had not emerged until August 1998, when the applicant developed atrial fibrillation. The latter was obviously not service‑related. No occupational impairment was found and a combined impairment of 11 points was made.
40. Dr Searle's notes (Exhibit R1) did not contribute any further information except for the listing of various biochemical and haematological investigations. These notes did contain a report from a consultant cardiologist who had recorded only a modest alcohol intake. In addition, there was a report of oesophageal biopsy obtained at endoscopy on 8 February 2001, which showed mild reflux oesophagitis.
41. The applicant’s relevant service medical documents note on 12 October 1990 that the applicant was a rare drinker, that he suffers from sleep apnoea treated with a CPAP machine and that there were no symptoms of reflux on 7 November 1990. In January 1991, an exercise stress test following an episode of chest pain was negative. The applicant had been required to undergo regular ECG testing by the army, as he was over 35 years of age. There are regular reports of his ECGs from 1989 until 1992. The clinical notes state that he was either a non‑drinker, drank one stubby a week or was only a social drinker.
42. Mr Marshall saw the applicant on 6 June 2002 at the request of his solicitors. Mr Marshall reported that, while the applicant was a very light smoker (applicant states he is a non‑smoker), he was and remained a heavy drinker and had been troubled by burping for many years commencing at the age of 35. Mild reflux oesophagitis had been diagnosed in 2001. Mr Marshall was of the opinion that the applicant’s reflux was due to his alcohol abuse and that SoP Instrument Nº 62 of 1999 was met in terms of factor 5(g) relating to alcohol abuse and factor 5(m) relating to the worsening of gastrooesophageal reflux disease due to alcohol abuse. The applicant’s assessed impairment rating in accordance with the Guide to the Assessment of the Rate of Veterans' Pensions was 5 points.
43. WriteWay Research Service supplied several reports regarding the claimed stressor incidents. Lieutenant Colonel C.R. Hook, the officer commanding the 110 Signal Squadron, was consulted regarding the incident termed the Saigon firefight and a second incident wherein the applicant claimed that, while on patrol near an American transport base in Saigon, he was fired upon. Lieutenant Colonel Hook reported that he had no knowledge of a Saigon firefight incident in April 1968, but that, if the applicant was mistaken in his recall and the incident might have occurred in May, the applicant should be given the benefit of the doubt. Lieutenant Colonel Hook had no recollection nor any diary entry regarding the second contention of being fired upon while on patrol and advised that it would have been unusual for his keyboard operators in the Signal Squadron to be employed on patrol duties in Saigon.
44. In his evidence before the VRB, the transcript discloses (Exhibit R2) that the applicant claimed that in the Saigon firefight incident he was fired upon and returned fire. He also claimed that in May 1968, when performing guard duty at the Headquarter Element outside Saigon, he was again, fired upon and then returned fire, spending 10 to 15 rounds of ammunition. The applicant claimed that both of these incidents were recorded in the Unit log. The applicant described his second tour, for which he had volunteered, as being very quiet as the action in Vietnam was closing down. When relating the incident in the Land Rover while crossing a bridge, the applicant informed the VRB that they were not fired upon but that a Vietnamese policeman had shot at a civilian on a motor cycle. While the applicant thought about these events, these were recollections rather than flashbacks. At no time had he seen any enemy forces shooting at him personally. The applicant agreed that he had never sought treatment for his nervous disorder and that he was able to rid his mind of the recollections when they occurred at three monthly intervals. Never had these recollections interfered with his work.
45. The applicant told the VRB that in 1965 he drank frequently and would get drunk three times a week and then on the weekends (VRB trans p.15). In Vietnam, he stated, he got drunk two to three times a week, as he was doing shiftwork and could not drink every night of the week. The applicant confirmed that his excessive burping commenced in the early 1980s, most probably 1982, and that he did not seek any medical attention at that time.
46. The Tribunal had before it the report of a transthoracic echocardiogram performed on 8 February 2002, which revealed mild left ventricular segmental dysfunction and no significant valvular abnormality. In particular, there was no evidence of any intracardiac thrombus associated with his known atrial fibrillation.
47. The applicant was seen by Dr Rosenbaum with respect to his hypertension. While the applicant’s blood pressure was well controlled, Dr Rosenbaum was of the opinion that stress, excessive alcohol intake and obesity were substantive contributing factors to the development of hypertension. High blood pressure could result in the precipitation of atrial fibrillation and thus Dr Rosenbaum concluded that, if the applicant's hypertension was accepted as being war‑caused, so too should the atrial fibrillation. Dr Rosenbaum also commented that atrial fibrillation could be precipitated by emotional stress. He regarded the applicant’s sleep apnoea to be due mainly to obesity. The Tribunal notes Dr Rosenbaum recorded the applicant’s blood pressure as 120 systolic and 80 diastolic.
THE LEGISLATION
48. The relevant subsections of the Act state as follows:
120(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.
THE REVELANT STATEMENTS OF PRINCIPLES
49. Section 120A requires the Tribunal to apply any relevant SoPs. The parties agreed that the relevant SoPs are Instrument Nº 3 of 1999 as amended by Instrument Nº 54 of 1999 concerning post traumatic stress disorder; Instrument Nº 1 of 2000 concerning generalised anxiety disorder; Instrument Nº 76 of 1998 concerning psychoactive substance abuse or dependence; Instruments Nº 52 of 2002 and Nº 62 of 1999 concerning gastro‑oesophageal reflux disease; Instrument Nº 39 of 1997 concerning sleep apnoea, and Instruments Nº 31 of 2001 and Nº 64 of 1998 concerning hypertension. The relevant factors were identified in each instance but the vast majority related to the experiencing of psychosocial stressor and the development of alcohol abuse. As the applicant withdrew his claim for atrial fibrillation, this will not be considered further.
50. In relation to the diagnosis of PTSD, the applicant relied on factor 5(a), which states:
"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;
In relation to Instrument Nº 1 of 2000 concerning generalised anxiety disorder, the applicant relied on factor 5(a)(ii) regarding psychosocial stressors, which states:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) …
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
In relation to Instrument Nº 76 of 1998 concerning substance abuse, the applicant relied on factors 5(a) and 5(b), which state:
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
…
With respect to gastrooesophageal reflux disease, Instruments Nº 52 of 2002 and Nº 62 of 1999, the applicant relied on factor 5(m), which states:
The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of a person's relevant service are:
…
(m)suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of clinical worsening of gastrooesophageal reflux disease; or
With respect to the applicant’s sleep apnoea, the applicant relied on Instruments Nº 39 of 1997 and Nº 40 of 1997 but did not nominate a relevant factor. The Tribunal notes factor 5(b) relating to obesity may be the relevant factor. While the various Instruments regarding hypertension have been quoted, the factors remain essentially unchanged and the applicant relied on factors 5(a) regarding obesity, 5(b) regarding alcohol abuse and 5(n) relating to sleep apnoea.
51. The Tribunal is required to follow the process set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis standard proof. The series of steps are as follows:
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 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.
SUBMISSIONS BEFORE THE TRIBUNAL
52. The applicant submitted that, during his two tours of Vietnam, he suffered several severe psychosocial stressors which resulted in a psychiatric condition and alcohol abuse.
53. Dr Cole diagnosed PTSD attributable to the operational service and opined that the applicant met the relevant SoP.
54. Mr Marshall attributed the applicant’s burping, commencing in the 1980s, to undiagnosed oesophagitis due to excessive alcohol intake. Mild reflux oesophagitis was diagnosed in 2001. The applicant’s obesity was also considered to be a factor and Mr Marshall was of the opinion that the applicant met the requirements of the SoP.
55. The applicant claimed his sleep apnoea was due to his excessive alcohol intake but did not claim obesity as a factor. The Tribunal noted that the SoP states that alcohol may produce transient sleep apnoea.
56. It was submitted that the applicant's well-controlled hypertension is also due to alcohol abuse. Dr Rosenbaum attributed the hypertension to alcohol abuse but also incriminated the applicant’s obesity.
57. The respondent submitted that, on the balance of probabilities, the applicant does not have PTSD. In the alternative, there is no evidence of a severe stressor and Dr Benjamin had found no psychological disorder. Dr Parkin diagnosed pre‑service anxiety disorder and post service PTSD; Dr Cole diagnosed chronic PTSD on the basis of the history of stressors related by the applicant, and Dr Walton diagnosed a cardiac neurosis dating from 1998 and clinically qualifying the applicant for delayed onset of PTSD. Dr Walton concluded that the applicant’s alcohol misuse had had a minimal effect on his family, social and work life.
58. The respondent submitted that the applicant had enjoyed his army service of 23 years duration, had volunteered for a second term of service in Vietnam and that his current symptomatology was due to the occurrence of atrial fibrillation dating from 1998. The respondent addressed all the claimed stressors in detail, including the variations in the description of these by the applicant. The respondent submitted that the claim failed at the first stage of Deledio as the major stressor, the Saigon firefight, had been disproved beyond reasonable doubt.
APPLICATION OF THE LEGISLATION TO THE FACTS BEFORE THE TRIBUNAL
59. The applicant raised a hypothesis that his Vietnam service and the stressors he suffered therein have led to a psychiatric disorder and alcohol abuse. Having examined all the material, the Tribunal concluded this was a reasonable hypothesis. Based on the applicant’s evidence, there is material pointing to this hypothesis and the hypothesis itself is not fanciful, absurd, untenable, too remote or too tenuous.
60. The Tribunal is required, given the existence of the agreed applicable SoPs, to examine whether or not the hypothesis is consistent with the factors in the SoP.
61. The prime stressor relied upon by the applicant was the so‑called Saigon firefight. The evidence of Mr Lambey, who was the sergeant in charge of the group at the time of the alleged incident, has unequivocally rejected that they were fired on at any time or that they (the party of some 12 soldiers) returned fire. In his evidence, the applicant stated that in none of the other four incidents was he or his party fired upon. In relation to the applicant’s observance of the results of a bus bombing, his evidence before the Tribunal was that the victims of the bombing were all within the bus and not as previously stated in the street and covered with blood.
62. The applicant denied that the failure of his first marriage had anything to do with his psychiatric status or his alcohol usage. In relation to the failure of his second marriage, he gave evidence that the major factor was the need to transfer from Canberra to Melbourne to advance his army career and that his alcohol use was a minor factor. The Tribunal notes that, while he and his second wife are divorced, his former wife lives in his residence albeit in a separate room and that he and his former wife attend social events relating to their daughter. They appear to do so as a couple.
63. While there is conflicting evidence regarding the applicant’s alcohol intake over many years, the applicant does not meet the requirements of the SoP regarding psychoactive substance abuse or dependence (Instrument Nº 76 of 1998). The diagnostic criteria for alcohol abuse specified in Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), namely a maladaptive pattern of alcohol use leading to clinical significant impairment or distress as manifested by one or more of the following, occurring within a 12‑month period, are:
1.recurrent alcohol use resulting in the 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; and
4.continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
On the applicant’s evidence to the Tribunal none of these criteria are met.
64. Dr Heath gave evidence that the various biochemical investigations performed upon the applicant were not consistent with the claimed alcohol intake.
65. The applicant has, on gastroscopy, a minor degree of oesophagitis with symptoms commencing in the 1980s. Factor 5(m) of Instrument Nº 62 of 1999 concerning gastro‑oesophageal reflux disease requires the applicant to be suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of clinical onset of gastrooesophageal reflux disease. As the applicant does not meet the DSM‑IV requirements for alcohol abuse, this factor is not met.
66. With respect to his hypertension, the applicant relied upon factor 5(b) of Instrument Nº 31 of 2001 and/or Nº 64 of 1998, which relates to alcohol abuse. As he did not meet the definition of alcohol abuse, this factor is not met. Factor 5(a) of the SoP relating to obesity was not argued before the Tribunal and factor 5(n) relating to sleep apnoea at the time of onset of hypertension was not supported with any evidence. The applicant’s claimed and documented sleep apnoea was not argued before the Tribunal. Although in the statement of facts and contentions it was stated that this was due to being obese at the time of the onset of sleep apnoea (factor 5(b)) or being obese at the time of clinical worsening of sleep apnoea (factor 5(k) of Instrument Nº 40 of 1997), no evidence was given with regard to the applicant’s obesity.
67. The applicant’s psychiatric status was the subject of numerous reports from several psychiatrists. Those who had diagnosed PTSD had done so on the basis of the history given by the applicant relating to the experiencing of severe psychosocial stressors in Vietnam. The major stressor had been the Saigon firefight, which the Tribunal finds, on the basis of the evidence by Mr Lambey, did not occur. In addition, the applicant has given evidence that he was never fired upon in any of the other main incidents in Vietnam. The reports of observing casualties of a bus bomb blast were modified in the course of the evidence, with the applicant stating that the injured and dead were contained within the bus and, presumably, not readily within his line of vision. On this basis, the severity of the claimed stressors is in doubt.
68. The applicant remained in the regular army until 1998 and there is no evidence to suggest any psychiatric disorder between his Vietnam service and 1998, nor the seeking of any psychiatric treatment. Following his discharge from the army on medical grounds, due to atrial fibrillation, there is no doubt that the applicant has suffered severe anxiety relating to his cardiac status. It was obvious to the Tribunal and all others present that the applicant was most distressed and worried by his cardiac condition.
69. While the applicant admitted to occasional dreams about the incidents in Vietnam, he stated that he put these out of his mind. The evidence before the Tribunal, and on the applicant's admission, indicated that he had always been a loaner and that this had not changed as a result of his Vietnam service. His evidence suggested that he had a set pattern of social activities commensurate with his claim to prefer his own company. In light of the foregoing evidence, the Tribunal cannot accept that the applicant meets the requirements of factor 2(b)(B), (C) and (D) of Instrument Nº 3 of 1999 concerning post traumatic stress disorder.
70. It was obvious to the Tribunal that the applicant does suffer from an anxiety disorder which, in the opinion of Dr Walton, was a cardiac neurosis dating from 1998.
71. The Tribunal agrees with Dr Walton's diagnosis of a cardiac neurosis dating from 1998, but, as the condition of atrial fibrillation had been withdrawn and no evidence with respect to a general anxiety disorder had been led by the applicant’s representatives, the Tribunal cannot pursue this matter further. It is noted that general anxiety disorder may, under factor 5(a)(iv) of Instrument Nº 1 of 2000, meet the requirements of that SoP provided the general medical condition could be related to service. As previously stated, this was not put to the Tribunal.
DECISION
72. The Tribunal affirms the decision under review.
I certify that the seventy‑two [72] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 14 November 2002
16 December 2002
30 January 2003
Date of Decision: 14 July 2003
Solicitor for the applicant: Mr D. De Marchi, De Marchi & Associates
Counsel for the respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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