Nicklin and Repatriation Commission
[2005] AATA 160
•22 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 160
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/181
VETERANS' APPEALS DIVISION
Re: GARY DONALDSON NICKLIN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 22 February 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - post traumatic stress disorder - anxiety disorder - hypertension - alcohol dependence or abuse - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 119(1)(h), 120(1), 120(3), 120(4), 120A(3), 196B(3)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Meehan v Repatriation Commission (2001) 64 ALD 366
O’Neil v Repatriation Commission (2001) 34 AAR 290
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission (2004) 39 AAR 67
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
22 February 2005 G.D. Friedman, Member
1. This is an application by Gary Donaldson Nicklin (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 20 August 2003. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 31 July 2000 that psychological problems, hypertension and alcohol dependence or abuse suffered by the applicant were not war-caused.
2. At the hearing of this matter on 25 November 2004, 31 January 2005 and 1 February 2005 Mr G. Chancellor of counsel represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), 6 exhibits (Exhibits A1‑A6) lodged by the applicant and 10 exhibits (Exhibits R1-R10) lodged by the respondent.
BACKGROUND
4. The applicant was born on 9 March 1950 in Gosford, New South Wales. He left school after Year 10 and began working at a local service station. On 31 January 1968 he joined the Australian Army (the army) and completed his recruit training at Kapooka; after which he was posted to the Royal Australian Electrical and Mechanical Engineers, where he completed basic training. He was sent to Amberley, Queensland, where he qualified as an aircraft fitter. He served in Vietnam from 15 April 1970 to 14 April 1971, which is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act). He was discharged from the army on 30 January 1974.
5. After leaving the army, the applicant moved with his wife and son to Albury, New South Wales, and worked for six months as an aircraft mechanic at Albury Airport. He then began working at a service station in Albury. In 1978 he purchased the Shell service station in Tallangatta, Victoria, which he operated until 2000, when his son took over the business.
6. On 13 April 2000 the applicant made a claim to the Department of Veterans’ Affairs for disability pension for psychological problem, alcohol abuse, blood pressure, hearing problems, tinnitus and asthma. On 30 July 2000 a delegate of the respondent refused the claims on the grounds that the conditions were not war‑caused. On 2 November 2000 the respondent accepted the claim for bilateral tinnitus and assessed disability pension at 10 per cent of the general rate. On 1 November 2000 the applicant lodged an application for review with the VRB. On 16 July 2003 the applicant withdrew his claim in relation to tinnitus, asthma and sensori-neural hearing loss.
7. On 20 August 2003 the VRB affirmed the decision in relation to psychological problems, hypertension and alcohol dependence or abuse. On 16 February 2004 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
8. The issues before the Tribunal are the appropriate diagnosis for the applicant’s psychiatric condition or conditions, and whether the psychiatric condition, alcohol dependence or abuse and hypertension are war-caused.
EVIDENCE
9. In a written statement dated 13 February 2004 (Exhibit A1) the applicant said that he was raised in a loving environment and does not recall suffering from any emotional problems before his posting to Vietnam. He stated that he did not recall having high blood pressure before service in Vietnam and hypertension was diagnosed in 1991. He said that he started drinking after enlisting in the army, but was not a heavy drinker before Vietnam. He said that while in Vietnam his drinking habits increased significantly, frequently to the point of intoxication. He said that his alcohol consumption increased because …it was cheap, it was the thing to do and it helped settle my nerves.
10. The applicant referred to 11 stressful incidents during his service in Vietnam, to which he attributed his medical problems:
· On the day he arrived in Vietnam there was a stand to (the stand to incident), which he said was an alert of possible penetration of security by enemy forces. Although nothing eventuated and the all-clear was given after one hour, he said that he was petrified.
· As part of his duties as an aircraft fitter, he was required to attach flares to Pilatus Porter aircraft to illuminate the battlefield (the flares incident), and he was pressured to assist by accompanying the crew on a number of occasions. He said that he was terrified during the flights because that type aircraft was particularly vulnerable to enemy attack.
· He was required to fit rocket launchers to Cessna aircraft (the rocket launchers incidents) and was afraid that the volatile rockets would explode during the fitting, particularly when he was assisted by inexperienced electricians.
· He observed empty body bags in a United States helicopter (the body bags incident), and the sight emphasised to him the dangers of service in Vietnam.
· On the way to Vietnam he became acquainted with a sergeant and spent time with him in Singapore on 15 April 1970. He said that the sergeant was killed on Christmas Day 1970 by an Australian soldier (the sergeant’s death incident), and the news of the death was distressing.
· He was making repairs to helicopters and observed bullet holes near where personnel would have been seated (the bullet holes incident). He said that the sight was confronting, although he was never informed whether any casualties had resulted from the attacks.
· His fears about flying at night were increased by the knowledge that navigation lights on Pilatus Porter aircraft were illuminated and were a potential target for enemy ground forces (the night flying incidents).
· One day, while near the Regimental Aid Post, he heard a rifle shot and saw a young soldier bleeding from his foot (the shooting incident). He offered assistance and was shocked at the actions of the soldier, whom he believed had inflicted the wound on himself in order to be sent home.
· He believed that the airfield at Nui Dat had been subject to rocket attacks (the rocket attacks incident), and his fears were increased because his tent was close to the tarmac.
· One night he heard a noise and observed a Land Rover vehicle that had overturned, trapping a person underneath (the land rover incident). He assisted with the rescue of the victim, and felt helpless throughout the incident.
· He visited an orphanage (the orphanage incident) and was upset at seeing children who had been badly injured.
11. In oral evidence the applicant stated that he continued to drink heavily on his return from Vietnam. He said that after his discharge in 1974 he purchased a service station in Tallangatta, and for a while he did not drink to excess because he had the business to occupy his time. However, he developed sleeping problems and experienced flashbacks to Vietnam, and his alcohol consumption increased again. He told the Tribunal that he is constantly reminded of Vietnam by everyday sounds and events such as helicopter noise, musty smells and seeing Vietnamese people.
12. In a Claimant Report – Alcohol Questionnaire, completed on 20 May 1999 for the Department of Veterans’ Affairs, the applicant stated that he began to consume alcohol on a regular basis when he joined the army in 1968 The reasons he gave were peer group pressure and that it helped him to relax. The applicant also stated that, at the time of completing the questionnaire, he was consuming three to four cans of beer per day.
13. The applicant noted that his anger problems became worse after his Vietnam service, causing difficulties in his family relationships. He said that he attended the Vietnam Veterans Counselling Service (VVCS) and was referred to a psychiatrist, who prescribed medication for his problems. He emphasised that in March 2000 he could no longer operate the business, and his son assumed responsibility. He said that he still suffers from flashbacks of the stressful incidents from Vietnam. The applicant stated that his alcohol consumption has decreased significantly over the past 12 months, although he still drinks 3 to 4 glasses of wine each night. He said that he generally stays at home and tries to keep himself busy. He stated that he is reluctant to visit friends or relatives.
14. Under cross-examination, the applicant stated that he was forced to volunteer for flights in fixed-wing aircraft, even though he was afraid of flying. In relation to the shooting incident, the applicant said he was shocked that a person would resort to such an action to be sent home from Vietnam. He was adamant that his version of events was accurate, despite statements from the victim and others that contradicted aspects of his evidence. He said that he disagreed with aspects of the report written by Writeway Research Service (T15, p82). He said that, in relation to the land rover incident, he was the first person to arrive at the accident scene and he checked to see whether the victim was alive, before helping to lift the vehicle from the victim. He also raised an additional stressor. He said that he spent a week guarding billeted accommodation known as Hotel Canberra in Saigon (the Hotel Canberra incident). He stated that he hated this guard duty and was frightened of shooting people.
15. The applicant agreed that only the shooting injury incident and the land rover incident were raised at the hearing before the VRB, but could give no explanation for the omission of the other incidents. He also agreed that in the current proceedings he was emphasising those incidents and the night flying incidents. He acknowledged that he had combined a number of incidents in Vietnam that he had found stressful, and agreed that there were inconsistencies between the accounts he gave to various practitioners. The applicant emphasised that he managed his fear in Vietnam by drinking.
16. In a written report dated 5 April 2001 (T15, p82) Mr C. Ducker, researcher, Writeway Research Service, investigated each of the incidents raised by the applicant. In relation to the shooting incident Mr Ducker concluded that a soldier shot himself in the foot and was given first aid by a corporal medical assistant immediately afterwards. Mr Ducker said that it was possible that the applicant arrived on the scene at some stage. In relation to the land rover incident Mr Ducker stated that a major vehicle accident had occurred in the applicant’s unit area at the relevant time. He found no evidence that the applicant took a leading role in the provision of first aid but admitted it was possible that he arrived on the scene at some stage.
17. In relation to the other matters Mr Ducker concluded that the applicant is likely to have flown on fixed-wing aircraft on a voluntary basis; there was little risk of ammunition exploding prematurely when preparing aircraft; the task of dropping flares from Pilatus Porter aircraft was not considered to involve a high risk from enemy fire; there was no evidence that the applicant saw or moved deceased United States personnel in body bags; there was no evidence of enemy rocket attacks or shelling of Nui Dat during the applicant’s stay in Vietnam; and the applicant was likely to have visited an orphanage which was supported by his unit.
18. In a supplementary report dated 26 August 2004 (Exhibit R3) Mr Ducker concluded that, in relation to the sergeant’s death incident, the applicant would have had an opportunity in Singapore for brief contact with one of the sergeants who later died in Vietnam. In relation to the shooting incident Mr Ducker stated that an investigation was held into the circumstances of the incident, and relevant personnel were interviewed. Mr Ducker concluded that it is reasonable to expect that the applicant would have been required to make a statement if he had been involved as claimed. He said that the applicant did not make a statement. He also said that there was no mention by witnesses that the applicant was the first on the scene or that he had applied a tourniquet to the victim.
19. In relation to the land rover incident Mr Ducker stated that several men gathered at the scene of the accident and were involved in lifting the vehicle. He said that there was no evidence that the applicant administered first aid to any of the personnel injured in the incident, and the applicant was not involved in the subsequent inquiry or court martial. In relation to the Hotel Canberra incident Mr Ducker stated that there were no attacks on the building during the applicant’s time in Vietnam. Mr Ducker confirmed the conclusions contained in his first report, and noted that in some of the contentions the applicant had only a tenuous link to the misfortunes of other service personnel.
20. In oral evidence Mr Ducker stated that in carrying out his research he had contacted, wherever possible, service personnel who were involved in the incidents described by the applicant. He also said that he had examined documents held by the Australian War Memorial. Under cross-examination, Mr Ducker agreed that his research did not find conclusive evidence about the role of the applicant in the shooting incident and the land rover incident.
21. In a written statement dated 10 December 2004 (Exhibit A4), Ms S. Murray, the applicant’s partner, said that she and the applicant began living together in 1990. She noted on reflection that at that time he exhibited anxiety and irritability, and that these became progressively worse. She said that he becomes upset whenever he talks about his service in Vietnam, and becomes angry. Ms Murray stated that the applicant is anxious, depressed, moody, irritable, short-tempered and very angry, and has difficulty sleeping. She said that the applicant drinks heavily, which has caused friction between them, resulting in her recent decision to end the relationship.
22. Under cross-examination, Ms Murray agreed that the only incidents that the applicant discussed with her about his service in Vietnam were the night flying incidents, the shooting incident and the land rover incident.
23. In a written statement dated 16 December 2004 (Exhibit A6), Ms J. Graham, the applicant’s sister, said that before enlisting in the army the applicant was a good‑natured person and a light drinker. She said that after returning from Vietnam he became aggressive and was drinking heavily. She described him as suffering from anxiety and depression and related his emotion problems to his Vietnam service.
24. In a written statement dated 12 January 2005 (Exhibit A5), Mr N. Fothergill, counsellor with the VVCS from 1990 to 2004, said that he began counselling sessions with the applicant in 1995. He described the applicant as presenting with alcohol problems and aggression. Mr Fothergill said that, in his recollection, the applicant attributed his emotional problems to service in Vietnam, and that alcohol abuse and emotional problems dated from before his, Mr Fothergill’s involvement. In oral evidence Mr Fothergill explained that he does not have access to the applicant's records because he is no longer employed by the VVCS, and could not recall his diagnosis of the applicant’s condition, but believed that the applicant at least suffered from anxiety and depressive disorders as well as excessive alcohol usage. He concluded that the applicant’s conditions were related to his Vietnam service.
25. In a written report dated 25 June 2004 (Exhibit A2), Dr M. Epstein, psychiatrist, stated that in his opinion the applicant meets the Statement of Principles (SoP) for post traumatic stress disorder (PTSD) and also for alcohol abuse with continued alcohol use, despite having persistent or recurrent social or interpersonal problems caused by or exacerbated by the effects of alcohol. In a supplementary report dated 21 September 2004 (Exhibit A3), Dr Epstein referred to reports from three other psychiatrists, and stated:
…
With regard to these three reports there appears to be a discrepancy between the information provided to me by your client and that provided to the other three doctors. I am uncertain as to why this situation has occurred. I can only rely on the information provided to me. On the basis of information provided to me it does appear that he meets the criteria for the diagnosis of those conditions and the Statement of Principles.
In oral evidence Dr Epstein stated that the applicant’s PTSD arose from a combination of stressful events described by him, including the land rover incident and the shooting injury incident. Under cross-examination, Dr Epstein said that he relied on the accuracy of the applicant’s description of events that occurred in Vietnam. He agreed that if the applicant’s account of certain events was inaccurate, then the diagnosis of PTSD might have been different. Dr Epstein emphasised that in treating patients he deals with a person’s perception of events, and not necessarily the accuracy of the recollections. He maintained that he had no reason to doubt the accuracy of the information provided to him by the applicant.
26. In a written report dated 19 June 2000 (T7), Dr B. Kenny, consultant psychiatrist, stated:
…
He never goes a day without alcohol, so we would have to describe him as alcohol dependent.
However, in my view this has not been caused by any aspects of his military service, other than the ready availability of alcohol which appears to have encouraged him to drink while he was in Vietnam.
My view is though that this man’s alcohol dependence is perfectly consistent with the other aspects of his personality structure that I have described above.
The only sense in which his military service (including his time in Vietnam) could be regarded as contributing to his alcohol is in terms of providing a venue to encourage him to drink.
I don’t accept for example he had any psychiatric disturbance leading to his drinking, nor do I consider that the traumatic experiences he may have had, contributed to his drinking.
27. In a supplementary report dated 17 August 2004 (Exhibit R1), Dr Kenny stated that the first time that the applicant had consulted a psychiatrist was when he saw the applicant in 2000 and that his opinion was based on the history given by the applicant. He said that on that occasion the applicant had denied any specific psychological symptoms other than sometimes being irritable. He stated:
…Over the years as I have become very impressed by the obvious learning that goes on when people get enmeshed in these [pension application] processes. So often do I notice that the first psychiatrist assessing will not see the person as having a psychiatric disturbance and/or will not see it as being related to Vietnam service for example. But by the time he gets to the second and the third psychiatrist, the patient will almost always have symptoms and be found to have relevant psychiatric disturbance.
Dr Kenny stated if the histories that the applicant provided after the 2000 assessment were accepted, then he would have to accept that the applicant has PTSD with substance abuse.
28. In oral evidence Dr Kenny said that, in his supplementary report, he did not change his diagnosis, although he recognised the context in which his diagnosis was made in 2000. Under cross-examination, Dr Kenny acknowledged that he would agree with Dr Epstein’s diagnosis if the applicant’s history was accepted as true.
29. In a report dated 22 October 2000 (T15, p98). Dr L. Whitaker, consultant psychiatrist, diagnosed PTSD. He also made a separate diagnosis of alcohol abuse which arose in attempted self-medication for his PTSD. Dr Whitaker said that, if his diagnosis of PTSD was ignored, the applicant experienced a severe stressor in the form of probable “threat of injury or death” and certain engagement with the enemy in relation to alcohol dependence, and noted in particular the applicant’s operational flying in Vietnam.
30. In a written report dated 28 June 2001 (T15, p76), Dr T. Gidley, consultant psychiatrist, stated:
…
On the balance of probabilities, from my assessment, Mr Nicklin is suffering from a Generalised Anxiety Disorder (GAD) and Alcohol Abuse Disorder. Supporting a diagnosis of GAD, he shows evidence of excessive anxiety and worry, present for more than 6 months. He finds it difficult to control his worry. He experiences restlessness, irritability, tension and sleep disturbance. The focus of his anxiety is general and includes factors such as his work situation, interpersonal problems and his physical health, as well as involving memories arising from his Vietnam service.
In relation to PTSD, Dr Gidley stated:
…
In my opinion he does not meet the DSM4 criteria for Post-Traumatic Stress Disorder, in particular the stressor criterion. Mr C. Ducker, historian for Riteway [sic] Research agrees that the veteran may have undertook some operational flying in Vietnam on a voluntary basis. He also lends some support to the veteran’s claim that he witnessed a soldier shooting himself in the foot and also that the veteran offered assistance to injured victims of the motor vehicle accident described earlier in my report. These situations however, in my view do not meet the diagnostic requirement for PTSD, where it is requisite that the traumatic events be extreme and a response involving, fear, helplessness or horror accompanies them. Further, although the veteran describes recurring memories of his Vietnam experiences, these memories lack the intrusiveness and persistence necessary for PTSD diagnosis purposes.
31. In a supplementary report dated 23 August 2004 (Exhibit R2) Dr Gidley stated that he had perused additional information including medical reports and the applicant’s written statement (Exhibit A1). He reiterated that none of the incidents described by the applicant was sufficient to satisfy the stressor criterion for a diagnosis of PTSD. He said that generalised anxiety disorder and alcohol abuse disorder had developed gradually and had probably become established by October 2000, when Dr Whitaker assessed the applicant. He said that heavy alcohol intake had started prior to the applicant’s Vietnam service. Dr Gidley stated that the applicant’s Generalised Anxiety Disorder is probably multifactorially determined, with general life event[s], personality and effects of alcohol, all contributing. He said:
The factors contributing to the development of Alcohol Abuse Disorder are largely cultural and probably also to some extent temperamental. The Statement of Principles for Substance Abuse, to make causal links to service, require a service related psychiatric disorder to be present at time of onset. In this case, the only psychiatric disorder that can possibly be linked to Alcohol Abuse is GAD, which as I have already stated is not service related.
32. In oral evidence Dr Gidley stated that in assessing the incidents outlined by the applicant he was mindful that the two elements of stressors were the severity of the event and the reaction to the event. In cross-examination, he said that a diagnosis of PTSD requires an immediate and abnormal reaction to an event, and that such a reaction was not present in any of the incidents.
33. In a report dated 23 December 2003 (T20), Dr N. Rose, consultant psychiatrist, stated:
…
Mr Nicklin’s anger and heavy alcohol consumption strongly suggest the presence of vulnerable personality characteristics prior to his service in Vietnam. Having listened to him about his service in Vietnam I am not convinced that he was exposed to any trauma sufficient to cause a psychiatric condition.
In my opinion he certainly does not have Post Traumatic Stress Disorder but he does have Alcohol Dependency.
34. In a supplementary report dated 13 August 2004 (Exhibit R7) Dr Rose stated, after reading relevant documentation including reports from other psychiatrists, that his opinion had not changed. He said that the applicant’s alcohol dependency is related to pre-existing personality issues, the availability of alcohol before service and the increased availability during service. Dr Rose stated further that he was not convinced that the applicant had suffered from an appropriately severe stressor to satisfy the requirements of the legislation.
CONSIDERATION OF THE ISSUES
35. Section 9 of the Act specifies the circumstances in which a veteran’s disease or injury is to be taken to be war‑caused. In particular s 9(1)(a) and (b) apply:
9(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;
36. There was no dispute between the parties that the applicant had rendered operational service, and that s 120(1) and s 120(3) of the Act apply. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). Section 120(3) is affected by s 120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s 120A depends upon whether there is a SoP, determined under s 196B of the Act, in respect of the kind of disease contracted by the applicant in force. Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
37. The Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war‑caused in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
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 a 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 s 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.
38. The following are the diagnostic criteria for PTSD as described in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV):
A. The person has been exposed to a traumatic event in which both of the following were present:
1. 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
2. the person’s response involved intense fear, helplessness, or horror.
…
B. The traumatic event is persistently reexperienced in one (or more) of the following ways:
1. recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. …
2. recurrent distressing dreams of the event. …
3. 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). …
4. intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
5. physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event
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:
1. efforts to avoid thoughts, feelings, or conversations associated with the trauma
2. efforts to avoid activities, places, or people that arouse recollections of the trauma
3. inability to recall an important aspect of the trauma
4. markedly diminished interest or participation in significant activities
5. feeling of detachment or estrangement from others
6. restricted range of affect (e.g., unable to have loving feelings)
7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1. difficulty falling or staying asleep
2. irritability or outbursts of anger
3. difficulty concentrating
4. hypervigilance
5. exaggerated startle response
E. Duration of the disturbance (symptoms B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
39. The SoPs raised in this case were those for PTSD (Nº 3 of 1999), anxiety disorder (Nº 1 of 2000), alcohol dependence or alcohol abuse (Nº 76 of 1998) and hypertension (Nº 3 of 2004).
40. The relevant factor within SoP Nº 3 of 1999 for PTSD, that must be related to service, is set out in clause 5 of the SoP:
5.…
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;…
The SoP then provides in clause 8 (as amended by SoP Nº 54 of 1999) that:
“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’ Entitlement 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;
41. The SoP defines PTSD to mirror the requirement in DSM-IV; namely that the essential feature is …the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event … The definition of PTSD in the SoP includes the following:
…
(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…
42. In SoP Nº 1 of 2000 for anxiety disorder, factor 5(a)(ii) requires:
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; …
Paragraph 8 of the SoP defines severe psychosocial stressor as:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
43. In SoP Nº 76 of 1998 for alcohol abuse or alcohol dependence, factor 5(b) requires:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;…
Clause 8 of the SoP then provides:
“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’ Entitlement 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;
44. In SoP Nº 35 of 2003 (as amended by SoP Nº 3 of 2004) for hypertension, factor 5(b) requires:
5, …
(a)…
(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension;
45. Mr Chancellor submitted that the evidence of Dr Epstein and Dr Whitaker that the correct diagnosis is PTSD should be accepted. He also submitted that the applicant suffers from alcohol dependence or alcohol abuse, and hypertension. In applying Deledio, Mr Chancellor acknowledged that there were some inconsistencies in the history given by the applicant to doctors and the Tribunal, and attributed this to the applicant’s personality. He said that at least one of the incidents (among which the shooting incident, the land rover incident and the night flying incidents were the most obvious candidates), or a combination of the incidents as described by the applicant, were capable of being the severe stressor required by the SoP for PTSD and would satisfy factor 5(a) in the SoP. Therefore, the hypothesis was reasonable and the applicant satisfied the third and fourth steps of Deledio.
46. Mr Chancellor said that the medical evidence supported an alternative diagnosis of generalised anxiety disorder. In applying Deledio, Mr Chancellor submitted that the individual incidents, or a combination, relied upon by the applicant would fit within the definition of severe psychosocial stressor in the SoP for generalised anxiety disorder.
47. Mr Chancellor said that most medical practitioners had accepted that the applicant suffers from alcohol dependence or alcohol abuse. In applying Deledio, Mr Chancellor submitted that the individual incidents, or a combination of those incidents, relied upon by the applicant, would fit within the definition of severe stressor in the SoP.
48. Mr Chancellor said that on the medical evidence, the applicant was suffering from hypertension. In applying Deledio, Mr Chancellor submitted that as the applicant satisfies the SoP for alcohol dependence or alcohol abuse, he also satisfies factor 5(b) of the SoP for hypertension.
49. Mr Chancellor noted that Mr Ducker had concluded that the incidents described by the applicant had occurred. Therefore, it was open to the Tribunal to find that there was a basis for a finding that the incidents constituted severe stressors, particularly as each of the shooting incident, the land rover incident and the night flying incidents had the potential to result in death or serious injury. Mr Chancellor referred the Tribunal to the evidence concerning the applicant’s mental state and noted the evidence from family members about the applicant’s alcohol consumption and behaviour before and after joining the army.
50. Mr Purcell submitted that the Tribunal should prefer the evidence from Dr Rose, Dr Kenny and Dr Gidley and find that the applicant suffers from generalised anxiety disorder and alcohol dependence and alcohol abuse rather than PTSD. He said that the diagnosis of PTSD by Dr Whitaker and Dr Epstein was based on facts regarding stressors, which had been disproved.
51. In applying Deledio, Mr Purcell noted that the applicant had initially claimed 13 separate events that occurred while he was serving in Vietnam as constituting severe stressors, but that before the VRB and the Tribunal he had effectively narrowed the number to three (the shooting incident, the land rover incident and the night flying incidents). Mr Purcell submitted that the evidence from the applicant is unreliable and the Tribunal should find that none of the incidents satisfies the definition of severe stressor or severe psychosocial stressor. He said that there is no evidence pointing to the clinical onset of anxiety disorder within two years of the applicant’s operational service. He submitted that the clinical onset of anxiety disorder occurred after the breakdown of the applicant’s marriage, and was accompanied by an increase in alcohol use.
52. Mr Purcell did not dispute that the applicant suffered from hypertension, but submitted that the condition cannot be related to his operational service because his alcohol dependence and alcohol abuse was not related to his operational service. Therefore, the necessary link could not be made.
53. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions of the parties.
54. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366, Wilcox J held that, when considering the first step, the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4) of the Act, that there is a condition as claimed, on the balance of probabilities. The Tribunal had before it psychiatric evidence provided from numerous medical practitioners. Dr Epstein diagnosed PTSD, although he acknowledged that he relied on the information provided to him by the applicant. Dr Whitaker diagnosed PTSD principally on the basis of operational flying, and acknowledged that if he was mistaken then the preferable diagnosis would be generalised anxiety disorder. Dr Gidley, Dr Kenny and Dr Rose concluded that the applicant did not suffer from PTSD on the basis that the events described by the applicant did not meet the criteria in DSM-IV for traumatic event, taking into account the severity of the events and the applicant’s responses.
55. Taking into account the evidence as a whole, the Tribunal agrees with Dr Gidley that the diagnosis of PTSD requires an immediate and abnormal reaction to an event, and that the applicant did not demonstrate such reactions in any of the incidents. The Tribunal is reasonably satisfied that the preferred diagnosis in this case is generalised anxiety disorder and not PTSD. The Tribunal is reasonably satisfied that the applicant also suffers from alcohol abuse or alcohol dependence and hypertension.
56. The Tribunal has identified the relevant SoPs for anxiety disorder, alcohol dependence or alcohol abuse and hypertension. Applying Deledio, the Tribunal is satisfied that the material points to hypotheses connecting the applicant's conditions with the circumstances of the particular service rendered by him, and as the relevant SoPs are in force, the first and second steps in Deledio are satisfied.
57. In respect of the third step in Deledio, for a hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP (Repatriation Commission v Hill (2002) 69 ALD 581). In relation to factor 5(a)(ii) of SoP Nº 1 of 2000 concerning anxiety disorder, it is necessary that the evidence points to incidents that meet the definition of severe psychosocial stressor and that the evidence points to the onset of anxiety disorder within two years of those incidents.
58. The definition of severe psychosocial stressor, while more comprehensive than the definition of stressful event in the preceding SoP for generalised anxiety disorder (SoP Nº 49 of 1994), is similar in its terms to that in the SoP. In O’Neil v Repatriation Commission (2001) 34 AAR 290 North J considered the definition of stressful event. He said that the definition, which provided that a stressful event means an occurrence which evokes feelings of anxiety or stress, requires that a decision‑maker look at the experience, which will be something peculiarly personal and dependent upon subjective feelings. He said that the task of the Tribunal was to determine whether it could be satisfied that the applicant actually subjectively felt anxious. He rejected the submission that a decision‑maker had to make a separate (objective) assessment of whether an occurrence was of such a character that it could fall within the description of an occurrence that evoked feelings of anxiety or stress.
59. Although the definition of severe psychosocial stressor in the current SoP is more detailed, particularly in the examples it gives, the same approach as set out in O’Neil applies. The task of the decision-maker is to be satisfied to the relevant level that there was an identifiable occurrence and that the person experienced substantial distress in reaction to it.
60. In White v Repatriation Commission (2004) 39 AAR 67 the Federal Court observed (at 73):
…
In my opinion, the submission on behalf of Mr White that an event which in fact evokes feelings of substantial distress in a person satisfies the definition of "severe psychosocial stressor" has to be rejected. Such a submission, that any occurrence no matter how trivial or innocuous it objectively is, can be a "serious psychosocial stressor", means that the examples given in the definition of "severe psychosocial stressor" would be not only irrelevant and devoid of utility, but positively misleading.
61. The Tribunal notes that in evidence to the VRB and to the Tribunal the applicant has concentrated on the shooting incident, the land rover incident and the night flying incidents as the basis of his claim that he experienced a severe psychosocial stressor. The Tribunal also notes the inconsistencies in the applicant’s evidence about the incidents, before the Tribunal and the VRB, and in the histories given to medical practitioners. The Tribunal accepts the comprehensive reports from Mr Ducker about each of these incidents. It finds that in the shooting incident the applicant may have been present at some stage after the discharge of the weapon, but was not interviewed in the subsequent investigation because he did not play a significant role in assisting or treating the victim. Accordingly, the Tribunal finds that, although the applicant may have been concerned by his perception of a self-inflicted wound to the victim, such a perception does not constitute a severe psychosocial stressor.
62. In relation to the land rover incident the Tribunal finds that a motor vehicle accident occurred and that the applicant may have arrived on the scene at some stage afterwards. There is insufficient evidence to conclude that he rendered first aid in the manner he described. The Tribunal notes that the applicant was not required to give evidence to a subsequent investigation and Court Martial. Accordingly, the Tribunal finds that, although the applicant may have been concerned of possible injuries to the occupants of the vehicle when he became aware of the accident, such a concern does not constitute a severe psychosocial stressor.
63. In relation to the night flying incidents the Tribunal accepts that flying on fixed‑wing aircraft in Vietnam involved an element of risk. However, the Tribunal notes that the applicant described to Dr Kenny an adrenalin rush that occurred during such flights. Mr Ducker found that service personnel actively sought to volunteer for such flights, so there would not have been a need for the applicant to have been ordered to take part in the flights. In all the circumstances the Tribunal finds that, although the applicant may have had some apprehension about the dangers of flying in fixed-wing aircraft at night, such apprehension does not constitute a severe psychosocial stressor.
64. The Tribunal has considered each of the other incidents as described by the applicant. The Tribunal notes that the applicant has not attached major significance to any of the incidents either before the VRB or the Tribunal. The Tribunal accepts the conclusions by Mr Ducker regarding the factual basis of each event and finds that, both individually or collectively, the incidents do not constitute a severe psychosocial stressor.
65. The Tribunal also accepts the evidence from Dr Gidley that clinical onset of the applicant’s anxiety disorder occurred in about 1995, when the applicant’s marriage ended, and was accompanied by an increase in his alcohol consumption, although according to the evidence from Ms Murray his alcohol use was apparently under control until some time after they had begun to live together.
66. For these reasons, the Tribunal accepts Mr Purcell’s submission that the material does not point to the applicant experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder, as required in the relevant SoP. Overall, there is no material or evidence pointing to the applicant meeting any of the relevant factors in the SoP concerning anxiety disorder, and therefore the hypothesis connecting this condition with the applicant’s service is not consistent with the template and is deemed not to be a reasonable hypothesis. The applicant does not satisfy the third step of Deledio in relation to anxiety disorder.
67. In relation to factor 5(b) of SoP Nº 76 of 1998 concerning alcohol dependence or abuse, it is necessary that the evidence points to incidents that meet the definition of severe stressor within two years of the clinical onset of alcohol dependence or abuse. The Tribunal notes that the definition of severe stressor in the SoP requires the occurrence of a particular stressor and a reaction by the applicant at the relevant time of intense fear, helplessness or horror.
68. In Stoddart v Repatriation Commission (2003) 74 ALD 366 the Federal Court stated (at 378):
…The adjectival clause “that involved actual or threat of death or serious injury...” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not fall…within the adjectival clause.
In Woodward and Another v Repatriation Commission (2003) 131 FCR 473 the Full Federal Court concluded (at 499):
…
We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
69. As outlined in its consideration of the applicant’s claims in respect of anxiety disorder, the Tribunal notes the circumstances of the events described as stressors by the applicant to medical practitioners and in evidence to the Tribunal, and the conclusions about those events reached by Mr Ducker in his research. The Tribunal finds that the applicant’s experiences in those incidents, individually and collectively, fall within the category of idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause (Stoddart) and are not objectively reasonable (Woodward).
70. For these reasons, the Tribunal accepts Mr Purcell’s submission that the material taken as a whole does not point to the applicant experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse as required in the relevant SoP, or meeting any of the relevant factors in the SoP concerning alcohol dependence or alcohol abuse. Therefore, the hypothesis connecting this condition with the applicant’s service is not consistent with the template and is deemed not to be a reasonable hypothesis. The applicant does not satisfy the third step of Deledio in relation to alcohol dependence or alcohol abuse.
71. Consequently, in relation to factor 5(b) of SoP Nº 35 of 2003 concerning hypertension, the Tribunal accepts Mr Purcell’s submission that the applicant’s hypertension cannot be related to his operational service as his alcohol dependence or alcohol abuse is not related to his operational service. Therefore, the hypothesis connecting hypertension with the applicant’s service is not consistent with the template and is deemed not to be a reasonable hypothesis. The applicant does not satisfy the third step of Deledio in relation to hypertension.
72. The Tribunal takes into account the beneficial nature of the Act, the passage of time and any deficiency in official records (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) of the Act cannot be used to provide evidence of facts if none exists. In the matter before it, the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in his favour. Consequently, the claim does not succeed.
DECISION
73. The Tribunal affirms the decision under review.
I certify that the seventy-three [73] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 25 November 2004
31 January 2005
1 February 2005
Date of decision: 22 February 2005
Counsel for applicant: Mr G. Chancellor
Solicitor for applicant: Williams WinterCounsel for respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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