North and Repatriation Commission
[2003] AATA 570
•12 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 570
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/853
VETERANS' APPEALS DIVISION
Re: MICHAEL PATRICK NORTH
Applicant
And: REPATRIATION COMMISION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 12 June 2003
Place: Melbourne
Decision:The Tribunal sets aside the determination of the Repatriation Commission dated 9 October 2000, as affirmed by the Veterans’ Review Board on 10 May 2001, and substitutes a decision that the applicant's chronic depressive disorder and alcohol dependence are war‑caused diseases. The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – depressive disorder –operational service in Vietnam - severe psychosocial stressors – whether war‑caused disability
Veterans' Entitlements Act 1986 ss.120(1), (3), 120A
Statement of Principles
Instrument Nº 58 of 1998 concerning depressive disorder
Instrument Nº 59 of 1998 concerning panic disorderInstrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornielus (2002) FCA 750
Re Holthouse and Repatriation Commission (1982) 1 RPD 287
Wedderspoon v Minister for Pensions [1947] 1 KB 562
Re Wootton and Repatriation Commission (AAT 7969, 20 May 1992)
Re Winship and Repatriation Commission (1990) 20 ALD 101
Re Kirkman and Repatriation Commission [2002] AATA 718Re Slattery and Repatriation Commission (2002) 52 ALD 90
REASONS FOR DECISION
12 June 2003 Miss E.A. Shanahan, Member
1. This is an application for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 9 October 2000, subsequently affirmed by the Veterans’ Review Board (VRB) on 10 May 2001, which found that the applicant did not meet the requirements of the Statement of Principles (SoP) relevant to chronic affective disorder. The VRB found that the stressor incident only entailed an imagined threat rather than an actual threat, and that the applicant’s symptoms did not occur within two years of the psychosocial stressor.
2. The applicant was represented by Ms J. Bornstein, of counsel, instructed by Geoffrey Tobin, and the respondent by Mr G. Purcell, of counsel, instructed by the Department of Veterans' Affairs (the Department). 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:
· Report by Dr C. Seabridge, psychiatrist, dated 19 August 2002
Exhibit A1
· Applicant’s statement undated Exhibit A2
· WriteWay research report dated 17 May 2002 Exhibit A3
· WriteWay research report dated 19 September 2002 Exhibit A4
· Record Extracts from Repatriation General Hospital —
pps.13, 18, 19, 29 Exhibit R1
· Report of Dr D. Kahans, psychiatrist, pps.1—23 Exhibit R2
· Transcript of VRB hearing dated 10 May 2001 Exhibit R3
· Dr G. Walsh's clinical notes – pages 1—10 — received
on 18 December 2002 Exhibit R4
· Psychological reports from Department of Defence –
pages 1—38 – dated 9 April 2002 Exhibit R5
· Report of Dr L. Walton, consultant psychiatrist,
dated 24 June 2002 Exhibit R6
The applicant gave evidence to the Tribunal, as did Dr Seabridge.
BACKGROUND TO THE APPLICATION
3. The applicant served in the Australian Army (the army) from 20 April 1966 to 19 April 1968. From 11 August 1967 to 20 February 1968, his service was in Vietnam and thus he has operational service. At the time of enlistment the applicant was twenty, and on entering the army was aged twenty‑one. From the age of fifteen until his enlistment, he had served an apprenticeship and was employed as a dental technician. Following his enlistment, he undertook basic training programmes, three‑week infantry training in North Queensland and, given his background as a dental technician, also received training as a medical assistant. His duties in Vietnam consisted of providing dental care to Australian and American members of the Armed Forces and in addition he was involved in a civilian aide programme named Dentcaps, providing dental care to the Vietnamese population, both in the major cities and country areas.
4. The applicant claimed that, from his first day in Vietnam, he suffered several major severe stressors or severe psychosocial stressors. These numbered, as variably reported, between eight and thirteen episodes. The various psychiatric reports refer to lesser numbers of psychosocial stressor factors and not every psychiatrist describes the same stressors. The applicant had provided a statement outlining these stressors and the applicant’s counsel tendered the document in the course of his examination‑in‑chief. The applicant claimed that, from his first day in Vietnam, he suffered anxiety and depression leading to excessive alcohol intake which continued throughout his operational service. On return to Australia on completion of approximately six months operational service, his depression and anxiety continued, as did his excessive alcohol intake.
5. During the course of his service, the applicant married and shortly after his discharge from the army his wife gave birth to their first child. The applicant claimed that, on completion of his Vietnam service, his anxiety/depression and consequent excessive alcohol intake resulted in family conflict, including violence toward his wife and that he sought medical treatment for these conditions in or about 1969 or early 1970. He stated that valium (oxazepam) was prescribed at this time. There exists a record of him seeking psychiatric treatment in 1976, relating to marital problems and his sexual promiscuity. In 1985 the Repatriation General Hospital medical records indicate an anxiety state with atypical chest pain and a fear of death. Psychiatric referral was arranged at that time but the applicant failed to attend.
6. The applicant’s first marriage broke down and he has had several relationships since, all of which have been unsuccessful. His current relationship is in doubt.
7. The applicant ceased employment as a self‑employed dental mechanic in February 1999 and is now in receipt of a disability support pension. The evidence indicated that his dental technician business was successful initially but was gradually eroded by his ongoing health problems.
8. The applicant applied for a disability pension on 3 July 2000 and the conditions of otitis externa, chronic bronchitis and emphysema and bilateral tinnitus were accepted as war‑caused. A thirty per cent rate was determined. A claim for chronic affective disorder of 10 May 2001 was rejected. The applicant appealed to the Tribunal on 13 July 2001.
9. The VRB's rejection of the applicant’s claim was based on the absence of an identifiable severe psychosocial stressor and its conclusion that his chronic affective disorder was most probably related to the increasing problems of running his own business and the problems caused by his drinking. The VRB concluded that the onset of the chronic affective disorder did not occur within two years of the veteran's service in Vietnam.
10. The parties agreed that the applicant’s psychiatric diagnosis was chronic depressive disorder in accordance with Diagnostic and Statistical Manual of Mental Disorders (DSM‑IV) and that he also suffered from alcohol abuse. The issue before the Tribunal was whether or not these conditions were war‑caused and did they meet the requirements of the relevant SoPs in that they had been manifest within two years of the precipitating psychosocial stressor or severe stressor.
EVIDENCE BEFORE THE TRIBUNAL
The Applicant
11. The applicant confirmed that he prepared a statement for use in these proceedings and his counsel, Ms Bornstein, tendered the statement through the applicant (Exhibit A2). The applicant’s statement consists of six pages but was not dated, however the applicant acknowledged that he had made the statement. The applicant advised that he had been conscripted for National Service but, as he was completing his dental technician's course at RMIT on a part‑time basis, his conscription was deferred for a period of twelve months. He outlined his training as a dental technician and also his training in the army prior to his deployment to Vietnam. In Vietnam he was attached to 33 Dental Section 3 at 7RAR Admin Company (the Unit). Following his arrival in Vietnam, he was stationed at Nui Dat and shared a tent with the Unit's dentist. Shortly after arrival, he noted artillery fire which he had never experienced before and he told the Tribunal that …It frightened the living daylights out of me at first (trans, p.10). On the same night, his first night in the Unit, the applicant had heard a weapon being fired in close proximity to his tent and subsequently learnt that the dentist had fired at a cat.
12. When visiting the Vietnamese villages as part of the civil aide programme, the applicant stated that he was required to perform guard duty while the dentist and the dental nurse performed teeth extractions. His duty resulted in a feeling of apprehension and some fright. However, there was never any threatening event related to the Dentcaps' activities.
13. Some five days after arrival in Vietnam, the applicant was transferred to Saigon to perform dental work on Australian personnel. He went to Saigon as part of a general team. This work was completed on a Saturday morning and in the afternoon he and his colleagues were given the afternoon off and explored the city of Saigon. Having hired two pedicabs, the applicant and two other members of the Australian military force visited a brothel. An altercation between one of the ladies of the brothel and one of the applicant’s companions resulted in the applicant and his friend rapidly leaving the area. Their pedicab was stopped when an unknown person inserted a lump of wood through the front wheel of the pedicab. This occurred in front of an American hotel guarded by an American serviceman. The applicant claimed that this American serviceman raised his rifle and pointed it at his friend and him.. He reacted by running from the scene, following which the applicant was confronted by a Vietnamese policeman holding a pistol. The applicant identified himself as Australian in Vietnamese. They rapidly left the area to return to their hotel. The applicant described his reaction to the confrontation as being …absolutely terrified (trans, p.14). On reaching his hotel, the applicant said that he …proceeded to get himself quite drunk.
14. The applicant’s third frightening event occurred in their small dental surgery when there was a nearby explosion and the windows of the surgery cracked. There was an almighty bang and the building shook but nothing else occurred. His response to this event was that he felt extremely fearful and anxious. He claimed that he was later told that this event was due to someone taking a joy ride in a phantom jet and buzzed the area where he was working.
15. The applicant was required to attend daily briefings during the TET offensive of 1968. At one of these briefings, it was reported that the American Forces could only count how many they had killed …by putting the arms, legs and heads together. The applicant claimed that this report made him sick (trans, p.15).
16. A further episode, which turned out to be a practical joke, resulted from the applicant being told that he was to undertake wire patrol duty, which he perceived as being extremely dangerous. He assembled his F1 machine gun and rounds of ammunition and commenced walking to the company line when he was told to return, as it was admitted that it was a practical joke. He believed that the practical joke was perpetrated against him because he was, what was called, a pogo. Apparently a pogo is a non‑combat soldier who is restricted to base. He claimed that he was most distressed by this episode.
17. The applicant described a further episode when a large plane, called Puff the Magic Dragon, dropped flares in the area. His reaction was that he felt scared and started to shake. The applicant said that the following day he was requested to accompany an infantryman to assist with a Viet Cong body count. This, again, turned out to be a practical joke, which he found distressing and depressing.
18. The applicant admitted that he had told Dr Walton of an episode not contained in his statement wherein after a barbecue at Vung Tau, when they were returning to Saigon, a couple of members of the party commenced firing across rice paddies and swamps in a practice situation and fire was returned. The Australian party rapidly accelerated and left the area. On direct questioning by Ms Bornstein, the applicant admitted that none of these events had been reported to the authorities at any time.
19. Dr Walton in his report had also referred to the death of the applicant’s close friend, Bobby. The applicant had arranged to have a metal partial denture constructed from chrome cobalt made in San Francisco for Bobby. Bobby was killed on the day this special denture was delivered to Vietnam. Bobby had apparently parachuted from a helicopter, the webbing snapped and he was impaled on a tree. This event had greatly distressed the applicant. He stated he continued to think about Bobby's death. The applicant did not witness this event.
20. The final stressful event reported occurred while the applicant, on rest and convalescence, attended an American club in Vung Tau with some American servicemen. An altercation with a group of Vietnamese civilians occurred and a brick was thrown at one of the Americans, hitting him on the head. The American drew a knife and stabbed the assailant in the abdomen. The applicant had been standing immediately beside the American and felt that the stabbing would have resulted in the death of the victim. Following the stabbing incident, the applicant …took off like a rocket (trans, p.22). This incident was not reported to the authorities.
21. Ms Bornstein asked the applicant to describe himself before he went to Vietnam and how his service in Vietnam had affected him in general. The applicant said that he was an average nineteen to twenty year old prior to enlistment and would have described himself as a …happy [go] lucky sort of a bloke.. During his service, he became very apprehensive and depressed with problems in sleeping except when he had drunk to excess. Ten days after his return from Vietnam his first child was born and he subsequently returned to work as a dental technician with his uncle. Despite his homecoming he had a feeling of wanting to be by himself and he frequently left his workplace for up to two hours during which time he would just walk around. Immediately after his return to Australia, he played a few games of football, having played football regularly before enlistment. He ceased after a few games as he had lost interest. The applicant experienced nightmares during his time in Vietnam and these continued after his discharge. He agreed that he had not reported these symptoms at the time of his discharge from the army but that, at some time in 1969, he had attended a general practitioner on the corner of Melville Road and Moreland Road, and was prescribed valium. The applicant recollected that in the early 1970s he had been referred by his general practitioner, Dr H. Goldenberg, to a psychologist, Dr Kahans.
22. The applicant admitted that he had been a social to moderate drinker prior to his enlistment. Following work on a Friday night, he would attend the local hotel with his uncle and a few of his mates, have a few beers and then buy half a dozen bottles of beer which would be consumed between six or seven persons. Occasionally, on a Saturday night he would go to a party where alcohol would be consumed. He stated that he did not drink during the week. His alcohol intake had increased markedly in Vietnam, commencing within one or two days of his arrival. He would drink every night, from 5:00 p.m. to 6:00 p.m., in large volumes as the price of beer was 15¢ a can. He believed his drinking was a way of overcoming the emotions he was feeling. On return to Australia he continued to drink in the order of six to twelve cans of beer a day, depending on what he could afford. As his financial position improved he drank more. He claimed his drinking had affected his relationship with his wife, as he was frequently arriving home late at night and drunk. Excessive use of alcohol had been involved in a serious motor vehicle accident when his son was a small baby. There were several occasions when he had been stopped for drink driving but did not lose his licence for this offence until the 1980s.
23. Ms Bornstein took the applicant through the WriteWay reports of 17 May 2002 and of 19 September 2002 (Exhibits A3 and A4). These reports had dealt with the applicant’s claimed stressful events in Vietnam and concluded that there was no evidence to support his version of events. However, they could not be disproved. The applicant was taken, in particular, to the event described as a phantom fighter bomber joy ride, in which he estimated the aeroplane had flown five hundred feet above the tree tops. The WriteWay report had noted that this aeroplane would have flown at a much higher altitude and made a whooshing noise rather than a bang. The applicant's response to this was that it sounded to him as if the plane was at tree top level and the sound he heard was a bang.
24. Mr Purcell cross‑examined the applicant on all aspects of his examination‑in‑chief. The applicant maintained the evidence he had given. Mr Purcell asked why various reports had only contained a few of the incidents mentioned in examination‑in‑chief. The applicant could not explain why he had only mentioned four incidents to Dr M. Dowd, psychiatrist, but suggested that it was probably as a result of the way the interview was conducted.
25. The applicant confirmed that he had been prescribed valium in 1969 but that his uncle had insisted that he stop taking the valium tablets as his uncle had noticed slurring of his speech. Some time in the 1970s Dr Goldenberg had referred him to Dr Kahans because of his drinking problems, marital problems and depression. He had continued to see Dr Kahans at fortnightly intervals for several months. No medication had been prescribed by Dr Kahans and the treatment consisted predominantly of talking with Dr Kahans. (At this stage of the hearing it was uncertain whether Dr Kahans was a psychologist as reported by the applicant, or a psychiatrist.) The applicant, in response to a question from Mr Purcell, agreed that he had been referred to a psychiatrist by the Repatriation General Hospital in approximately the mid‑1980s. He had attended this psychiatrist in his private practice.
26. The applicant confirmed that prior to enlistment he had played football on a regular basis but he had stopped. He had, however, maintained an interest as an office bearer in amateur football clubs. The applicant agreed that considerable amounts of drinking of alcohol took place at the football clubs, but he had not consumed excessive alcohol while he was actively playing football. Drinking was limited to a couple of beers after a football game. The applicant confirmed that, in his opinion, he was a social drinker prior to enlistment. During his training period at Puckapunyal, he felt that he would have attended the mess, at the most, on two occasions. Likewise during his three‑week posting at Watsons Bay, awaiting transfer to Vietnam, he had not drunk at any hotels in Sydney.
27. Mr Purcell pursued the applicant’s drinking habits in the 1970s and 1980s and the applicant admitted that in the mid‑1970s to the late 1980s he had lost his driver's licence for two years as a result of having a blood alcohol level of .275. Since that time he had not had any .05 drink driving convictions but admitted that he did occasionally drink and drive.
28. When taken to the WriteWay reports, the applicant disagreed with the statement that he had been adopted by American service personnel for a period of two days. He also disagreed that the Vietnamese who confronted him in the incident in Saigon was a civilian, stating that this person was a member of the Vietnamese police force. The other incidents, as reported previously, were pursued by Mr Purcell but, essentially, the applicant reiterated his original evidence. In re‑examination, the applicant, once more, explained the attitude of infantrymen to non‑combat soldiers, referred to as pogos. He had found the practical jokes perpetrated upon him to be very upsetting and made him extremely angry. He was upset by being called a pogo and the entire experience left him depressed (trans, p.114). The applicant also confirmed the financial difficulties he was exposed to immediately on his return from Vietnam with his motor vehicle being repossessed and his failure to pay the rent on his house.
PSYCHIATRIC EVIDENCE OF DR SEABRIDGE
29. Dr Seabridge gave evidence for the applicant and advised that he had been a consultant psychiatrist since 1965. He stated that in the past six years he had seen in excess of five hundred combat veterans, fifty per cent of whom were referred for an opinion and assessment directly by the Department. He identified his area of expertise as being in traumatic stress studies and treatment. Dr Seabridge stated he had interpreted the SoP Instrument Nº 58 of 1998 definition of severe psychosocial stressor to mean that the stressor …evokes feeling of substantial distress (trans, p.65). He agreed with Ms Bornstein that this was a subjective interpretation by the individual exposed to the stressor. Dr Seabridge categorised the applicant’s depression as category 3. He stated the applicant did not fulfil the criteria for a major depressive disorder. Dr Seabridge was asked by Ms Bornstein to explain any inconsistencies in the accounts given to Dr Walton, Dr Dowd and him. Dr Seabridge advised that it was a common occurrence, particularly in the veteran's area, for the continuing reappraisal by the individual of their experiences, which may also be aided by access to other external information. Dr Seabridge noted that different episodes had been reported to different psychiatrists, both different in their description and different in their number. Dr Seabridge opined that this was a normal finding in history taking, particularly related to the veterans. Dr Seabridge was firmly of the opinion that the distressing experiences came first, resulting in depression and the abuse of alcohol was a secondary phenomenon.
30. Dr Seabridge was taken to Dr Walton's report (Exhibit R6). Dr Walton had made a diagnosis of chronic depression and alcohol abuse but was unable to link these events to the applicant’s operational service in terms of the SoP. In his report, Dr Walton has concluded that the depressive condition had followed the alcohol abuse and also that the applicant’s drinking pattern had been heavy prior to enlistment. Dr Seabridge agreed with the diagnoses of depression and alcohol abuse, but disagreed that there was any pattern of excessive drinking prior to the applicant’s Vietnam service. Dr Seabridge disagreed that the clinical onset of a depressive disorder was necessarily defined by a formal diagnosis or the seeking of treatment, as suggested by Dr Walton. In his experience in dealing with veterans with post traumatic stress disorder (PTSD), he had found that none of them had sought medical advice upon return to Australia. None had made a complaint to the army regarding anxiety or depression and in that era PTSD was not a recognised condition.
31. Under cross‑examination, Dr Seabridge reiterated his opinion. He opined that alcohol per se can cause a depressed mood but could not cause a depressive disorder. Dr Seabridge confirmed that his history had recorded that the applicant was drinking excessively within one month of his return from Vietnam and that this had caused domestic discord. The applicant had told him that he had, first, been prescribed valium in 1969, but had not told him of marital problems that had led him to seek psychiatric treatment in the mid‑1970s. Dr Seabridge also informed the Tribunal that valium could be used, in 1969, for detoxification of alcoholics. Dr Seabridge stated that he had not followed up the mid‑1970 consultations by the applicant with his psychiatrist/psychologist named Dr Kahans as he did not believe this would be contributory.
32. Dr Seabridge indicated that he arrived at his own conclusions and opinion without reference to the opinions of other psychiatrists or reporting medical practitioners. Dr Seabridge had no doubt that the applicant suffered from a depressive disorder and alcohol abuse, and this had dated from his service in Vietnam. Dr Seabridge denied that the applicant was alcohol dependent but, by all criteria, abused alcohol. He stated that the depressive disorder had to be presumed on the basis that the applicant had been exposed to a severe psychosocial stressor that …terrifies and distresses him and he then begins a pattern of drinking which I have regarded symptomatic of his disorder (trans, p.82). Dr Seabridge regarded his opinion as being supported by the applicant’s statement that in 1969 he was anxious, stammering in speech, unable to stay at his bench, had to keep walking out and going down the street, and had seen a doctor who prescribed medication for depression. Dr Seabridge was of the opinion that retrospectively the applicant would have been diagnosed as having PTSD in 1969, although at that time PTSD, as a diagnosis, did not exist. In 1969, the diagnosis would have been an adjustment disorder. This diagnosis was no longer applicable as adjustment disorders diagnosed in 1969/1970 were declared to have resolved within three years or at least improved within that time period.
33. Re‑examination by Ms Bornstein did not advance the contentions except to confirm that the abusive use of alcohol by the applicant from his arrival in Vietnam, the subsequent abuse of his wife on return from Vietnam and the prescription of valium in 1969, confirmed the retrospective diagnosis of depression following the applicant’s service in Vietnam.
34. Cross‑examination regarding the applicant’s medication is noted but was not found to be relevant to the issue.
35. In response to questions posed by the Tribunal, Dr Seabridge advised that persons labelled as pogos were regarded by the medical forces in Vietnam as being …dreadfully inferior (trans, p.89). In Dr Seabridge's experience, pogos had been subjected to numerous so‑called practical jokes, which had been extremely disturbing and gave rise to anxiety type symptoms.
36. During the course of the proceeding, the Tribunal's associate had found the address of Dr Kahans and the Tribunal determined that it should seek the opinion of Dr Kahans, given that he had been the treating psychiatrist in the mid‑1970s. The hearing was adjourned to seek his opinion.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
37. Dr Walton had provided a report to the Department dated 24 June 2002 (Exhibit R6). On the basis of the history provided by the applicant, Dr Walton had identified some nine stressor incidents suffered by the applicant while in Vietnam. He also noted that the applicant had commenced drinking alcohol prior to enlistment. Dr Walton reported that there was a weekly session of drinking on Friday nights but once the applicant had joined the army he was intoxicated most evenings and this pattern had continued following his discharge. The applicant had admitted to drinking one slab of beer each day. Dr Walton took an extensive history and described the applicant as being tense and tearful but without intellectual defect. Dr Walton concluded that the applicant suffered from a chronic depressive disorder and was an alcoholic. On the basis of the history provided, Dr Walton could not set the clinical onset of the applicant’s symptoms any earlier than 1970. Dr Walton assessed the applicant under the Guide to the Assessment of Rates of Veterans' Pensions criteria as having a combined impairment of 31 points. The applicant did not meet the SoP requirements of the onset of these conditions within two years of any psychosocial stressor.
38. Dr Dowd had seen the applicant on 10 December 1999 and provided a report to the Department, dated 1 August 2000. Dr Dowd noted some four stressor incidents and made a diagnosis of chronic affective disorder characterised by moderately severe depressive episodes and chronic alcohol dependence syndrome. In his opinion these conditions had been contributed to a significant degree by the applicant’s experiences in Vietnam. Dr Dowd did not relate his opinion to the relevant SoPs.
39. The hearing was adjourned indefinitely to enable the respondent to obtain either a report or the clinical notes of Dr Kahans, as these were felt to have a bearing on the applicant’s psychological status in the 1970s. It was found that Dr Kahans had retired from psychiatric practice but was able to provide the applicant’s clinical notes from the period 7 February 1976 to 28 October 1977. These notes also included the original letter of referral from Dr Goldenberg. The referral was based on marital problems relating to an ongoing affair with another woman and a recent episode where he had beaten his wife. Dr Goldenberg had prescribed oxazepam to calm the applicant and had assessed the applicant as immature, aggressive and angry against a hard forbidding world. No reference was made to any incident that might have occurred in Vietnam.
40. Dr Kahans notes indicated that he saw the applicant predominantly because of his marital problems and his promiscuity. His notes indicated that, at the first interview, Dr Kahans was of the opinion that the applicant was a potential, but not actual, alcoholic. The applicant failed to keep an appointment on 21 February 1976 and Dr Kahans was notified by the applicant’s girlfriend that he was too drunk to attend. The entry of 25 April 1976 deals, again, with the applicant’s relationships and while no diagnosis was made by Dr Kahans, he commented that:
…
This flamboyancy which he seductively and engagingly exhibits in most likelihood is masking the angry depressive state which is not too far away from being cruelly exposed. (Exhibit R2)
41. The notes relate the applicant’s frequent sexual encounters, all of which seem to have occurred when he has met an unknown woman in a hotel.
42. At the resumed hearing, following the receipt of Dr Kahans's clinical notes, the Tribunal agreed that Dr Seabridge should be recalled to address the matters raised in the clinical notes. Mr Purcell had obtained further evidence from the applicant’s history at the now Austin and Repatriation Hospital where the applicant attended in the mid‑1980s.
43. The records of the Austin and Repatriation Hospital contained a referral to a psychiatrist dated 25 February 1985, which read:
…
Could you please review this 40 year old male who has an anxiety neurosis re death. He is unable to sleep and it is inferring with normal function. May also benefit from stress management.
FURTHER EVIDENCE FROM DR SEABRIDGE
44. In examination‑in‑chief, Dr Seabridge confirmed his previous opinion and diagnosis of chronic depression and alcohol abuse secondary to exposure to psychosocial stressors during the applicant’s Vietnam service. He remained of the opinion that the onset of the depression occurred while the applicant was serving in Vietnam and his opinion was in no way altered by the content of Dr Kahans's notes. The latter did, however, confirm alcohol abuse and the prescription of oxazepam by the applicant’s then general practitioner. As the treating psychiatrist, Dr Seabridge had seen the applicant in the interval between the first day of hearing and the resumed hearing. He had questioned the applicant as to the content of Dr Kahans's clinical notes relating to his infidelity and had found that the applicant and his wife had chosen to remain completely chaste prior to their marriage. He had had some sexual experience in Vietnam with bar girls on two occasions, but on both occasions these had been non‑penetrative sex and at the time he had been intoxicated. Dr Seabridge said he had pursued this matter in an attempt to understand why the applicant’s behaviour had changed so dramatically after his return to Australia.
45. Mr Purcell conducted a very detailed cross‑examination, taking Dr Seabridge through all previous reports from the psychiatrists. Dr Seabridge maintained his opinion and explained that the varying diagnosis made during the 1970s and 1980s (Dr Kahans's reference to an angry depressive state and the Austin Repatriation Hospital reference to an anxiety state) preceded the introduction of DSM‑IV with its sub‑classification of depression as currently in use. Dr Seabridge confirmed that the only way he could make a diagnosis was on the history he obtained from the applicant. Based on that history, he had diagnosed depressive disorder in 1969 with symptoms of anxiety, feelings of guilt, inadequacy, worthlessness and incompetence. There was a great deal of discussion as to the differences between an infantry and a non‑infantry solider and the stresses to which they may be exposed. Dr Seabridge advised that he did not differentiate between the two, as non‑combat soldiers in a theatre of war may be required to go out on patrols at night and be frightened out of their wits. Dr Seabridge disagreed with Dr Walton's conclusion that the applicant drank to excess prior to his service in Vietnam. The cited events of the applicant being drunk for three days in Manila when on route to Vietnam and the episode of becoming drunk a few days after arrival in Vietnam did not, in Dr Seabridge's opinion, amount to alcohol abuse, as that …diagnosis had to be made when the pattern of drinking is over a period of time and it causes significant and ongoing distress in various areas of his life, social, employment, recreational and occupational (trans p.149).
46. On re‑examination, Dr Seabridge opined that the applicant’s marital difficulties were a consequence of the applicant’s psychiatric disorder and his drinking. He also noted that Dr Walton had proffered this possibility.
47. The WriteWay reports (Exhibits A3‑A4) were not pursued in detail by either party as Mr Church, of WriteWay, had been unable to prove the occurrence of any of the instances related by the applicant as stressors. He was unable to completely rule out that they had not occurred.
48. Dr Walsh, the current treating general practitioner's clinical notes (Exhibit R4) did not contribute any information to the issue under consideration.
THE LEGISLATION
49. As the applicant had rendered operational service, subsections 120(1) and (3) of the Veterans' Entitlements Act 1986 (the Act) are applicable. Section 120A requires the Tribunal to apply any relevant SoPs. The parties agreed that the relevant SoPs are Instrument Nº 58 of 1998 concerning depressive disorder and Instrument Nº 76 of 1998 concerning alcohol abuse or alcohol dependence. 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.
50. The applicant relied upon risk factor 5(b) of SoP for depressive disorder. This factor states …experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. The SoP also defines
"severe psychosocial stressor" to mean 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
51. The applicant submitted that risk factor 5(b) of SoP Nº 76 of 1998 relating to alcohol abuse or alcohol dependence was met. Factor 5(b) states …experiencing a severe stressor within the two years immediately before clinical onset of alcohol dependence or alcohol abuse. SoP Nº 76 of 1998 defines:
“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 services where the 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;
52. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis standard of 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
53. The applicant contended that factor 5(b) of SoP Instrument Nº 58 of 1998 concerning depressive disorder was met, as the applicant had experienced multiple severe stressors while serving in Vietnam and had, on the evidence, developed a depressive disorder while still in service, or at the latest following his return to Australia in 1969. This depressive disorder had led to alcohol abuse (factor 5(a) of SoP 76 of 1998) or, in the alternative, the applicant’s alcohol abuse resulted from experiencing a severe stressor within the two years immediately before the onset of the alcohol abuse (factor 5(b) of SoP 76 of 1998).
54. The respondent accepted the diagnoses of chronic depressive disorder and alcohol abuse, but submitted that the SoPs were not met as the evidence did not support a causal relationship to service but were secondary to the applicant’s marital and financial difficulties post‑service. Alternatively, if the applicant’s conditions did relate to his operational service, the respondent submitted that the clinical onset of the conditions was not within two years of experiencing stressor. The respondent relied on the definition of clinical onset enunciated by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 and followed by the Federal Court (Branson J) in Repatriation Commission v Cornielus (2002) FCA 750:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present....
55. Of the thirteen incidents reported as stressful by the applicant, the respondent identified only the Saigon event involving an American serviceman and a Vietnamese policeman as being of sufficient severity to meet the SoP definitions of a severe psychosocial or severe stressor. It was submitted that this event was not attributable to war service as it occurred in the applicant’s personal sphere (Re Holthouse and Repatriation Commission (1982) 1 RPD 287; Wedderspoon v Minister for Pensions [1947] 1 KB 562; Re Wootton and Repatriation Commission (AAT 7969, 20 May 1992); Re Winship and Repatriation Commission (1990) 20 ALD 101; Re Kirkman and Repatriation Commission [2002] AATA 718; Re Slattery and Repatriation Commission (2002) 52 ALD 90).
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE TRIBUNAL
56. The parties agreed, based on the evidence of several consultant psychiatrists, that there is no doubt that the applicant suffers from a chronic depressive disorder and from alcohol abuse. This diagnosis is firmly established. While one consultant psychiatrist made a diagnosis of chronic affective disorder, it was agreed that such terminology also covered chronic depressive disorder.
57. The applicant has raised two hypotheses. First that the applicant suffered severe psychosocial stressors during his Vietnam service (operational service) and, as a consequence, developed a depressive disorder, the clinical onset of which was within two years of experiencing the stressors. Secondly, as a result of the chronic depressive disorder, the applicant developed a drinking habit which amounts to alcohol abuse or, in the alternative, developed alcohol abuse as a result of experiencing a severe stressor, the abuse being manifest within two years of exposure to the stressor.
58. Having examined all the material before it, the Tribunal has formed the opinion that there is sufficient material pointing to the hypothesis.
59. There is nothing to suggest that the hypotheses raised are not reasonable in that they are not contrary to proven or known scientific facts and they are in no way fanciful or untenable. The parties are in agreement as to the relevant SoPs of the Repatriation Medical Authority (RMA)*, namely Instruments Nº 58 of 1998 concerning depressive disorder and Nº 76 of 1998 concerning alcohol abuse or alcohol dependence.
60. The applicant served in the army as a dental technician from 20 April 1966 until 19 April 1968. His operational service was from 11 August 1967 until 29 February 1968 in Vietnam. Prior to deployment in Vietnam, he underwent the usual training required of National Servicemen and also further medical training. In his evidence, the applicant identified some thirteen stressful incidents which occurred in Vietnam over a period of five and a half months. These incidents were of varying severity but all created subjective substantial distress for the applicant. The most serious of these incidents, in the Tribunal's opinion, would be the episode in Saigon where a gun was pointed at him by an American serviceman and a Vietnamese policeman; being involved in a fight and in close proximity to an American serviceman who in the course of the fight stabbed a Vietnamese civilian and the death of his friend, Bobby, who was impaled on a tree after parachuting from a helicopter. While the remaining incidents were of lesser severity based on the applicant’s evidence, it appeared that these had an accumulative effect. The Tribunal notes that RMA definition of a severe psychosocial stressor in Instrument Nº 56 of 1998 is not exhaustive, does not stipulate that the death of a close friend must be witnessed by the veteran and is a subjective test.
61. The applicant described himself as a social drinker prior to enlistment with his drinking limited to Friday nights and Saturdays predominantly. There are two reported episodes of excessive drinking, resulting in drunkenness, the first in Manila while in transit to Vietnam and the second a few days after his arrival in Vietnam. There is no evidence before the Tribunal of an established drinking pattern that would meet the definition of alcohol abuse prior to Vietnam and in the first week or so in Vietnam. The applicant’s evidence was that, following exposure to various stressors, his level of anxiety, fearfulness and depression led him to drink on a daily basis. This level of alcohol ingestion continued throughout his service and on return to Australia. The applicant did not seek medical attention for his anxiety or drinking while in service, but on his evidence was prescribed valium early in 1969. The general practitioner who prescribed the valium is no longer identifiable and the applicant believed he had left medical practice.
62. The applicant first formally consulted a psychiatrist in February 1976. Prior to this consultation, Dr Goldenberg, had prescribed valium. Dr Goldenberg referred the applicant to Dr Kahans at the applicant’s request in relation to marital problems he was then experiencing. Dr Kahans's notes indicate that these marital problems had commenced four to five years prior to the initial consultation in 1976. While dealing primarily with the applicant’s marital problems, Dr Kahans noted that the applicant had a serious drinking problem and had failed to keep appointments because he was too drunk to attend. He also commented that the applicant’s flamboyancy most likelihood is masking the angry depressive state which is not too far away from being fully exposed. The applicant’s extra marital sexual relationships would appear to have all been initiated while under the influence of alcohol.
63. In 1985, the Austin and Repatriation Hospital records contain an entry regarding atypical chest pain and an acute and potentially debilitating anxiety state requiring psychiatric referral.
64. The applicant had been assessed by three consultant psychiatrists, Dr Dowd in 1999, Dr Walton in 2002 and Dr Seabridge, who has been his treating psychiatrist, since February 2002. All three psychiatrists made a diagnosis of chronic depressive disorder and alcohol abuse. Dr Dowd and Dr Seabridge attributed the development of these conditions to the applicant’s experiences in Vietnam. Dr Walton was of the opinion that the applicant had a history of excessive alcohol consumption prior to operational service and on that basis concluded that the alcohol abuse was the primary disorder leading to chronic depressive state. He also expressed uncertainty in relation to the date of clinical onset and whether or not the applicant had been exposed to a severe psychosocial stressor. The Tribunal noted that the applicant's description of the various stressors varied in number as reported to the individual psychiatrists but were reproduceable accurate in description of the events.
65. Dr Seabridge, who appears to have a vast experience in treating psychiatric disorders in veterans (at least five hundred), was firmly of the opinion that the applicant had been a social drinker before enlistment, had suffered numerous severe psychosocial stressors leading to his chronic depressive disorder and secondarily to alcohol abuse. Dr Seabridge's opinion was based on the history he had obtained from the applicant who he had been treating since 2002. In his experience, it was extremely rare for Vietnam veterans suffering from a service‑related psychiatric disorder to seek medical attention during or shortly after their service. He regarded the applicant’s behaviour and progress following his return from service as being quite typical of the development of a psychiatric disorder due to stressors imposed during service. On the evidence before it, the Tribunal cannot be satisfied beyond reasonable doubt that the applicant’s conditions of chronic depressive disorder and alcohol abuse were not a war‑caused disease.
66. The Tribunal notes that the VRB in its decision of 10 May 2001 attributed the applicant’s conditions to financial and marital problems dating from 1985. The VRB did not have before it all the evidence available to this Tribunal.
67. The Tribunal sets aside the decision under review and finds that the applicant’s chronic depressive disorder and alcohol abuse are war‑caused within the meaning of the Act and that the SoPs number 76 of 1998 and number 58 of 1998 with respect to these conditions are met. The matter should be remitted to the Repatriation Commission for determination of the level of pension payable.
I certify that the sixty‑seven [67] 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: 27 September 2002
4 February 2003
Date of Decision: 12 June 2003
Counsel for the applicant: Ms J. Bornstein
Solicitor for the applicant: Geoffrey TobinCounsel for the respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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