Norton and Repatriation Commission
[2008] AATA 1
•2 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601234
VETERANS’ APPEALS DIVISION ) Re LORRAINE NORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date2 January 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that Mr Goodwin’s death was causally related to his operational service. A disability pension of 70 per cent of the General Rate is payable from 6 July 2005 and the Special Rate is payable from 25 March 2006 until the veteran’s death on 30 November 2006. (sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS - continuation of claim under s 126 – veteran deceased – death due to primary carcinoma of the liver – alcohol abuse – cirrhosis – anxiety state – claimed stressors – sub-hypotheses dependant on anxiety state or alcohol abuse being war‑caused – decision set aside
Veterans’ Entitlements Act 1986
Deledio v Repatriation Commission (1998) 49 ALD 193
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Stoddart (2003) 134 FCR 392
Statement of Principles concerning Malignant Neoplasm of the Liver
(Instrument No 171 of 1996)
Statement of Principles concerning Generalised Anxiety Disorder and Anxiety Disorder due to a General Medical Condition and Anxiety Disorder
(Instrument No 1 of 2000)
Statement of Principles concerning Anxiety Disorder
(Instrument No 102 of 2007)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
(Instrument No 76 of 1998)
Statement of Principles concerning Chronic Gastritis
(Instrument No 75 of 2001)
Statement of Principles concerning Cirrhosis of the Liver
(Instrument No 35 of 1998)
REASONS FOR DECISION
2 January 2008 Miss E.A. Shanahan, Member 1. On 27 March 2007 Mrs Norton, as Executor of the late Perrin Goodwin’s estate, was approved, pursuant to s 126 of the Veterans’ Entitlements Act 1986 (the Act), to continue the claim of the deceased veteran. Mr Goodwin had died on 30 November 2006 from primary adenocarcinoma of the liver with widespread metastases. Mr Goodwin had lodged numerous claims for a disability pension between 30 November 1995 and 16 November 2006, all of which were rejected on the basis that the conditions from which he allegedly suffered were not war-caused, except for bilateral sensorineural hearing loss and tinnitus. The accepted disabilities had resulted in Mr Goodwin receiving a pension at 20 percent of the General Rate with effect from 27 July 2005.
2. Mr Goodwin’s claims for disability pension for anxiety state, alcohol abuse and cirrhosis of the liver were rejected in 1995, 1999 and again in 2003, on the basis that the conditions were not war-caused. His claim for neoplasm of the liver was rejected on 3 November 2005. The Veterans Review Board (VRB) affirmed the decisions of the delegate of the Repatriation Commission on 16 November 2006. This application for review of the decisions was lodged with the Administrative Appeals Tribunal on 22 December 2006.
3. Mr Goodwin was conscripted into the Australian Army on 1 May 1968. He served in Vietnam from 2 April 1969 until 4 March 1970. He was discharged from the Army on 30 April 1970. In Vietnam he was a storeman at the 1st Australian Logistic Support Group Base at Vung Tau. He had served in a similar role in Australia after completing his 16-week recruit training. His role in Vietnam did not require him to travel outside the base but did require him to occasionally perform picket duty, patrolling the base perimeter. During his Vietnam service there were no ground attacks on the base although occasionally trip flares on the perimeter wire were accidentally set off.
4. Mr Goodwin claimed that his exposure to severe stressors in Vietnam resulted in him developing an anxiety disorder, which in turn led to excessive or increased alcohol intake and abuse, cirrhosis of the liver and eventually primary carcinoma of the liver. The claim involves several sub-hypotheses all of which must be considered individually and in accordance with the relevant Statements of Principles if the claim is to succeed. Statements of Principles (SOPs) are principles based on sound medical and scientific evidence, for any disease, injury or death that could be related to military service. The SOPs state the factors which must or must as a minimum exist to cause a particular kind of disease, injury or death. The SOPs are determined by the Repatriation Medical Authority, an independent statutory authority responsible to the Minister for Veterans' Affairs.
5.The severe stressors relied upon were:
1.being required to play in a football match within hours of his arrival in Vietnam and in front of a mixed audience of Australian Army personnel and South Vietnamese;
2.being required to perform picket duty inside and occasionally outside the perimeter wire. Mr Goodwin claimed to have paid others to perform these duties on several occasions;
3.being housed approximately 600 meters from the helicopter landing pad, these helicopters carrying wounded Army soldiers to the 1st Australian Field Hospital;
4.a generally threatening environment;
5.being accused of theft in a Vietnamese bar away from the base and then being forced to strip before being searched.
6. While not formally claimed as a stressor, the Tribunal notes in light of Instrument No 102 of 2007 (the Statement of Principles concerning Anxiety Disorder), that Mr Goodwin’s long-standing girlfriend ended their relationship six months after he was conscripted, following which his alcohol consumption increased (Dr D’Ortenzio’s report of 14 December 1999). This appears to have occurred while Mr Goodwin was stationed in Australia during a period of eligible but not operational service.
7. Following his discharge from the Army, Mr Goodwin had a variety of jobs. In 1990 he was retrenched and was unemployed for four years; following which he obtained employment with his local council, predominately as a truck driver. He remained in this role until his terminal illness.
8. It appeared to the Tribunal that the issues for determination could be adequately determined in the absence of the parties. The parties consented to a review of the decision in their absence. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal conducted the review on the papers. The Tribunal was provided with the documents lodged pursuant to s 37 of the AAT Act (the T-Documents), the separate reports of several psychiatrists and the clinical notes of general practitioners.
WRITEWAY RESEARCH REPORTS
9. Mr Hugh Conant (Lieutenant Colonel, Retired) provided two reports, dated 31 August 2003 (T17, p73) and 5 January 2004 (T17, p83), at the Respondent’s request. In his first report Mr Conant confirmed the dates of Mr Goodwin’s service, eligible and operational, and his role as a storeman at the Australian base at Vung Tau (the base).
10. Mr Conant addressed each of the claimed stressors and also the general instructions given to all Army personnel with respect to the dangers of serving in Vietnam.
CLAIMED STRESSORS
Stressor One
11. Inter-unit rugby and Australian Rules football matches were played occasionally at an oval five kilometres north of the base and soccer games against South Vietnamese teams sometimes took place at the same site. While it might have seemed strange to play in front of a South Vietnamese crowd, Mr Conant did not believe it was a threatening or dangerous setting (T17, p77).
Stressor Two
picket duty
12. Mr Conant confirmed Mr Goodwin would have participated in such duties and that it was common for servicemen to pay others to do their allotted picket rounds. If approved by a non-commissioned officer (NCO), this was quite legal.
Stressor Three
proximity to the helicopter (vampire pad)
13. Mr Conant advised that the distance between the pad and Mr Goodwin’s worksite at the 25th Supply Platoon was 600 metres and as such he would be unable to see the wounded or their injuries. The distance between the pad and the 1st Australian Field Hospital was 45 metres.
Stressor Four
a threatening environment
14. Mr Conant said Mr Goodwin’s duties had been clerical and conducted in a relatively safe environment.
Stressor Five
being accused of theft in a vietnamese bar
15. Mr Conant suggested that such an event would have been unusual as most of the thieving was done by bar staff. It would have been expected that other Australian servicemen would come to Mr Goodwin’s help, the event reported to the Military Police and therefore be recorded in the Military Police diaries. Mr Goodwin had stated that the Military Police came to his assistance.
16. Mr Conant offered to undertake further research if Mr Goodwin could provide the names of other soldiers with him in the bar at the time and the month and year that the event took place.
17. Mr Conant also addressed the supply of alcohol to servicemen and whether Mr Goodwin’s claim that he drank most of the day was feasible. Mr Conant confirmed that there was a culture of heavy alcohol consumption in Army messes and soldier canteens at the time of Mr Goodwin’s service. There was a co-existent culture of counselling soldiers whose work was affected by alcohol consumption. Mr Conant believed it was likely that Mr Goodwin drank to excess but not sufficiently to become intoxicated on a daily basis.
18. Mr Goodwin had been found guilty of failing to check and record temperatures in portable refrigerators. Such checking was necessitated by the unreliability of the refrigerators and Mr Goodwin’s failure to do so had resulted in the spoiling of food (ice-cream).
19. Mr Conant provided a supplementary report on 5 January 2004 after Mr Goodwin identified the bar theft accusation as most probably occurring in January 1970 but was unable to provide names of witnesses as none of his friends were with him at the time. However, Mr Goodwin recalled telling Lance Corporal Robert Walters and Private Don Jose of his experience, either that night or the next day. It is not clear from Mr Conant’s report if Mr Conant spoke to either named person but he stated, Those interviewed for this Report made the point that they did not remember such an event but that did not mean it did not happen… and thus it was not possible to prove or disprove this particular incident (T17, p87). There were records of assaults on and the murders of Australian servicemen in Vung Tau, but these were very infrequent.
MEDICAL REPORTS
Dr Horton’s Clinical Notes from March 1966 to April 2003 and a written report of 21 November 1995
20. The entries between March 1966 and 1 November 1976 relate to minor health matters. On 1 November 1976 Dr Horton treated Mr Goodwin for an injury to his right hand and recorded: This is 11.00am and his breath smells of alcohol! (page 2 of the clinical notes). No advice appears to have been given regarding Mr Goodwin’s alcohol intake until May 1991. In 1994 Mr Goodwin’s erythematous scaly facial rash was diagnosed as rosacea. In 1995 Dr Horton had written a letter to the Department of Veterans’ Affairs (the Department) in support of Mr Goodwin’s claim for pension due to alcohol abuse. Dr Horton recorded in August 1995 that Mr Goodwin’s wife had left him two months previously.
21. Liver function tests were recorded as abnormal from 2 May 1994, showing evidence of hepatocelular damage, and remained abnormal with fluctuating levels until 2002. In July 2002 Dr Horton advised Mr Goodwin to reduce his alcohol intake. Throughout this period Mr Goodwin continued to suffer from pain and swelling of the left knee with locking.
22. Dr Horton obtained a more detailed history relating to Mr Goodwin’s claim on 16 July 2002 and listed Mr Goodwin’s medical problems as a liver condition possibly alcohol-related, an anxiety disorder, and social impairment – disfiguration due to acne rosacea. No severe stressors relating to Mr Goodwin’s Vietnam service were recorded.
23. On 8 May 2002 an abdominal ultrasound was performed and revealed mild fatty infiltration of the liver and a 1.6 x 2.7 cm hypo‑echoic lesion in the liver. A CT scan of the abdomen did not reveal any abnormality. A gastroscopy and colonoscopy in the same month were both normal. Dr Horton completed a Medical Examination Psychiatric form for the the Department on 21 November 1995, stating that Mr Goodwin commenced drinking alcohol in the Army and in Vietnam drank each afternoon after completing his work. This level of drinking was maintained after service and increased when Mr Goodwin was unemployed between 1990 and 1994 at which time he was drinking 12 glasses of beer daily. Mr Goodwin’s wife had left him because of his drinking and at the time of writing Mr Goodwin was trying to cut down. Dr Horton provided no therapy or counselling as Mr Goodwin had not consulted him for his drinking problems. Dr Horton diagnosed alcohol abuse.
Dr N. Senadipathy (Psychiatrist)
24. Dr Senadipathy saw Mr Goodwin on 20 November 1995 at the request of the the Department. Dr Senadipathy outlined Mr Goodwin’s work history including the four year period of unemployment between 1990 and 1994, Mr Goodwin’s negative family psychiatric history and noted that Mr Goodwin and his wife separated in 1994 after 25 years of marriage.
25. Dr Senadipathy did not identify any traumatic events suggestive of a severe stressor; although he noted that Mr Goodwin was unhappy at having been conscripted into the Army and that while he was in the service he drank most of the day as alcohol was freely available. Mr Goodwin gave a history of drinking on weekends at the age of 17. In 1990, after becoming unemployed, Mr Goodwin’s daily intake of alcohol had increased resulting in the breakdown of his marriage in 1994.
26. Dr Senadipathy concluded that Mr Goodwin suffered from alcoholism unrelated to his war service. The alcoholism was attributed to constitutional factors (which he did not define), the breakdown of his marriage and the earlier relationship and his unemployment.
Dr G. D’Ortenzio (Psychiatrist)
27. Dr D’Ortenzio provided a report to the the Department on 14 December 1999 (T8). He diagnosed alcohol abuse and dependence with consequent psychiatric impairment. He considered the relationship between Mr Goodwin’s alcohol abuse and dependence coincidental to his service but of unclear causal relationship. At the time of the consultation Mr Goodwin was drinking six to ten stubbies each night and more on weekends. Over some years Mr Goodwin had become reclusive, giving up his activities in the State Emergency Service and the Country Fire Authority.
28. According to the history obtained by Dr D’Ortenzio, Mr Goodwin had consumed little alcohol prior to joining the Army and for the first six months of service. Some six months after conscription his regular girlfriend found somebody else and broke off their relationship. Mr Goodwin’s alcohol consumption increased thereafter.
29. Mr Goodwin denied any particular events that were frightening or traumatic during his service. He said he finished work at 11.00am and then went to the American bar for three to four hours and drank. After an hour or two unloading equipment in the afternoon he would return to the Australian base and resume drinking.
30. Dr D’Ortenzio recorded that after his Army service Mr Goodwin had continued the pattern of daily drinking with more alcohol at weekends. Mr Goodwin did try to reduce his intake at his wife’s insistence but was unsuccessful and his marriage floundered because of his alcohol abuse.
31. A Mental Status Examination was essentially normal except for anxiety earlier in the consultation. Dr D’Ortenzio recorded the presence of spider-naevi on Mr Goodwin’s face and upper body. (Tribunal Note: spider-naevi are indicative of liver disease).
32. Dr D’Ortenzio diagnosed chronic alcohol abuse and dependence which had emerged during Mr Goodwin’s national service years. He did not identify any specific traumatic events causally related to the alcohol abuse. Dr D’Ortenzio considered that Mr Goodwin suffered only occasional minor symptoms of subjective distress and manifest distress. Using the Guide to the Assessment of Rates to Veterans’ Pensions (Fifth Edition) (GARP) Dr D’Ortenzio assigned a disability rating of 19 points.
33. Dr D’Ortenzio re-assessed Mr Goodwin on 27 July 2002 (T12). On this occasion Mr Goodwin described his anxiety arising from the football match, proximity to the helicopter pad, the accusation of theft in a Vietnam bar, the reprimands that followed his failure to check refrigerator temperatures and being charged for neglecting his duty by selling his picket duty on to others. Otherwise, the history given was as reported in 1999. Dr D’Ortenzio assigned a GARP rating of 24 points.
34. Dr D’Ortenzio noted increased anxiety. He did not consider that any of the newly described events occurring during the Vietnamese service was sufficient to cause an anxiety disorder or post traumatic stress disorder (PTSD). However, he opined that they may possibly have prolonged and exacerbated Mr Goodwin’s need for alcohol. He concluded that Mr Goodwin’s military service was a significant factor in the development of his alcohol abuse and dependence.
Dr L. Walton (Psychiatrist)
35. Dr Walton, who saw Mr Goodwin on 7 January 2004, obtained the same history as that given to Dr D’Ortenzio and diagnosed Mr Goodwin as being an alcoholic (T17, p90). The events described by Mr Goodwin could not, in Dr Walton’s opinion, have caused a subjective reaction as required by the SoP for Generalised Anxiety Disorder. He advised that Mr Goodwin was suffering from an anxiety disorder at the time of clinical onset of alcohol dependence or alcohol abuse. He assigned a combined disability rating of 11 points. Dr Walton appeared to favour a diagnosis of alcohol dependence, most likely due to a genetic predisposition (as Mr Goodwin’s father drank heavily in his younger years, although he then completely ceased) and conformity to peer behaviour.
Dr R. Blum (Oncologist)
36. Dr Blum provided the Respondent with a report certifying that Mr Goodwin had been diagnosed with hepatocellular carcinoma with metastatic deposits throughout his skeletal system (T10, p47). In a further report dated 22 November 2006, (T18, p97) Dr Blum linked this malignancy to underlying cirrhosis secondary to alcohol abuse.
Dr C. Percival (Psychiatrist)
37. Dr Percival saw Mr Goodwin on 21 August 2006 at the request of Mr Goodwin’s Advocate (T15, p55). He obtained a detailed history without the knowledge of the previous psychiatric opinions, which were later provided. His opinion was based on the history, with comment subsequently made on the opinions of Dr D’Ortenzio and Dr Walton and in particular on their assessment of when and why Mr Goodwin commenced drinking alcohol to excess.
38. Dr Percival obtained Mr Goodwin’s history with some difficulty as Mr Goodwin was not forthcoming. Following his return to Australia, Mr Goodwin had adopted a solitary life preferring to keep to myself and drinking far more alcohol than had previously been the case. Mr Goodwin noted that he was more irritable, less tolerant and very anxious. He said that prior to his service he had expected on his return to become engaged to his regular girlfriend but in the interim she had found another partner.
39. Mr Goodwin described significant stressful incidents experienced in Vietnam as having to participate in a football match on his first day in Vietnam and the proximity of the helicopter pad (which was estimated at 200 metres) to his work-site. He said he could not see any of the injured but their presence reminded him of the risks of his service. Similarly, picket duty was said to arouse fear and every unidentified noise gave rise to terror. Mr Goodwin acknowledged he was more anxious and irritable and slept poorly compared with his fellow soldiers.
40. Prior to service Mr Goodwin said he drank on Friday and Saturday nights at a rate of four seven ounce glasses per night. After joining the Army this increased to four seven ounce glasses of beer on most nights and this level of drinking was maintained in his early months in Vietnam. He then progressively increased to eight to ten 375 ml glasses per night. On return to Australia Mr Goodwin’s intake increased to fifteen to twenty - seven ounce glasses of full strength beer on week nights and twenty to twenty-four such glasses on each weekend day. Mr Goodwin assured Dr Percival that Dr D’Ortenzio’s report was mistaken in relation to his alcohol intake. (The Tribunal notes that the estimates of drinking vary from 7 ounces (210ml) glasses, 200 ml glasses to 375 ml glasses or two undersized glasses, which is less than helpful but unable to be rectified).
41. Dr Percival concluded that the veteran began to suffer symptoms compatible with the diagnoses of Generalised Anxiety Disorder (GAD) within the first three to four months of his time in Vietnam. Even though, in objective terms, his experiences were far less risk-laden than those of combat infantrymen, they were far more risky than his pre-Vietnam life experiences in a small rural country town in Victoria. Dr Percival identified Mr Goodwin’s symptoms as being difficulty controlling his worry, being keyed up and on edge, difficulty concentrating, increased irritability and disturbed sleep. He thus met all the requirements of Diagnostic and Statistical Manual of Mental Disorders, (Fourth Edition) (DSM-IV) Criteria for GAD.
Birchip Hospital Records of 21 August 2007
42. These records document Mr Goodwin’s admission to Birchip Hospital on 30 November 2006 for terminal care of his malignancy; and his death some three and a half hours later.
Bendigo Health Report of 19 June 2007
43. Dr E. Davis, Deputy Chief Medical Officer of the hospital, provided a summary of Mr Goodwin’s treatment by Bendigo Health, confirming the diagnosis of primary hepatocellular carcinoma. This included the pathology review report from the Austin Hospital Liver Transplant Unit regarding the original liver biopsy which stated:
Moderately differentiated hepatocellular carcinoma. No obvious risk factors for hepatoma are demonstrated in the peritumoral background liver parenchyma.
THE ALCOHOL QUESTIONAIRE DATED 15 AUGUST 1995)
44. Mr Goodwin stated he commenced drinking alcohol on a regular basis in 1969 in order to relieve tension and drank beer and spirits two to three times per week at the rate of six 200ml glasses of beer per day (T5, p9). This increased over time and was currently 12 plus 200 ml glasses of beer per day.
VETERANS’ REVIEW BOARD DECISION
45. On 16 November 2006 the VRB rejected Mr Goodwin’s claim in relation to malignant neoplasm of the liver. This decision was based on the evidence of Drs Senadipathy and Walton: that the veteran commenced drinking to excess prior to his Vietnam service and was constitutionally predisposed toward alcohol abuse; that the increase in alcohol intake while in Vietnam was due to boredom; and that none of the claimed stressors (in this instance picket duty and proximity to the helicopter landing pad) were severe stressors. The VRB attributed increases in alcohol consumption after his service to personal relationship problems and the loss of employment. (The Tribunal notes that Mr Goodwin did not give evidence to the VRB and was represented by an advocate.)
LEGISLATION
46. Section 8 of the Act is concerned with war-caused death and states:
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or …
Section 120 delineates the standard of proof required for a claim to succeed and states:
(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.
Note:This subsection is affected by section 120A.
….
(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.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
As the claim for disability pension was lodged after 1 June 1994, s 120A of the Act is attracted. Section 120A states:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
47. The Repatriation Medical Authority has determined SoPs concerning all of the sub-hypotheses contained in Ms Norton’s claim. These have been identified as :
·Instrument No 171 of 1996 concerning Malignant Neoplasm of the Liver;
·Instrument No 1 of 2000 concerning Generalist Anxiety Disorder and Anxiety Disorder due to a General Medical Condition;
·Instrument No 101 of 2007 concerning Anxiety Disorder;
·Instrument No 76 of 1998 concerning Psychoactive Substance Abuse or Dependence and concerning Alcohol Dependence or Alcohol Abuse; and
·Instrument No 35 of 1998 concerning Cirrhosis of the Liver.
SUBMISSIONS
48. As this was a hearing on the papers both parties relied on the submissions contained in their Statements of Facts and Contentions.
MS NORTON - THE APPLICANT
49. Ms Norton relied upon the alcohol questionnaire completed by Mr Goodwin on 15 August 1995. This questionnaire stated that he had commenced drinking on a regular basis in 1969 while in Vietnam.
50. The severe stressors experienced by Mr Goodwin in Vietnam gave rise to feelings of substantial distress and the development of an anxiety disorder leading to self-medication with alcohol on a daily basis. (SoPs No 1 of 2000, Factor 5(a)(ii) and No 35 of 1998, Factor 5(a)) The stressors nominated in the submission were:
1.the participation in a football match on the day of his arrival in Vietnam;
2.the dangers inherent in being in a war zone; and
3.the having to perform picket duty.
51. If the alcohol questionnaire was not accepted as true, the Applicant submitted, in the alternative, that even if Mr Goodwin commenced drinking regularly prior to his operational service, the stressors he experienced resulted in an increase in his alcohol consumption in Vietnam (SoP No 76 of 1998, Factor 5(c)).
52. The Applicant submitted that Mr Goodwin’s alcohol abuse or dependence resulted in the development of cirrhosis of the liver (SoP No 35 of 1998, Factor 5(a)) and this in turn led to the development of hepatocellular carcinoma of the liver (Factor 5(a) of SoP No 171 of 1996) and to Mr Goodwin’s ultimate death.
53. Ms Norton also raised the argument that if, as suggested by Dr Walton and Dr Senadipathy, Mr Goodwin was constitutionally predisposed toward alcoholism, this should have been recognised in Vietnam and treatment instituted.
54. Ms Norton submitted that Mr Goodwin developed GAD as a result of the stressors during his operational service; alcohol dependence or abuse due to his psychiatric condition; cirrhosis of the liver and eventually carcinoma of the liver; all being war-caused and attracting 70 impairment points under Table 14.2 of the GARP. She sought the pension at 100 percent of the General Rate from 6 July 2005 and at the Special Rate from 25 March 2006 until the day of Mr Goodwin’s death on 30 November 2006.
THE REPATRIATION COMMISSION
55. The Respondent conceded that the veteran was a regular and heavy drinker and met the requirements of the SoP concerning cirrhosis of the liver (SoP No 35 of 1998) and also Factor 5(a)(iii) of the SoP for malignant neoplasm of the liver. However, the Respondent contended that the veteran did not suffer from any psychiatric disorder or aggravation of his alcohol abuse/dependence by experiencing a severe stressor within two years immediately before the clinical onset of his alcohol abuse/dependence (Factor 5(d) of the SoP). The Respondent relied on the opinions of Dr Senadipathy and Dr Walton and submitted that the Tribunal should affirm the decision under review.
THE TRIBUNAL’S DELIBERATIONS
56. The late Mr Goodwin and the Applicant met the preconditions of s 120 of the Act. Mr Goodwin was a veteran, he died on 30 November 2006 and the applicant Ms Norton is his personal legal representative, approved under s 126 to continue the claim.
57. The next step for determination by the Tribunal is, on the balance of probabilities, what kind of death had the veteran suffered (Repatriation Commission v Hancock [2003] 37 AAR 383 at paragraph 11). The Tribunal is satisfied that Mr Goodwin died from primary hepatocellular carcinoma of the liver with widespread metastatic disease. There exists an appropriate SoP - No 171 of 1996 - concerning death from malignant neoplasm of the liver.
58. The hypotheses raised by Ms Norton involved four sub-hypotheses, each of which must satisfy the steps in Repatriation Commission v Deledio (1998) 83 FCR 82 if the claim is to succeed (McKenna v Repatriation Commission (1999) 86 FCR 144).
59. The Tribunal is obliged to follow the reasoning of the Full Federal Court in Deledio:
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.
60. The four sub-hypotheses or causal links in the chain are outlined earlier in this decision (paragraph 54). As already stated, the Tribunal is satisfied that Mr Goodwin died from primary hepatocellular carcinoma of the liver with widespread metastasis and on the balance of probabilities this condition was proceeded by and causally related to cirrhosis of the liver. The veteran suffered from at least alcohol abuse, if not dependency. The Tribunal also finds that the existence of an anxiety disorder during operational service has been supported by at least one psychiatrist.
61. The existence of primary hepatocellular carcinoma is not disputed by either party or any reporting doctor. The probability of underlying cirrhosis is supported by repeatedly abnormal liver function tests showing hepatocellular damage and recorded from at least the year 2000. The histopathology report of the liver biopsy, which led to the diagnosis of the carcinoma, stated that the adjacent liver tissue showed no abnormality. Given that this was a needle biopsy performed under x-ray control and centred on the abnormal liver mass, the normal liver tissue sampling would be small and not necessarily representative given that cirrhosis is a patchy pathological process. (This last statement is from the Tribunal’s own knowledge as a surgeon of 40 years experience). The veteran’s excessive alcohol intake (greater than 150 grams per day) is supported by all the medical evidence. The last two of the four sub-hypotheses are not in dispute or challenged by the Respondent.
62. In order for the claim to succeed, a causal link to operational service must be established. From a practical viewpoint, the first sub-hypothesis relating to the existence of a war-caused anxiety disorder or in alternative experiencing a severe stressor that might evoke intense fear, helplessness or horror and thereby cause (Factor 5(b)) or result in the clinical worsening of alcohol abuse/dependence (Factor 5(c)) is the issue for the Tribunal. If this is determined in the Applicant’s favour, the remaining sub-hypotheses are validated and the claim succeeds.
63. As stated by the Full Federal Court in McKenna:
…A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts.
The second, third and fourth hypotheses raised by the Applicant are reasonable and not challenged by the Respondent.
64. The Tribunal has applied the four steps of Deledio to the claim that, as a result of stressors experienced during operational service, Mr Goodwin developed an anxiety disorder leading to self-medication with alcohol to the level of alcohol abuse or dependence; or in the alternative these stressors had, within two years of Mr Goodwin experiencing them, resulted in an increased alcohol intake, eventually diagnosed as abuse or dependency.
65. The Tribunal, having examined all the material before it, finds that a reasonable hypothesis relating to a causal connexion between the veteran’s operational service, the claimed stressors and the development of an anxiety disorder has been raised, as has the alternative hypothesis that a stressor of sufficient severity might have resulted in the worsening of pre-existing alcohol abuse or dependence.
66. It is not possible for the Tribunal, in light of the evidence and the fact that the veteran died on 30 November 2006 and has thus not been able to provide any further evidence, to determine whether there was alcohol abuse or alcohol dependence. The Tribunal takes note of the psychiatrists’ opinions. Dr Senadipathy diagnosed alcoholism with alcohol abuse in times of stress; Dr D’Ortenzio diagnosed alcohol abuse and dependence; Dr Walton concluded that Mr Goodwin was constitutionally predisposed toward alcohol dependence; and, Dr Percival favoured a diagnosis of alcohol dependency. The Tribunal is unable to find in the reported histories provided by the latter three psychiatrists the necessary DSM‑IV‑TR criteria for alcohol dependence and thus finds that Mr Goodwin suffered from alcohol abuse.
67. The necessary criteria for such a diagnosis are those specified by DSM-IV and included in SoP No 76 of 1998 wherein alcohol abuse diagnostic criteria are as follows:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring with a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol –related legal problems
(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B.The symptoms have never met the criteria for alcohol dependence.
68. The next question confronting the Tribunal is whether the late veteran’s alcohol abuse was causally linked to an underlying psychiatric condition or resulted from the objective/subjective effect of a severe stressor that might evoke intense fear (Repatriation Commission v Stoddart (2003) 134 FCR 392).
69. There exists an SoP, Instrument No 76 of 1998, concerning alcohol dependence or alcohol abuse (Step 2 of Deledio). The relevant factors are:
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
5(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
5(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or …
Mr Goodwin met these criteria.
70. Ms Norton has claimed that, if Mr Goodwin had pre-existing alcohol abuse/dependence prior to his operational service, the Army had a duty to diagnose and treat this condition and Factor 5(e), which states inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse, was raised. However, it is clear from the evidence before the Tribunal that Mr Goodwin never sought treatment for his alcohol abuse; even when advised by Dr Horton in 1995. Ms Norton relied on Instrument No 1 of 2000 concerning a general anxiety disorder developing while in Vietnam as a result of exposure to severe stressors. A new SoP for anxiety disorder including generalised anxiety disorder (Instrument No 101 of 2007) came into effect on 5 September 2007 and must be considered, given that the Applicant has an accrued right. This SoP has reclassified severe stressors into categories 1A, 1B and 2. While Mr Goodwin did experience a category 2 stressor when his long-standing close personal relationship with his girlfriend broke down some six months after his conscription, this occurred during eligible service and prior to his Vietnam posting, although it did result in an escalation of his alcohol intake compared to his pre-service levels (T2, pXII). The SoP that provides the greatest advantage to the Applicant’s claim appears to be Instrument No 76 of 1998 concerning alcohol dependence/abuse. It is also contemporaneous with the claim.
71. Dr Percival found that the veteran had symptoms of GAD while in Vietnam; although he considered the claimed stressors did not satisfy the DSM-IV criteria with respect to a severe stressor if applied to the average soldier. He differentiated Mr Goodwin from the average on the basis of his pre-conscription lifestyle – living a quiet life on a dairy farm in Birchip. Dr Walton found the claimed stressors did not meet the requirement of DSM-IV for GAD but opined that there was clinical worsening of the veteran’s alcohol abuse/dependence in Vietnam. He stated he could not find clear evidence which would tend to indicate that the Veteran’s service did not contribute to the causation of his alcohol dependency [emphasis added] (T17, p95). Similarly, Dr D’Ortenzio considered it possible that the events in Vietnam were just a further exacerbating factor (Report of 31 July 2002). In contrast, in 1995 Dr Senadipathy found no relationship between Mr Goodwin’s alcoholism and his war service.
72. The Tribunal finds that the stressors nominated by Mr Goodwin do not meet the severity delineated in DSM-IV and adopted by SoP No 1 of 2000, concerning GAD, but do meet the requirements of Factor 5(b) of SoP No 76 of 1998 which states:
…
5(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
5(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; …
73.This SoP defines experiencing a severe stressor in the following terms:
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 [emphasis added].
74. The Tribunal considers that the inclusion of the word might in this definition lowers the standard of proof. Might is defined in the Short Oxford Dictionary (Third Edition), amongst other definitions, as expressing a possibility. Both Dr Walton and Dr D’Ortenzio have related such a possibility and Dr Percival qualified it as a probability. The use of the term might in the Tribunal’s opinion shifts the weight in the assessment in the objective/subjective analyses (Stoddart) of claimed stressors toward the subjective analysis; and in light of the psychiatric opinion, the Tribunal finds that the stressors described and in particular the bar theft accusation and search, do meet the SoP’s criteria.
75. The second of the four elements of this complex hypotheses argued in the alternative to the first is upheld; and as a result the remaining two elements flow directly from this finding; resulting in the decision that Mr Goodwin’s death was causally related to his operational service. A disability pension of 70 percent of the General Rate is payable from 6 July 2005 and the Special Rate from 25 March 2006 until the veteran’s death on 30 November 2006. The Special Rate was obviously attracted during the latter period, as it covered the terminal phase of Mr Goodwin’s illness, wherein he was incapacitated for any form of work, had been forced to resign from his occupation of nearly twelve years and was then 59 years old. These monies should be paid to the late veteran’s estate.
I certify that the seventy-five [75] preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan
Signed: Ursula Noyé
Clerk
Date of Hearing 29 October 2007
Date of Decision 2 January 2008
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