Noud and Repatriation Commission
[2007] AATA 1408
•6 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1408
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500744
VETERANS' APPEALS DIVISION ) Re KEITH DOUGLAS NOUD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date6 June 2007
PlaceBrisbane
Decision The Tribunal:
1. sets aside the decisions under review as they relate to cardiomyopathy and atrial fibrillation and substitutes the decisions that cardiomyopathy and atrial fibrillation are war-caused with effect from 10 July 2003; and
2. sets aside the decision under review as it relates to post traumatic stress disorder and substitutes the decision that post traumatic stress disorder is war-caused.
The Tribunal gives liberty to the parties to make submissions, within 14 days of the date of this decision, on the date of effect for any pension payable for post traumatic stress disorder, for the reasons set out at paragraph 47-48 herein.
The matter is remitted to the Repatriation Commission for determination of the rate of pension.
..................Signed...............
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service in Vietnam as musician in Army band – shooting incident as severe stressor –alcohol consumption – connections with service – conditions of PTSD, atrial fibrillation and cardiomyopathy held to be war-caused – decisions under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Mines v Repatriation Commission (2004) 86 ALD 62
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 134 FCR 392
REASONS FOR DECISION
6 June 2007 M J Carstairs, Senior Member 1. Mr Keith Noud served with the Australian Army from 1967 to 1976 as a musician, playing saxophone and clarinet in the regimental band. Mr Noud had a period of operational service in Vietnam, when he was part of an operation called “Winning Hearts and Minds”, in which the band toured South Vietnam for just over two weeks, playing to the local population as part of a goodwill exercise.
2. Mr Noud now suffers from a number of medical conditions. Those he claims as being related to his service in Vietnam are post traumatic stress disorder, cardiomyopathy and atrial fibrillation. The respondent has refused all these claims. Another claimed condition of ischaemic heart disease was not found to be present and that claim was not pursued.
3. Mr Noud says his medical conditions are related to his service in Vietnam, as he experienced a severe stressor when he witnessed a shooting within close proximity to the band during an open air recital in Vung Tau. Counsel for Mr Noud, Ms A Frizelle, identified this as the main issue in the case, underpinning Mr Noud’s entitlement to pension in respect of the three conditions.
ISSUES
4. Under the legislation applying here, namely the Veterans’ Entitlements Act1986, the issues that I am required to decide are:
§ firstly, the correct diagnosis of the medical conditions, such issues being decided on the standard of proof of reasonable satisfaction set out in s 120(4) of the Act; and
§ whether the identified medical conditions are war-caused as that term is used in the Act, a question that is addressed by considering the four step process set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
THE PROPER DIAGNOSIS
a)the cardiac conditons
5. The question of diagnosis of Mr Noud’s conditions requires me to consider whether I am satisfied, to the standard of reasonable satisfaction, that Mr Noud, by reference to the medical and other evidence, suffers from cardiomyopathy and atrial fibrillation.
6. Dr D Pritchard, cardiologist, provided a number of reports confirming that Mr Noud suffers from idiopathic dilated cardiomyopathy.[1] In his most recent report, Dr Pritchard stated that alcohol was the most likely contributing factor to Mr Noud’s cardiomyopathy. Dr P Grant, Senior Medical Officer with the Department of Veterans’ Affairs, reviewed the relevant medical materials and concluded that Mr Noud suffered from primary cardiomyopathy.[2] Dr Pritchard however made plain in his report dated 30 October 2006 that Mr Noud’s cardiomyopathy is secondary rather than primary, stating that:[3]
The patient’s history indicated an alcohol consumption which would certainly be considered pathologically significant with an intake of approximately 8 to 9 full strength beers with additional wine and spirits daily for most days over a 25 to 30 year period before a diagnosis of dilated cardiomyopathy was made in 2002.
This, therefore, amounts to an alcohol intake of approximately 550kgs over this period and meets the guidelines of at least 250 kgs of alcohol contained within alcoholic dinks (sic) within any 10 year period before the clinical onset of secondary cardiomyopathy as laid down in the Dept. of Veteran’s Affairs Statement of Principles for Cardiomyopathy.
[1] Reports dated 23 August 2002 (T6, folio 59); 6 March 2003 (T6, folio 60); 10 February 2006
(exhibit R4) and 30 October 2006 (exhibit R5).
[2] Report dated 18 September 2006 (exhibit R3).
[3] Exhibit R5 at p 1.
7. Atrial fibrillation was diagnosed on 4 March 2001 according to Dr G Pandy.[4] However Dr Pritchard dated pulse irregularity from 2000.[5] Thus the medical evidence confirms to the standard of reasonable satisfaction that Mr Noud suffers these two conditions. So much was conceded by Mr M Smith, representing the respondent, who also conceded that Mr Noud met the levels of alcohol intake described in Statements of Principles for these conditions, as referred to further below. As I understand the case presented by Ms Frizelle in support of accepting the cardiac conditions as being related to Mr Noud’s service, it is that Mr Noud’s consumption of alcohol to these levels was related to his operational service in Vietnam.
b)the psychiatric conditions
[4] T Documents T6, folio 51.
[5] Report dated 23 August 2002, T Documents T6 folio 59.
8. The more contentious diagnostic question related to Mr Noud’s psychiatric condition(s). In that regard I note that two Veterans’ Review Boards (VRBs) have concluded that post traumatic stress disorder was the correct diagnosis.[6] The respondent submitted that post traumatic stress disorder is not the correct diagnosis of Mr Noud’s psychiatric condition, and that the medical evidence that I should prefer supports diagnoses of alcohol abuse, anxiety disorder and a depressive disorder.
[6] Decision dated 10 November 2003, T Documents T6 folio 109; Decision dated 6 September
2005, T Documents T5 folio 150.
9. Before considering the medical opinions in relation to Mr Noud’s psychiatric conditions, it is relevant to note that the applicable Statement of Principles for post traumatic stress disorder is Instrument No. 3 of 1999 as amended by 54 of 1999, which adopts the descriptors for post traumatic stress disorder set out in the Diagnostic and Statistical Manual of Mental Disorders IV – TR (DSM-IV-TR). The doctors who have reported in Mr Noud’s case have referred to the DSM-IV-TR, which provides at paragraph 309.81 that;
A The person has been exposed to a traumatic event in which both of the following
were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror…
10. As a matter of diagnosis, there must therefore be a traumatic event, in accordance with the above description, as well as a response of the required intensity. It is relevant to note the decision of Gray J in Mines v Repatriation Commission (2004) 86 ALD 62 where his Honour said[7]:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
[7] At para [48].
11. It is useful at this juncture to refer to Mr Noud’s description of what happened to him in Vietnam and how he reacted to events there. In his first written outline prepared for Dr B Anderson in 2003, Mr Noud set out that he had not expected to be sent to Vietnam at all because he had sustained a minor injury and his wife was 37 weeks pregnant.[8] He described being unprepared for the experience both in terms of training and psychologically. He thought that the security for his troupe was grossly inadequate and that they were themselves unarmed, conspicuous in their dress and unduly exposed in the sites where the band played. Mr Noud described feeling threatened, vulnerable and utterly defenceless. He referred to recurring dreams of a faceless person being executed by shooting.
[8] T documents folios 31 – 35.
12. Turning now specifically to a consideration of the event relied upon by Mr Noud as causing his conditions, Mr Noud described the shooting incident in his 2003 statement, which was used in support of an earlier claim he had made for his psychiatric condition. Mr Noud described an incident in which he saw a VC officer…shot at almost point blank range by a member of the WHITE MICE.[9] He stated that he felt threatened and vulnerable and utterly defenceless. It was clear from the general tenor of Mr Noud’s statement that he experienced considerable apprehension during the whole of his time in Vietnam. Mr Noud also referred to playing in the band at orphanages and he found the injuries of some of the children distressing.
[9] T Documents T 6, folio 32.
13. Mr Noud’s further statement of 7 October 2006[10] included the following:
Once in country I became extremely anxious about our obvious lack of security for several reasons. Prior to our departure …we did not undergo any special training eg; Canungra…most or all of the members had no weapons expertise…we did not attend…any orientation lectures which in hindsight would have helped to prepare us for what we experienced once in country.
[10] Exhibit A5. See also Mr Noud’s statement, undated, in T Documents T6 folio 172.
14. According to Mr Noud, on the day in question the band was performing from a dais in the square at a place known as “The Flags” in Vung Tau. Mr Noud said that ARVN soldiers were present to protect them, but were somewhat desultory in the task. Mr Noud had a photograph taken of the band playing in the square which showed the guards with their rifles rested to one side while they took photographs.[11] Mr Noud said that during their recital he heard a whistle blown. He said the audience of locals and military personnel became quite agitated. Gunshots followed in quick succession. Mr Noud, who was playing in the front row, saw one of the White Mice fire into the crowd. He saw a body fall to the ground. All movement of the body ceased soon after and he described a fair amount of blood. Mr Noud stated that he was dumbfounded when the band was ordered to play on. He said his only wish was to move to a place of safety. He described being horror-stricken and thought that they were a vulnerable target.
[11] Attachment to exhibit A5.
15. Mr Noud’s version of the event was confirmed in statements of a number of others who were present.[12] These statements were in marked contrast to the conclusions reached in a Writeway Report dated 25 October 2002,[13] which had been prepared on the basis of other consulted sources who had no recollection of the incident.
[12] T Documents T7 folios 165-171, and exhibits A6, A7 and A8.
[13] T Documents T 6, folio 21.
16. Quite properly the respondent concedes that the shooting incident took place, but maintains that it only lasted a few minutes and at best this only marginally fits the definition (that is, of a stressor for purposes of a diagnosis of post traumatic stress disorder).[14]
[14] Respondent’s written submissions dated 9 February 2007.
17. Dr Anderson, psychiatrist, reported in 2003[15] that Mr Noud was emotionally traumatised while there [in Vietnam] in 1970 and referred to Mr Noud confronting a number of severe stressors during his service these being as set out in the detailed written statement that Mr Noud had provided to Dr Anderson and including the shooting incident. Dr Anderson concluded that the appropriate diagnosis was post traumatic stress disorder with associated depression – in preference to generalised anxiety disorder. He dated onset from Mr Noud’s return from Vietnam and noted a worsening of symptoms over the last ten years.
[15] Report dated 8 January 2003, T documents T6 folio 23.
18. Ms C Bendall, psychologist, saw Mr Noud on five occasions from March 2005 to May 2005 and provided a report dated 5 May 2005.[16] Ms Bendall reported that Mr Noud’s symptoms met the DSM-IV-TR criteria for Post Traumatic Stress Disorder (PTSD) Chronic (or With Delayed Onset). She also held the opinion that Mr Noud was experiencing a major depressive episode at the time she saw him. Ms Bendall took the following history in relation to Mr Noud’s experiences:[17]
Keith describes a (realistically based) pervasive feeling of vulnerability and helplessness from the moment that he arrived in Vietnam. He mentioned visiting child victims of the carnage of war in orphanages; being shown a venue with bullet holes in the walls and ceilings as the story was recounted of French occupiers being shot at a ball by Viet Cong; people being killed/injured by rocket fire at the building where he and other band members had stayed the night before; the band playing in villages where there was no audience; and the aircraft carrying the band having to abort take off twice due to mechanical failures (Keith graphically described these incidents)…
His full appreciation of the dangers of Vietnam crystallised when he was subjected to the trauma of being the helpless witness to a member of the audience being shot by a South Vietnamese Military Policemen. Keith vividly (and with distress) recalls the shock and horror of his being a helpless witness to this scene. The audience scattering in fear whilst the band, in shock, continued the performance, thus increasing their chances of survival.
Keith was convinced that he would never see his wife again.
[16] T Documents, folio 123.
[17] T Documents, folios 124-125
19. Dr Z Radovic, psychiatrist, saw Mr Noud in October 2006. In all, Dr Radovic saw Mr Noud on eight occasions and interviewed Mrs Noud on two occasions. Dr Radovic assessed Mr Noud using DSM-IV-TR, and in a report dated 26 August 2006 diagnosed him with Post Traumatic Stress Disorder Chronic.[18] He expressed the opinion that Mr Noud’s post traumatic stress disorder has arisen as a direct consequence of exposure to traumatic experiences during his service with the Army and his tour in Vietnam in September/October 1970.[19] Dr Radovic referred to Mr Noud’s history and symptoms as follows:[20]
Mr Noud still carries vivid memories of a traumatic experience when he witnessed a man being killed while his band was performing. He still remembers a whistle, gunshots and a man falling down in a bloodbath. The man was local Vietnamese and he was killed by military personnel. Mr Noud experienced immediate intense fear, horror, terror and being in great danger. He believed that they were about to be attacked. He felt exposed, vulnerable and helpless. He was terrified by the thought of his band having no protection and they were an easy target while playing music for the local audience.
Other than this particular event Mr Noud witnessed casualties in hospital and he still remembers vividly open wounds, blood and severely wounded soldiers suffering.
His band was travelling into remote areas and performed concerts, street marches virtually unprotected. Mr Noud experienced intense fear and feelings of horror virtually on a daily basis. Travelling to these remote areas caused intense feelings of being in grave danger and a fear of being ambushed. He was distressed, traumatised and unable to relax, and used increased amounts of alcohol.
Symptoms of anxiety and depression commenced within several weeks of his return from Vietnam. He became tense, anxious, irritable and angry. He suffered low mood, tiredness, lack of motivation, impaired sleep and started avoiding friends. He increased his use of alcohol in order to cope with increased anxiety.
Symptoms commenced towards the end of 1970 and were gradually worsening over time. He used increased amounts of alcohol and soon became a heavy drinker. He became socially withdrawn and self-isolated. He began experiencing flashbacks and nightmares containing elements of the traumatic experience. He became an angry man and could not explain occasional angry outbursts. He became detached even from his family and describes loss of loving feelings for his family and friends. He also avoids cues resembling the traumatic experience and avoids talking about these experiences.
[18] Exhibit A2.
[19] Exhibit A2, p 4.
[20] Exhibit A2, p 2.
20. Dr Radovic also provided a differential diagnosis of generalised anxiety disorder, however his preferred diagnosis was post traumatic stress disorder, for reason that Mr Noud had experienced a significant traumatic event, and because Mr Noud’s reaction to that event and his subsequent symptoms met the criteria for the disorder. Dr Radovic said:[21]
Differential diagnosis for this condition would be one of a generalised anxiety disorder. However the existence of a significant traumatic event, such as witnessing the death of a man and being exposed to intense fear for his own life during his service with the Army and tour in Vietnam in 1970, Mr Noud’s reaction to those events with intense fear, horror, terror, feelings of hopelessness, helplessness and despair, occurrence of intense anxiety symptoms, depressed mood, flashbacks, nightmares, increased arousal, hyper vigilance, marked avoidance and persistence of all these symptoms for many years since the exposure to the traumatic experience distinguishes Mr Noud’s post traumatic stress disorder from generalised anxiety disorder.
[21] Exhibit A2, p 4.
21. Consistently with other medical opinions, Dr Radovic also noted some symptoms of major depressive disorder but not sufficient to meet the full criteria for major depressive disorder under the DSM-IV-TR. Dr Radovic said in oral evidence that in the past Mr Noud may have suffered alcohol abuse – a maladaptive pattern of alcohol use, which continued until about three years ago.
22. Dr Mulholland, psychiatrist, interviewed both Mr and Mrs Noud for his report dated 3 May 2006.[22] Dr Mulholland set out in that report that he had been provided with Dr Anderson’s report; Mr Noud’s initial statement (from 2003); and the Writeway report, which, as already noted, was somewhat sceptical about the occurrence and/or severity of the shooting incident. By the time Dr Mulholland saw Mr Noud the accuracy of the Writeway report had been brought into question in light of better evidence in the form of numerous statements of others who were present and who saw the incident take place. Dr Mulholland concluded that Mr Noud did not satisfy the criteria for post traumatic stress disorder and he stated in oral evidence that he thought that the Criterion A stressor was not satisfied. Dr Mulholland diagnosed Mr Noud as suffering clinical depression, with associated anxiety, the clinical onset of these conditions being some 10-15 years ago.
[22] Exhibit R2.
23. Dr Mulholland said that Mr Noud had not volunteered the necessary symptoms for a diagnosis of post traumatic stress disorder, and he thought that Mr Noud’s main issue was long term excessive intake of alcohol (alcohol abuse now in remission).
24. Looking at all the medical evidence it was apparent that, except for Dr Mulholland, all medical practitioners agreed that Mr Noud suffers from post traumatic stress disorder. Having heard the evidence, it seems to me that Dr Mulholland was at a disadvantage having been presented with materials that strongly suggested the shooting incident did not take place, particularly when that evidence had been long superseded by eye witness accounts in addition to Mr Noud’s. In the end I was well satisfied that the medical practitioners who had seen Mr Noud over more extensive periods of time and had a more comprehensive history presented to them were in a better position to make a diagnosis than was Dr Mulholland. I preferred the evidence of Dr Radovic, Dr Anderson and Ms Bendall, who agreed that Mr Noud suffers post traumatic stress disorder. It was clear from these practitioners’ reports that they applied the diagnostic criteria set out in the DSM-IV. Dr Radovic confirmed this in his oral evidence, stating that post traumatic stress disorder was the primary diagnosis and the differential diagnosis of generalised anxiety disorder was superseded in the presence of a traumatic event.
25. On the basis of the medical evidence and accepting that Mr Noud experienced a traumatic event, I was reasonably satisfied that the proper diagnosis of Mr Noud’s psychiatric condition is post traumatic stress disorder.
26. I take account of Dr Mulholland’s diagnosis that Mr Noud as suffers from the condition of alcohol abuse in remission, and I note that Dr Radovic considered that Mr Noud used alcohol to control his anxiety.
THE DELEDIO STEPS
27. There was no dispute that Mr Noud’s period of service, being operational service, requires that I decide the issues of causation by reference to the four step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82. I note that Mr Noud had other eligible service under the Act, after 1972, but he does not rely on any incidents from that later period of service. I will apply the Deledio steps firstly in relation to post traumatic stress disorder and then for the coronary conditions, noting at this point that the hypotheses of causation for the cardiac conditions were posed by Ms Frizelle as having a connection also, but more indirectly, with Mr Noud’s experience of stressful events in Vietnam.
post traumatic stress disorder
28. The first Deledio step requires me to consider whether or not the material points to an hypothesis connecting Mr Noud’s post traumatic stress disorder with his service in Vietnam. The hypothesis advanced on Mr Noud’s behalf in regard to post traumatic stress disorder was as follows:
Mr Noud rendered operational service in Vietnam during which time he was exposed to a severe stressor when he observed the shooting incident. This experience was one involving death and threat to physical integrity, and led to the onset of post traumatic stress disorder.
29. In my view the material points to such an hypothesis. The Statement of Principles for post traumatic stress disorder is Instrument No. 3 of 1999 as amended by No. 54 of 1999, thus satisfying the second step in Deledio which requires that a relevant Statement of Principles is in force.
30. The third step requires me to form an opinion of whether the hypothesis relied upon by Mr Noud is a reasonable one, which means that the hypothesis fits or is consistent with the template found in the Statement of Principles. The hypothesis identified above reflected the following factor in the Statement:
5(a) Experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.
31. The expression experiencing a severe stressor is defined by the Statement of Principles as meaning that the person experienced, witnessed or was confronted with an event or events that involved actual, or threat of, death or serious injury or a threat to the person’s, or another person’s, physical integrity. Various events are contemplated as events that qualify as severe stressors in the setting of service in the Defence Forces. They include, relevantly, threat of serious injury or death.
32. The case advanced on behalf of the respondent was that the third Deledio step could not be satisfied as the hypothesis advanced by the applicant was not reasonable. That was so, it was said, because the incident was only marginally a stressor. This, it seems, was mainly because the incident was brief, but also it was posited that the incident was not crucial in Mr Noud’s experiences and that Mr Noud was actually concerned by more general feelings of worry and vulnerability. Mr Smith submitted that such feelings were not enough, and he seemed to imply that because Mr Noud was feeling anxious generally, even before the shooting incident took place, that his case fell into the category of cases where the Tribunal has not found a sufficient stressor. Mr Smith referred me to the Federal Court decision in White v Repatriation Commission [2004] FCA 633 for the proposition that there are both subjective and objective elements to the experience. Mr Smith submitted that Mr Noud’s reactions were excessive.
33. In Stoddart v Repatriation Commission (2003) 197 ALR 283 (endorsed by the Full Federal Court[23]) Mansfield J said:[24]
In my judgment the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
[23] Repatriation Commission v Stoddart (2003) 134 FCR 392.
[24] at par [55].
34. It seems to me consistent with Mr Noud’s feelings of vulnerability that he reacted as he describes and it seems to me to be quite consistent with his non-combatant status that he might feel more vulnerable than a fully trained soldier. The shooting incident in my view came clearly within the definition of a severe stressor in the Statement of Principles for post traumatic stress disorder. The evidence points to Mr Noud meeting both the objective and subjective elements of the experience.
35. Thus, the third Deledio step is satisfied with respect to post traumatic stress disorder.
36. It is necessary to go to the final Deledio step to determine whether I can be satisfied beyond reasonable doubt that Mr Noud’s post traumatic stress disorder was not war-caused. I regarded Mr Noud’s evidence as honestly given and he gave what I considered to be a reliable account, well supported by the evidence of others who were present. I accept that Mr Noud held real fears for his safety and integrity, which has affected him severely. It is important to bear in mind not only the circumstances that he was faced with in Vietnam, but also that he had gone there under strong opposition from his wife, in view of the advanced state of her pregnancy.
37. I was not satisfied beyond reasonable doubt that a reasonable person in Mr Noud’s position could not have felt the same way as he did, and he has described from his earliest statements that he felt under-prepared and he was apprehensive from the moment he got to Vietnam. The hypothesis reasonably raised on the evidence is not excluded and I am not satisfied beyond reasonable doubt that there is no ground for determining that Mr Noud’s post traumatic stress disorder is war-caused, being an injury that resulted from an occurrence while he rendered operational service: s 9(1)(a) of the Act. The reactions he had to the circumstances in which he found himself had psychiatric consequences for him, now identified as post traumatic stress disorder.
alcohol consumption
38. There was no separate claim for alcohol abuse or dependence. However several medical reports comment upon Mr Noud’s consumption of alcohol as it related to his anxiety. Dr Radovic noted that at the time of his return to Australia Mr Noud was distressed and traumatised, unable to relax and using increasing amounts of alcohol to numb his feelings. Dr Mulholland said that the alcohol abuse dated to the 1970’s, however he was of the view that the reasons were related to familial-constitutional-genetic causes.
cardiac conditions
39. At the time of the hearing the relevant Statements of Principles and applicable factors for each of these conditions were
§ Instrument No 19 of 1998 for cardiomyopathy – factor 5(b) which provides:
for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy;
§ Instrument No 19 of 2003 for atrial fibrillation – factor 5(d) which provides for:
suffering from cardiomyopathy at the time of the clinical onset of atrial fibrillation.
40. Since the hearing several new Statement of Principles for cardiomyopathy have been gazetted, the most current being No 23 of 2007. The new Statement of Principles provides at factor 6(b):
For males only, drinking at least 250 kilograms of alcohol within any ten year period before the clinical onset of cardiomyopathy
41. This new factor was previously expressed similarly in Instrument No 19 of 1998 – except that it was limited to the clinical onset of secondary cardiomyopathy. I must apply the Statement of Principles in force at the time of my decision, but Mr Noud has the benefit of consideration under both Statements should he not succeed under the Statement of Principles current at the time of the claim. I concluded that the evidence pointed to acceptance of Mr Noud’s cardiomyopathy as related to his consumption of alcohol after his service in Vietnam and the onset of post traumatic stress disorder and meets the relevant factors in both the current and previous Statement of Principles for cardiomyopathy.
42. In that regard I have noted already that the parties agree that necessary quantities of alcohol consumed are met in relation to cardiomyopathy. I turn then to the evidence in relation to whether or not Mr Noud’s consumption of alcohol was related to service, as this is understood in the context of s 196B(14) of the Act. That section includes as factors those that resulted from an occurrence that happened while the person was rendering service, and those that arose out of or were attributable to that service.
43. Ms Frizelle submitted that Mr Noud’s alcohol abuse (now in remission) was a sequel to his post traumatic stress disorder. I note that such a connection is contemplated within the Statement of Principles for alcohol abuse in factor 5(a)[25] providing for a connection with service where a veteran suffers from a psychiatric disorder at the time of onset of alcohol abuse or dependence. Here Mr Noud’s evidence was that he drank to ease his anxiety and because he was disturbed by his dreams of what had occurred. He said he was sufficiently troubled to seek medical help at the time and was prescribed valium in the 1970’s. Mrs Noud’s evidence supported Mr Noud’s. She said that that before her husband went to Vietnam, he was an easygoing man and a social drinker only, but after he returned he was irritable, more prone to anger, and she would find him drinking alone late at night when she would get up to tend to the children.
[25] Instrument No. 76 of 1998.
44. This evidence taken as a whole points to connections between Mr Noud’s alcohol consumption and his service through the acceptance of post traumatic stress disorder as war-caused. As Dr Radovic observed alcohol is commonly used to self medicate anxiety and Mr Noud’s evidence was that drinking became a pattern for him.
45. All the Deledio steps therefore are satisfied with regard to cardiomyopathy and atrial fibrillation, taking into account the evidence and concessions at the hearing. Atrial fibrillation follows upon acceptance of cardiomyopathy, because there is clear medical evidence that Mr Noud had the condition of cardiomyopathy (itself related to service) at the time of clinical onset of his atrial fibrillation.
DATES OF EFFECT OF DECISIONS
46. It was tolerably clear that the date of effect of the decision as it applies to the claims relating to cardiomyopathy and atrial fibrillation was 3 months before the date of those claims, that is 10 July 2003, all applications for review of those decisions being made within the time limits set out under the Act.
47. Less clear was the possible date of effect of the decision relating to post traumatic stress disorder. Mr Smith stated that the date of effect of a favourable decision would be 24 February 2005.[26] The Applicant’s Statement of Facts and Contentions proffered the date of 10 July 2003.[27]
[26] Exhibit R1
[27] Exhibit A1
48. It seemed to me that a possible date of effect was 24 November 2004, six months prior to the lodgement of Mr Noud’s appeal to the Veterans' Review Board. However I note also that Mr Noud attempted to make a further claim on the respondent for post traumatic stress disorder, by letter received on 27 April 2005. As the parties made no submissions that enable me to resolve the question of the date of effect, I propose to give the parties liberty to make submissions on the date of effect for post traumatic stress disorder within 14 days of the date of this decision.
DECISION
49. The Tribunal
1.sets aside the decisions under review as they relate to cardiomyopathy and atrial fibrillation and substitutes the decisions that cardiomyopathy and atrial fibrillation are war-caused with effect from 10 July 2003; and
2.sets aside the decision under review as it relates to post traumatic stress disorder and substitutes the decision that post traumatic stress disorder is war-caused.
The Tribunal gives liberty to the parties to make submissions, within 14 days of the date of this decision, on the date of effect for pension payable in respect of post traumatic stress disorder, for the reasons set out at paragraph 47-48 herein.
The matter of assessment of the rate of pension payable in respect of all conditions is remitted to the respondent.
I certify that the preceding 49 paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed: Michelle J Brazier
AssociateDates of Hearing 25 January 2007
Date of final submissions 1 March 2007
Date of Decision 6 June 2007
Counsel for the Applicant Ms A Frizelle
Solicitor for the Applicant Smith and AssociatesFor the Respondent Mr M Smith, Departmental Advocate
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