OWEN WALKER and REPATRIATION COMMISSION
[2009] AATA 781
•9 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 781
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5648
VETERANS' APPEALS DIVISION ) Re OWEN WALKER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date9 October 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .....................[Sgd]....................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – operational service with Australian Army – whether conditions of depressive disorder, generalised anxiety disorder and alcohol dependence are attributable to service – application of Statements of Principles – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), ss 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
REASONS FOR DECISION
9 October 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Owen Walker (“the veteran”) served in Vietnam. I have to decide whether his conditions of depressive disorder, generalised anxiety disorder and alcohol dependence are attributable to his service in Vietnam.
SERVICE OF VETERAN
2. The veteran served with the Australian Army from 5 October 1964 until 5 October 1984.
3. The veteran had a period of operational service in Vietnam from 18 February 1969 to 11 March 1970.
PRIOR DECISIONS
4. On 7 March 2008, the Repatriation Commission (“the Commission”) determined that the conditions of depressive disorder, generalised anxiety disorder and alcohol dependence were not related to the service of the veteran.
5. On 2 October 2008, the Veterans’ Review Board (“the Board”) affirmed the decision of the Repatriation Commission.
LEGISLATIVE FRAMEWORK
6. Section 9 of the Veterans’ Entitlement Act 1986 (“the Act”) provides for when an injury or disease is taken to be war-caused. The provision applies where the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
7. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. As the veteran has performed operational service, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
9. The Act provides that where a claim 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: s 120(1).
10. The Act also provides that in applying s 120 (1) 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: s 120(3).
STATEMENT OF PRINCIPLES
11. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”). Section 196B of the Act provides that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a Statement of Principles in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
12. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is related to service rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
13. In the case of applications lodged after 1 June 1994, where the RMA has made a Statement of Principles in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that Statement of Principles. This follows from the application of s 120A(3), which provides that for the purposes of s 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.
ISSUES
14. I have to determine whether the circumstances of the veteran satisfy the following Statements of Principle:-
§Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008;
§Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007;
§Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009.
15. The veteran also has an accrued right to consideration under the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 17 of 2008.
CONTENTIONS OF THE VETERAN
16. As this matter involves the application of various Statements of Principle, the case of the veteran is based upon the existence of certain stressors.
17. The stressors outlined in the statement of facts and contentions, filed on behalf of the veteran, are:
· witnessing a wounded soldier losing a great deal of blood whilst being treated in the Medical Centre at Vung Tau for a foot injury;
· the Applicant’s distress at his brother-in-law being wounded in Vietnam shortly before his own departure; and
· the Applicant’s reaction to the death of Captain Barry Donald whilst he was in Vietnam[1].
[1] Applicant’s statement of facts and contentions, 15 April 2009, para 5.2.
18. I have reviewed the evidence relating to the various possible stressors that the veteran has been exposed to. I have taken the view that the material raises six possible stressors for consideration. These six stressors are:
(a) Field hospital incident;
(b) Wounding of brother-in-law;
(c) Reaction to death of Captain Donald;
(d) Veteran viewing wreckage of aircraft;
(e) Veteran being posted to Nui Dat;(f) Fear of patrols.
MEDICAL EVIDENCE
19. Dr B White, psychiatrist, reported on 8 May 2000 that the veteran has a major depressive disorder with a past history of alcohol abuse. In his report, Dr White stated that the veteran reported that while he was in Vietnam he was depressed and tearful and that he drank very heavily. The veteran informed Dr White that his first history of depression was in Vietnam and that he has had recurrent depression since then. Dr White opines that the veteran was not exposed to a severe stressor such as would cause Post-Traumatic Stress Disorder (PTSD). Dr White reports that the veteran was “terrified by being called on to go out on patrol as he was not well trained in this work. He was aware of the dangerous nature of service in Vietnam, knowing people who were killed there. He was further stressed by the separation from his family”. Dr White concluded that the veteran has a major depressive disorder which has been recurrent and may not have fully resolved for the past three decades. Dr White opined that the initial history indicates that he has a period of depression while in Vietnam and he also has a history of alcohol abuse when in the army.
20. Dr P Wong, psychiatrist, gave evidence by telephone. Dr Wong stated that he had been treating the veteran as a patient for three years and last saw him some three weeks prior to the hearing. In his evidence he referred to his report of 2 November 2007 in which he opined that the veteran had DSM IV diagnoses of generalised anxiety disorder, alcohol dependence and chronic major depression. Dr Wong, in that report, had stated that it “would seem likely from the history” that the generalised anxiety disorder and alcohol dependence began at the time when the veteran served in Vietnam. Dr Wong, in his evidence-in-chief, did not express an opinion on whether the generalised anxiety disorder or the alcohol dependence condition manifested itself initially. Dr Wong considered that his depression worsened to become major depression disorder in the last five to six years.
21. In that report of 2 November 2007, Dr Wong concluded that “Overall, he only had one specific significant traumatic incident in Vietnam and he felt sad and rejected because he was not part of the infantry”. That incident that is referred to earlier in the report is “when he arrived at work to see the mangled parts of a plane being brought back to the base”.
22. Dr Wong, when giving his evidence, was referred to the report of Dr A Christensen in which the view was expressed that the veteran had a depressive disorder at the same time as the other conditions in Vietnam. Dr Wong differed from Dr Christensen in expressing the view that the veteran at that time had a diagnosis of dysthymia, which is a lesser form of depression than major depression. Dr Wong also thought that the dysthymia condition would have occurred “perhaps a bit later” than the anxiety disorder and alcohol abuse. Dr Wong explained that the anxiety and alcohol abuse conditions would have aggravated the dysthymia. In cross-examination, Dr Wong confirmed his opinion that the major depression disorder occurred in the last five or six years.
23. Dr Wong stated, under cross-examination, that he thought that the clinical onset of generalised anxiety disorder came within six months of the veteran being in Vietnam. Dr Wong stated that he made this diagnosis because of the requirement under DSM-IV of excessive worry and apprehension occurring more days than not for at least six months. Dr Wong stated that he was “excessively anxious and worried and apprehensive throughout his stay in Vietnam, whether entirely because he wasn’t a trained soldier or infantry man, that made him more anxious of being hurt, unable to defend himself”.
24. Dr Wong in his cross-examination had made statements that may be interpreted to mean that the veteran had seen the aircraft of Captain Donald crash. Dr Wong made one reference to the veteran as being “the witness of the destruction of the aeroplane” as well as the veteran “witnessing the fatal accident of the plane”. Dr Wong, however, clarified that that he was referring to “bits and pieces being brought back”. Dr Wong also reported a diagnostic criterion A for PTSD under DSM-IV (but not DSM-IV-TR) of witnessing the destruction of weaponry. Dr Wong opined that the veteran did not have to be present at the time of destruction to meet this criterion. Dr Wong also stated that “bringing back wreckage of weaponry really is a major stressor”. In re-examination, Dr Wong clarified that the veteran was not involved in bringing back the wreckage of the plane.
25. Dr Wong also in cross-examination stated that the veteran informed him that his heaviest drinking was while he was in Vietnam. Dr Wong stated that he did not take any history of the drinking before or after the veteran saw the plane wreckage. However, Dr Wong stated that “the plane made him feel a lot worse and a lot more agitated, and he talked about the only way he knew how to cope was drinking”.
26. Dr Christensen, consultant psychiatrist, in his report of 2 March 2009, diagnosed the veteran as having major depression, alcohol dependence in partial remission and anxiety disorder. Dr Christensen reported that the veteran had intrusive memories of the plane wreckage being brought back, as well as a wounded soldier laying on the bed next to him when the patient was receiving treatment for a toe injury.
27. In giving evidence, Dr Christensen confirmed that the anxiety disorder and alcohol dependence conditions occurred in Vietnam and that the depression followed some years later. Dr Christensen also stated that he was unable, because “there wasn’t enough history or chronology”, to state whether the anxiety condition or alcohol dependence came first.
28. Under cross-examination, Dr Christensen agreed that it was possible that depression in the form of dysthymia could have manifested in Vietnam, but he stated that based on the history of the veteran, the depression was more prominent after he returned.
DIAGNOSIS
29. I have to initially determine the appropriate diagnosis for the conditions of the veteran.
30. Dr Christensen, in his report of 2 March 2009[2], diagnosed the veteran as having major depression, alcohol dependence in partial remission and anxiety disorder.
[2] Exhibit D.
31. I rely upon this uncontradicted medical evidence to find that that the veteran has depressive disorder, generalised anxiety disorder and alcohol dependence.
CONSIDERATION
32. The veteran enlisted in the Australian Army after he had served in the reserve for about a year. After initial training at Kapooka he nominated to do Corps training as a clerk. After his Corps training, he served at Canungra where he volunteered to serve in South Vietnam. He was then posted to South Vietnam some six months after he volunteered. I have to decide whether the evidence before me raises a reasonable hypothesis of a relationship to his service in Vietnam with the claimed conditions of the veteran.
33. Having made a diagnosis of the conditions of the veteran, and ascertained that Statements of Principles are in force in relation to those conditions, it is now appropriate to apply the test prescribed by s120A(3) of the Act. I am bound by authority to apply the test formulated in Repatriation Commission v Deledio[3]:
“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.”
[3] (1998) 83 FCR 82.
first deledio step
34. I must now consider all the material which is before me and determine whether that material points to a hypothesis connecting the conditions of the veteran with the circumstances of the particular service rendered by the person. I have already mentioned that Dr Wong, psychiatrist, has reported that it “would seem likely from the history” that the generalised anxiety disorder and alcohol dependence began at the time when the veteran served in Vietnam. I have also mentioned the report of Dr White who reported statements of the veteran that in Vietnam he was depressed and tearful and that he drank very heavily in Vietnam. I consider that the material in the reports of Dr White and Dr Wong point to a hypothesis connecting the conditions of Mr Walker with his operational service.
35. Accordingly, the “first step” in Repatriation Commission v Deledio is, in my view, satisfied.
second deledio step
36. The “second step” in Repatriation Commission v Deledio requires me to ascertain whether there is any relevant Statement of Principles which have been determined by the RMA.
37. I have already identified that I have to determine whether the circumstances of the veteran satisfy the following Statements of Principle:-
§Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008;
§Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007; and
§Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009.
38. I have also mentioned that the veteran also has an accrued right to consideration under the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 17 of 2008.
third deledio step
39. Having completed the “second step”, I now turn to the “third step” in Repatriation Commission v Deledio.
40. I am required to determine whether the relevant hypothesis relating to each condition complies with a factor in the relevant Statement of Principles. Each Statement of Principles lists a number of factors; any such factor “must as a minimum exist” before it can be said that a reasonable hypothesis has been raised connecting the particular condition with the circumstances of the veteran’s service. I have an obligation to consider all of the material before me. I mention that I am not concerned with making any findings of fact at this stage of the process. It is important to note that the history given by a veteran to a medical practitioner, such as the history which has been mentioned in the reports of the psychiatrists, can constitute material that I can have regard to for this purpose[4].
Field hospital incident
[4] Lees v Repatriation Commission (2002) 125 FCR 331.
41. I will initially consider the field hospital incident.
42. This stressor is not mentioned in Dr Wong’s report. It appears from the reasons of the Board that it was only some weeks prior to the hearing of the Board that this incident surfaced. The veteran did have a recollection of the incident in his statement dated 30 January 2009.
43. In his statement of 30 January 2009, the veteran remarked:
During weekend leave in Vung Tau I injured my toe and attended the field hospital for treatment. While there I witnessed a wounded soldier. The orderly who was treating me said that it was not an Australian soldier and that I did not need to see that and promptly pulled a curtain across.
44. The veteran in a later statement of 15 April 2009 made further reference to this stressor:
I attended the hospital after I injured my foot and when I walked into the clinic I was confronted with a person lying on a gurney not five feet away. There appeared to be wound in his upper abdomen as there was a large amount of blood in that area of his body and blood stains on the sheets he was laying on. It was the first time I had ever witnessed anything like this and I was dumb founded, most probably I went into shock. Thinking about it later I realised that this could happen to me or even worse, death. In the ensuing months in Vietnam I was extra vigilant in my personal security and in later years my family’s, my own security in Australia and I see danger where no danger exists. I have great difficulty in viewing graphic scenes of this nature particularly hospital TV shows and news bulletins even to this day, I avoid them whenever I can.
45. In evidence before me the veteran stated that he saw that “there was a person lying on a bed with blood on his chest”. The veteran also stated: “The sheets had blood on them”. The veteran stated that he was “not surprised but taken aback by seeing this, and then the nurse that came to treat me, he just mentioned that this was a wounded soldier, and ‘you don’t need to see that’ and promptly pulled the curtain across”. The veteran informed the Board that he did not know what caused the injuries, the severity of the injuries or subsequently what happened to the wounded man.
46. The veteran stated that he had a “nagging feeling” in his mind that the nurse informed him that the patient was an enemy soldier. The veteran stated that he thought that the man was Asian but that he “wouldn’t be sure”. Under cross-examination he frankly admitted that he didn’t “really recall whether he was Asian, he was white, black, brindle or any other thing”. I appreciate that these remarks differ from his earlier statement when the veteran recalled that the face of the patient “was very pale”. I accept that the veteran was endeavouring to honestly recall the details of the incident.
47. A submission was made on behalf of the veteran that the field hospital incident is a category 1B stressor. At the outset of the hearing, particular reliance was placed on para 6(a)(iii) of the Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007. This factor refers to “experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder”. The relevant factor in the Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008 is factor 6(a)(iii) which refers to “experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder”. Factor 6(c) in the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009 (as well as Instrument No. 17 of 2008) is “experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse”. It can be seen that a factor of experiencing a category 1B stressor is common to all of the relevant Statements of Principle.
48. The respondent has made submissions on the assumption, to which no reply was made, that the relevant part of the definition of a category 1B stressor in each Statement of Principles concerns “viewing corpses or critically injured casualties as an eye witness”. In my view, this incident does not come within this description. The patient was certainly not a corpse. The veteran was also unaware whether the patient was critically injured. I should also mention that the veteran, in his evidence, was quite honest in mentioning that he was “not surprised” at the incident.
49. I find that the evidence concerning the field hospital incident is not consistent with any template in any of the Statements of Principle.
Wounding of veteran’s brother-in-law
50. I will next examine the incident relating to the wounding of the brother-in-law of the veteran.
51. The veteran in his evidence stated that when he was at Canungra he learned of the news of his brother-in-law being wounded by a bomb which exploded close to his foxhole. His brother-in-law was not “medivaced” back to Australia. As this is an event which preceded operational service, any reaction to this incident cannot be regarded as war-caused.
Reaction to the death of Captain Donald
52. I will next consider the death of Captain Barry Donald.
53. The veteran in his first statement had mentioned that he had served with the deceased’s brother-in-law in Canungra. The veteran in his later statement had remarked: “I did have thoughts of asking Captain Donald if I could go up on a flight with him but my overwhelming desire for self preservation held me back. This feeling was increased after the hospital incident and again when Captain Donald was shot down and killed”.
54. In his evidence, the veteran stated that on one occasion he and the deceased’s brother-in-law had visited Captain Donald’s place at Ipswich. The veteran stated he had “a yarn and a bite to eat” at the place and that Captain Donald showed him the home that he was to renovate. This was a day visit. The veteran did not stay overnight at the home. The veteran stated that he was an acquaintance of Captain Donald.
55. I have examined the evidence concerning the reaction to the death of Captain Donald. This raises for consideration factor 6(a)(iv) in the Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007. This refers to “having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder”. The expression “significant other” is defined in clause 9 of that Statement of Principles as being “a person who has a close family bond or close personal relationship and is important or influential in one’s life”.
56. In my view the material before me does not disclose that Captain Donald is a “significant other” of the veteran. There is no evidence of a close personal relationship, as the veteran only visited his home once. I accept the evidence of the veteran that Captain Donald was an acquaintance of the veteran as they were both on the base, but there is no material before me which meets the requirement under the Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007 which shows that Captain Donald was either “important or influential” in the life of the veteran.
57. I have also taken the view that Captain Donald was not a “significant other” for the application of factor 6(a)(v) of the Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008. That factor refers to the veteran “experiencing the death of a significant other within the two years before the clinical onset of depressive disorder”. The expression “significant other” is defined in clause 9 of that Statement of Principles as being “a person who has a close family bond or a close personal relationship and is important or influential in one’s life”. I again state that on my view of the evidence there is no close personal relationship between Captain Donald and the veteran. There is also no material before me which meets the requirement under the Statement of Principles which shows that Captain Donald was either “important or influential”.
58. Factor 6(d) of the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009 is identical to factor 6(d) in the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 17 of 2008. Both factors refer to experiencing the death of a significant other within the five years before the clinical onset of alcohol dependence or alcohol abuse. The expression “significant other” is also defined in clause 9 in each Statement of Principles as being “a person who has a close family bond or close personal relationship and is important or influential in one’s life”. I again state that, on my view of the evidence, there is no close personal relationship between Captain Donald and the veteran. There is also no material before me which meets the requirement under each of the Statement of Principles for Alcohol Dependence/Abuse which shows that Captain Donald was either “important or influential”.
59. I find that the reaction of the veteran to the death of Captain Donald is not consistent with any template in any of the Statements of Principle.
Veteran viewing wreckage of aircraft
60. I will next consider the evidence of the veteran viewing the wreckage of the Pilatus Porter aircraft that was piloted by Captain Donald. The veteran in giving evidence discussed the crash: “He went out on patrol one morning in his Pilatus Porter and promptly got shot down, and I was there when they brought his plane back. And it affected everyone. You know, you mightn’t be bosom buddies but, but you were part of a team and you took on board those sorts of incidents, even, you know somebody and you interact with them, the trauma of them getting killed escalates and that is what happened”.
61. I have mentioned that Dr Wong considered that the veteran “had one significant traumatic incident in Vietnam”. Dr Wong had “considered the viewing of the wreckage of the plane as a possible separate stressor”. Dr Wong in his review of the veteran had commented: “Overall, he only had one significant traumatic incident in Vietnam”. That incident that is referred to earlier in the report is “when he arrived at work one day to find mangled parts of a plane being brought back to the base”. I have mentioned that Dr Wong in his evidence had referred to “the fatal accident of the plane”. However, the plane was brought down by enemy fire.
62. It would seem from the evidence that Dr Wong gave that in his report he was considering the possible application of the then diagnostic criterion A for PTSD. Dr Wong expressed an opinion in that report by referring to the incident as a “possible stressor”. However, this was, in my view, only a tentative opinion. I should also mention that the veteran has not been diagnosed with PTSD.
63. I can certainly accept the evidence of the veteran that the loss of a comrade would affect people on the base. However, no particular factor in the various Statements of Principle was relied upon by the veteran who did not actually witness the destruction of the aircraft. The veteran also had no part in bringing back the wreckage of the aircraft.
64. I find that the circumstances of the veteran viewing the wreckage of the aircraft is not consistent with any template in any of the Statements of Principle.
Veteran being posted to Nui Dat
65. I will now consider the posting of the veteran to Nui Dat. The veteran went to South Vietnam as a volunteer and did not withdraw his application even though his brother-in-law was wounded. The veteran stated that he was initially posted to Vung Tau, which he found “quite pleasant”, and had a “fairly relaxed atmosphere”. The veteran also pointed out that Vung Tau was “more or less the rest and recreation area for all the task force troops”. These remarks of the veteran do not accord with the opinion of Dr Wong who stated that the veteran was “excessively anxious and worried and apprehensive throughout his stay in Vietnam”.
66. In his statement of 30 January 2009, the veteran related that having spent the first six months of his tour in Vung Tau, he did not envisage being sent to Nui Dat. In giving evidence, he stated that he believed that his duty in Nui Dat was “punishment” for redirecting the mail of a warrant officer without his knowledge. The veteran remarked that “after I got out of the Army, I sort of became aware that they knew who did it”. The veteran, however, was never told that they knew who did it. The veteran was not told that this was the reason for his new posting. The material does not disclose that the veteran was subject to any disciplinary proceedings. Indeed, the veteran gave evidence that in his military career he was eventually promoted to sergeant.
67. In his statement of 30 January 2009, the veteran remarked that after being posted to Nui Dat, “My mind was filled with a lot of ifs. The possibility of Nui Dat being attacked/bombed, would I be called upon to go on combat operations”. His statement also contained the following comments: “Whether my fears were real or not, I don’t know, I can only relate to how I felt at the time. As far as I knew this was a war zone and anything could happen, there was no briefing from my superiors as to what to expect. As far as I was concerned one had to be ready for what might eventuate”. The veteran also remarked: “I settled into working in the post office however my anxiety was never far from the surface and depression followed and drinking was a way of life”.
68. On behalf of the veteran, it was contended that the service of the veteran was a category 2 stressor. A category 2 stressor is a factor in the Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008, para. 6(a)(vi); and the Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007; para. 6 (a)(v). The Statements of Principle define a category 2 stressor as being a negative life event, the effect of which is chronic in nature and which causes the person to feel on-going distress, concern or worry. The relevant negative life event that is relied upon on behalf of the veteran is: “being socially isolated and unable to maintain friendships or family relationships due to physical location, language barriers, disability or medical or psychiatric illness”: Statement of Principles for Depressive Disorder: Instrument No. 27 of 2008, para 9, definition of “a category 2 stressor”, para (a); Statement of Principles for Anxiety Disorder: Instrument No. 101 of 2007; para 9, definition of “a category 2 stressor”, para (a).
69. The evidence before me did not disclose that the veteran was socially isolated. In his evidence, the veteran referred to “a lot of acquaintances in the army – you would see them today and then you would not see then for another six months or twelve months, but you would still know them”. There was also no evidence that the veteran was unable to maintain friendships or family relations. There was evidence that the veteran would write to his fiancée. I consider that the evidence does not meet the template of a category 2 stressor.
70. The veteran gave evidence concerning his posting to Singapore. His wife could not join him because she was unable to have the necessary vaccinations. He recalled that had a lonely Christmas Day and was not invited to any Christmas dinner. The veteran stated that he had a lonely seven months in Singapore. He described his service in Singapore as “miserable”. However, his service in Singapore was not operational service.
71. I consider that the circumstances of the veteran being posted to and serving in Nui Dat are not consistent with any template in the Statements of Principle.
Fear of patrols
72. The veteran in giving evidence remarked that he is unable to close his left eye. This makes it difficult for the veteran to fire a weapon. The veteran remarked: “if I have to use a weapon, I have to put a hat down over this eye to be able to sight the weapon off my right shoulder, or put my rifle on my left shoulder, which is quite dangerous, because of the fact that the – if you pull the trigger, the spent round comes out – the spent shell casing comes out on the right-hand side, and there was always a danger of being hit in the face by one of the rounds”. In view of his inability to close his left eye, the veteran stated that he had an anxiety about going on patrol. I should also mention that Dr Wong in his review of the veteran had commented that the veteran “felt sad and rejected because he was not part of the infantry”.
73. The veteran referred to “rumours that flew around Nui Dat and Vung Tau”. One was “that if you went to Nui Dat, you would be called upon to go out on operations”. The veteran remarked that “he was worrying all the time about what was going to happen today or tomorrow, would I go out on patrol”. I appreciate that the veteran as a soldier could have certainly been called upon to go on patrol. However, there is no evidence that the veteran, whose duties were as a postal clerk, was ever called upon to go out on patrol. I certainly accept that the veteran had an anxiety about going on patrol but this does not, in my view, raise for consideration the application of any factor in the Statements of Principle.
Clinically significant psychiatric disorder
74. A submission was made on behalf of the veteran that there was a “clinically significant psychiatric disorder” at the time of the clinical onset of alcohol dependence or alcohol abuse. At the hearing, the veteran relied upon the Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009, para 6 (a). This factor (as well as other similar factors: Instrument No. 27 of 2008, paragraph 6(a)(vii) and Instrument No. 101 of 2007, paragraph 6(c)(v)) is not in my view satisfied for a number of reasons. I have already mentioned that the psychiatrists who gave evidence were not prepared to give an opinion on whether the anxiety disorder preceded the alcohol abuse condition. Dr Wong, in his evidence-in-chief, did not express an opinion on whether the generalised anxiety disorder or the alcohol dependence condition manifested itself initially. Dr Christensen also stated that he was unable, because “there wasn’t enough history or chronology”, to state whether the anxiety condition or alcohol dependence came first. In these circumstances, I am unable to rule that a reasonable hypothesis is raised under the factor.
75. There is also another reason why I do not consider that a reasonable hypothesis is raised and that is because there is no evidence before me of any ongoing management of a psychiatric disorder in the sense contemplated by the definition of “a clinically significant psychiatric condition”: see Statement of Principles for Alcohol Dependence/Abuse: Instrument No. 1 of 2009, para 9. On the evidence of the veteran, the first time that he sought psychiatric help was in 1995.
conclusion of third deledio step
76. For these reasons, I give a negative answer to the “third step” in Repatriation Commission v Deledio.
DECISION
77.I affirm the decision under review.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed:.......................[Sgd].......................................................
Emily Clarke, AssociateDate of Hearing 15 July 2009
Date of Final Submissions 16 September 2009
Date of Decision 9 October 2009
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Ms C Haney, Haney Lawyers
Advocate for the Respondent Mr J Kelly
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