Pippen and Repatriation Commission
[2004] AATA 65
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 65
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1051
VETERANS' APPEALS DIVISION ) Re BERNARD PIPPEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse an application for disability pension in relation to post traumatic stress disorder, alcohol abuse/dependence, hypertension and heart disorders.
................ SIGNED.................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – post traumatic stress disorder, alcohol abuse/dependence - claimed stressors did not satisfy experiencing a severe stressor within the meaning of that term in the Statement of Principles - applicant’s disabilities are not war-caused – decision affirmed
Veterans’ Entitlements Act 1986: s9
REASONS FOR DECISION
Deputy President Don Muller 1. Bernard Pippen, the Applicant, claims that he suffers from the following war-caused disabilities:
(a)Atrial fibrillation;
(b)Left ventricular dysfunction;
(c)Cardiomyopathy;
(d)Hypertension;
(e)Alcohol abuse/dependence;
(f)Ischaemic heart disease; and
(g)Post Traumatic Stress Disorder (PTSD).
2. The Applicant’s claims were made on the following dates:
(a)17 May 2000 for alcohol abuse/dependence;
(b)15 June 2000 for heart problems; and
(c)19 September 2000 for PTSD.
3. The claims were rejected by a delegate of the Respondent on 12 October 2000.
4. The Veterans’ Review Board (VRB) varied the delegate’s decision on 28 August 2001 by substituting the diagnosis of cardiomyopathy for an original claim for ischaemic heart disease, but otherwise dismissed the claim.
5. The Applicant persists with his claim in relation to ischaemic heart disease.
6. The Respondent’s representative, Mr. Morison, conceded that the Applicant had been suffering from alcohol abuse/dependence for many years, but that it was not war-caused, and in any case is now in remission.
7. Mr. Morison also conceded that the Applicant’s heart problems and hypertension are related to his past alcohol abuse.
8. The matters for determination by the Tribunal are:
(a)Whether the Applicant’s alcohol abuse/dependence was war-caused; and
(b)Whether the Applicant’s PTSD is war-caused.
9. The Respondent’s position so far as PTSD is concerned is that the Applicant does not suffer from PTSD and that even if he does, it is not war-caused.
10. The following matters are not in dispute and the Tribunal finds that:
(a)The Applicant was born on 1 February 1945.
(b)He joined the Australian Army on 30 June 1965 and served until 24 January 1974.
(c)During his time in the Army he had 12 months operational service in Vietnam from 8 January 1969 to 7 January 1970. He also rendered Defence Service from 7 December 1972 to 24 January 1974. His period of Defence Service is not relevant to this review.
(d)In Vietnam the Applicant was based in Saigon. He was a pay sergeant.
(e)The Applicant was married firstly on 2 April 1966; this marriage lasted until July 1977. He married secondly in September 1983; this marriage lasted until October 1991. He has a current partner with whom he has been living since January 1993.
(f)Since leaving the Army, the Applicant has had various jobs as sales representative, storeman and taxi-driving. He last worked full-time in 1999.
(g)In 1977, the Applicant was convicted of embezzling $8,000. He was ordered to pay back the money and put on a good behaviour bond for five years. (He described this period, in his evidence, to have been the worst two to three years of his life.)
11. The Respondent has not conceded the diagnosis of PTSD in the Applicant’s case because some of the material supplied to the two psychiatrists who provided the reports seems to contain inaccuracies. Nevertheless, psychiatrists, David Webster and James Wright, have both diagnosed the Applicant as suffering from PTSD. Consequently, the Tribunal finds that the Applicant does suffer from PTSD.
12. For the Applicant to succeed in his claim for PTSD and/or alcohol abuse/dependence, the circumstances of his case must satisfy the relevant Statements of Principles (SoP) for each of the claimed disabilities.
13. The relevant SoP for PTSD is No. 3 of 1999 as amended by No. 54 of 1999. Those parts relevant to this review are:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonably hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
14. The relevant SoP for alcohol abuse/dependence is No. 76 of 1998. Those parts relevant to this review are:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
“experiencing a servere stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
15. In his original application for disability pension in relation to alcohol abuse, the Applicant claimed that the precipitating stressor in his case was “service in Vietnam”. A report by Dr. Wright, dated 20 September 2000, contained the following:
“He says that it while in Vietnam, he and his fellow servicemen were encouraged to drink and from being a moderate drinker, when he returned was a heavy drinker and remains so to the detriment of his two marriages. He claims that the period in Vietnam was very stressful for him. He particularly found it distressing witnessing such things as women and babies begging and he said that for many years he suffered nightmares in connection with some of these memories. He described having insomnia since his time in Vietnam and also says that he often had flashbacks during the daytime.”
16. The Applicant’s claim was rejected by the Respondent’s delegate on 12 October 2000, on the grounds that there was no history of his ever experiencing a severe stressor whilst on service, as defined by the relevant SoP.
17. On 4 December 2000, the Applicant supplied an amended statement which included the following:
“Dr Wright reports that I had problems with women and children begging, in reality it was women with dead babies on the footpaths who were begging, my first child was born shortly after I arrived in Vietnam, and I had numerous nightmares with my baby I hadn’t seen replacing the begging women’s babies, this was most distressing and for many years I had daytime flashbacks with this disturbing picture in my mind.
The other important omission from Dr Wright’s report was that we were having a meal in the American canteen and a mine was detonated from a mobile food trolley, there was a large explosion and two American soldiers were severely injured, I believe they died shortly afterwards, neither myself or any other Australians were injured by the incident.
Both of these events were at the time of the 1969 TET celebrations in late January, as both of these things happened at the beginning of my tour of duty I was very apprehensive about the remainder of my tour and thought I was going to die. It was because of these incidents and my insomnia I turned to severe alcohol consumption and chain cigarette smoking.”
18. The transcript of the VRB hearing on 28 August 2001, records that the following exchange took place:
“MR MORRIS: No, no, but the stressor we’re really going to concentrate on is that one stressor, because some of those other things, in my opinion, were… the decreasing ---
MR KENNY: Which is the stressor then?
MR MORRIS: The stressor is the incident when he was having lunch in the – an explosion occurred outside, and he went out to assist.
MR KENNY: Tell us about that.
MR PIPPEN: Yes. Okay. I was with a mate, and we were in a canteen.
MR MORRIS: …
MR PIPPEN: In Saigon.
MR KENNY: Saigon; all right.
MR PIPPEN: Yes – a rather large sort of a canteen.
MR FARQUHAR: Military canteen?
MR PIPPEN: Yes. And there was a very – a very large explosion. I heard the explosion rather than saw the explosion, but certainly saw the result. There was all sorts of things everywhere all over the place, and then my mate went to have a look, you know ---
MR KENNY: Did it affect the – the canteen that you were in?
MR PIPPEN: I can’t honestly remember that. It’s just that we – we were so sort of – such a blast, and then we went up to the ---
MR KENNY: Tell us what happened when you were in the canteen. You were sitting at tables.
MR PIPPEN: Yes.
MR KENNY: Sitting at a table.
MR PIPPEN: Yes. Yes.
MR KENNY: And you heard the noise.
MR PIPPEN: Heard the huge explosion, yes.
MR KENNY: Was there impact on your immediate vicinity, apart from the sound?
MR PIPPEN: No, not as though shrapnel was flying around me, or anything like that, no, but it was – it happened up near the entrance which was ---
MR KENNY: What was your reaction?
MR PIPPEN: I think we probably – 32 years ago, it would hardly be precise, but I think we hit the deck, and then we went and had a look, and that’s when we saw the ---
MR KENNY: Why would you go and have a look?
MR PIPPEN: To see if we could assist – natural ---
MR KENNY: How long after the explosion did you decide to do that?
MR PIPPEN: It would be inside – look, very, very shortly after; I couldn’t put that down to a time.
MR KENNY: And describe the scene when you got out of the canteen.
MR PIPPEN: There was a mine thrown – a booby-trap from one of those food – mobile food trolleys.
MR KENNY: How do you know?
MR PIPPEN: Well, I suppositioned it, I guess, but there was – it was – somebody suggested that, and it looked sort of fairly obvious to us at the time – you know, the mine had been detonated from the food machine – the mobile food thing there.
MR KENNY: What do you mean by “mobile food machine”?
MR PIPPEN: They were very common.
MR KENNY: A hand-pushed trolley?
MR PIPPEN: Yes. All over the place – they used to ----
MR KENNY: Was it still there?
MR PIPPEN: It was still there, but it was – it was – it was damaged.
MR KENNY: How far would you say you had to walk to get to this from where you were?
MR PIPPEN: Oh, again, from the initial place, 30 – 30 to 40 metres – I’m – you know ---
MR KENNY: And what else did you see when you got there?
MR PIPPEN: Saw some severely wounded Americans.
MR KENNY: How many?
MR PIPPEN: Two severely wounded; one that I’m not sure about the – if there was anybody else.
MR KENNY: Any civilians injured?
MR PIPPEN: Not that I know of; I don’t ---
MR KENNY: What about the fellow pushing the trolley?
MR PIPPEN: He would have scarpered, I would imagine. I don’t know. He would have ---
MR KENNY: So you say he actually set the bomb?
MR PIPPEN: …
MR KENNY: Is that your guess?
MR PIPPEN: That’s a guess, yes.
MR KENNY: Who was it who told you that that’s where the bomb was – you said someone talked to you about that.
MR PIPPEN: My mate and I – you know – said that’s where it must have come from: the trolley.
MR KENNY: Now, these wounds that the two Americans had – how were they wounded – in what way?
MR PIPPEN: I’m a bit squeamish, and I – I looked – I mean, I didn’t look – look for arms blown off or something, but you could see the blood. It was an awful sight.
MR KENNY: Well, how were they wounded? Were they talking or were they calling out for help or unconscious? Were there body bits missing?
MR PIPPEN: They were certainly – I – I’m really not sure.
MR KENNY: Not sure?
MR PIPPEN: It’s something ---
MR KENNY: Did you report this to anyone?
MR PIPPEN: The white mice – the Vietnamese police – and the provos were there in very – well, not long afterwards at all – the American provos.
MR KENNY: You said that you went there to assist. Did you give assistance?
MR PIPPEN: No.
MR KENNY: Did you approach these wounded ---
MR PIPPEN: No; because there was more sort of qualified type people than me. They were sort of the medics, and so forth.
MR KENNY: What did you do then?
MR PIPPEN: We went back to, you know – back to our quarters.
MR KENNY: You didn’t go back to the canteen?
MR PIPPEN: No; we never went back there again.
MR KENNY: Was that about the loudest explosion you heard in close-up?
MR PIPPEN: Oh, yes. Yes.
MR KENNY: 30 to 40 metres – that’s about one-and-a-half cricket pitches.
MR PIPPEN: It is, indeed.
MR KENNY: So, it’s about here to the elevator, which, for the purposes of the tape, is in another section of the – of the building. It’s about 30 metres, isn’t it – 30, 40 metres?
MR PIPPEN: My – I guess ---
MR KENNY: No damage – was it a glass-surrounded canteen that you were in?
MR PIPPEN: It was glass – glass and timber – timber doors …. , yeah, and that was ---
MR KENNY: You didn’t report this when you got back to your quarters?
MR PIPPEN: No, no, I didn’t.
MR KENNY: Where were you quartered at that stage?
MR PIPPEN: In Saigon.
MR KENNY: The – you were stationed there at the time. What were you doing there?
MR PIPPEN: In Saigon? I was a ….
MR FARQUHAR: How far were your quarters from where the explosion occurred?
MR PIPPEN: Can I just give a bit of background to this? See, there’s people in Saigon – Australians in Saigon were quartered normally in American type accommodation, which, in a lot of cases, they ….. Hotels, and things like that, and they worked in the Australian headquarters, but they were fed in the American messes or canteens, or things like that, which was normally totally a different place to where they were accommodated.
MR FARQUHAR: Sure, yes, but how far was the explosion to where you went back to work afterwards?
MR PIPPEN: A half a kilometre?
MR KENNY: How long did you stay at the scene?
MR PIPPEN: Not very long at all.
MR KENNY: Why?
MR PIPPEN: Because it – war, you know. As soon as – the provos started arriving, and there were people closer to us, and the provos ….. quickly stumbled to the ambulances, and there was simply no need for us to ---
MR KENNY: What time of day was it?
MR PIPPEN: Lunch-ish time, if I could be as vague as that.
MR KENNY: Wouldn’t that be a fairly busy time of day in Saigon – lunchtime?
MR PIPPEN: Yes.
MR KENNY: No-one else was injured; just these two soldiers.
MR PIPPEN: Not that I’m aware of.
MR KENNY: You didn’t see any other injuries?
MR PIPPEN: No, I didn’t; I didn’t hear of any.
MR KENNY: What part of your time in Vietnam did this occur: you were there from January ’69 to January ’70.
MR PIPPEN: Early – it was in the early part.
MR KENNY: So, you saw that these two soldiers had been wounded, and you can’t give us any details of the wounded; you saw blood.
MR PIPPEN: Blood …. Blood and guts, yes – flesh – horrible – horrible scene.
MR KENNY: Why didn’t you tell Dr Wright this?
MR PIPPEN: To tell you the truth, I didn’t tell Dr Weight because I didn’t think that would be necessary. I thought that was – and my ignorance – my ignorance on the matter of understanding post traumatic stress disorder.
MR KENNY: Do you know why you went to see Dr Wright?
MR PIPPEN: Well, yes: to talk about post traumatic stress disorder.
MR KENNY: To support your application?
MR PIPPEN: Yes.
MS DENEVON: You said the explosion was 30 to 40 metres away, and you went with the intention of helping out, and when you go there you didn’t help out because there were already medics there; is that correct?
MR PIPPEN: Well – well, people that appeared to be more qualified than we were …. Medics, at that stage; I mean, I’m not sure.
MS DENEVON: I mean, it would have been pretty hard for them to get there faster than you, though, wouldn’t it? You would have been perhaps one of the closest people to the scene.
MR PIPPEN: Yeah – yea – gees – we were there – one of the first, but, you know, there seemed to be sort of others sort of taking control, if you like.
MR FARQUHAR: Were there other people in the canteen when you were there?
MR PIPPEN: Yes. Yes. Yes, there were, yeah, yeah.
MR KENNY: See what Dr Wright says:
He claims that the period in Vietnam was very stressful for him. What particularly he found distressing was witnessing such things as women and babies begging. He said that for many years he suffered nightmares in connection with some of these memories.
I would have thought that, if you were seeing Dr Wright concerning a post traumatic stress disorder and he was talking to you about the events in Vietnam, you would have mentioned to him whatever you considered to be those stressful things. Again, I ask you: why didn’t you mention this to him? You mentioned women begging.
MR PIPPEN: No, that’s not – that’s not – that’s not the fact of the matter. I mean, he got that – that’s not what was happening: it wasn’t women and babies, anyway, begging; it was women with dead babies at their feet, begging.”
19. The matter of whether or not a U.S. canteen was bombed in Saigon in 1969 was researched by John Tilbrook. Mr. Tilbrook reported on 28 April 2002:
“24. It is accepted that there was an on-going risk of terrorist attacks upon military vehicles and military installations in SAIGON, and therefore personnel posted to SAIGON may have developed a sense of hyper vigilance (particularly following the learning of attacks in areas which were part of their routine environment). The only known Australian casualties arising from bomb attacks targeting US Army occupied buildings occurred on 1 Apr 66 (as mentioned in Paragraph 16).
25. Based upon the information assembled in this Report, which in the absence of any contemporary Australian unit records is reliant on the first hand knowledge of former military policemen that served with the AFV PROVOST UNIT in SAIGON during 1969, it is the Researcher’s finding that no evidence was located which would serve to substantiate the Veteran’s cited Contention (as it is presently described).
26. The four military policemen that were canvassed for comments on the Veteran’s claimed traumatic episode do not believe that any US Forces canteen was the target of a bomb attack in SAIGON during 1969.”
20. The Applicant has not persisted with his claim that he was present when a canteen was bombed in Saigon. For this review he relies on the sight of women with dead babies as the relevant stressor.
21. The Tribunal notes that neither the statement provided by the Applicant nor his evidence to the Tribunal contain any other material which could be classified as a stressor. Indeed, his statement contains the following description of his time in Saigon:
“6.I arrived in Saigon and we worked at the Freeworld complex. Very early in my tour of duty, I can remember thinking what a dirty, filthy, stinking, place it was. We basically worked 7 days a week and I was a pay Sergeant. I remember I was a very slack pay Sergeant and I wouldn’t do the most basic parts of my job. That was not true of the first month or so of my tour. I made a lot of new friends who enjoyed sport and drinking.
7.Our main eating place was an American establishment called ‘The Capital’. The quarters for Warrant Officers and Sergeants were at a place called the Savoy Palace. I had my own room and room service. There was a very large bar there. I became very comfortable in this bar and the cost of beer was negligible. I went to the bar every day and stopped there for hours. Not so much in the early stages but I accelerated into spending a huge amount of time there.
8.Some of the other things I remember about my tour of duty. I went to Saigon races quite a few times and found that most enjoyable and amusing. I also went to the Saigon zoo. One of my mates and I had a tri-saw race. We were drunk. We put the little Vietnamese bloke in the front and we pedalled like mad. I saw the other Saigon dens of iniquity where there were hookers and things. I didn’t go out to those other Saigon bars very often. I stayed in my bar at the Savoy Palace because I felt comfortable and could drink like a fish and smoke like a Mexican bandit which I had become. Some times when I was drinking, I would have four smokes going at one time.
9.Basically it was just pay books and drinking, pay books and drinking and playing cards. Also, for a few months I was the SP bookmaker until my OC put a stop to it. My pay office had radio Australia and I had form guides for Australian races to hand out to officers and men. It was like a punters paradise in there on a Saturday. Most of the money I won from being an SP bookmaker, I lost in card games. I was a poor card player and other blokes used to love it when I came into the game.”
22. The hypothesis pointed to by the material is that when the Applicant was in Vietnam he saw some women begging who had dead babies in their arms, and that the experience, coupled with the fact that his wife had just had a baby, was so stressful that he suffered a psychiatric illness which has resulted in alcohol abuse/dependence from that time until July 1998, when he stopped drinking, and also caused his PTSD.
23. The Tribunal takes the view that although the experience of seeing women begging with dead babies in their arms would have been most unpleasant, and no doubt something that one would remember for a long time, it was an experience that falls far short of ‘experiencing a severe stressor” as prescribed by both SoPs.
24. The Tribunal finds that the hypothesis raised by the material is not reasonable, and that the claim fails.
25. The medical material placed before the Tribunal shows that the Applicant does not suffer from ischaemic heart disease.
26. The Tribunal affirms the decisions to reject the Applicant’s claims for pension in relation to alcohol abuse/dependence, PTSD, hypertension and heart problems.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 25 June 2003
Date of Decision 23 January 2004
Applicant Mr. Pippen, himself
Respondent Mr. R. Morison, departmental advocate
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