Renton and Repatriation Commission

[2007] AATA 1621

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1621

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 200600936

VETERANS’ APPEALS  DIVISION		)
Re		Donald Keith Renton

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date2 August 2007

PlaceBrisbane

Decision The decisions under review are affirmed.

..................[Sgd].....................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – service related conditions – causation – date of onset of alcohol dependence – not war-caused – decisions under review affirmed

Repatriation Commission v Deledio (1998) 83 FCR 82

Lees v Repatriation Commission (2002) 125 FCR 331

Youngnickel v Repatriation Commission [2004] FCA 1691

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

2 August 2007 Senior Member B J McCabe         

1.      Mr Donald Renton suffers from a number of conditions, including generalised anxiety disorder and alcohol dependence. He says those conditions are related to his war service in Vietnam. He applied for a disability pension under the Veterans’ Entitlements Act1986 (the Act). The Veterans Review Board accepted the applicant’s anxiety condition was war-caused but affirmed the Repatriation Commission’s decision to reject the claim in respect of alcohol dependence. Mr Renton has now asked the Tribunal to reconsider his claim.

2.      The parties agree the applicant suffers from an alcohol dependence condition. I accept the medical evidence to that effect. The question is whether the condition is related to his war service. That determination must be made having regard to s 120 of the Act. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 said it was necessary to follow a four-step reasoning process in the application of s 120 where a claim is made in respect of periods of operational service. I do not make findings of fact until the final step.

3.      At the outset of the hearing, the applicant suggested (and the respondent agreed) the outcome of the case turned on my assessment of the veracity of the applicant’s story – in other words, I was encouraged to accept the first three steps in the Deledio process were not in issue. The applicant pointed out the third step in particular was satisfied because the applicant had been shot at outside a bar in Saigon in 1970. I was told he experienced a severe stressor within the meaning of the relevant statement of principles. The outcome of the case turned on whether I believed the applicant’s account of what happened that night – in other words, whether I accepted the fourth step in the Deledio process was concluded in the applicant’s favour. I was also told it would be necessary for me to determine the date of onset of the applicant’s condition. The applicant said the condition either began after (and because of) the incidents he described in Saigon, or – if he was found to have already been a heavy drinker when the incidents occurred – his drinking substantially increased afterwards so that the incidents could be said to have aggravated a pre-existing condition.

4.      I do not accept the matter can be put so simply. To begin with, it will be necessary for me to consider whether the applicant’s alcohol dependence condition can be related to his service through the (admittedly service-related) anxiety condition. As part of that process, it will be necessary for me to determine the date of onset of the alcohol dependence condition.

5.      I will address each stage in the process contemplated by Deledio in the course of my reasons. I will not move straight to the last stage as urged by the parties.

what is the hypothesis connecting the applicant’s condition with the circumstances of his service?

6.      The applicant initially referred to two stressful events that he said pointed to a hypothesis connecting his alcohol dependence condition to the circumstances of his service. One incident involved experiencing distress as he processed casualty returns. That incident was barely mentioned during the course of the hearing. The second incident occurred outside a bar in Saigon in 1970. The applicant says he was shot at that night by an unidentified gunman.

7.      I am satisfied the material taken as a whole points to the hypothesis for which the applicant contends. But I should also make a comment in relation to the applicant’s alternative contention – an alternative that was not mentioned until during the course of final submissions. The applicant says he now suffers from an anxiety condition that has been accepted as being war-caused. He argues he drank heavily and developed an alcoholic dependence condition as he struggled to cope with the symptoms of the anxiety condition. I am satisfied the material points to that hypothesis.

the statement of principles

8.      The next step in the Deledio process requires that I identify the relevant statement of principles (SoP) published by the Repatriation Medical Authority. In this case, the relevant SoP is No 76 of 1998.

is the applicant’s story consistent with the statement of principles?

9.      The third stage in the Deledio process does not involve fact-finding. Rather, I must determine whether the applicant’s story as told is capable of satisfying the requirements of the SoP. I will deal with the two stressful incidents and the anxiety condition in turn.

(i) Handling casualty figures

10.     Mr Renton was a radio keyboard operator in Saigon. He handled transmissions between Australia and the task-force, and between units in the field and headquarters. He says he scrutinised casualty lists each time they came across his desk. During the course of his evidence at the hearing, he explained he was looking for the names of his brother and other relatives who were also serving in Vietnam. He was worried they might have been injured or killed. I note one of his brothers had been shot and wounded some years earlier.

11.     The applicant said he was only worried about the names of relatives appearing on the casualty lists. He said he became distressed each time he scrutinised the lists but was relieved when he did not come across names he knew. None of his relatives were ever referred to on the lists. He said he was otherwise unaffected by the experience.

12.     I am not satisfied the events the applicant described satisfy the definition of severe stressor in the SoP. None of the names he feared seeing were ever included on the lists. A person with the background and experience of the applicant – even one with a relative who had been hurt in the past – would not have regarded the experience of reading the lists as a severe stressor of a kind or magnitude of the other examples given in the definition.

(ii) The shooting incident in Saigon

13.     This incident was the focus of the evidence led at the hearing. Mr Renton claimed the incident unfolded one night between 24 June and 14 July 1970. (The applicant was charged with disciplinary offences on each of those dates. He said he remembered he had been charged with an offence on 24 June before the incident occurred, but the second charge was not preferred until 24 July after the events in question.) He said he was making his way through the streets of Saigon to his billet after curfew when he came upon a hotel. There were two American servicemen outside making a fuss. He approached them to find out what was happening. They told him they were members of a Navy SEAL team. They said one of their comrades was inside being beaten by local toughs. Mr Renton says he looked through the locked gates into the building and saw an American serviceman being struck with lengths of timber. Mr Renton says he resolved to help. He says he climbed the fence which surrounded the establishment. It was made of wrought iron and was crowned with sharp decorative stakes. He then somehow scaled the wall of the building to the second level. He smashed a window to gain access. The men downstairs who were administering the beating to the American serviceman heard the sound of breaking glass and threw the man out. The applicant climbed down to the ground level and scaled the fence. Mr Renton says the American serviceman slipped while he was scaling the fence and one of the stakes plunged into his thigh.

14.     While the applicant and the two American servicemen on the street (who had remained behind to bang on the front gates of the establishment) struggled to release their injured colleague from the fence, the applicant says he heard someone fire a single shot. He says he saw a muzzle-flash come from the corner of a building across the street. He says it was unclear whether the shot came from inside the building, or from the street at one end. He says there was no one else on the street at the time. He also says he recognised the distinctive sound of an AK-47 rifle which was known to be the weapon of choice for the enemy. All four men (including the injured man) ran off.

15.     A short while later, the applicant said the fleeing men came across an American military police patrol. There were two MPs in a vehicle. The applicant and the other three servicemen told the MPs what had occurred. After the injured serviceman was despatched to hospital in another military police vehicle, the applicant says he and the other two men climbed into the rear of the police vehicle and drove back to the site of the incident. The MPs did not call for any assistance. They looked around the site. The police found nothing untoward and drove the men back to the American billet without further delay. They did not arrest the men for being out after curfew.

16.     The applicant says he stayed at the American quarters that night. The injured serviceman returned from the hospital during the course of the night with some stitches to his leg. They all discussed what had occurred, although Mr Renton says they did not drink. He claims the Americans speculated about what they might have done if circumstances were different and they were armed. Mr Renton says he has no doubt there would have been a gunfight, and he would have been caught in the middle. The Americans returned to the United States the following day, and Mr Renton went back to his accommodation. He never heard from them again.

17.     The parties agree the incident as described is properly regarded as a severe stressor for the purposes of the SoP. Given the applicant reported he was shot at, I agree. But that is not the end of the matter. Factor 5(b) requires that the severe stressor be experienced within two years before the date of clinical onset (or clinical worsening, in the case of factor 5(d)) of the alcohol dependence condition. It follows I must carefully consider the material in relation to the course of the applicant’s condition.

18.     The applicant says he could not drink before joining the Army because he was under the legal age. He concedes he started to drink socially following his enlistment at age 17 but denies he was a heavy drinker. He said a charge arising out of a drinking session in 1969 was an aberration. He denies that a string of other disciplinary offences during 1969 were alcohol-related. He said he did not start drinking heavily until the shooting incident which occurred several weeks after he arrived in Vietnam. He said he consumed a bottle of brandy and some beer each day in the wake of the shooting. The effect was almost immediate: he points to the charges that were laid against him on 14 July 1970 when he abandoned his sentry post because he was intoxicated.

19.     Determining the date of onset of an alcohol dependence condition requires that one do more than merely establish that the applicant was drinking heavily at a particular point. The Federal Court has made it clear in cases like Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691 that the date of onset of the condition is the date on which all of the elements of the condition are present so that a diagnosis could properly be made.

20.     Dr Majumdar, the applicant’s treating psychiatrist, says the applicant developed his alcohol dependence condition in 1970 following the incidents in question. The Veterans’ Review Board considered all the evidence and concluded the applicant was already experiencing a maladaptive pattern of alcohol use prior to him serving time in Vietnam. It is inappropriate for me to resolve that dispute at this point; I must accept the applicant’s story as he explains it at this point. In those circumstances, I accept there is evidence (principally his own testimony) capable of satisfying the template in the SoP.

(iii) The applicant’s anxiety condition

21.     The third basis on which the applicant says he can satisfy the SoP arises out of his anxiety condition. Factor 5(a) refers to experiencing a psychiatric condition at the time of the clinical onset of the alcohol dependence condition. (Factor 5(c) refers to suffering a psychiatric disorder at the time of the clinical worsening of the condition.)

22.     It has already been accepted that the applicant suffered from an anxiety condition commencing in 1970. The Veterans’ Review Board decided the alcohol dependence condition pre-dated the onset of the anxiety condition, but I accept there is evidence in the form of Dr Majumdar’s reports and the applicant’s testimony that suggest the alcohol dependence condition arose out of the same events as the anxiety condition. I therefore accept the applicant’s story is capable of fitting the template of the SoP.

am i satisfied beyond reasonable doubt that the incapacity is not service-related?

23.     The applicant’s account of the shooting incident is implausible. Whether or not he intervened in a brawl involving members of a SEAL team and local toughs, there were several questions raised by the details of his account of the alleged shooting. For example: after reporting the shooting, the military police accompanied the men back to the scene to investigate. Mr Renton accepted they did not call for any assistance. In his oral testimony, he did not even indicate the police looked for a shooter until prompted by a question to that effect. While Saigon may have been a lawless place in some respects, it would be surprising if the police did not take reports of a shooting more seriously. It was also surprising to learn the military police would release the men given they were found out on the street after curfew. There was no other evidence to corroborate the applicant’s account.

24.     These events occurred many years ago, and the applicant’s recall is almost certainly affected by his alcohol and anxiety conditions. I am not satisfied the incident – especially the shooting – occurred. I am therefore satisfied beyond reasonable doubt that the incapacity is not service-related.

25.     The only issue that remains is the question of whether or not I am satisfied the applicant’s anxiety condition contributed to the onset or aggravation of his acknowledged alcohol dependence. The answer to that question depends in particular upon the point at which Mr Renton began to drink more heavily.

26.     The Veterans’ Review Board accepted the applicant was already locked in a pattern of maladaptive alcohol use by the time he arrived in Vietnam. I agree. There is evidence that he was already having problems with alcohol consumption, most obviously the disciplinary charge in 1969 that he acknowledged was connected to a ‘booze-up’. The applicant denies the other charges were alcohol-related but – while there is no evidence to contradict his denial – I am not inclined to give much weight to his evidence given the passage of time and the obvious effect of the alcohol and anxiety conditions on his recollection.

27.     Ms Harris, for the applicant, anticipated I might have difficulty with the question of onset and urged me to accept in the alternative that the applicant’s alcohol consumption was aggravated by his experiences in Vietnam and by his anxiety condition. I have already concluded those experiences either did not occur or were not as serious as he alleged. But in any event I think it is important to keep in mind that an increase in alcohol consumption is not the same thing as an aggravation of the condition. I think the evidence points to the maladaptive pattern of alcohol use being firmly in place long before the date of onset of the anxiety condition. Once the pattern took hold, it remained in place for many years. There was no evidence of an aggravation of the condition within the period contemplated by the SoP.

conclusion

28.     The decisions under review are affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  27 July 2007
Date of Decision  2 August 2007
The applicant was represented by Ms Harris of counsel.

The respondent was represented by Mr Smith, a departmental advocate.