Rice and Repatriation Commission
[2003] AATA 143
•14 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 143
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/717
VETERANS' APPEALS DIVISION )
Re KENNETH RICE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr EK Christie, Member Date14 February 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mr Rice's application for review is unsuccessful.
(Sgd) EK Christie
Member
CATCHWORDS
VETERANS AFFAIRS - assessment of pension - reasonable hypothesis - whether severe stressor experienced - post traumatic stress disorder - alcohol dependence - chronic bronchitis - whether conditions related to operational service - observations on the needs for a review of objective criteria to characterise the nature of stressors and PTSD
Veterans' Entitlements Act 1986 ss 8, 120, 120A
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Bey (1997) 47 ALD 481
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Slattery and Repatriation Commission (1998) 52 ALD 90REASONS FOR DECISION
14 February 2003 Dr EK Christie, Member 1. This is an application by Kenneth Rice to review a decision of the Veterans’ Review Board (“the VRB”) made on 18 July 2001 wherein the VRB decided to:
“(a)VARY the decision under review by including a diagnosis of chronic simple bronchitis;
(b)AFFIRM the decision under review as varied in relation to post traumatic stress disorder, alcohol dependence or alcohol abuse and chronic simple bronchitis. This means that the Repatriation Commission’s decision is unchanged in relation to those matters.
(c)AFFIRM the decision under review as varied by a later decision of the Repatriation Commission dated 31 May 2000 in relation to the assessment of pension. This means that the Repatriation Commission’s decision is unchanged.” (Exhibit R1, Folio 209)
2. The basis for the application for review was that “there is a causal connection between [the applicant’s] rejected disabilities and service. On the balance of probabilities [the applicant] is entitled to a higher rate of pension” (Exhibit R1, Folio ‘E’).
3. At the hearing Kenneth Rice was represented by Mr R Clutterbuck of Counsel. The Repatriation Commission was represented by Mr M Smith, a Departmental Advocate.
4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1) and the various documents tendered by the parties.
5. At the hearing the applicant, Kenneth Rice, and Mr Kevin Dillon gave evidence on behalf of the applicant. Expert psychiatric opinion evidence was given by Dr G Apel (for the applicant) and Dr J Wainwright (for the respondent).
Disabilities
6. Mr Rice has the following service-related and non-service related disabilities:
SERVICE RELATED DISABILITIES NON-SERVICE RELATED DISABILITIES Bilateral Sensorineural Hearing Loss
Bilateral Tinnitus
Subarachnoid Haemorrhage
Gastro-oesophageal reflux diseaseELIGIBLE FOR TREATMENT (NOT
SERVICE RELATED)Post Traumatic Stress Disorder
- Treatment only
Malignant ConditionsPost Traumatic Stress Disorder
Alcohol Dependence or Alcohol Abuse
Chronic Simple Bronchitis
Issues to be Decided
7. Central to the outcome of this application is whether any of the events experienced by Mr Rice during his eligible service satisfy the terms of the relevant Statement of Principles as “experiencing a severe stressor”.. This issue is a threshold question that must be decided in Mr Rice’s favour to provide a basis to proceed to a review of pension entitlements.
Facts
8. Mr Rice was born on 23 August 1935. He served in the Australian Army from 19 November 1956 to 9 December 1965 and from 14 September 1966 to 2 August 1981.
9. Mr Rice’s eligible war service (which is also operational service) was from 25 September 1957 to 28 April 1958 in the Far East Strategic Reserve and from 28 January 1969 to 18 February 1970 in Vietnam.
10. Mr Rice also rendered defence service as defined in Part IV of the Veterans’ Entitlements Act 1986 (“the Act”) from 7 December 1972 to 2 August 1981.
11. Mr Rice ceased employment on 18 December 1998. He has been in receipt of a Service Pension since ceasing work. Mr Rice currently receives a pension under the Act assessed at 10% of the General Rate.
Examination of the Evidence
Evidence of the Applicant, Kevin Rice
12. Mr Rice served in the position of Sgt Cook in the Catering Corp of 5 RAR in Vietnam. Prior to embarkation he was required to complete a six week jungle training school at Canungra as his normal Catering Corp work in Vietnam would involve some infantry work.
13. Mr Rice described the four following incidents that occurred in Vietnam.
§ Incident 1: Xuyen Moc Compound Stressor
14. Mr Rice said that he was flown by helicopter to the village of Xuyen Moc, taking with him his SLR rifle and ammunition. He said that he was locked up in the compound at night for protection. The compound was surrounded by South Vietnam ARVN troops who were supposed to guard the compound. However, he had been told that it was common for these soldiers to swap sides to the VC at night. He was at the compound for three days and two nights.
15. Mr Rice said that he found being locked up at night to be extremely stressful and felt scared about the degree of protection from the South Vietnamese ARVN troops.
16. Mr Rice said that during the first night in the compound he became aware, from an SAS Sergeant, that an American Lieutenant was to do a fire mission in a particular area where 5 RAR were. Ultimately, because of actions taken by Mr Rice, there was no fire mission. However, this incident still leaves him with recurring and disturbing dreams.
§ Incident 2: Tactical Operations and Patrol: “TOAR Patrol” Stressor
17. Mr Rice said that he participated in a TOAR patrol setting out at 10 am. A few hours later the patrol found potential signs of the presence of unfriendly persons (“a woodcutter’s axe”). At this time, their Signalman broke the aerial of his portable radio so that all communication was lost. In these circumstances, the Patrol Leader decided that they should return to base immediately by a “force march back” so as to return to Battalion lines before dark and avoid possible accidental shooting by over-zealous sentries.
18. Mr Rice said that he was scared out of his wits during the entire time of the hours of the force march back, as the standard procedures for stealth and observation could not be adhered to.
§ Incident 3: Morgue Stressor
19. Mr Rice referred to a time when, as part of his normal duties, he was a Visiting Officer for his Company at 1 Field Hospital, Vung Tau. He asked at the hospital about a Lieutenant Lee, an officer whom he knew well as a “very likeable bloke”.. However, unaware of the situation, he was then taken by the wardsman to the morgue to the body of Lieutenant Lee.
20. This incident caused him to become extremely upset and to become violently ill. The incident still provides recurring memories.
§ Incident 4: Human Hand Stressor
21. Mr Rice described an incident where a Platoon Sergeant, on entering the mess, threw a plastic bag at him. The plastic bag contained a human hand cut off at the wrist. The hand was in front of him for five to ten minutes.
22. Mr Rice said that the sight of the hand shocked him and made him sick. The incident still haunts him.
23. Mr Rice was then taken through other aspects of his evidence and gave the following responses:
(a)that he smoked five to six cigarettes per day before joining the Army and increased his habit to three packets a day in Vietnam, as both cigarettes and alcohol were very cheap and readily available;
(b)with respect to the day-to-day activities in Vietnam, he stated that he always worried and always in his mind was concerned about the implications of a potential situation where the Company were out on operations leaving limited people behind on duty to secure Company lines;
(c)that he still drank eight to ten stubbies of light beer per day and around 550 ml of Bacardi rum each day. He was not a member of AA;
(d)that he continues to have flashbacks and dreams quite often. His sleep patterns were uninterrupted and he did not have a full night’s sleep. He had a “cranky” personality and had few friends; and
(e)that he did not take any medication for his bronchial condition.
24. During cross-examination, Mr Rice acknowledged the following statement (Exhibit R1, Folio 63) to be correct:
“Mr Rice commenced smoking in 1956 whilst in the Army and ceased in 1998. He smoked, on average, twenty to thirty cigarettes per day but smoked up to sixty cigarettes per day for a period of eighteen months whilst serving in Vietnam.”
25. Mr Rice also acknowledged, during cross-examination, that there had been no attack whilst he was kept in the Xuyen Moc Compound. In addition, he said that the compound was locked from the inside but that he never tried to get outside.
Evidence of Kevin Dillon, Infantry Platoon Commander (Rt) 6 RAR
26. Mr Dillon said that, based on his experience as a Platoon Commander in Vietnam that it was likely, but not a widespread practice, for body parts, being brought back from operations, to be used for practical jokes at the Task Force Base, Nui Dat. Sergeant Cooks were considered as “fair game” for incidents such as the hand in the plastic bag incident.
27. Skulls and dried bones were more commonly obtained as part of a warrior mentality and sometimes seen as a source of detachment.
28. Mr Dillon said that everyone who went to Vietnam was required to undertake a six week intensive training in infantry work. When the Company was out on operations, security work around the base was required to be undertaken by details.
29. Under cross-examination, Mr Dillon stated that the reaction of soldiers shown body parts varied – some took it in their stride whilst others were affected by it.
Evidence of Dr G Apel, Psychiatrist
30. It was Dr Apel’s opinion that Mr Rice satisfied the DSM-IV criteria for post traumatic stress disorder (“PTSD”). However, Dr Apel recognised a difficulty in both DSM-IV and the SoP to provide objective criteria for identifying “a life threatening event”, because the criteria were inherently subjective; what was life threatening to one person was not to another. Dr Apel stated that it was difficult to rate the significance of the four incidents described by Mr Rice “as to one person they may be frightening and to another, they may not”. There were differences between people in how they handled “considerably brutal” events. The problems imposed by a differential response to life stressors resulted in some subjectivity in evaluation.
31. Dr Apel stated that in Mr Rice’s circumstances, one piece of information he believed to be significant for diagnosis was his state of mind at the time he related the incidents to him. He said that Mr Rice “did appear significantly more anxious relating these events to me”.
32. Under cross-examination, Dr Apel acknowledged that there was some difficulty disentangling the symptoms of PTSD and alcohol dependence in Mr Rice’s case. In addition, that symptoms such as irritability, anger, difficulty in concentrating, difficulty in sleeping could simply be due to alcoholism.
33. Dr Apel gave the following responses to questions asked by the Tribunal:
(a)that different individuals had different thresholds when exposed to stressors and the occurrence of PTSD. Some individuals were more protected, whereas some were more vulnerable to developing PTSD;
(b)conceptually, that the diagnosis of PTSD made the most sense when there was a “single clear event” or an acute stressor, for example, the torture victim, the rape victim;
(c)that the “single clear event” concept was limiting when lower level, multiple, more prolonged stress was involved;
(d)that any assessment of the nature and intensity of stressors, together with individual variation, would need to go beyond the boundary of diagnosis for PTSD and to consider diagnosis of the conditions of “generalised anxiety disorder” or “adjustment disorder with anxious mood” as “a lot of people … sit on the margin of these two”;
(e)that the position Mr Rice held, in the Army Catering Corp, meant that he was living a “fairly protected life” in Vietnam. Furthermore, given that he had “quite a large drinking problem”, it would suggest that he was not an individual who had “a very high level of coping with life stressors”;
(f)that he agreed the meaning given to “severe stressor” in the SoPs relates to the more extreme levels of stressors people are exposed to in military and civilian life;
(g)in characterising the incidents described by Mr Rice along the full continuum or spectrum of stressors, from extreme to low level events, Dr Apel stated that he would “see the answer as somewhere in the middle”; and
(h)that the most severe stressor of the incidents described by Mr Rice would have been his seeing the dead person in the morgue and the hand of the Vietnamese. This arose because of the issue of identifying with death: that is, through Mr Rice having to confront his own mortality or his own vulnerability.
Evidence of Dr John Wainwright, Psychiatrist
34. It was Dr Wainwright’s opinion that the diagnosis he had made for Mr Rice was “alcohol abuse and benzodiazepine dependence”. However, it was Dr Wainwright’s opinion that there was no objective evidence for the diagnosis of alcohol abuse other than the history given to him by Mr Rice. He said that the objective tests of blood and urine screening did not identify any significant changes – yet significant changes would have been expected from the degree of Mr Rice’s alcohol abuse as disclosed by his history.
35. It was Dr Wainwright’s opinion that Mr Rice did not have PTSD because he did not fulfil the “Axis A Criteria” – exposure to a traumatic event. Furthermore, he stated that he had based his opinion in this regard on his “mental state examination” of Mr Rice as he described his experiences in Vietnam. He said that Mr Rice showed no evidence of distress or hyperarousal.
36. Under cross-examination, Dr Wainwright stated that the incidents described by Mr Rice would be “highly unlikely” to arouse feelings of intense fear, helplessness or horror. He said that this was the case because Mr Rice was an experienced Senior NCO with overseas experience when he went to Vietnam and because Mr Rice was a mature man.
37. When asked by Mr Clutterbuck whether the “hand in the plastic bag incident” could have created a feeling of horror, Dr Wainwright replied:
“I suppose as a doctor I would have to laugh at that, because, otherwise we would all have PTSD. No, I don’t really think so under those circumstances and bearing in mind his trade [a cook] I would say that he might be shocked, he might be disgusted, but to think that he reacted with horror is asking us to believe too much.”
38. When then asked by Mr Clutterbuck about the constant flashbacks Mr Rice now has in relation to being locked up in the Xuyen Moc Compound, Dr Wainwright said that “there was no clinical evidence of it”, and “I fail to see how an experienced solider would have a severe reaction to that. I really cannot see that”.
39. Dr Wainwright stated that the normal reaction to both the compound incident and the patrol incident would be for a person to be anxious in these circumstances and that it could create some distress and anxiety. However, this would have been within the bounds of normal human experience.
40. Dr Wainwright was asked a number of questions by Mr Clutterbuck as to whether the incidents described by Mr Rice could aggravate PTSD.
41. Dr Wainwright responded by stating:
(a)that at no time during the period Mr Rice served in Vietnam was he under any significant threat;
(b)that “it was safe as houses in Nui Dat”; and
(c)that he had never served in Vietnam.
42. Dr Wainwright gave the following responses to questions asked by the Tribunal:
(a)that there was individual variation in threshold levels that could be tolerated in terms of exposure to stressors and the development of PTSD. That, “on an individual basis we see every day that some people are more able to cope with stress than others”;
(b)that younger soldiers “without lifetime experience” tended to be more vulnerable to the development of PTSD. That Mr Rice was more “protected” from the effects of the stressors because he was an “experienced NCO”;
(c)in terms of the development of PTSD and exposure to stressors over a spectrum varying from an acute or catastrophic “one up event” to the cumulative effect of exposure to a series of low level stressors over a period of time, Dr Wainwright acknowledged the former could lead to the development of PTSD but disagreed that exposure to a number of low level stressors would cause PTSD to develop;
(d)that if Mr Rice’s oral evidence, that he worried the entire time he was in Vietnam was imposed upon the stressors he described in the four incidents, it would not set off PTSD. Rather, he would expect that Mr Rice may have suffered anxiety as a “protective response”. Moreover, Dr Wainwright stated that it was possible that the anxiety suffered would develop into an anxiety disorder, such as panic disorder, in a vulnerable individual;
(e)that he acknowledged that the trauma threshold in the SoPs described stressors that were at the very severe end of stressors people might experience in military service or civilian life, adding:
“Yes, I think that’s what PTSD is - … it is a condition which does develop when there are extreme stressors.”;
(f)that in terms of categorising the incidents described by Mr Rice along a spectrum (mild–moderate–severe) Dr Wainwright gave the following assessment based on the degree of risk that Mr Rice was subject to at the time:
§Xuyen Moc Compound stressor: moderate, as potential risk was greater here than for the other stressors;
§Human hand stressor: mild stressor;
§TOAR Patrol stressor: mild to moderate stressor “as my understanding was Nui Dat was a pretty safe place to be”.
43. In terms of expressing an opinion on the issue of alcohol consumption after Vietnam being related to either “stressors” or “opportunity”, Dr Wainwright stated that he “remained unconvinced about the alcohol story” and:
(i)that being in catering, Mr Rice would have had “plenty of opportunity to indulge”; and
(ii)with respect to any stressors, “I think he had a pretty easy run”.
Contentions and submissions of the Parties
44. Mr Clutterbuck submitted that the overall circumstances of Mr Rice being placed in Vietnam was in itself a stressful environment for him and sufficient to cause him to suffer PTSD.
45. Mr Clutterbuck submitted that the four incidents described by Mr Rice were stressors as they represented a threat to his physical integrity. Mr Clutterbuck acknowledged that the “compound” incident and “hand in the plastic bag” incident were the two most significant stressors and had resulted in his continuing to experience flashbacks. In addition, he stated that the “patrol” incident would fall “narrowly behind these larger stressors” as a threat to Mr Rice’s physical integrity. He also conceded that the “morgue” incident was not a stressor in the same category as the other three stressors.
46. Mr Clutterbuck contended that Category A of the PTSD SoP was satisfied as Mr Rice was in or around an area where atrocities or abusive violence occurred. The “hand in the plastic bag” was one such specific incident.
47. Mr Clutterbuck submitted that a Tribunal finding that Mr Rice satisfied the PTSD SoP would also lead to the conclusion that his alcohol abuse condition arose out of the same stressors.
48. Mr Clutterbuck contended that, in assessing the facts in Mr Rice’s circumstances, the Tribunal should consider that Mr Rice was a cook – not a combat soldier, and so not regularly out in the field witnessing horrific or disturbing events on a daily basis. Rather, should Mr Rice encounter such events, they would be an “unusual” occurrence and so could disturb him substantially.
49. Mr Clutterbuck submitted that the increase in Mr Rice’s smoking and alcohol consumption occurred during his service in Vietnam because of stress (see Exhibit 1 T4, Folios 33, 35).
50. Mr Smith submitted that Mr Rice did not satisfy the smoking threshold amount imposed by the chronic bronchitis SoP. Mr Smith submitted that Mr Rice commenced smoking in 1956 whilst in the Army, smoking an average of twenty to thirty cigarettes per day. For the fourteen-month period he was in Vietnam he smoked sixty per day. On discharge in 1981, Mr Rice was smoking twenty to thirty per day. Mr Smith contended that there was no long-term tobacco addiction arising from operational service in Vietnam. Mr Smith contended that operational service in Vietnam would only have led to maximum increase of two and a half pack years – much less than the ten pack year threshold.
51. Mr Smith contended that the four stressors described by Mr Rice were, at best, marginal and that it was unlikely that they would lead to the development of PTSD.
52. Furthermore, it was Mr Smith’s contention that as Mr Rice did not satisfy criterion A of the PTSD SoP (“experiencing a severe stressor”), a diagnosis for PTSD could not be made – nor could the connection to service be made. Moreover, the meaning for “severe stressor” in the SoPs for PTSD and alcohol abuse were much the same.
53. Mr Smith submitted that Mr Rice failed any objective test for experiencing a severe stressor as, rather than experiencing a reaction of intense fear, horror or helplessness, there was evidence of “perfectly normal anxiety, being upset, being disgusted”.
54. Mr Smith said that the “patrol” incident did not meet any objective assessment of severe stressor as there was no encounter with the enemy or being subject to unfriendly fire. Similarly, the “compound” incident was not associated with any enemy attack. In terms of “the hand in the plastic bag” incident, he submitted that it was only in sight for five minutes and this experience would not equate to witnessing casualties, clearance of casualties or atrocities. Finally, in terms of the “morgue” incident, he did not see Lieutenant Lee killed and only learned about his death.
55. Mr Smith concluded with the submission that as the SoP meaning for “experiencing a severe stressor” had not been satisfied, the application for review must fail.
Legal Framework
56. Section 120(1) of the Act provides that, where a claim under Part II for a pension in respect of the incapacity 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 … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
57. Subsection (3) of the Act provides that in applying subsection (1), the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining that the incapacity of a person from injury or disease was war-caused:
“…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 hypotheses connecting the injury [or] disease with the circumstances of the particular service rendered by the person.”
58. The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
59. Despite the significant modifications to section 120 of the Act through the issue of Statements of Principles by the Repatriation Medical Authority - and the associated amendments to the legislation (refer particularly section 120A), an “hypothesis” which is “reasonable” needs to be “raised”.
60. In East’s case the Full Federal Court said (at 534):
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
61. In Repatriation Commission v Bey (1997) 47 ALD 481, a Full Federal Court of five Judges concluded:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must … be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”
62. In Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey J concluded:
“The hypothesis will not be reasonable if it is:
(i)contrary to provided or known scientific facts;
(ii)obviously fanciful, impossible, incredible absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)since (1994) inconsistent with (not upheld by) an applicable SoP
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)then truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
Consideration of the Issues
63. The Tribunal has adopted the four stages in Repatriation Commission v Deledio (1998) 49 ALD 193 in deciding this application for review:
“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.” (emphasis added)
Whether the material before the Tribunal points to an hypothesis that connects the injury or disease with the circumstances of service
64. There is material before the Tribunal that Mr Rice was exposed to a number of stressors during his period of operational service in Vietnam. There is further material before the Tribunal that Mr Rice suffers from very significant anxiety symptoms that fulfil the diagnostic criteria for PTSD (see Report of Dr G Apel, Exhibit A1). Finally, there is material before the Tribunal of Mr Rice’s smoking habits and alcohol consumption prior to, during and after operational service. Mr Rice has abuse/dependence and chronic simple bronchitis as “non-service related disabilities” (see paragraph 6).
65. Accordingly, the Tribunal considers that there is sufficient material before the Tribunal that points to an hypothesis that connects PTSD and alcohol dependence or abuse with the circumstances of operational service. Specifically, the exposure to stressors during operational service.
66. Furthermore, the Tribunal considers that there is sufficient material that points to an hypothesis that connects chronic bronchitis with the circumstances of operational service. Specifically, the smoking habits of Mr Rice over time.
67. The Tribunal concludes that each hypothesis represents “a proposition made as a basis for reasoning without assumption of its truth; supposition as starting point for further investigation from known facts” (see East’s case).
Whether a SoP is in force
68. Three SoPs are in force that are relevant to this application for review.
(a)Post Traumatic Stress Disorder: Instruments No 3 and 4 of 1999, as amended by Instruments No 54 and 55 of 1999 respectively;
(b)Alcohol Dependence or Alcohol Abuse: Instruments No 76 and 77 of 1998; and
(c)Chronic Bronchitis and Emphysema: Instruments No 73 and 74 of 1997.
Whether the Hypotheses Raised are Reasonable
69. The Tribunal concludes that the hypotheses raised in paragraph 64 of these reasons are reasonable because, pursuant to subsection 120(3) of the Act, the following factors are contained within the SoPs and are consistent with the template or factor:
(i) SoP No 3 of 1999: Post Traumatic Stress Disorder
Factor 5(a): “experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder” (emphasis added). Where [in SoP No 54 of 1999]:
“‘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.”
Factor 5(a) and the meaning of “experiencing a severe stressor” are equivalent to the above in SoP No 4 of 1999 and SoP No 55 of 1999 respectively.
(ii) SoP No 76 of 1998: Alcohol Dependence/Abuse
Factor 5(a): “suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”; or
Factor 5(b): “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse” (emphasis added). Where:
“‘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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
Factors 5(a), 5(b) and the meaning of “experiencing a severe stressor” are equivalent to the above in SoP No 77 of 1998.
(iii) SoP No 73 of 1997: Chronic Bronchitis
Factor 5“(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only, …
(ii)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or …
(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or…”
Factors 5(a)(ii) and 5(b) are equivalent to the above in SoP No 74 of 1997 except for the significant difference in the smoking threshold that must be satisfied: fifteen pack-years of cigarettes rather than ten pack-years of cigarettes.
Whether the factual evidence before the Tribunal discharges the legal standard of proof
70. The Tribunal firstly considers the hypothesis that links PTSD with operational service through “experiencing a severe stressor”. The psychiatric condition of PTSD suffered by Mr Rice is a “non-service related” disability (paragraph 6). Central to the diagnosis of PTSD under the SoP is clause 2(b)(A). Paragraph (i) of this clause has the same meaning as “experiencing a severe stressor” in SoP No 54 and is conjunctively joined to paragraph (ii).
“2(b)For the purposes of this Statement of Principles, ‘post traumatic stress disorder’ means a psychiatric condition meeting the following description (derived from DSM-IV):
(A)the person has been exposed to a traumatic event in which:
(i)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; and
(ii)the person’s response involved intense fear, helplessness, or horror; and …”
71. This clause is a threshold requirement for the diagnosis of PTSD under the SoP before proceeding to other elements of the diagnosis particularised in sub-clauses 2(b)(B), (C), (D), (E) and (F).
72. In relation to the meaning of some of the terms contained in the SoP definition for “experiencing a severe stressor”, the Tribunal has adopted the following approach taken in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106, where the Tribunal said:
“The word ‘witnesses’ suggested that the person was present at the event involving real or present (ie actual) or threatened death. The word ‘experienced’ suggests that the person observed or encountered such an event and the word ‘confronted’ that he or she was faced with the event.”
73. Dr Apel’s evidence was that the stressor incidents described by Mr Rice would fall somewhere in the middle of the full spectrum of stressors from extreme to low level events (a person varying might be exposed to) and that the “human hand” and “morgue” stressors were the most severe stressors experienced by Mr Rice because of their identification with death [paragraphs 33(g) and (h)].
74. Dr Wainwright’s evidence was that, at best, the stressors experienced by Mr Rice were only moderate (the compound stressor). The “patrol stressor” was mild–moderate and the “human hand” stressor only mild. None of the stressors experienced by Mr Rice, in his opinion, could be described as severe stressors.
75. The Tribunal concludes, based on the evidence of both psychiatrists, that whilst some of these incidents may have involved “horror”, or some degree of fear, these incidents did not involve exposure to a “severe stressor” as required by the SoP. The reasoning adopted in Slattery’s case is also relevant in this regard.
76. Furthermore, based on all of the materials before the Tribunal, including the conclusions of Dr Apel and Dr Wainwright, the Tribunal finds that the material before it does not prove beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that Mr Rice “experienced a severe stressor” whilst on operational service in Vietnam. None of the traumatic events described in the four stressor incidents satisfies the PTSD SoP requirements for “experiencing a severe stressor”.. Accordingly, the Tribunal concludes that the claim cannot succeed because one (or more) facts necessary to support the reasonable hypothesis is disproved beyond reasonable doubt: see Deledio’s case.. As Mr Rice does not satisfy Factor 5(a) of the PTSD SoP, the Tribunal finds, for the purposes of subsection 120(1), that it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Rice’s PTSD was war-caused.
77. A similar conclusion could be reached by the Tribunal in relation to Mr Rice’s defence service. SoP No 4 of 1999 as amended by SoP No 55 of 1999 is not satisfied in accordance with the standard of proof imposed by subsection 120(4).
78. Whilst these findings may seem harsh, it would be more correct to describe the outcome as unfortunate. The Tribunal has already made observations in other decisions in this jurisdiction concerning the threshold test of “experiencing a severe stressor” to satisfy the PTSD SoP. Because of individual differences in trauma thresholds, some individuals may be more protected, and some more vulnerable, to developing clinical symptoms after exposure to different stressful situations. In the Repatriation Medical Authority Report, Consensus Conference: Stress and Challenge, Health and Disease, Brisbane (9–11 February 1998), the following conclusion appeared in the “Executive Summary” with respect to situations that qualify as “stressors” [see paragraph 72] under the Veterans’ Entitlements Act 1986:
“It was recognised that this definition of stressor was at the more severe end of the spectrum of psychosocial stressors that individuals can be faced with either in military service or in civilian life.
The participants recognised that less obviously severe stressors might contribute to morbidity but chose not to deal with data concerning such effects because of lack of consistent systematic definitions for such stressors in the scientific literature and the very diverse methodologies and outcome measures which allowed little opportunity for pooling of data or comparison.”
79. Oral evidence in response to Tribunal questions to both psychiatrists provided the following responses:
(a)that different individuals have different threshold exposure to stressors – some were more protected, others more vulnerable to developing PTSD;
(b)that this differential response to stressors resulted in some subjectivity in evaluation;
(c)that the trauma threshold in the SoP was at the very severe end of stressors people might experience in civilian life or in military service; and
(d)that such a trauma threshold, related to a single, clear event, may be limiting when exposure to lower level, multiple, more prolonged stressors were involved.
80. Accordingly, the Tribunal makes the further observation that the RMA Report and the expert psychiatric opinion evidence provided at the Tribunal hearing has implications for both parties.
81. Given the beneficial nature of the legislation, some reconsideration by the respondent may be warranted, for an update of the characterisation of “severe stressors” and PTSD through a review of contemporary medical research and publication – given the RMA Report was published five years ago.
82. For applicants, any diagnosis of the psychiatric condition of PTSD may warrant an extension beyond the boundary of PTSD to consider evaluation of Generalised Anxiety Disorder as well. Moreover, the SoP threshold stressor for Generalised Anxiety Disorder - a “psychosocial stressor”, is a less onerous requirement to satisfy.
83. The definition for “experiencing a severe stressor” in the Alcohol Dependence/Abuse SoP is reasonably similar to the meaning given to PTSD. Notwithstanding this “extended meaning”, the Tribunal concludes, based on its earlier findings (paragraphs 75-76), that neither of the four incidents described by Mr Rice fulfil the meaning of “experiencing a severe stressor” as defined in the Alcohol Dependence/Abuse SoP. Accordingly, Factor 5(b) is not satisfied. Furthermore, given the Tribunal’s earlier finding that Mr Rice’s PTSD was not war-caused, Factor 5(a) is not satisfied.
84. Consequently, the Tribunal concludes that the claim cannot succeed because one or more facts necessary to support the “reasonable hypothesis” is disproved beyond reasonable doubt. As Mr Rice does not satisfy either Factor 5(a) or Factor 5(b), the Tribunal finds, for the purposes of subsection 120(1), that it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Rice’s alcohol dependence/abuse was war-caused.
85. A similar conclusion could be reached by the Tribunal in relation to Mr Rice’s defence service. SoP No 77 of 1998 is not satisfied in accord with the standard of proof imposed by subsection 120(4).
86. Dr M Thomson’s assessment was that Mr Rice’s “history suggests chronic simple bronchitis with intermittent episodes of acute bronchitis”.. The earliest date for the clinical onset of symptoms would be around 1984 (Exhibit R1, Folios 63, 64).
87. The evidence and material before the Tribunal indicates that Mr Rice had commenced a smoking habit on entry to the Army in 1956 (five to six cigarettes per day) increasing to ten to twelve per day by 1960 and then until he went to Vietnam in 1969 where he increased the rate to fifty to sixty per day during his period of operational service (Exhibit R1, Folios 33, 34). In his oral evidence, Mr Rice acknowledged that he commenced smoking in 1956 and on discharge in 1981 smoked on average twenty to thirty cigarettes per day (paragraph 24).
88. Consideration of these facts leads the Tribunal to conclude that Mr Rice commenced smoking at enlistment and maintained his habit of smoking before commencing operational service. This habit was the start of a cumulative process that saw an increase in his smoking habit during operational service. However, whilst Mr Rice’s smoking habit continued after operational service, the amount he continued to smoke was significantly reduced, relative to the amount smoked during operational service [that is, by about a third or a half]. The Tribunal concludes that the increase in tobacco service during operational service was only short term and that later variations were an expression of his nicotine addiction.
89. The Tribunal concludes that Factor 5(a)(ii) and Factor 5(b) of the Chronic Bronchitis SoP are not satisfied as, for the purposes of subsection 120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Rice’s chronic bronchitis was war-caused.
90. A similar conclusion could be reached by the Tribunal in relation to Mr Rice’s defence service. SoP No 74 of 1997 is not satisfied in accord with the standard of proof imposed by subsection 120(4).
91. For all of the above reasons, the Tribunal affirms the decision under review.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .......................................................................................
AssociateDate of Hearing 6 November 2002
Date of Decision 14 February 2003Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
Solicitor for the Respondent Mr M Smith, Departmental Advocate
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