Ritchie and Repatriation Commission

[2002] AATA 947

DECISION AND REASONS FOR DECISION [2002] AATA 947

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2001/1395

VETERANS'     AFFAIRS        DIVISION

Re:            COLIN JAMES RITCHIE

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member
Dr P. Fricker, Member

Date:             18 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS – alcohol dependence – post traumatic stress disorder – hypertension – whether war-caused – whether experienced a severe stressor – date of clinical onset
Veterans' Entitlements Act 1986
Statements of Principles

Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
Nº 25 of 2001 and Nº 31 of 1999 concerning hypertension
Nº 3 of 1995 as amended by Nº 54 of 1999 concerning post traumatic stress disorder

REASONS FOR DECISION

18 October 2002  Mr B.H. Pascoe, Senior Member
  Mr C. Ermert, Member
  Dr P. Fricker, Member

1. This is an application to review a decision of the Veterans' Review Board (the VRB) of 17 October 2001, which affirmed a decision of the respondent of 18April2001 refusing the applicant's claim for medical treatment and pension for incapacity from …Anxiety, Depression, later considered by the respondent as …Other specified Alcohol Psychosis, Alcohol abuse and High blood pressure.

2. At the hearing the applicant was represented by MrA. Larkin, of counsel, andthe respondent by Mr G. Purcell, of counsel. Evidence was given by the applicant, MrC.J.Ritchie; two psychiatrists, DrE.Cole and DrL.Walton; and CommodoreP.Mulcare of Write Way Research Services. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (T1-T16), the following documents were tendered in evidence:

   Report of Dr E. Cole dated 23 January 2002  Exhibit A1
   Statement of Mr Ritchie dated 10 July 2002  Exhibit A2
   Statement of Mr Ritchie dated 24 October 2002  Exhibit A3
   Clinical notes of Dr J. McKenzie, general practitioner                Exhibit R1
   Transcript VRB Hearing dated 17 October 2001  Exhibit R2
   Clinical notes of Peninsula Community Health Service              Exhibit R3
   Documents provided by BHP Billiton Ltd (BHP)  Exhibit R4
   Documents from file of Centrelink  Exhibit R5
   Documents from file of Transport Accident Commission            Exhibit R6
   Report of Dr D. Barton dated 23 May 2002  Exhibit R7
   Report of Write Way Research Service dated 28 June 2002     Exhibit R8
   Report of Dr L. Walton dated 11 July 2002  Exhibit R9
   Report of Dr L. Walton dated 26 July 2002  Exhibit R10

Based on medical reports since the date of the application, the conditions claimed as being war-caused were amended to alcohol abuse or dependence, post traumatic stress disorder (PTSD) and hypertension.

1. MrRitchie served in the Royal Australian Navy (the navy) from 22October1962 to 24March1970.  He had eligible war service and operational service during the following periods:

   (a)in Vietnamese waters:

   from 27 May 1965 to 26 June 1965
   from 14 September 1965 to 20 October 1965
   from 26 May 1966 to 13 June 1966

   (b)in waters around Sarawak, Malaysia, Singapore and Borneo as part of the Far East Strategic Reserve

   from 24 May 1964 to 26 June 1964
   from 17 February 1966 to 30 April 1966
   from 8 June 1966 to 5 July 1966
   from 16 July 1966 to 3 August 1966

2. MrRitchie left school at the age of 16 years and joined the navy at age 19years.  He trained at HMAS Cerberus for some 6months before joining HMASSydney as a junior stoker.  It was his belief that the May/June1965 tour was the first time that an Australian troop ship had sailed to Vietnam.  MrRitchie outlined his then fears of the possibility of an attack by the Viet Cong.  He was aware that the ship's boats were launched while in harbour and that scare charges would be dropped.  However, he could not recall being told when the scare charges were being dropped.  As MrRitchie was in the boiler room below the waterline when on duty, he was unable to see what was happening.  He said that there were several occasions when loud explosions were heard and, initially, he did not know whether they arose from scare charges or enemy attack.  He said that, when off duty and on deck, he saw tracer bullets and rocket fire and heard explosions on shore which added to his apprehension, although there was never any attack on his ship.  MrRitchie said that, during the tours in the Far East Strategic Reserve, members of the ship's company were required to board suspicious boats while fully armed.  When on duty he was aware that boats were being chased by the ship, being on full power and weaving from side to side.  On occasions, when off duty, he observed boarding parties.

3. MrRitchie maintained that, after operational service, he was unable to sleep properly and suffered nightmares and had intrusive thoughts, when awake, about the tours of Vietnam and service in the Far East Strategic Reserve.  He said that he had increased his consumption of alcohol significantly after the first tour of Vietnam.  He said that, very soon after his return to Australia from that first tour, he drank too much at a Sydney hotel, created a disturbance which culminated in a 42-day sentence of imprisonment at Holsworthy for punching a military policeman.  He did include dreams of the military prison among his subsequent nightmares.

4. MrRitchie said that, while prior to the tour of Vietnam, he was drinking alcohol regularly, this was at the rate of some 6glasses of beer on each of 2nights per week on average.  He said that, after his discharge from the navy, he was consuming at least 8to 10small cans of beer per day.  From approximately 15years ago, his consumption was said to be a half bottle of whisky, 6small cans of beer before going to a hotel and then drinking beer at the hotel for 1to 2hours.  MrRitchie said that he had been banned from a local hotel and his local RSL club for excessive drinking.

5. MrRitchie acknowledged that, at age17, he had been detected by the police for being on licenced premises while under age and, on a couple of occasions, in possession of bottles of beer outside a dance hall.  He acknowledged also that, in 1963, he had been charged with manslaughter of the manager of a private hotel.  He said that he had consumed some 6glasses of beer at a hotel and then went across the road to a private hotel which was well-known as a place where one could book a room with a lady friend without question.  He said that the manager, for an unknown reason, objected to his entering with another sailor and a lady friend.  A fight ensued in which MrRitchie punched the manager, who subsequently died.  He said that, at his trial, the Judge directed the jury to make a finding of not guilty.  MrRitchie did not believe that he had been drunk at the time of the assault; believed he had been polite and was not aware of the reasons for the manager's objections.  He said that, during his time in the navy, there were occasions when he became drunk and was involved in fighting although he said that the fights were not always the result of alcohol, being sometimes over a girl.  He believed that there was a culture of drinking and fighting in those days.

6. MrRitchie said that he had been an amateur boxer prior to joining the navy and had some 6fights as a light heavyweight.  He said that he continued during service and made a come back to boxing after service.  Subsequent to his discharge, he had some 11professional bouts, generally of 4to 6rounds, and won approximately one-half of those bouts.  However, he maintained that he continued drinking some 8to 10cans of beer while he was boxing.  MrRitchie acknowledged that he had participated in weight-lifting also and, although he was said to have had potential for competition in that field, did not compete and made no concessions in his drinking in relation to that activity.

7. After his discharge from the navy, MrRitchie had a number of short-term unskilled jobs until 1973, when he was employed by BHP.  He obtained qualification as a rigger.  In December1994, he suffered an injury to his right foot and was incapacitated for some 7months.  A claim for compensation was settled in April1998 which involved him ceasing work.  MrRitchie said that he was drinking to excess everyday and his attendance record and work performance had been poor and that his employment was likely to have terminated as a result in any event.  Since April1998, he has been unable to obtain employment and believes that his reputation for drinking is well-known and a cause of his inability to obtain employment.  He has been married twice.  The first marriage in 1965 lasted 11years and the second in 1984 lasted 3years.  He said that both marriages failed because of his excessive drinking.

8. CommodoreMulcare provided an outline of the defensive measures against diver or mine attack on navy ships while in Vung Tau harbour.  He confirmed that members of the crew of HMAS Sydney would have seen night distant tracer fire and occasional parachute flares and explosions in the delta area to the north of Vung Tau but that there were no such activities on the Vung Tau peninsula near the ships.  He noted, also, that,

   … before the ship's first visit in June1965, there was an air of uncertainty about what might happen, and the ship's company and the troops on board were all keyed up when the ship anchored in Vung Tau.  

9. Dr Cole examined MrRitchie on 17 January 2002 and provided a report dated 23January2002 (exh A1).  In his opinion, MrRitchie is suffering from chronic PTSD of moderate degree, complicated by alcohol dependence.  Dr Cole saw the condition as stemming from MrRitchie's wartime experiences in Vietnam in which he believed himself to be in danger and reacted accordingly.  Dr Cole took a similar history of MrRitchie's drinking to that given to the Tribunal.  However, Dr Cole did say in his report that:

   …
   He seldom drank before he joined the Navy.  His drinking increased before they went to Vietnam as they would go to the hotel or wet canteen perhaps once or twice a week.  However, he did not drink excessively even at this stage as he was an athlete.  He was an amateur boxer.  He played football and cricket.  He began to drink more heavily on his return to Vietnam the first time.  

In his oral evidence, Dr Cole accepted that the 1963 assault resulting in a death could be seen as a severe stressor.  He said that he would be surprised if MrRitchie had been drinking 8to 10cans of beer per day while a professional boxer and a weight-lifter.  In relation to the diagnostic criteria for PTSD, Dr Cole said that he believed that the criteria is too rigid and, in making a diagnosis, does not go through each item on the list in any detail.

1. DrWalton examined MrRitchie on 4 June 2002 and provided a report dated 11June2002.  Dr Walton concluded that the major diagnosis is that of alcoholism or alcohol dependence in terms of clinical severity.  He believed that MrRitchie would also attract a diagnosis of PTSD.  However, Dr Walton doubted that the history given by MrRitchie would satisfy the definition of a severe stressor for either condition, either in terms of objective events or subjective response to those events.  DrWalton was not aware of the manslaughter charge in 1963 and, if he had known of it, would have explored the effect of that event in relation to alcohol dependence and its psychological impact as a stressor.  He was of the view, also, that being a professional boxer appeared incompatible with MrRitchie's stated consumption of alcohol.  DrWalton said that he was satisfied with a diagnosis of PTSD and, therefore, considered it superfluous to consider any other diagnosis.

2. As MrRitchie had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.  Section120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person.  As the claim was made after 1June1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act.  In this case the relevant SoPs are:

   Instrument Nº76 of 1998 concerning alcohol dependence or alcohol abuse
   Instruments Nº31 2001 and Nº25 of 1999 concerning hypertension
   Instrument Nº3 of 1999 as amended by Nº54 of 1999 concerning post traumatic stress disorder

Each of the relevant SoPs set out the factors, one of which must relate to the veteran's service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.  The facts relied on in relation to the claim for alcohol dependence are:

…

5.…

(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or

(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse. 

In relation to hypertension, the applicant relies on factor 5(b):

5.…

(a)…

(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;    

It was conceded by the respondent that, if MrRitchie succeeds in his claim to have alcohol dependence accepted as war-caused, then he would be entitled to acceptance of the claim for hypertension.  In relation to the claim for PTSD, the factor relied upon is 5(a), which reads:

5.     …

(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;  

In this SoP, the definition of experiencing a severe stressor is stated as:

8.…

"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;  

In the SoP concerning alcohol dependence, the definition of experiencing a severe stressor is virtually identical but uses the words, or a threat to the person's or other people's physical integrity and continues with the additional words, which event or events might invoke intense fear, helplessness or horror.

1. It was submitted for the applicant that he suffered from PTSD prior to the clinical onset of alcohol dependence and, consequently, satisfies factor5(a) of the SoP concerning alcohol dependence.  Alternatively, it was said that he had experienced a severe stressor during operational service so that factor5(b) was satisfied.  It was further said that factor5(a) of the SoP relating to PTSD was satisfied having experienced a severe stressor.  It was common ground that, if the claim for alcohol abuse was accepted, the applicant would satisfy factor5(b) of the SoP concerning hypertension.

2. For the respondent, it was submitted that the applicant did not satisfy factor5(a) of the SoP concerning alcohol dependence or factor 5(a) of the SoP concerning PTSD as he had not experienced a severe stressor as defined.  It was argued that, in any event, the applicant did not satisfy the diagnosis of PTSD under the relevant SoP.  The respondent submitted, further, that the date of clinical onset of alcohol dependence may well have been prior to operational service given the evidence of problems relating to alcohol at age17, the assault in 1963 and evidence of drinking and fighting prior to that service.  Alternatively, it was said that it was possible that the clinical onset was many years later as it was difficult to accept that, on the balance of probabilities, the applicant was suffering alcohol dependence during his period as a professional boxer after completion of his navy service in 1970, some 4years after his last operational service.

3. It is appropriate to deal firstly with the claim for PTSD as the acceptance of this claim is a prerequisite for the satisfaction of factor5(a) of the SoP for alcohol dependence.  One difficulty faced by the Tribunal is that, while both psychiatrists, who examined MrRitchie for the purposes of his application, provided a diagnosis of PTSD, the diagnostic criteria under the relevant SoP do not necessarily support such a diagnosis.  DrWalton acknowledged that the interrelationship between alcohol dependence and a psychiatric condition provides difficulties.  In addition, while maintaining his diagnosis of PTSD, Dr Walton considered that the subjective response by MrRitchie to the stressors experienced on operational service may not satisfy the criteria of the relevant SoP or DSM-IV.  Both require the person's response to the event or events to have involved intense fear, helplessness, or horror.  Dr Cole stated that he thought that the diagnostic criteria for PTSD was too rigid and that he does not normally go through each item on the list in detail.  In a report of 14March2001 (T9), DrP.Graf, consultant psychiatrist, said that:

   … It is difficult to determine whether he suffers from separate depression or anxiety problems since we know that chronic alcohol ingestion produces its own mood disorders (DSM IV 291.8).  My experience in these sorts of cases is that most symptoms are attributable to heavy drinking and the relationship and social consequences of this.  

While conscious of these difficulties relating to a diagnosis of PTSD, we accept the evidence of DrCole, called by the applicant, and DrWalton, called by the respondent, that MrRitchie suffers from PTSD.

1. Given the acceptance of the diagnosis of PTSD, it is then necessary to consider whether it can be said that a reasonable hypothesis has been raised connecting that condition with MrRitchie's operational service.  For this, factor5(a) must have existed.  The factor is an objective test.  In this case, while we accept that MrRitchie would have been apprehensive and nervous that his ship could have been attacked, there is clear evidence that there was no event or events during his service which involved actual or threat of death or serious injury or a threat to personal integrity.  While in Vietnamese waters, scare charges were dropped and MrRitchie may have seen signs in the distance of war activity.  However, there was no actual or threatened attack on his ship, there was no specific threat of injury or death, no engagement with the enemy and no witnessing of casualties, casualty clearance, atrocities or abusive violence.  What there was, was a perception that a threat or an attack might happen.  His position was no different from any other member of the armed services who was in a war zone and a potentially hostile environment with a natural degree of nervousness.  Consequently, we are satisfied that no factor set out in the relevant SoP related to MrRitchie's service to raise a reasonable hypothesis connecting PTSD with his service.

1. In relation to the claim for alcohol dependence, our finding in connection with the claim for PTSD results in factor5(a) not being satisfied as the psychiatric disorder itself has to be connected with service.  For the same reasons as set out above relating to experiencing a severe stressor, we find that factor5(b) is not satisfied so as to raise a reasonable hypothesis connecting alcohol dependence with MrRitchie's service.  In this factor, under the SoP concerning alcohol dependence, there is both an objective and subjective test.  The objective criteria is not met as MrRitchie did not experience, witness nor was confronted with an event or events involving actual or threat of death or injury.  Secondly, we are satisfied that the apprehension suffered by MrRitchie could not be said to be intense fear, helplessness or horror potentially invoked by the actual events during his operational service.

2. It should be said that we have serious reservations on the submission that the clinical onset of alcohol dependence was during or soon after the operational service.  We acknowledge the difficulty of accepting a state of alcohol dependence in 1970 when MrRitchie was boxing professionally and was seen to have potential for competition in weight-lifting.  However, we are prepared to accept his sworn evidence that he continued drinking some 8to 10cans of beer during this period.  However, there is clear evidence of alcohol problems at age 17, in 1963 and on other occasions prior to operational service.  By its very nature, alcohol dependence is a progressive condition and it seems very possible that the clinical onset of that condition was prior to operational service.  However, given our finding that the material before the Tribunal does not raise a reasonable hypothesis connecting alcohol dependence with the circumstances of MrRitchie's particular service, it is unnecessary for us to come to a firm conclusion on the date of clinical onset.

3. Having found that alcohol dependence was not war-caused, it follows that the claim for hypertension cannot succeed.

4. It follows from these findings that the decision under review should be affirmed.

   I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member
   Mr C. Ermert, Member
   Dr P. Fricker, Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  30 August 2002
   Date of Decision:  18 October 2002
   Counsel for the applicant:           Mr A. Larkin
   Solicitor for the applicant:           Williams Winter Higgs
   Counsel for the respondent:        Mr G. Purcell

   Solicitor for the respondent:        Advocacy Section, Department of Veterans' Affairs