Rodney Bawden and Repatriation Commission
[2014] AATA 462
•9 July 2014
[2014] AATA 462
Division VETERANS' APPEALS DIVISION File Number(s)
2009/3864
Re
Rodney Bawden
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
G.D. Friedman, Senior MemberDate 9 July 2014 Place Melbourne 1. The decision of the Veterans’ Review Board made 20 May 2009 is set aside.
2. In substitution for the decision set aside it is decided that posttraumatic stress disorder and alcohol use disorder suffered by Mr Bawden are war-caused with effect from 12 January 2007.
............................[sgd]............................................
Deputy President J W Constance
CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – naval service in Vietnam – posttraumatic stress disorder – alcohol use disorder – whether war-caused – decision under review set aside
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss 9, 120(1)
CASES
Bawden and Repatriation Commission [2011] AATA 283
Bawden v Repatriation Commission [2012] FCA 345
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321Repatriation Commission v Hill [2002] FCAFC 192
SECONDARY MATERIALS
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV)
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Washington DC, American Psychiatric Association, 2013 (DSM-5)
REASONS FOR DECISION
Deputy President J W Constance
G.D. Friedman, Senior Member9 July 2014
INTRODUCTION
Rodney Bawden served in the Royal Australian Navy (the navy) from
8 January 1964 to 7 January 1976. His service included nine voyages to Vietnam on HMAS Sydney between 1967 and 1969, and this constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).The respondent accepts that Mr Bawden’s medical conditions of bilateral sensorineural hearing loss and tinnitus are war-caused, and he receives a disability pension at 40 per cent of the general rate. The respondent rejected his claim that posttraumatic stress disorder (PTSD), alcohol dependence or abuse and depressive disorder are war-caused conditions. Mr Bawden’s claim was refused by the Veterans’ Review Board, and he sought review of the decision. On 2 May 2011 the Tribunal affirmed the decision (Bawden and Repatriation Commission [2011] AATA 283).
Mr Bawden appealed the Tribunal’s decision to the Federal Court of Australia and on 5 April 2012 Gray J set aside the decision and remitted the matter to the Tribunal to be heard and decided again (Bawden v Repatriation Commission [2012] FCA 345). The respondent appealed the decision of Gray J to the Full Federal Court and on 3 December 2012 the Full Court allowed the appeal and set aside the orders of the primary judge (Repatriation Commission v Bawden (2012) 206 FCR 296). The Full Court affirmed the part of the Tribunal’s decision that Mr Bawden does not suffer from PTSD as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV). The Full Court set aside the part of the decision of the Tribunal which found that Mr Bawden does not suffer from war-caused alcohol dependence and war-caused depressive disorder, and remitted the matter to the Tribunal for determination of the question whether Mr Bawden suffers from a war-caused disease other than PTSD as defined in the DSM-IV.
ISSUES
The orders of the Full Federal Court preclude the Tribunal from determining whether Mr Bawden suffers from PTSD as defined in the DSM-IV. However after the Full Court decision of 3 December 2012 the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) was released in May 2013. There was no dispute between the parties that there is nothing in the Act that requires the decision-maker to use DSM-5 instead of DSM-IV. However the Tribunal has concluded that, where possible, the later version is to be preferred. Consequently the Tribunal is required to determine whether Mr Bawden suffers from PTSD as defined in DSM-5. Further there was no dispute between the parties that Mr Bawden suffers from alcohol dependence (as defined in DSM-IV). Therefore the issues before the Tribunal are:
· Does Mr Bawden suffer from PTSD as defined in DSM-5? If so, is the condition war-caused?
· Does Mr Bawden suffer from any other psychological condition or conditions as defined in DSM-5 other than a condition concerning alcohol? If so, is each condition war-caused?
· Does Mr Bawden suffer from an alcohol condition as defined in DSM-5? If so, is the condition war-caused?
DOES MR BAWDEN SUFFER FROM PTSD AS DEFINED IN DSM-5?
The Tribunal is required to determine to its reasonable satisfaction whether
Mr Bawden suffers from any particular injury or disease (Benjamin v Repatriation Commission [2001] FCA 1879, Repatriation Commission v Bawden (2012) 206 FCR 296).In DSM-5 a diagnosis of PTSD requires:
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
1. Directly experiencing the traumatic event(s).
2. Witnessing, in person, the event(s) as it occurred to others.
3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).
…
B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:
1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).
…
2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).
…
3. Dissociative reactions (e.g. flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings).
…
4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).
C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following:
1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).
D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).
2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).
3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.
4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).
5. Markedly diminished interest or participation in significant activities.
6. Feelings of detachment or estrangement from others.
7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).
E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:
1. Irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.
2. Reckless or self-destructive behaviour.
3. Hypervigilance.
4. Exaggerated startle response.
5. Problems with concentration.
6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).
F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.
Mr Bawden told the Tribunal that he joined the navy in 1964 as a Junior Recruit at the age of 15 years. He undertook initial training at HMAS Leeuwin in Western Australia and sea training on HMAS Anzac. He then began specialist training as a radio operator at HMAS Cerberus. In 1967 he joined the troop carrier HMAS Sydney as an Able Seaman Radio Operator, and made the following trips to Vung Tau Harbour in Vietnam:
· 8-22 April 1967
· 28 April-12 May 1967
· 19 May-14 June 1967
· 20 December 1967-3 January 1968
· 17 January -16 February 1968
· 27 March-26 April 1968
· 21 May-13 June 1968
· 13-28 November 1968
· 8-25 February 1968
Mr Bawden stated that prior to his operational service in Vietnam he had no emotional problems and was enjoying his naval career. He said that the traumatic event upon which he was relying occurred in Vietnamese waters when he observed a small wooden fishing vessel (known as a sampan) that was destroyed by a naval patrol boat (the sampan event). He told the Tribunal that he could not remember on which visit to Vietnam the event occurred. He said that HMAS Sydney was at anchor in Vung Tau Harbour in a state of readiness and he had completed his shift as a radio operator. He was standing on the flight deck, when he saw an unmarked patrol boat travelling at speed towards the right side of the ship. The patrol boat passed HMAS Sydney and emerged on the other side. He then noticed a sampan which appeared to be about 600 to 800 yards (about 550 to 730 metres) away. He saw people on board the sampan. Initially he feared for his own safety because he thought that HMAS Sydney was under attack from the patrol boat, but he realised that the patrol boat was dealing with the sampan which was heading towards the ship. The patrol boat fired at the sampan, which exploded. He saw debris in the water and watched as personnel from the patrol boat collected matter from the water, which he assumed to be bodies or body parts.
In respect of his feelings at the time, Mr Bawden said that he was upset and horrified at witnessing the deaths, particularly as he was only about 19 years of age. He said that he returned to the mess and sat on his own until he calmed down, although the feelings of horror and fear he experienced as a result of the incident have remained with him ever since. Mr Bawden emphasised that he has bad memories of the event and has difficulty sleeping, has a temper and has been violent. His anti-social behaviour has damaged his relationship with his children and grandchildren, causing him to move to Tasmania to be away from his family. He takes anti-depressant medication and avoids crowds.
Under cross-examination Mr Bawden agreed that he had told Mr F O’Connor, psychologist, that he did not see any bodies during the sampan event, but explained that he felt unable to tell Mr O’Connor the truth at that time. He did say that the 54 sessions with Mr O’Connor beginning in 2006 empowered him to commence talking about the sampan event. He also agreed that in a written statement dated 17 August 2009 he said that he could not see anybody on board the sampan. Mr Bawden told the Tribunal that this part of the statement was incorrect.
In a written report dated 13 December 2010 Dr G White, consultant psychiatrist, diagnosed PTSD on the basis of the sampan event which Mr Bawden told him occurred in 1967, and that the condition was characterised by
re-experiencing symptoms, hyperarousal and avoidance symptoms, which
Mr Bawden attempted to relieve by drinking heavily. Dr White took a history of
Mr Bawden seeing the unmarked patrol boat approaching …at speed and …I didn’t know if we were under attack. Mr Bawden told Dr White that after the sampan exploded:…it felt like my whole guts had dropped out, I went numb… I can’t swear they were picking up bodies or live people … I went to my quarters, and went and hid because I was horrified and numb for an hour or so… I was piped back up to the wireless office … I seemed to [be] robotic after that, and have been ever since…
Dr White said that Mr Bawden reported recurrent nightmares since the event and images during the day, and symptoms of increased arousal including insomnia and irritability. He assessed Mr Bawden as displaying genuine distress when describing the sampan event.
In a further report dated 19 June 2013 Dr White stated that his previous diagnosis of PTSD remained current, and the level of psychological distress prevented Mr Bawden from successfully maintaining engagement in psychiatric or psychological treatment. Dr White estimated that the date of clinical onset of PTSD was approximately 1967, the date of the sampan event.
Dr C. Been, consultant psychiatrist, said in a written report dated 11 July 2007 that he had been treating Mr Bawden since 31 January 2007. He diagnosed PTSD on the basis of the sampan event and another incident that occurred in Vietnam.
Dr Been recorded a history of …an incident where an American Gun Boat blew up a Vietnamese boat in front of his vessel. This incident also stressed him and caused him concerns for his life.Commodore A Brecht stated in reports dated 11 January 2010 and 5 April 2011 on behalf of Writeway Research Services Pty Ltd that he could find no reference to the sinking of a sampan in records of the relevant voyages by HMAS Sydney or in US naval records. However a number of veterans have made similar claims that a sampan was sighted between 600 and 1200 yards (about 550 to 1100 metres) from HMAS Sydney and, based on all the material including conversations with former navy personnel, Commodore Brecht concluded that if the sampan event occurred it was most likely to have been on 1 June 1968 (Mr Bawden’s seventh trip to Vung Tau Harbour). He stated that a high state of readiness was maintained while HMAS Sydney was anchored, with frequent movements of barges, helicopters, patrol boats and landing vessels nearby. Commodore Brecht noted that if the sampan was 800 yards (or 730 metres) from HMAS Sydney it would have been a very small object in the water, making identification of the vessel and any occupants extremely difficult to the naked eye.
The Tribunal agrees that identification of the sampan and its occupants from HMAS Sydney would be difficult. However the Tribunal considered Mr Bawden to be a reliable witness and accepts his evidence, supported by his accounts given to Dr White and Dr Been, that he witnessed the destruction of a sampan by a patrol boat during one of his trips to Vietnam, and that he observed what he considered to be the deaths of the occupants of the sampan. Therefore the Tribunal finds that Mr Bawden had exposure to actual or threatened death, serious injury, or sexual violence (Criterion A of the diagnosis of PTSD in DSM-5) by [w]itnessing, in person, the event(s) as it occurred to others.
In view of its findings on the sampan event, the Tribunal is reasonably satisfied that Mr Bawden satisfies the criteria for a diagnosis of PTSD, and the Tribunal concludes that Mr Bawden suffers from PTSD.
IS PTSD WAR-CAUSED?
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Bawden has rendered operational service, the question of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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 [Statement of Principles] 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.
In respect of the first step from Deledio, after considering evidence from
Mr Bawden and the medical evidence about his PTSD and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by
Mr Bawden in that his PTSD arose from his service in the navy and that his PTSD was caused by his witnessing the sampan event. Therefore he satisfies the first step.In respect of the second step in Deledio, there is a SoP in force, being SoP No. 14 of 2014 concerning posttraumatic stress disorder (which amended SoP No. 5 of 2008).In cases where a claim is made in relation to an existing SoP and before the claim is considered another SoP is made, the claim may be considered in accordance with the SoP that is most beneficial to the claim (Repatriation Commission v Gorton (2001) 110 FCR 321). In this case the SoP most beneficial to Mr Bawden is SoP No. 5 of 2008 because it contains factors that are relevant to Mr Bawden’s circumstances, and the Tribunal is satisfied that the use of the words derived from DSM-IV-TR in paragraph 3.(b) of the SoP does not preclude the Tribunal from determining whether Mr Bawden suffers from PTSD. This approach is not inconsistent with the Full Court decision remitting the matter to the Tribunal for determination of whether Mr Bawden suffers from a war-caused disease other than PTSD as defined in the DSM-IV. The words used simply describe the source of the diagnostic criteria employed in drafting the SoP.
Paragraph 6 of SoP No. 5 of 2008 states:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
…
(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;
Paragraph 9 of the SoP states:
9. For the purposes of this Statement of Principles:
…
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
…
"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
Therefore Mr Bawden satisfies the second step.
In respect of the third step of Deledio the Tribunal does not make any findings of fact in forming an opinion as to whether the hypothesis raised is a reasonable one. In Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 at 372‑3 the Federal Court held that …[a] “reasonable hypothesis” involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
After considering evidence from Mr Bawden and the medical evidence about his PTSD and operational service, the Tribunal forms the opinion that the hypothesis raised previously connecting Mr Bawden’s PTSD and his service in the navy is a reasonable one and is consistent with the template in the SoP requiring the experiencing of a category 1B stressor before the clinical onset of PTSD. Therefore Mr Bawden satisfies the third step.
In respect of the fourth step of Deledio the Tribunal must decide whether it is satisfied beyond reasonable doubt that the diagnosed condition is not war-caused. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
For reasons given in relation to whether Mr Bawden suffers from PTSD, the Tribunal accepts his evidence, supported by accounts given to Dr White and Dr Been, that he witnessed the destruction of a sampan by a patrol boat during one of his trips to Vietnam, and that he observed what he considered to be the deaths of the occupants of the sampan. The Tribunal finds that this constitutes a category 1B stressor that was experienced by Mr Bawden before the clinical onset of PTSD. Consequently Mr Bawden satisfies factor 6(b) of SoP No. 5 of 2008 and satisfies the fourth step from Deledio, and the Tribunal is not satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. Therefore the Tribunal finds that Mr Bawden’s condition of PTSD is war-caused.
DOES MR BAWDEN SUFFER FROM ANY OTHER PSYCHOLOGICAL CONDITION OR CONDITIONS AS DEFINED IN DSM-5 (OTHER THAN A CONDITION CONCERNING ALCOHOL)?
Dr White stated in his report dated 19 June 2013 that Mr Bawden’s symptoms appear to meet the criteria for PTSD, which takes precedence over a diagnosis of adjustment disorder. He also stated that, although there is little doubt that at times Mr Bawden suffers from depressive symptoms, these are best regarded as part of the combination of PTSD and alcohol dependence. Dr White noted that intermittent depressive symptoms are common in these conditions and Mr Bawden’s main distress arises from anxiety rather than sadness.
Dr Been, in his report dated 11 July 2007, diagnosed the main condition as longstanding PTSD, plus alcohol abuse. He also referred to depressive symptoms that he suggested commenced more recently, and concluded that a diagnosis of PTSD under DSM-IV was appropriate.
The Tribunal prefers the more recent assessment by Dr White and accepts his evidence that Mr Bawden’s symptoms are indicative of an alcohol condition in addition to PTSD, and that the PTSD takes precedence over any possible diagnosis of adjustment disorder. The Tribunal finds that any other symptoms (such as depressive symptoms noted by Dr Been) are common in these conditions, and the Tribunal accepts Dr White’s conclusion that Mr Bawden’s main distress arises from anxiety rather than sadness. The Tribunal finds that Mr Bawden does not suffer from any other psychological condition or conditions defined in DSM-5 (other than conditions concerning alcohol).
DOES MR BAWDEN SUFFER FROM AN ALCOHOL CONDITION AS DEFINED IN DSM-5?
In DSM-IV the diagnostic criteria for alcohol dependence are:
A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by three (or more) of the following criteria, occurring at any time in the same 12-month period:
1. Tolerance – as defined by either of the following:
oA need for markedly increased amounts of alcohol to achieve intoxication or desired effect.
oMarkedly diminished effect with continued use of the same amount of alcohol.
2. Withdrawal – as characterised by either of the following:
oThe characteristic withdrawal syndrome for alcohol.
oAlcohol is taken to relieve or avoid withdrawal symptoms.
3. Alcohol is often taken in larger amounts or over a longer period than was intended.
4. There is a persistent desire or there are unsuccessful efforts to cut down or control alcohol use.
5. A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
6. Important social, occupational, or recreational activities are ceased or reduced because of alcohol use.
7. Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the alcohol (e.g. continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
Dr Been took a history of Mr Bawden who described commencing the use of alcohol on a very heavy basis during his military service. Dr White noted that
Mr Bawden drank a little on HMAS Anzac and …as much as the average sailor, and that heavy drinking commenced …after the traumatic events on HMAS Sydney. Dr Been diagnosed alcohol dependence.Dr White stated in his report dated 19 June 2013 that Mr Bawden reported a history of commencing to consume alcohol in the navy but as he was aged only about 16 years there were restrictions on his access to alcohol. Heavy drinking commenced in 1967 and 1968 because of his experiences in Vietnam, particularly the sampan event which Mr Bawden believed to have occurred in 1967. Dr White noted that the current alcohol intake is the equivalent of 24 stubbies of full-strength beer and one to one and a half bottles of whiskey every week, including episodes of binge drinking.
In respect of clinical onset of alcohol dependence, Dr White stated that it is not possible to be absolutely sure, but Mr Bawden had articulated reasonably clearly that prior to 1967 and his time on HMAS Sydney he was not suffering from symptoms characteristic of alcohol abuse. Dr White noted that Mr Bawden described a rather rapid onset and progress of significant alcohol abuse and it is likely that he quickly developed alcohol dependence within a few years.
Dr White diagnosed alcohol dependence under DSM-IV and concluded that the diagnosis is characterised by Mr Bawden satisfying the following three or more of the criteria occurring over a 12-month period:
Excessive alcohol intake associated with a stated history of withdrawal symptoms [criterion2], drinking more than intended [criterion 3], unsuccessful efforts to cut down [criterion 4], attendance at Alcoholics Anonymous for three years [criterion 5], and significant social repercussions from his drinking [criterion 6].
In DSM-5 the conditions alcohol dependence and alcohol abuse have been deleted and replaced by the following alcohol-related disorders: alcohol use disorder; alcohol intoxication; alcohol withdrawal; other alcohol-induced disorders; and unspecified alcohol-related disorder. The diagnostic criteria for alcohol use disorder are:
A. A problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1. Alcohol is often taken in larger amounts or over a longer period than was intended.
2. There is a persistent desire or unsuccessful efforts to cut down or control alcohol use.
3. A great deal of time is spent in activities necessary to obtain alcohol, use alcohol, or recover from its effects.
4. Craving, or a strong desire or urge to use alcohol.
5. Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home.
6. Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol.
7. Important social, occupational or recreational activities are given up or reduced because of alcohol use.
8. Recurrent alcohol use in situations in which it is physically hazardous.
9. Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
10. Tolerance, as defined by either of the following:
a. A need for markedly increased amounts of alcohol to achieve intoxication or desired effect.
b. A markedly diminished effect with continued use of the same amount of alcohol.
11. Withdrawal, as manifested by either of the following:
a. The characteristic withdrawal syndrome for alcohol (refer to Criteria A and B of the criteria set for alcohol withdrawal, pp. 499-500).
b. Alcohol (or a closely related substance, such as a benzodiazepine) is taken to relieve or avoid withdrawal symptoms.
Although the Tribunal did not receive medical evidence specifically in relation to alcohol use disorder, the diagnostic criteria in DSM-5 are similar to those for alcohol dependence in DSM-IV, and at least two are required to be manifested for a problematic pattern of alcohol use leading to a clinically significant impairment or disorder. In particular the Tribunal accepts Dr White’s evidence about drinking more than intended (which would satisfy criterion 1 in DSM-5), unsuccessful efforts to cut down (which would satisfy criterion 2) and significant social repercussions from drinking (which would satisfy criterion 6).
Consequently the Tribunal finds that Mr Bawden suffers from alcohol use disorder.
IS ALCOHOL USE DISORDER WAR-CAUSED?
Mr Bawden told the Tribunal that when he lived with his parents before joining the navy there was no alcohol at home, and he commenced drinking after joining the navy. He said that he was a light social drinker before operational service in Vietnam. However during his voyages to Vietnam on HMAS Sydney he began to drink heavily, particularly after the sampan event, and was intoxicated regularly because he could not cope with events that occurred during his naval service. After his discharge he attended Alcoholics Anonymous in 1978 and abstained from alcohol for three years, but then resumed heavy drinking while serving with the Metropolitan Fire Brigade for 13 years, and has continued ever since.
In respect of his drinking Mr Bawden agreed that he began to consume alcohol while training as a Junior Recruit at HMAS Leeuwin, but did not drink while on duty. He agreed that in July 1965 he was admitted to hospital suffering from convulsion while on board HMAS Anzac, and that according to the hospital notes he …apparently had a fit, although there was no history of fits, fainting or headaches and his drinking was noted as Grog 9/week. Mr Bawden denied that he was drunk at the time and said that he had slipped in the mess. He also agreed that in May 1966 he was admitted to hospital with lacerations to his hand and foot after walking into a plate glass window late at night when he was off-duty, but denied that he was drunk.
Mr Bawden agreed that in April 1967 he was convicted in a civil court of three charges involving indecent, insulting and threatening language, including words directed to Police at Granville Police Station on 29 March 1967. He conceded that there had been an altercation in the street before the incident at the Police Station, and agreed that he would not have used the words in question if he had been sober. Mr Bawden agreed that in December 1967 he was admitted to hospital suffering from facial and wrist injuries, and conceded that he had been drinking heavily and may have been intoxicated. In the same month he was diagnosed with a foot injury arising from an incident that, according to the medical records, occurred …in an entertaining alcoholic exercise ashore jumped of[f] a terrace [and] landed on forefoot. Mr Bawden said that he could not recall the incident, but agreed that he would not have jumped off a terrace if sober.
In relation to other matters Mr Bawden agreed that he told the Veterans’ Review Board that after leaving HMAS Sydney in 1969 he began to consume methylated spirits and medicated wine. He also said that he had worked in a number of jobs, sometimes seven days per week, for many years despite drinking heavily, until he ceased work in 2009.
In relation to the first step of Deledio, after considering evidence from
Mr Bawden and the other witnesses about his alcohol use and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Bawden in that his alcohol use disorder arose from his service in the navy and the sampan event in particular. Therefore he satisfies the first step.In respect of the second step of Deledio, there is an SoP in force, being SoP No. 29 of 2014 concerning alcohol use disorder (which amended SoP No. 1 of 2009 concerning alcohol dependence and alcohol abuse by replacing the phrases alcohol dependence and alcohol abuse with alcohol use disorder, and replaced the definition of alcohol dependence and alcohol abuse with the definition of alcohol use disorder that meets the diagnostic criteria derived from DSM-5.)
For reasons similar to those given in respect of PTSD, where a claim is made in relation to an existing SoP and before the claim is considered and another SoP is made, the claim may be considered in accordance with the SoP that is most beneficial to the claim. In this case the SoP most beneficial to Mr Bawden is SoP No. 1 of 2009.
Paragraph 6 of SoP No. 1 of 2009 states:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse ... with the circumstances of a person’s relevant service is:
…
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
…
Paragraph 9 of the SoP states:
9. For the purposes of this Statement of Principles:
…
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
…
"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
…
Therefore Mr Bawden satisfies the second step.
In respect of the third step of Deledio, after considering evidence from Mr Bawden and the medical evidence about his alcohol use disorder and operational service, the Tribunal forms the opinion that the hypothesis raised is a reasonable one. It fits the template in the SoP. Therefore Mr Bawden satisfies the third step.
In respect of the fourth step of Deledio the Tribunal takes into account the evidence from Mr Bawden, Dr Been and Dr White. Mr Bawden’s history of drinking shows that he commenced at the age of about 16 years. The Tribunal accepts his evidence that alcohol was available on a restricted basis in the early years of his naval service and that several incidents involving medical treatment or contact with Police may have involved excessive drinking. However these events do not necessarily constitute alcohol dependence (now alcohol use disorder) until after joining HMAS Sydney on its trips to Vietnam from 1967. The Tribunal accepts Dr White’s conclusion that clinical onset of the condition occurred after the sampan event and within a few years after 1967.
For reasons given in relation to whether PTSD suffered by Mr Bawden was war-caused, the Tribunal accepts his evidence, supported by accounts given to Dr White and Dr Been, that he was an eyewitness to the sampan event, and finds that this constitutes a category 1B stressor that was experienced by Mr Bawden within the five years before the clinical onset of alcohol dependence (now alcohol use disorder). Consequently Mr Bawden satisfies factor 6(c) of SoP No. 1 of 2009 and satisfies the fourth step of Deledio. The Tribunal is not satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. Therefore the Tribunal finds that Mr Bawden’s condition of alcohol use disorder is war-caused.
DECISION
The decision of the Veterans’ Review Board made 20 May 2009 will be set aside.
In substitution for the decision set aside it will be decided that posttraumatic stress disorder and alcohol use disorder suffered by Mr Bawden are war-caused with effect from 12 January 2007.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance, G.D. Friedman, Senior Member .............................[sgd]...........................................
Associate
Dated 9 July 2014
Date(s) of hearing 9 and 10 December 2013; 10 June 2014 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Counsel for the Respondent Ms C Dowsett Solicitors for the Respondent Australian Government Solicitor
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