Roger Herrod and Repatriation Commission
[2015] AATA 464
•30 June 2015
[2015] AATA 464
Division VETERANS' APPEALS DIVISION File Number
2014/1286
Re
Roger Herrod
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 30 June 2015 Place Melbourne The Tribunal affirms the decisions under review.
.............................[sgd]...........................................
Regina Perton, Member
VETERANS’ AFFAIRS – veterans’ entitlements – alcohol abuse disorder – hypertension – sleep apnoea – stressors – date of clinical onset – whether conditions war-caused
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 120(1), 196
CASES
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Kaluza v Repatriation Commission [2012] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Stoddart v Repatriation Commission (2003) 197 ALR 283REASONS FOR DECISION
Regina Perton, Member
30 June 2015
Roger Herrod, who is now 69 years old, joined the Australian Army (the Army) as a national serviceman on 1 February 1967 and served until 31 January 1969. He served in Vietnam from 11 December 1967 to 10 December 1968. This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Herrod currently receives a service disability pension at 40 per cent of the general rate. He suffers from multiple medical conditions. The Repatriation Commission (the Commission) accepts that two of these − post-traumatic stress disorder (PTSD) and bilateral sensorineural hearing loss with tinnitus − as having been war-caused.
On 17 March 2010 Mr Herrod lodged a claim for an increase in his pension. The conditions he sought to have recognised as war-caused included hypertension, sleep apnoea, diverticular disease of the colon, mitral valve prolapse and allergic rhinitis. On 10 June 2011 the Commission rejected his claim with regard to all these conditions. His pension continued at the 40 per cent rate due to the previously accepted conditions of PTSD and bilateral sensorineural hearing loss with tinnitus.
On 30 May 2011 Mr Herrod lodged an application with the Veterans’ Review Board (VRB). In July 2011 he withdrew the claims relating to diverticular disease of the colon, allergic rhinitis and mitral valve prolapse. He continued to seek review of the Commission’s decision in relation to hypertension and sleep apnoea.
On 23 April 2013 Mr Herrod lodged a claim with the Commission in relation to alcohol dependence. On 13 June 2013 the Commission rejected the claim in relation to that condition. It accepted that he had that condition but not that it was war-caused. On 21 June 2013 Mr Herrod lodged an application with the VRB in relation to his alcohol dependence.
On 11 February 2014 the VRB reviewed the Commission’s decisions dated 10 June 2010 and 13 June 2013 in relation to Mr Herrod’s sleep apnoea, hypertension and alcohol dependence. On 24 February 2014 the VRB advised Mr Herrod that it had affirmed the Commission’s decisions that the conditions were not war-caused.
On 14 March 2014 Mr Herrod lodged an application for review with this Tribunal.
LEGISLATIVE FRAMEWORK
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 the veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. This requires decision-makers to determine that an injury or disease is war-caused unless they are satisfied beyond reasonable doubt that there is not sufficient ground for making that determination.
In the circumstances of this case, the issue of whether the diagnosed conditions were caused by operational service is to be decided by applying 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.
ISSUES
The issues before the Tribunal are whether Mr Herrod’s hypertension, sleep apnoea and alcohol dependence are war-caused. Mr Herrod is not claiming that they are defence-caused. There is no dispute that Mr Herrod suffers from those medical conditions.
IS MR HERROD’S ALCOHOL USE DISORDER WAR-CAUSED?
In a written statement dated 26 March 2014 and in oral evidence, Mr Herrod described his background and his recollection of the amount and causes of his alcohol consumption.
Mr Herrod completed his apprenticeship as an electrician and worked in the family business before serving his two years in the Army as a national serviceman. He was 21 years old when he commenced his army service and 22 years old when he was posted to Vietnam.
Mr Herrod stated that he came from a strict background. His mother rarely consumed alcohol and his father limited himself to a glass of beer on a special occasion. He stated that his 21st birthday was alcohol free.
Mr Herrod stated that he had begun consuming alcohol on social occasions before his enlistment, mostly on weekend social occasions. He said that he usually drank one or two glasses of beer and rarely more than three glasses. Mr Herrod estimated his consumption prior to enlistment at not more than two to three glasses of beer per week.
Mr Herrod stated that peer group pressure led him to drink more during his 12 weeks of recruit training at Puckapunyal. He said that after training ended at 4.30 pm, the recruits headed to the canteen for drinks. They had four to five pots (285 ml) of beer before dinner in the mess at 6 pm which was followed by curfew. Mr Herrod said that he had drunk to excess on only a couple of occasions before his posting to Vietnam. Mr Herrod summarised his alcohol intake prior to operational service as 12 to 20 pots of beer per week. Mr Herrod chose catering as his area of army work and undertook a further three months of training after recruit training.
Mr Herrod said that his consumption of alcohol increased significantly in Vietnam. For the first few weeks he served at Vung Tau as a cook. The morning shift went from 5 am until about 1 pm and the afternoon shift from 1 pm until about 7:30 pm. Mr Herrod stated that sometimes he would have a drink at the club in Vung Tau with friends, starting at about 3 pm if he was on the morning shift, consuming about five cans (375 ml) on those occasions. When he worked the afternoon shift he would usually have a drink afterwards at the canteen adjacent to the mess and consume about three cans of beer. Mr Herrod said that in his first two months in Vietnam he would have consumed about 17 to 20 cans of beer per week.
Mr Herrod was transferred to Nui Dat as a cook just before the Tet Offensive commenced. He was based near the southern perimeter wire, not far from the US lines. In his statement, Mr Herrod recalled:
[T]he firing during the TET Offensive occurred at night and we were placed on stand-to and sent to our trenches behind our tents. I was in fear of my life. There was a great deal of commotion and confusion. I could see tracers. There were explosions from mortar fire. I subsequently discovered that the Viet Cong had targeted the US lines but at the time I was simply aware of the fact that the explosions seemed to be close and I was terrified that my life was in danger. I recall that the action lasted a number of hours and during the period I was also worried about whether the Viet Cong had breached the perimeter wire and whether we might be overrun. I had only ever undertaken basic weapons training. Specifically, I had no infantry or jungle training.
Mr Herrod stated that his intake of alcohol increased after the Tet Offensive. He started drinking on a daily basis. At Nui Dat his shifts alternated from one full day on duty (from 5 am to about 7 pm) and the next day off duty. When he was working the full day, he would drink two to three cans of beer before going to bed exhausted. On his off duty day he would start drinking at the canteen in the early afternoon and then drink to excess. He stated that he did not keep count of the amount of alcohol he consumed but was almost always inebriated. He indicated that he started drinking spirits at that time as well as beer. Alcohol was cheap.
Mr Herrod said that his then long term girlfriend had written to him while he was in Vietnam terminating their three to four year relationship. He expected that they would eventually marry. He conceded the ending of the relationship was upsetting to him. However he denied that this affected the level of his consumption of alcohol because he was already consuming alcohol to excess by that time.
Mr Herrod stated that he saw casualties being stretchered from helicopters while he was at the base. However he conceded that was from a distance of about 200 to 300 metres and he was never close enough to see their injuries. He indicated that he did not believe that his observations of casualties contributed to his alcohol intake. Rather, he opined that his excess consumption of alcohol related to the stress of the events during the Tet Offensive.
On his return to Australia Mr Herrod had six months left of military service.He took two or three weeks off and then finished his time at Watsonia army base. Mr Herrod stated that once back in Australia, he continued to drink excessively. He returned to the family home and electrical business. He said that he drank beer every evening after work to the point of inebriation. He said his routine was to finish dinner at home and then go to the local hotel for two to three hours of drinking. His parents were very upset by his consumption of alcohol.
Mr Herrod stated that his current alcohol consumption is six to eight cans of beer per day plus half a bottle of red wine. He indicated that his doctors have told him that his consumption of alcohol is harmful to his health but that he has been unable to decrease it.
Under cross-examination he was asked about alcohol use questionnaires he had completed in March 2000 and February 2010 respectively. He did not mention the Tet Offensive in either questionnaire. In response to the prompt question in the March 2000 questionnaire as to whether he considered that his alcohol consumption was due to, or contributed to, by his service, he responded:
Vietnam introduced me to serious drinking – at times I would drink to collapse. At times beer was issued – sold for five cents a can. Alcohol helped me relax and ensured a good night’s sleep.
In the February 2010 questionnaire, his response to the same question was:
It seemed the accepted thing to do when off duty.
Mr Herrod said that although he had signed them, the questionnaires were not accurately completed. He said that he had been assisted by persons at the RSL and he just signed where indicated.
Mr Herrod was quizzed on whether his drinking has increased or decreased since the year 2000 when he said he drank six or eight cans of beer per day. He initially denied much change. However, he was then questioned about his work history which included ten years in security at the airport on shift work between 2000 and 2010 as well as driving, delivering and installing electrical items when working for an electrical retailer after the family business was sold in the mid-eighties.
Mr Herrod acknowledged that his consumption patterns did change when he worked at the airport as the security staff could not have any trace of alcohol or drugs in their system. There were random checks although Mr Herrod said he had not been tested. He said that he could not afford to lose the job so he was careful to modify his drinking to take account of his shifts. He said that he was also careful when driving in both jobs as he needed to keep his driver’s licence and his job. He conceded that he needed to keep under the .05 limit of blood alcohol concentration but then did his drinking after work.
When it was suggested to him that the weather in Vietnam, alcohol’s ready availability and peer group pressure may have been triggers for the level of his drinking, Mr Herrod agreed but still insisted that the Tet Offensive was the major factor notwithstanding that he had not mentioned it until recent years.
Anne Herrod, Mr Herrod’s wife, provided a statement which the Tribunal received on 10 April 2014 and also gave oral evidence. Mr and Mrs Herrod married in 1971. They first met about six months after Mr Herrod’s discharge from the Army on a blind date. Before their marriage, the couple only usually only saw each other on weekends so she was unaware of his consumption of alcohol during the week. Mrs Herrod stated that she was aware that Mr Herrod drank to excess at about half the social occasions they attended before their marriage. She said that she did not keep count of the amount he consumed but he would become inebriated to the point that he was not able to drive competently.
Mrs Herrod described her husband’s reaction to Anzac Day. He would typically become anxious and unsettled about a week before the commemoration and for a couple of weeks afterwards. He would come home very late on Anzac Day, very intoxicated. When their children were young, Mrs Herrod was quite concerned about the example that set for the children.
Mrs Herrod stated that her husband joined the Vietnam Veterans’ Association. There was a mixture of drinkers and non-drinkers at that association and she stated that the non-drinkers seemed to have a calming effect on Mr Herrod and he eventually became vice president of a local branch of the association.
Mrs Herrod stated that she resumed full time work in 1989. She believes that her husband resented this as he became difficult to live with once again. They effectively were living separate lives and their marriage was shaky. Mrs Herrod stated that her husband’s commencement of a new job in security seemed to brighten his mood. In 2009 when she moved outside Melbourne, Mr Herrod would just visit on weekends but eventually he moved there too.
In relation to the present time, Mrs Herrod stated:
Roger is still drinking to excess. His drinking is worse on some days than others, his mood swings remain and I have difficulty knowing what each day will be like. Sometimes he will hardly talk and I wonder what I have done to upset him. I have learnt to ignore his grumpiness and uncommunicative times.
…
Roger has avoided discussions about his experiences in Vietnam, other than to tell me in general terms that he was fearful during the TET Offensive…
I believe Roger is an alcoholic. Throughout our marriage he has consumed alcohol to excess…
Currently Roger drinks 1 to 2 small cans of beer before lunch and then resumes drinking (from about 4:00pm) to excess. I have noticed that these days he seems to have developed a tolerance so that although he is drinking as much as he ever did, he seems less affected by it.
In her oral evidence Mrs Herrod, who had been excluded from the hearing while her husband gave evidence, expanded on the details in her statement. Mrs Herrod said that her husband had ignored Anzac Day and like commemorations for the first 10 years after his service, being bitter at the way the Vietnam veterans were treated on their return to Australia, but he then became an active participant on key dates.
Mrs Herrod confirmed that her husband had worked until the age of 65. She said that while he worked in security, he was mindful of drug and alcohol requirements and organised his drinking around his work times.
Helen Herrod, the younger sister of Mr Herrod by two years, provided a statement in July 2014 and gave oral evidence. Excerpts from her statement are as follows:
Roger and I grew up in an idyllic family, a loving Mum and Dad, Aunties, Uncles, Grandparents and cousins.
…
Prior to Roger joining the Army he led a happy, healthy and strict but structured lifestyle with his family and friends. I recall him as being happy and outgoing and a person who loved socialising with his friends. His friends would often gather at our home. His friendship and loyalty to the family and mates was a priority.
Our parents did consume alcohol on rare occasions. They might, for instance, consume a glass of wine at a special function such as a birthday. While they were not teetotallers, they certainly did not encourage consumption of alcohol. Neither Roger nor I were permitted to consume alcohol as teenagers…
I do recall Roger consuming alcohol prior to him serving in the Australian Army - but never more than 1 to 2 glasses of beer on an occasion and, certainly, never to the point of intoxication.
After Roger’s training he flew out to Vietnam. During his service in Vietnam he was given leave (R&R) to return home. He had apparently received a letter from his girlfriend that she no longer wanted to continue their relationship as she had met someone else. He came home to see if he could sort something out. Unfortunately he was unable to resolve the situation. He was very distressed that this breakup had happened while he was away and was unable to do anything about reconciliation. He returned to Vietnam…
On Roger’s return from his tour of Vietnam he was quite a different person. I believe that he was lost and lonely and unsettled. He seemed anxious and depressed. He did not seem to know what he wanted or what to do.
He returned to live in the family home (and I was still living there myself). I observed that he used to go out after the evening meal and it became clear that he was drinking and, almost inevitably, he would come home intoxicated. Our family life did not seem enough for him and he became quite a changed person in his day to day life. He returned to work for Dad but a lot of his down time was spent drinking. In short, it was nothing for him to return home late at night very drunk.
…
Roger finally moved out of the family home when married. Roger eventually settled with his wife, and, and their two children. I have been close to Anne. Anne did not confide in me but I certainly believe there was friction because of the quantities of alcohol which Roger consumed and I am aware that he continued to drink heavily.
…
After some years (about 1987) a Welcome Home March for Vietnam veterans was organised which Roger and his mates attended. I remember spending some time with him after the March at his home. For some reason we were alone in his lounge room and I enquired how the March had gone. He broke down and cried bitterly. He was so emotional and could not explain his actions only that a great weight had been lifted from him during that March. Since that time all I can say is that Roger has become a much more emotional person, someone who cannot handle problems. Someone who does not want to be involved in any difficult situations. Someone who needs a drink every day.
…
I knew that Roger did not like talking about his wartime experiences and accordingly, I did not press him for information… He never spoke about whether he saw enemy action but I presumed that he did. He did tell me that he was aware of being in danger even when on the Base. I knew that Roger was a cook in Vietnam but otherwise knew little about his service experiences.
In her oral evidence Helen Herrod expanded on the material provided in her statement. She described the changes in her brother’s behaviour post-Vietnam, especially in relation to his drinking and its impact on his family.
The Tribunal was presented with reports prepared several years ago by psychiatrists and the clinical notes of his general practitioner in which these medical experts discuss Mr Herrod’s issues with alcohol.
On 17 September 2012 Dr Colin Seabridge, consultant psychiatrist, prepared a report addressed to Mr Herrod’s then representative:
I saw Mr Herrod on 11 September 2012, at the request of his LMO, Dr Chin.
He presented as a 67-year-old man of tidy appearance, who gave a clear history.
Mr Herrod was accepted for PTSD in 1996, as a result of exposure to severe stressors during his time in Vietnam in 1968.
Mr Herrod said he still has events from that time in his head every day. He said he finds it difficult to relate with people who were not Vietnam Veterans and he has relocated to Warburton where he enjoys the quiet and solitude.
….
Mr Herrod said his family were quiet and conservative people, who never drank alcohol and he was quite unprepared for National Service.
He began to drink a little alcohol while he was in training, but once he got to Vietnam, associated with his high level of anxiety and his exposure to traumatic stress source, he began to drink heavily.
He was in trouble for drinking in the lines, he was brought back from Vung Tau by the MP’s, and he drank to the point of having blackouts.
When he returned home, his drinking if anything became even heavier and he drove when drunk and was sometimes barely able to walk.
Mr Herrod drinks every day, and starts on beer around 11am. He drinks on average five to eight cans of beer every day and takes beer with him into the garden when he is working there. He drinks red wine every night, in excess of half a bottle.
Mr Herrod is consuming on average around fifteen standard drinks per day, every day.
Mr Herrod clearly fulfils the criteria for alcohol abuse during his time in South Vietnam.
As required by the SOP, it is acknowledged the[sic] he was exposed to a severe stressor, and his accepted PTSD, which dates in onset from that time, fulfils the required criterion for a service caused psychiatric disorder, in the development of his Alcohol Abuse.
As is often the case, his Alcohol Abuse has now become Alcohol Dependence. He has acquired a tolerance of alcohol, he continues to drink to excess despite medical advice that he has impaired liver function, and alcohol comes before all other activities.
The requirements of the SOP, and the DSM for Alcohol Dependence to be diagnosed, and to be accepted as Service Caused, are fulfilled.
On 8 May 2012 Dr Norbert W Pomorin, consultant psychiatrist, prepared a report for Mr Herrod’s then representative in which he stated:
Mr. Herrod’s most recent consultation with me was on the 8/9/2011.
Mr. Herrod provided the history of excessive drinking but no history of having had treatment for the same. In my view he fits the diagnostic criteria for Alcohol Abuse Disorder/Dependence. I performed a Liver Function Test which was mildly abnormal confirming that his excessive alcohol consumption has caused some physical damage.
I advised Mr. Herrods’ General Practitioner about my findings and offered some advice in regard to further action upon the matter.
Despite having Posttraumatic Stress Disorder previously diagnosed it is my opinion that Mr. Herrod does not suffer from this condition. He does not exhibit symptoms of the same, nor was he exposed to the traumatic stressors during his service in Vietnam, one of which is required to satisfy the diagnostic criteria for PTSD and the “Statements Of Principles”.
Therefore it cannot be said that his alcohol abuse problem has been caused by his PTSD condition, nor any traumatic stressor which he experienced during his period of service in Vietnam.
…
In a report dated 8 August 2000, addressed to the Department of Veterans’ Affairs, Dr Pomorin stated:
I examined this 54 year old former Electrical Appliance Installation Worker, now unemployed, and Vietnam Veteran on the 8/8/2000.
I noted that he had Posttraumatic Stress Disorder accepted by the Department of Veterans’ Affairs as being war caused since 1996, after he was examined by Professor Brian Davies.
I understand that six months ago he was examined by another psychiatrist, Dr. Barry Kenny when he applied for an increase in his 40% Impairment Level.
…
Mr. Herrod said that he was mainly stationed at the Nui Dat Taskforce Camp.
Mr Herrod provided the history that it was a trauma “just being in the war zone” and that he saw some “horrible injuries”.
He said that some of the men who worked in the land clearing team with the 17 Construction Squadron were injured. He said the 17 Construction Squadron lines were on the Wire and the Nui Dat Hospital was not far away. He said that the damaged bulldozers were parked next to the kitchen where he could see them. When I suggested to him that he was not near or close to injured individuals he agreed.
Mr. Herrod provided the history that he was at Nui Dat when the 1968 Tet Offensive took place. He said “All that night there was lots of firing, and you could see tracers…there were a lot of aircraft…we were on Stand-to”.
Mr. Herrod agreed that Nui Dat was not attacked during the ’68 Tet Offensive, however he said that half a kilometre further down the road a US Artillery Battery was hit.
It would appear that Mr. Herrod was some distance away from the fighting and also some distance away from injured soldiers.
Mr. Herrod said that he thinks back to these events once every couple of months if someone reminds him of them. He said “If people find out you’ve been to Vietnam, they ask you questions that you don’t want to answer.” He is only sometimes upset by his reminiscences.
Mr. Herrod said that before going to Vietnam he was “fairly easy going, fun loving and friendly to most people, and drank socially”
He now regards himself as having “difficulty with some people”, irritable, as well is being inclined to consume too much alcohol.
…
Mr. Herrod said that he avoided discussion and activities that reminded him of his negative wartime experiences and he also avoids people and significant activities. He does not have the symptom of emotional blunting but feels that he will not live to a ripe old age because of his excessive use of alcohol.
He provided the history that he drinks six to eight cans of beer on a daily basis and two to three glasses of wine. He said that he drank regular strength beer in the past, but is more inclined to drink light beer now.
He said that he started drinking heavily in Vietnam. He added “I was drunk as a skunk every night in Vietnam…I just enjoyed it…everybody else did…it was cheap”.
In my view Mr. Herrod suffers from an Alcohol Abuse Disorder which was caused by his service in Vietnam. In my view the Australian Army had some responsibility in not providing such excessive amounts of alcohol to servicemen.
…
Mr Herrod’s long–term general practitioner, Dr Sonny Chin, has references to his patient’s drinking in his clinical notes.
On 4 June 1999, Dr Barrie Kenny, prepared a report at the request of Dr Chin in which he stated:
With regard to the substance abuse (alcohol), I accept that he drinks more than is in his best interests – six to eight standard drinks a day we worked out. But I make the point that he’s had no drink-driving offences, no drunk and disorderly offences, hasn’t missed time from work, has had no illnesses directly associated with alcohol, no broken relationships associated with alcohol and I have trouble accepting that his alcohol or substance abuse is significant.
…
I would grudgingly accept the alcohol abuse − but with the recent Statement of Principles, I don’t think he’d satisfy on that basis either, because he simply drank because that was the thing to do and because it was so cheap there.
The Commission has agreed that Mr Herrod meets the diagnostic criteria for alcohol dependence but does not concede that he meets the criteria for the condition to be accepted as war-caused. The Tribunal concurs that he meets the diagnostic criteria as set out in the relevant SoP and in DSM4 and DSM5.
After considering Mr Herrod's evidence, that of his wife and sister as well as the evidence from the psychiatrists, the Tribunal determines that the material indicates a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Herrod. Therefore, he satisfies the first of the four Deledio steps.
Mr Herrod lodged his claim in relation to alcohol dependence on 24 April 2013. In respect of the second step from Deledio, the relevant SoP currently in force under s 196B(2) of the Act, is Instrument No. 1 of 2009 as amended by No. 29 of 2014 concerning Alcohol Use Disorder (previously known as Alcohol Dependence and Alcohol Abuse).
There are many possible factors that must as a minimum exist for the reasonable hypothesis to allow an association between the person's operational service and his current condition. In this case, paragraph 6 of the relevant SoP concerning Alcohol Use Disorder provides the following factors which may have relevance:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol use disorder or death from alcohol use disorder with the circumstances of a person’s relevant service is:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol use disorder; or
…
There is no suggestion in the evidence or anything raised by either party that any of the other factors in paragraph 6 might be relevant.
Definitions pertinent to paragraph 6 of the SoP are found in Paragraph 9, as follows:
"a clinically significant psychiatric condition" means a specified disorder of mental health, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"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;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
In relation to the third step from Deledio the Tribunal takes into account that, 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 indicated by the facts, even though not proved upon the balance of probabilities.
Mr Herrod cited an incident which may satisfy factors in paragraph 6 of the relevant SoP. After considering his evidence, the Tribunal determines that the hypothesis raised is a reasonable one. Therefore, Mr Herrod satisfies the third Deledio step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Herrod's dysthymic alcohol use disorder was due to his operational service within the meaning of the Act. 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. There are both objective and subjective elements to consider when assessing claims of relevant circumstances (Stoddart v Repatriation Commission (2003) 197 ALR 283).
There is no dispute that, during his year in Vietnam, there were potential threats to Mr Herrod’s safety. He has described a number of events that occurred, and fears he held during his operational service as outlined in the recitation of the evidence. Before deciding if any of those meet the definitions in the SoP, the Tribunal must determine the timing of the clinical onset of his alcohol use disorder.
There is no definition of the term clinical onset in the SoPs or in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 at [92] and [93], Jacobson J referred to the earlier decision in Lees v Repatriation Commission [2002] FCAFC 398:
The meaning of the expression "clinical onset" was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
* when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
* when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of the time of clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. This does not mean that the clinical onset occurs when the patient first sees a doctor for medical treatment.
A number of psychiatrists have given the opinion, as has Mr Herrod, that his heavy drinking began in the Army and particularly in Vietnam. Mr Herrod has given reasons for that on many occasions including the heat, the boredom, the cheap alcohol, its enjoyment and peer pressure. He has sometimes mentioned the Tet Offensive but has acknowledged that the attack was not on the Australian base. The evidence and commentary by medical practitioners points to a commencement of heavy drinking in Vietnam.
On the balance of probabilities, the Tribunal finds that the clinical onset of Mr Herrod's alcohol use disorder was during his operational service, notwithstanding that the medical practitioners have effectively relied on what they were told by Mr Herrod.
Mr Herrod’s counsel, Mr Smyth, submitted that the requirements of s 196B(14)(b) do not require service to be the dominant or effective cause of the condition citing Gilkinson v Repatriation Commission (2011) 197 FCR 102, Repatriation Commission v Law (1980) 31 ALR 140 and Roncevich v Repatriation Commission (2005) 222 CLR 115 amongst others.
The Commission submitted that the available evidence is riddled with conflicting statements as to the applicant’s level of alcohol use at various times of his life. The Tribunal notes that there have been some inconsistencies over the past two decades in Mr Herrod’s descriptions of his reasons as to why he became a heavy drinker. There have also been times in his life, such as when he worked in security for a decade, where he was effectively in control of his drinking. However, having determined that Mr Herrod meets the diagnostic criteria the Tribunal’s task is to determine whether he meets any of the alternatives set out in paragraph 6 of the relevant SoP.
There is no evidence that Mr Herrod was suffering from a clinically significant psychiatric condition while in Vietnam, given the definition found in paragraph 9 of the SoP. He has never regularly visited a psychiatrist, counsellor or medical practitioner, even on a monthly basis, at any time of his life, including while in Vietnam. Accordingly, the Tribunal is satisfied beyond reasonable doubt that he does not meet paragraph 6(a) of the SoP.
The Tribunal also needs to consider whether the night on which Mr Herrod was in the trench near his tent during the Tet Offensive might be sufficiently severe to meet the definitional requirements of a Category 1A stressor or Category 1B stressor. In relation to the former, Mr Herrod has stated that he was frightened on the night the US base was attacked but even he has conceded that the Nui Dat base was not under attack. The Tribunal is satisfied beyond reasonable doubt that Mr Herrod was not experiencing a life threatening event, nor was he subject to a serious physical attack or threatened with a weapon or held captive or tortured. While the Tet Offensive was no doubt frightening, it does not meet the threshold of a category 1A stressor.
Mr Herrod has conceded that he did not see anyone being killed or injured or view corpses or critically injured casualties. He has admitted that while he saw helicopters ferrying in people, it was quite a distance away and he could not see any of the injured. He did not witness atrocities, killings or maimings or the clearance of critically injured casualties. The Tribunal is satisfied, beyond reasonable doubt, that Mr Herrod did not experience a category 1B stressor.
As indicated earlier, none of the other possibilities raised in the pertinent SoP appears relevant to the parties or the Tribunal.
Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that Mr Herrod’s alcohol abuse disorder is not war-caused and Mr Herrod does not meet the fourth step of Deledio.
The Tribunal finds that Mr Herrod’s condition of alcohol use disorder is not war-caused.
IS MR HERROD’S HYPERTENSION WAR CAUSED?
Mr Herrod could not recall exactly when he was diagnosed with hypertension. He has been attending the same general practice since 1996 or earlier. The clinic records show that there a diagnosis of hypertension in 2000 but there is other material suggesting that it occurred earlier, in 1996. There are no records showing an earlier diagnosis. Mr Herrod’s hypertension is now controlled by medication.
The Tribunal finds, on the balance of probabilities, that the clinical onset of his hypertension was in 1996.
The current SoP in relation to hypertension is No. 63 of 2013. Paragraph 6(b) of the SoP sets out 33 possibilities for hypertension or death from hypertension. The only one cited by either party as possibly being relevant is in paragraph 6(b):
(b) consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension; or
At the time of lodging his claim in relation to hypertension, 17 March 2010, the relevant SoP was Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004 and Instrument No. 11 of 2008. Instrument No. 11 of 2008 amended the wording of paragraph 5 (b) of Instrument No. 35 of 2003 which concerned the level and timing of alcohol consumption:
(b) consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol;
It appears that Mr Herrod may well have drunk that volume of alcohol at the time of the clinical onset of his hypertension. However, as paragraph 5 of Instrument No. 63 of 2013 and paragraph 4 of Instrument No. 35 of 2003 state, the factors must be related to the relevant service rendered by the person.
In their submissions, counsel for both parties concentrated on Mr Herrod’s alcohol abuse with relatively little commentary on the other conditions under consideration. Counsel for the Commission submitted that the claim for hypertension must fail if Mr Herrod’s claim for alcohol abuse disorder being war-caused fails.
Mr Herrod’s Statement of Facts and Contentions contained the following contention:
38. In the alternative, even if alcohol abuse, dependence or alcohol use disorder is not accepted as war caused, it is submitted that the alcohol factors in the statements of principles concerning sleep apnoea and hypertension would be met. It is noteworthy that those instruments do not required evidence of a psychiatric illness such as alcohol abuse …but merely require a particularly dosage level which is causally related to service.
The Tribunal is not satisfied beyond reasonable doubt that the level of Mr Herrod’s alcohol consumption in 1996 or 2000 was causally related to his service more than 20 years earlier. As was pointed out by the Commission, while Mr Herrod drank heavily during his service, there were many reasons for this, including the heat, the social context and the cheap and ready availability of alcohol. Mr Herrod’s service provided the environment in which he drank heavily and in which he may well have increased his level of alcohol consumption but it was not the cause of that alcohol consumption. Given the finding in relation to alcohol use disorder not being related to operational service, the Tribunal finds that there is no reasonable hypothesis linking Mr Herrod’s drinking to his relevant service and thus to his hypertension. Step 1 of Deledio is therefore not satisfied.
The Tribunal finds that Mr Herrod’s hypertension is not war-caused.
IS MR HERROD’S SLEEP APNOEA WAR CAUSED?
Mr Herrod stated that he was diagnosed as suffering from sleep apnoea following a sleep study organised by a respiratory and sleep physician, Dr Nick Antoniades. On 8 October 2011, Dr Antoniades wrote to Mr Herrod’s general practitioner, Dr Chin, advising that the diagnostic sleep study revealed mild obstructive sleep apnoea. Mr Herrod subsequently started using a CPAP machine with good results.
The Tribunal finds that the date of clinical onset was 8 October 2011, when Dr Antoniades first diagnosed the condition. While Mr Herrod lodged his claim in March 2010, at that date it had not been diagnosed as it was the sleep study that showed his snoring could be designated as sleep apnoea.
The current SoP for sleep apnoea is Instrument No. 41 of 2013. The SoP for sleep apnoea at the time of the claim on 17 March 2010 was Instrument No. 13 of 2005. As is the case for other conditions, the SoP requires that at least one of the factors must be related to the relevant service rendered by the person. The factor advanced as relevant is in paragraph 5(s) of Instrument No. 13 of 2005 and paragraph No. 6(o) of the current SoP, which are identical:
consuming an average of at least 30 grams of alcohol per day for at least six months before the clinical worsening of sleep apnoea…
The expression clinical worsening is not defined in the Act or in the SoPs. There is no evidence to suggest that Mr Herrod’s sleep apnoea has worsened since its clinical onset. In fact, Dr Antoniades stated that Mr Herrod’s condition had improved since he started on CPAP therapy.
Paragraph 7 of the current SoP and Paragraph 5 of that applicable at date of lodgement clearly stated that factor 6(o) and paragraph 5(s) respectively:
only apply to material contribution to, or aggravation of, sleep apnoea where the person’s sleep apnoea was suffered or contracted before or during (but not arising out of) the person’s relevant service.
There is no evidence that Mr Herrod suffered from sleep apnoea before or during his military service. The Tribunal is not satisfied that there has been any clinical worsening of Mr Herrod’s sleep apnoea. He therefore does not meet the nominated factors in the SoPs concerning sleep apnoea. There has been no claim nor is there any evidence that he meets any of the other factors in the SoPs for sleep apnoea.
The Tribunal finds that Mr Herrod’s sleep apnoea is not war-caused.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member.
.....................[sgd].................................
Associate
Dated 30 June 2015
Date of Hearing: 27 October 2014
Counsel for the Applicant: Mr T Smyth
Advocate for the Respondent: Mr G Purcell
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