Sharley and Repatriation Commission
[2010] AATA 474
•28 June 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL N° 2008/3960
VETERANS’ APPEALS DIVISION
Re:JOHN SHARLEY
Applicant
And:REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal: Miss E A Shanahan, Member
Date: 11 August 2010
Place:Melbourne
Member Shanahan made a Decision under ss 43 and 42D of the Administrative Appeals Tribunal Act1975 (the Act) on 28 June 2010.
The Respondent’s solicitor advised the Tribunal on 19 July 2010 that there is an error in the decision.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar delete the words and Osteoarthrosis of both knees from the first sentence of the decision.
…………[signed]………
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 474
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3960
VETERANS' AFFAIRS DIVISION ) Re JOHN SHARLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss EA Shanahan, Member Date28 June 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review, relating to Post Traumatic Stress Disorder (PTSD) and Osteoarthrosis of both knees. The Tribunal determines that the applicant suffers from war-caused Alcohol Dependence in partial remission. The claim for osteoarthrosis of both knees is remitted to the Repatriation Commission for reconsideration on different grounds as outlined in this decision.
................[signed]...............
Member
VETERANS’ AFFAIRS – disability pension – disability pension already set at 100 per cent of the general rate – post traumatic stress disorder – or generalised anxiety disorder – alcohol dependence – no actual threat experience – anticipatory fear – osteoarthrosis of knees – no claim for special or intermediate rate.
Veterans’ Affairs (1994-1995 Budget Measures) Legislation Amendment Act 1994
Veterans’ Entitlement Act 1986 (the Act)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gerzina v Repatriation Commission [2004] FCAFC 96
Kattenberg v Repatriation Commission (2003) 73 ALD 365
Re Raymond Charles Dove and Repatriation Commission [2004] AATA 646
Re Brown and Repatriation Commission [2004] AATA 1262
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Cooke (1998) 90 FCR 307
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
28 June 2010 Miss EA Shanahan, Member 1. Mr Sharley lodged an application for a disability pension on 1 June 2007 claiming that his, then diagnosed conditions of Post Traumatic Stress Disorder (PTSD), bilateral sensorineural hearing loss, tinnitus, diabetes mellitus, osteoarthrosis of the knees, lumbar spondylosis and gout were war-caused.
2. Mr Sharley had enlisted in the Royal Australian Air Force (RAAF) in 1965 and served from 8 June 1965 to 7 June 1971. This included an 11 month period (25 February 1970 to 28 January 1971) in South Vietnam. The claim for hearing loss, diabetes mellitus and tinnitus were accepted by a delegate of the Repatriation Commission (the Commission) on 1 August 2007 and a pension at the rate of 30 per cent of the general rate was paid from 1 March 2007. Mr Sharley sought review by the Veterans’ Review Board (VRB) of the decision to reject PTSD, osteoarthrosis of the knees and lumbar spondylosis. He abandoned the claim relating to gout. The VRB affirmed the primary decision with the exception of the lumbar spondylosis finding that it was war-caused. The matter was remitted to the Commission to determine the rate of pension.
3. Mr Sharley applied to the Administrative Appeals Tribunal (AAT) for a review of the VRB decision on 26 August 2008.
4. In addition to the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T documents - Exhibit R1, Supplementary T documents - Exhibit R2) the parties tendered the following:
For the Applicant:
·statement of Mr John Sharley filed 4 February 2009 – Exhibit A1
·statement of Mr John Sharley forwarded on 9 March 2010 – Exhibit A2
·statement of Mrs K Sharley forwarded on 9 March 2010 – Exhibit A3
·report of Dr Francis Payne dated 12 August 2009 – Exhibit A4
·statement of David Taffe dated 7 November 2007 – Exhibit A5
and for the Respondent:
·report of Dr Nigel Strauss dated 9 September 2009 – Exhibit R3
·clinical notes of Dr Astley – Exhibit R 4
·clinical notes of Dr Francis Payne - Exhibit R5
·statement of Wing Commander Budd dated 14 January 2010 – Exhibit R6
·statement of Sergeant Manning dated 14 January 2010 – Exhibit R7
·the Writeway Report dated 3 January 2009 – Exhibit R8
·Transcript of the VRB hearing dated 13 June 2008 – Exhibit R10
5. Mr Sharley was represented by Mr C Thomson of counsel instructed by Peter Liefman and Associates and the Respondent by Mr D Brown a solicitor with the Australian Government Solicitors’ Office. The Tribunal heard evidence from Mr Sharley, Mrs Sharley, Dr Straus, Dr Payne, Mr Taffe, Mr Budd and Mr Manning.
BACKGROUND TO THE APPLICATION
6. Mr Sharley enlisted for a six year period of service with the RAAF at the age of 18. He was trained as a flight engineer and deployed at several bases in Australia and New Guinea until he was posted to South Vietnam from 25 February 1970 until 28 January 1971. He has operational service. Mr Sharley commenced smoking and drinking alcohol on the day of his enlistment. Both of these habits increased in moderation during his service including the earlier months in Vietnam. There was, on his evidence, a marked increase in his alcohol intake in the last three to four months of his term in Vietnam, and this level was maintained until 2007. He ceased smoking in 1993.
7. On completion of the oral evidence, the Respondent conceded that Mr Sharley suffers from war-caused alcohol dependence currently in partial remission. Alcohol abuse or dependence was not part of Mr Sharley’s original claim.
8. Mr Sharley first sought treatment for psychological symptoms in 2007. He identified three stressful events during his Vietnam service which were claimed to have caused his psychiatric disorder. These involved participating in red alerts; being exposed to potential harm during rescue eights which entailed repairing Caribou freight planes damaged or experiencing faults in war zones as opposed to airbases and participating in Caribou supply runs where once again there was the potential to come under enemy fire. His treating psychiatrist Dr Payne, diagnosed PTSD and commenced treatment with Parapex in 2007.
9. During one of the Caribou supply runs, Mr Sharley states he had been injured when struck by a 44 gallon drum of fuel during unloading from a Caribou. The trauma sustained had been to his back and knees and although there are no records of these injuries they form the basis of his successful claim for lumbar spondylosis and remained the basis for his claim for osteoarthrosis of both knees.
10. On return from Vietnam Mr Sharley, having decided against re-enlistment, worked in sales (insurance, tyres and batteries) and travelled widely within Australia. From 1971 until 1985 he estimated he would have had up to eight jobs each lasting 18 to 24 months. He was sacked on one occasion. In most instances he changed jobs to better himself. Working as a travelling salesman allowed him to drink alcohol during the day. In 1989 Mr and Mrs Sharley purchased a fuel depot and service station which they successfully ran for three years, followed by a similar enterprise in Mildura. In 1996 they shifted to Melbourne and Mr Sharley became a real estate agent with a successful and expanding business until he retired in 2007. In the six to nine months prior to his retirement he felt he was coping poorly with his work commitments and continued to do so despite reducing his work hours from six days per week (66 hours work per week) to two days per week. He sold his partnership in the real estate franchise on retirement and abandoned his plan to work part time in administration in this business.
ISSUES BEFORE THE TRIBUNAL
1.Does Mr Sharley suffer from a psychiatric condition and if so what is the appropriate diagnosis;
2.does Mr Sharley have clinically significant osteoarthrosis of the knees and
3.are both of these conditions war-caused?
Given that the Respondent conceded that Mr Sharley suffers from war-caused alcohol dependence in partial remission, the Tribunal has not included the substantial evidence relating to Mr Sharley’s alcohol intake and its effects.
EVIDENCE BEFORE THE TRIBUNAL
Mr Sharley
11. Mr Sharley described his engine fitting duties at Vung Tau airbase. The engine fitters serviced seven Caribous, five of which were required to be in the air at all times. This necessitated engine fitters being rostered on duty two nights per week in addition to daytime duties. The Vung Tau base was an allied facility with the United States in charge or in Mr Sharley’s words the Americans used to tell us what to do.
12. Mr Sharley was questioned at length regarding the stressful events he experienced during his tour of Vietnam. He had nominated three aspects of his duties which he found particularly stressful.
Red Alerts
13. Mr Sharley said he thought both red and yellow alerts were called frequently. The Yellow alert meant they thought something might have been going to go on and a red alert was when you felt that something was really going on (Transcript p23, 22 March 2010). Regardless of the colour code the procedure was the same - grab your rifle, go down to the sand and bunkers … on the perimeter of the containment … and just take up your position there (Transcript p23, 22 March 2010). The Australian personnel were taken by bus to the containment but if a full red alert was called they would be taken directly to the hanger to ready the aircraft for flight. This measure was apparently to avoid Caribous being subject to mortar attacks while on the ground.
14. Mr Sharley described the events of an evening in November 1970. While he was servicing a Caribou he heard two rockets explode in the distance, some one to two kilometres away. He did not see any explosion but was concerned for his safety. This was the only time to his knowledge that the Vung Tau base was attacked during his tour.
15. Mr Sharley estimated that red alerts occurred once per month. He was advised of the alerts by word-of-mouth. He described his initial reaction to sitting in a bunker with an unloaded rifle as being bloody terrified (Transcript p30, 22 March 2010) although his apprehension subsided after he had experienced several alerts in which nothing happened. Mr Sharley was aware of the Writeway report (Ex R8) which had not found any record of a red alert other than the rocket attack of 24 November 1970 where the impact had in fact been three kilometres from the RAAF quarters. In Mr Sharley’s experience there were heaps of them (Transcript p31, 22 March 2010).
Rescue Eights
16. Mr Sharley was rostered along with nine other flight engineers to fly to various sites to perform repair work, mainly changing of magnetos, on Caribous. The first of these took place in May 1970 and involved the repair of a Caribou in Tan Son Nhat, the Saigon airport, a large and safe facility. It was his experience that rescue eights conducted in the northern areas were not stressful. In comparison rescue eights in the Mekong Delta area to the south involved landing and working on dirt strips at Fire bases surrounded by hills and vegetation. On these occasions I was really scared as it could be terrifying working in the dark out in the sticks (Transcript p36, 22 March 2010). No threats or attacks occurred during these rescue eight missions.
Supply Drops
17. Mr Sharley thought his first involvement in a supply drop was in October 1970 although the Writeway report records that the commanding officer of 35 Squadron had advised that airmen from the maintenance flights were to be used as assistant loadmasters commencing on 9 November 1970 and to continue until replacements arrived (Ex R8). He said his first trip was like a mail run and was a pretty mundane trip. While he could not be exact, Mr Sharley thought he had done more than the three supply drops verified by Writeway. Trips to the south using small landing strips at Fire-bases were quite different as there was known enemy activity in these areas. It was Airforce policy that if an actual attack was occurring the Caribous would abort the delivery. These flights might take up to seven hours and involve up to 10 supply drops at different airstrips. Mr Sharley said he was apprehensive from the time of commencement of the flight from Vung Tau.
18. The actual techniques used to land the Caribou and unload the cargo also really worried me (Transcript p42, 22 March 2010) as the Caribous were an easy target. The RAAF pilots’ had developed an apparently unique landing approach, coming in at 2,500 feet until directly above the airstrip when they would spiral down to avoid small arms fire. On landing the plane went into reverse thrust, stopped and then backed into the unloading zone with the engines still running. On most drops in the south the Caribou began to take off before unloading was completed, relying on gravity and forward thrust to pitch the cargo out the open rear hatch. Mr Sharley said it was during such a supply drop that he slipped and fell on a cargo roller hurting his back and his knees were struck by a rolling fuel drum.
19. Mr Sharley knew he had no control over the situation in which he found himself, usually didn’t know what was going on and felt very, very, scared. He estimated he did four trips to the Delta region. On return from these trips to the south Mr Sharley went straight to the boozer and just kept drinking (Transcript p47, 22 March 2010). His drinking increased, he started drinking alcohol during the day and eventually skipped evening meals and drank all evening, unless he was rostered on night service. He claims that drinking improved his sleep.
20. Of the three stressful events, Mr Sharley said he found the supply drops the most frightening, as the Caribou could have been shot at or mortared at any time and given they frequently carried fuel drums as cargo the plane could explode.
21. Mr Sharley mentioned an incident when he had been arrested by the South Vietnamese police in mid-December 1970. He was taken to gaol in Vung Tau and placed in a cage, with three or four rats. He said that just sought of sent me off my rocker (Transcript p52, 22 March 2010). He recalled this incident when being asked if he had any problems being in confined areas.
22. Mr Thomson questioned Mr Sharley at length about his current symptoms. Mr Sharley said he did dream of these events, once or twice per week on his return from Vietnam but these dreams had markedly diminished during the 1990s. In the year 2000 they recurred. He dreamt about being in a Caribou and also about swimming in underwater caves. His dreams were more frequent during the day and would often be precipitated by hearing helicopters flying overhead. These episodes upset him but they do not last very long. When awoken from sleep by a dream Mr Sharley can’t get back to sleep. Despite three years of psychiatric treatment Mr Sharley said I still don’t feel any better.
23. When asked what his emotions or feelings were, when he thought about Vietnam Mr Sharley replied, I definitely feel angry about it (Transcript p52, 22 March 2010). His anger related to the Australian publics’ attitude to Vietnam Veterans’ in the 1970s and 1980s. In endeavouring to explain his emotional response he said I don’t think it’s fear but going back to what you’ve done is not a good thing … it puts you into a world that I didn’t like. During such episodes he had noted his body tensing and on occasions his legs go funny and he starts to shake a bit. Mr Sharley described his temper as being terrible since his return from Vietnam. This he blamed on the way we were treated.
24. Mr Sharley had toured Vietnam with his family in 2005 and had mixed feelings about this visit. He had been particularly upset by his visit to the Long Tan Memorial for the 18 young soldiers killed at that site.
25. Mr Sharley described his concentration as being poor for most of his life and then corrected this to since his return from Vietnam. He thought his heavy drinking contributed to his poor concentration. He also admitted to being startled by noises.
26. Mr Sharley described the years he ran a petrol station in Ouyen and then Mildura (1989 – 1996) as good, he was his own boss and so busy he didn’t drink during the day. He had also enjoyed the 12 years he spent in real estate and claimed that he had no difficulties coping with his workload until late 2006.
27. Mr Sharley had lost his licence once for driving under the influence of alcohol, but estimated that he had frequently driven over the legal blood alcohol limit.
28. Following the claimed injury to his knees during a Caribou drop, Mr Sharley said he had continued to work but had difficulty in kneeling, squatting and climbing ladders. He had not reported the injury or seen a medical officer at the time.
29. Mr Sharley informed the Tribunal that he had commenced an application for the disability pension in the year 2000, based on his diabetes and hearing loss. He was at that time assisted by the Returned and Services League (RSL). He did not proceed with the claim, although his then general practitioner Dr Moffatt encouraged him to do so.
30. Mr Brown cross examined Mr Sharley at length about his other medical conditions and family problems and the effect these had upon him. This included his father’s ill health and death from carcinoma of the lung and his mother’s death one month after his father’s in 2008. Mr Sharley said he had coped well with the deaths of his parents and his previous medical conditions.
31. It was put to Mr Sharley that the 35 Squadron records showed that he had only been involved in assistant loadmaster duties on three occasions (20 November 1970, 7 December 1970 and 31 December 1970). Mr Sharley maintained he had been involved in many more and that the flight manifests were frequently inaccurate.
32. Dr Payne had opined that Mr Sharley’s anxiety might relate to work stress and conflict with his business partners’. Mr Brown questioned Mr Sharley about his business relationships’ but he denied any conflict. Mr Sharley also maintained that Dr Payne had recommended he cease work rather than Mr Sharley having said he wanted to cease. At the time (10 July 2007) he had planned to work part time after selling his share of the business. Mr Sharley admitted that there had been marital difficulties in the past and attributed them all to his behaviour, his bad temper and what he described as treating his wife as subservient.
33. Mr Sharley’s statements (Ex A1 and A2) were consistent with his evidence, except that, in Exhibit A2 he described seeing wounded and dead Australian servicemen being loaded onto Hercules aircraft for their flight home to Australia. He did not comment on this in his oral evidence.
MRS KAYE SHARLEY
34. Mrs Sharley said her husband had always been a nervous individual. They had met shortly after he returned from Vietnam and married in November 1971. She noted that he was a poor sleeper, experienced frequent headaches and became very emotional. In the early years of their marriage when he had difficulty maintaining steady employment, she had attributed this to he couldn’t be told what to do and the same attitude prevailed at home (Transcript p69, 23 March 2010). Over the years she said they had contemplated and discussed divorce on two occasions.
35. During the first 10 years of their marriage, the only friends her husband made were heavy drinkers with whom he socialised, coming home late and frequently drunk. She worried about him drinking and driving. It was not until after the 1987 welcome home parade for Vietnam Veterans’ that Mr Sharley had first discussed his Vietnam experiences with his wife.
36. Mrs Sharley confirmed her husband’s drinking habits and excessive alcohol intake which had now reduced to 700 plus millilitres of whiskey per week. Mrs Sharley had noticed a change in her husband in 2006/2007 describing him as stressed, upset at work, mixed up and not coping with life. She had found that since he had ceased work he remained stressed but was less likely to become agitated. Mrs Sharley now does most of the driving as her husband sometimes goes a bit crazy when driving, including going through red lights.
37. In cross examination Mrs Sharley described her husband as a good father. She confirmed that he had been very much affected by the way Vietnam Veterans’ were received on their return to Australia.
38. Despite the reduction in his alcohol intake Mrs Sharley did not think her husband’s drinking was really under control as he tended to binge drink reverting to beer rather than whisky as his drink of choice..
39. In her statement (Ex A3) Mrs Sharley described her husband’s reluctance to socialise, his mood swings, his aversion to loud noises and his insistence on sitting in an aisle seat at the movies.
DR FRANCIS PAYNE
40. Dr Payne is Mr Sharley’s treating psychiatrist and has been so since 28 March 2007. Dr Payne had provided seven letters/reports relating to Mr Sharley (Ex R5 and Ex A4) and his clinical notes had been summonsed (Ex R5).
41. In his evidence to the Tribunal, Dr Payne confirmed that at Mr Sharley’s first visit he had diagnosed PTSD as in his opinion Mr Sharley met all the requirements of the Diagnostic and Statistical Manual of Mental Disorders-IV Edition, Text Revision (DSM-IV TR) which form the basis of the current Statement of Principles (SoP) Number 5 of 2008. Dr Payne considered all that was required was a reasonable perception of threat and not an actual event. Despite not referring to Mr Sharley’s alcohol use in his reports Dr Payne agreed with Dr Strauss’ diagnosis of alcohol dependence, possibly in remission and also with the suggestion that on clinic grounds a diagnosis of an anxiety disorder would be acceptable. In each case Dr Payne attributed the aetiology to Mr Sharley’s Vietnam service with clinical onset occurring while Mr Sharley was in Vietnam.
42. Mr Thomson took Dr Payne through all of the symptoms and criteria for each diagnosis all of which Dr Payne found to be present. Dr Payne rejected Dr Strauss’ conclusions that Mr Sharley did not have PTSD and that all of his psychological problems derived from his alcohol dependence. He reiterated that a constant awareness of threats was sufficient to meet the stressor requirement for the diagnosis of PTSD, or in his words simply being there was sufficient.
DR NIGEL STRAUSS
43. Dr Strauss assessed Mr Sharley at the request of the Commission and diagnosed alcohol dependence which began as an increase in alcohol intake in Vietnam as a cultural activity encouraged by peer pressure. In his opinion the diagnosis of PTSD was not sustainable, as none of the claimed stressful events met the requirements of DSM-IV TR and therefore the SoP with respect to 1A and 1B stressors. Mr Sharley’s symptoms of infrequent flashbacks and nightmares which were certainly not disabling in themselves, were the only symptoms relevant to PTSD, whereas, all his symptoms could be attributed to alcohol dependence (Ex A3).
44. In his evidence before the Tribunal Dr Straus maintained his opinion, that in order to diagnose PTSD there must be a real threat, not a perceived threat. He accepted that Mr Sharley had been frightened, particularly by the supply drops, but medically speaking this did not found a diagnosis of PTSD. Leaving aside the severity of the stressor, Dr Strauss agreed with Mr Thomson that Mr Sharley’s symptoms might satisfy the other SoP requirements for a diagnosis of PTSD and also those of a generalised anxiety disorder (GAD).
45. Dr Strauss thought alcohol was still a significant element in Mr Sharley’s life but if he had in fact reduced his intake the alcohol dependence could be considered to be in remission.
MR DAVID TAFFE
46. Mr Taffe was a flight sergeant in the 35th Squadron for a period of 12 months between 1969 and 1970 and while his tour overlapped that of Mr Sharley’s by 8 months he did not know Mr Sharley. Mr Taffe is now a pension's officer with the RSL and the Vietnam Veterans' Association. He estimated that during his 12 months in Vietnam there were two or three red alerts called at the Vung Tau Air Base. He particularly recalled the red alert of May 1970 when aircraft had been readied for flight. The red alert calls were notified by telephone and Australian servicemen were required to assemble in the containment area. The air base defence was conducted by American and South Vietnam units. Mr Taffe said yellow alerts differed in that personnel were placed on standby but did not assemble in the containment area. As a sergeant he carried a loaded pistol.
47. Mr Taffe had gone on at least two rescue eights to help unload equipment. He described these missions as terrible because of the pressure to repair aircraft quickly in the absence of any ground support. He had also flown on a couple of supply drops delivering soft goods, probably mailbags. Mr Taffe doubted his name had been added to the manifest in any of these flights. He was uncertain as to how often technical staff were required to act as assistant load masters or why this was necessary. Mr Taffe described all of these events as tense.
MR ROGER BUDD
48. Mr Budd was the senior engineering officer of 35 Squadron and would have been Mr Sharley's supervising officer for the last 7 to 8 months of Mr Sharley’s tour. Mr Budd did not recall the applicant. He described his role as the engineering officer as being to ensure the effective maintenance and engineering integrity of the Caribou aircraft. In his statement (Ex R6) he described the duties of engine fitters. Most of the work was performed from work platforms or scaffolding and aircraft engines were lifted by a mobile crane. Engine fitters carried their tools to the work platform in a toolbox weighing approximately 10kgs and would be required to go up and down to the platform two or three times or more to obtain other tools during the course of the maintenance activities. Mr Budd was aware that engine fitters were sometimes used as assistant load masters providing an extra pair of hands for the manual task of unloading as well as being available to provide engine maintenance should that be needed. To his knowledge deliveries were usually made after landing and stopping the aircraft and occasionally when the aircraft was rolling forward slowly. He did not recall so called speed drops occurring for Caribou aircraft. Rescue eight missions required engine fitters to repair aircraft in the field. This he said was relatively infrequent and he could not recall an occurrence where an aircraft was repaired while under attack. Red alerts were also infrequent and occurred on occasions when rockets came in from the outskirts of the airfield.
49. In his evidence before the Tribunal Mr Budd confirmed that the Vung Tau Base was managed by the Americans and the two Australian squadrons, 35 and 9, were provided with a single hangar. Some of the maintenance equipment was also provided by the Americans. Mr Budd said he would have been advised of a red alert by the Squadron Commander who in turn would have been alerted by the Americans. In the 12 month period had been in Vietnam he thought there were two red alerts called. One of these had resulted from a dispute between the American and Korean service personnel. He had no recollection of yellow alerts being called nor could he recall the use of the terms red and yellow alerts. He had noted that these terms were used in television programs and movies. While officers were provided with side arms other personnel were only issued with ammunition as required. The base was protected by airfield defence guards.
50. In the entire time Mr Budd served in Vietnam he said he could not recall feeling enormously threatened by the environment. He himself had undertaken two or three Caribou supply drops which he described as milk runs. Although nothing in the country was totally secure he was of the opinion that the Caribou missions were conducted in relatively secure dropping points. To his knowledge supply runs were only made into threatened territory on one or two occasions. During Mr Budd's tour no aircraft were lost and to his knowledge no aircraft sustained any bullet damage.
51. As a squadron leader Mr Budd operated an open door policy where any service personnel could approach him directly if they had any complaints or concerns. Had Mr Sharley had any complaints about being involved in supply drops that was the sort of matter that should have been brought to Mr Budd's attention and it was not. Mr Budd was quite certain that any red alerts that were called would have been recorded in the squadron files unless it was an alert which did not eventuate.
52. Mr Thomson related the evidence given by Mr Sharley with respect to the red alerts. He then asked if these would have been a terrifying experience for a person in that situation. Mr Budd regarded this as a hypothetical scenario from his perspective but if all the threats described by Mr Sharley were in fact threats, this could well have been stressful and extremely frightening.
MR TERRENCE MANNING
53. Mr Manning served in Vietnam from January 1970 to January 1971 as a load master in 35 and 38 squadrons. Initially he did not recall Mr Sharley who was there at the same time but having since met him his memory was revived. In his written statement (Ex R7) he stated engine fitters would occasionally work as assistant load masters when the designated load master assistants were sick or on leave. He also described the method of unloading. In most instances the Caribou would land in order to unload. On occasions unloading was effected by thrusting forward so that the load would slide out the back of the plane. Mr Manning was unaware of any injuries occurring during a delivery. He recalled that the planes were shot at while doing deliveries and that a plane or two was lost due to enemy fire.
54. Mr Manning was confirmed that red alerts occurred and did so predominantly at night. He described the frequency of these as being quite often. He described the rescue eight missions and estimated that Mr Sharley would have done more missions as an assistant load master than participating in rescue 8 missions. In his evidence before the Tribunal Mr Manning described these activities in more detail. He believed that he had in fact been on several missions with Mr Sharley during the year in Vietnam. However, he could not remember the details of these missions. Mr Manning was adamant that a manifest of all onboard these Caribou flights was kept and all personnel had to enter it into their log books. Mr Manning was able to be more specific about the loss of Caribou planes, recalling that one was lost on the Cambodian border. No one was injured in this event but the plane was destroyed. Mr Manning agreed with Mr Thomson that the supply drops were dangerous missions and that most service men felt apprehensive during these drops as they had no way of knowing what might happen. Mr Manning carried a 9mm pistol with a spare magazine but never had any need to use it.
DOCUMENTARY EVIDENCE
55. Mr Sharley's evidence before the VRB was essentially the same as he gave to this Tribunal. This evidence clarified the events leading up to him seeing Dr Payne. He had first sought help for his psychiatric symptoms in early 2007 when he attended his general practitioner. Dr Astley recommended he see a psychologist and the Vietnam Veterans' Association organised for him to see Mr Ian Bell. Mr Bell saw Mr Sharley on four occasions and on the last of these recommended that he attend Dr Payne.
56. The actual details of what occurred on a red alert were provided to the VRB by Mr Sharley's advocate, Mr Wiltshire, a Vietnam Veteran. The VRB asked him not to give further evidence in the proceedings. Mr Sharley told the members of the VRB that he had commenced suffering from back pain in the 1970's and had consulted a chiropractor and continued to do so. However, in his claim he had declared that his back and knee pain commenced in 1998.
DR ASTLEY'S CLINICAL NOTES REGARDING MR SHARLEY
57. Dr Astley's notes do not record any complaints relating to back or knee pain. They do have frequent entries regarding Mr Sharley's gout. Dr Astley first recorded any psychological symptoms on 9 January 2007 when Mr Sharley complained of feeling uptight and snappy all the time. Wife asked him to ask for something to calm him down. She discussed his mood changes and irritability with him but Mr Sharley had been unable to identify any cause of his symptoms other than his work being stressful. On 23 February 2007, another doctor in the practice recorded that Mr Sharley drank six or more standard drinks on one occasion per week and normally drank alcohol on one to two days per week. Dr Astley did not receive any report from Dr Payne until late May of 2007. Thereafter she records that he was improving since commencing medication with Avansar. The medical records from Dr Moffitt of the South Morang Clinic were also provided and form part of Dr Astley's notes as well. Dr Moffitt treated Mr Sharley for diabetes and saw him on a few occasions in the year 2000 (Ex R9).
WRITEWAY RESEARCH SERVICE REPORT (EXHIBIT R8)
58. Mr John Tilbrook undertook to research Mr Sharley's RAAF records and those of the 35th Squadron. Mr Sharley was recorded to have acted as an assistant load master on 20 November, 7 December and 31 December 1970. The details of each of these activities were recorded. That on 20 November flew 10 sorties (that is 10 air base visits in the one day). No incidents were recorded. On 7 December there were 15 sorties over a period of six hours and again no incidents were recorded. Mr Manning was recorded as being the load master on this particular flight. The last flight occurred on 31 December 1970 and involved 13 sorties over a period of 7 hours 15 minutes. No adverse incidents were recorded.
59. The records confirm that one Caribou aircraft was lost on 29 March 1970 when it was destroyed by mortar fire from the enemy near the Cambodian border. There was no record of any of the aircraft in which Mr Sharley served as an assistant load master having taken small arms fire.
60. There was no record of any red alerts occurring during Mr Sharley's period of service. On 24 November 1970 the Vietnamese National Police Training Academy was hit by two rockets fired from Long Son Island. The impact site was 3kms from the RAAF domestic quarters.
61. Mr Tilbrook also confirmed that as an engine fitter Mr Sharley would have undertaken moderate manual labour but heavy lifting was performed by cranes.
DR FRANCIS PAYNE'S CLINICAL RECORDS (EXHIBIT R5)
62. Dr Payne's clinical notes record Mr Sharley's visits since February 2007 and confirm that the question of Mr Sharley's retirement was in fact raised by Mr Sharley and not recommended initially by Dr Payne. By late 2007, Dr Payne recorded that Mr Sharley was improving, sleeping much better and having infrequent dreams. Overall he felt much better since ceasing work.
RELEVANT LEGISLATION
63. Section 13 of the Veterans’ Entitlements Act 1986 (the Act) imposes upon the Commonwealth a liability to pay a pension to a veteran who has become incapacitated from a war-caused injury or a war-caused disease.
64. Section 9 of the Act requires a causal link between war service and any disability the veteran might claim to be war-caused. Section 9(1)(b) of the Act states:
9 War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
. . .
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
. . .
65. Section 120 of the Act establishes the standard of satisfactional proof required to found a claim for disability. Section 120(1) and s 120(3) state:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
. . .
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b )that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
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66. As Mr Sharley's claim was lodged after 1 June 1994, s 120A regarding the reasonableness of a hypothesis is attracted. The Veterans' Affairs (1994 – 1995 Budget Measures) Legislation Amendment Act 1994 (the Amendment Act) which introduced s 120A also established the Repatriation Medical Authority (s 196) with legislative authority to determine Statements of Principles (SoP's) based on medical and scientific evidence, thereby providing a template by which the reasonableness of a hypothesis linking a condition, disease or injury to defence service was to be tested. The process to be applied by the decision-maker was determined by the Full Federal Court in Repatriation Commission v Delidio (1998) 49 ALD 193; (1998) 27 AAR 144; and (1998) 83 FCR 82 where the Full Court outlined four steps to be followed:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
67. Statements of Principles exist for all the conditions Mr Sharley claimed to be war-caused. The decision-maker is required to test the reasonableness of the hypothesis in terms of the SoP's which apply on the date the decision is made (Ogston v Repatriation Commission (1999) 29 AAR 89. Where this SoP is less beneficial to the veteran than that in force at the time of lodgement of their application, the earlier SoP is attracted (Keeley v Repatriation Commission (1999) 56 ALD 455).
SUBMISSIONS
68. Mr Thomson identified four hypotheses, three relating to Mr Sharley's psychiatric symptoms and the fourth to his osteoarthrosis of the knees. The possible psychiatric diagnoses were alcohol dependence in partial remission, GAD and PTSD. Mr Thomson outlined the evidence in support of each of these diagnoses and identified the relevant SoP's. He contended that the events experienced by Mr Sharley in South Vietnam namely, the red alerts, the rescue 8's and the supply drops met the requirements of the template provided by the SoP's in regard to the definitions of the relevant stressor.
69. In relation to the contention that Mr Sharley's osteoarthrosis resulted from his operational service, Mr Thomson relied on SoP's Instrument N° 31 of 2005 concerning osteoarthrosis and Instrument N° 13 of 2010 concerning osteoarthritis. [Tribunal Note – the RMA has changed the terminology from osteoarthrosis to osteoarthritis in recognition of the common usage of the latter term although it is incorrect in terms of pathological classification.]
70. The factor relied upon by the applicant was the same in both SoP's namely; factor 6(g) - having trauma to the affected joint before the clinical onset of osteoarthritis/arthrosis in that joint. Trauma to the affected joint is defined as meaning –
A discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least 7 days following their onset save from where medical intervention for trauma to that joint has occurred.
The Tribunal confirmed that this was the only factor upon which the applicant relied. Mr Thomson submitted that Mr Sharley's evidence relating to the episode of his knees being hit by a rolling petrol drum met or was consistent with the template and the definition of the necessary trauma to the affected joint.
71. Mr Brown conceded on behalf of the Commission that Mr Sharley's alcohol dependence currently in partial remission was war-caused. Psychiatrists Dr Strauss and Dr Payne had agreed that this was a correct diagnosis, Dr Payne attributing the alcohol dependence to Mr Sharley's general apprehension at being in a war zone and Dr Strauss agreeing on the basis of assumed facts that the red alerts, rescue eights and supply drops might evoke intense fear, helplessness or horror (cl 8 Instrument N° 76 of 1998 concerning alcohol dependence or alcohol abuse) but the stressful events related by Mr Sharley did not satisfy the definitions of a 1A or 1B stressor in either the 2008 or 2009 SoP's.
72. Mr Brown contended that in relation to the diagnosis of generalised anxiety disorder and post-traumatic stress disorder the stressors did not equate with those required by the SoP's to connect service with either diagnosis and therefore did not meet the requirements of step 3 of Deledio. The events on which Mr Sharley relied were a standard part of his role in Vietnam and did not entail exposure to a threat to life as viewed by the reasonable person. The Commission acknowledged that Mr Sharley saw these events as threatening but this was an idiosyncratic and personal view as there was no objective or actual event, an admission Mr Sharley had readily made (Re Williamson and Repatriation Commission [2005] AATA 152 and Woodward v Repatriation Commission [2005] FCAFC 160). The number of red alerts to which Mr Sharley was exposed was disputed there being no official record of any such alerts being called; the base at Vung Tau was protected by Australian, South Korean and American security staff and no adverse event occurred according to Mr Sharley's evidence. Rescue 8 missions occurred predominantly in well protected environments. Similarly during the supply drops no Caribou on which he was a member of the crew was shot at, no Caribou were lost during that period and no adverse events occurred.
73. In relation to Mr Sharley's osteoarthrosis of the knees it was contended that there was no medical evidence to support the claim. He had not reported the injury to the medical officers at Vung Tau and he had continued with his work in unloading the Caribou immediately after the injury and returned to his normal engine fitter's duties at the base.
TRIBUNAL'S DELIBERATIONS
74. Before proceeding to test the hypothesis in accordance with the Deledio steps the Tribunal must first determine, if possible, the diagnosis applicable to Mr Sharley's symptomatology or at least identify all of the symptoms (Re Mines and Repatriation Commission [2003] AATA 658). On the balance of probability and thus to the Tribunal's reasonable satisfaction Mr Sharley suffers from alcohol dependence in partial remission. Such a diagnosis encompasses all of his symptoms in the opinion of Dr Strauss and the Tribunal, having consulted DSM IV TR, agrees. The clinical onset of his alcohol dependence was in Vietnam in late 1970.
75. While DSM is not a statutory formulation the majority of psychiatrists providing reports on mental disorders for medico-legal purposes do so at least in part on the basis of the DSM classification of mental disorders using the criteria recommended by DSM. The RMA has based the diagnostic criteria of all mental disorder SoP's on those contained in the manual. In fact they have transposed word for word the text of DSM. In the case of post-traumatic stress disorder the stressors needed to found a diagnosis are also included in the diagnostic criteria (Gerzina v Repatriation Commission [2004] FCAFC 96). DSM IV TR includes in the section entitled substance related disorders, alcohol induced psychotic disorder with hallucinations (flashbacks are deemed to be an hallucination), alcohol induced mood disorder, alcohol induced anxiety disorder and alcohol induced sleep disorder. These additional alcohol induced mental disorders are not considered or been the subject of SoP's but at a diagnostic level explain Dr Strauss's opinion that all of Mr Sharley's symptoms are related to his alcohol dependence.
76. Having made this diagnosis of alcohol dependence in partial remission, the Tribunal excludes the alternative diagnoses of post-traumatic stress disorder and generalised anxiety disorder.
77. Dr Payne's diagnosis of post-traumatic stress disorder and his opinion have been noted but for reasons that are not clear Dr Payne did not fully question Mr Sharley as to his alcohol intake. At the first consultation on 28 February 2007, Dr Payne recorded that Mr Sharley had a history of heavy drinking and smoking but alcohol only sporadic now (Ex R5). Dr Payne recorded the stressors described by Mr Sharley as rapid drops of fuel, ammo and red alerts at night. Dr Payne made the diagnosis of post-traumatic stress disorder on this information which was given during a comparatively brief interview the brevity being due to a mix up in Mr Sharley's appointment time. There is no further reference to Mr Sharley's alcohol intake in the following 23 review consultations.
78. When acquainted with the evidence given by Mr Sharley to the Tribunal, Dr Payne agreed with Dr Strauss's diagnosis of alcohol dependence possibly in remission but maintained his original diagnosis of PTSD. Dr Payne was of the opinion that an individual's mere presence in a war zone was a sufficiently severe stressor to enable a diagnosis of post-traumatic stress disorder without there being any threatening or stressful actual event. This is not the criterion required by the SoP's relating to both diagnostic criteria, the definition of a stressor and the required response of the individual to that stressor.
79. The respondent has conceded that Mr Sharley suffers from war-caused alcohol dependence currently in partial remission. Based primarily on Mrs Sharley's evidence, the Tribunal does not accept that the alcohol dependence is in full remission. Mr Sharley still drinks approximately 100mls of whisky per day and binge drinks beer to excess albeit intermittently. At the most he could be said to be in partial remission.
80. The Tribunal accepts the concession by the respondent as correct based on SoP's Instrument N° 76 of 1998 which defines experiencing a severe stressor as meaning –
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
81. The use of the word might in this definition implies a less vigorous test than that for later SoP's. This is supported by the Federal Court decision in Kattenberg v Repatriation Commission (2003) 73 ALD 365 wherein it was held that disciplinary charges could constitute a severe stressor for the purposes of the Act and in this instance had led to a material increase in Mr Kattenberg's level of cigarette smoking he having been a smoker prior to his Vietnam service. Mr Sharley was also a drinker of alcohol prior to his arrival in Vietnam and his alcohol intake escalated, according to his evidence, after his involvement in supply drops.
82. Mr Sharley has claimed that his mild degenerative osteoarthritis/osis of both knees is war-caused. The claim is based upon an injury he says he suffered to both knees during his Vietnam tour. Having examined all the material before the Tribunal there is certainly material that points to the hypothesis connecting Mr Sharley's knee complaint with his service in Vietnam. There is a current SoP's in force (Instrument N° 13 of 2010) and at the time of Mr Sharley's application the relevant SoP's was N° 31 of 2005. Both of these contain the same factors that must be related to service. With respect to Mr Sharley's claimed trauma to the joint this is factor 6(g). Mr Sharley satisfies steps 1 and 2 of Deledio.
83. Step 3 of Deledio requires the Tribunal to determine whether the hypothesis is reasonable in that it is consistent with the template found in the SoP's. The Tribunal finds that step 3 of Deledio is not satisfied as the definition of trauma to the affected joint is not met. While Mr Sharley's evidence with respect to the mechanism of the injury has varied in its detail before the VRB and this Tribunal and he has never mentioned this event to his general practitioner nor consulted her for the condition, his evidence to the Tribunal was that he continued to work immediately after the injury; did not report the injury to the medical officers at Vung Tau and on return to his usual duties coped with these although he avoided climbing ladders where possible. He said he asked the sergeant for lighter duties. He thought his knees might have been swollen after injury but could not be certain. No abnormality was noted on his discharge medical examination and his complaints of knee pain, as opposed to his gout, are of recent onset. The radiological findings in both knees are minor and commensurate with his age of 63.
84. Instrument N° 13 of 2010 concerning osteoarthritis includes amongst the factors that must as a minimum exist before a reasonable hypothesis that has been raised connecting the osteoarthritis with the individual's relevant service, factor 6(n)(i). Being overweight for at least 10 years before the clinical onset of osteoarthritis. This applies only to a joint of the lower limb or hand.
85. Mr Sharley’s claim was limited to Factor 6(g) concerning direct trauma to the joints. No evidence was led regarding Mr Sharley’s weight. The Tribunal notes that the definition of being overweight means an increase in body weight which results in a body mass index (BMI) of 25 or greater. Mr Sharley’s weight is recorded sporadically in the clinical notes of Dr Apsley and also in his medical service record. Following the diagnosis of diabetes in the year 2000 Mr Sharley was repeatedly advised by his general practitioners to lose weight. He had trouble doing so. The Tribunal asked him if he had lost weight during the uncontrolled phase of his diabetes prior to its diagnosis, but he indicated that his weight had been pretty steady over the years at around 79 to 80 kilograms. The Tribunal has estimated his BMI on several occasions where his weight is recorded. On enlistment to the RAAF in 1965 his BMI was 22. At the time of discharge in 1971 his BMI was 28.6. In June 2007 when he weighed 90 kilograms his BMI was 33 and currently in 2010 his BMI is 28. It thus appears likely that Mr Sharley could satisfy the requirements of SoP 13 of 2010 with respect to his osteoarthritis if more evidence was available in relation to the duration of his knee symptoms, their date of onset and his obesity relevant to the date of onset, that is, was he obese in terms of having a BMI greater than 25 for the 10 years prior to the onset of his knee pain. While he claims to have had some aching in the back and knees in the 1970s he has never complained of it to a doctor until the year 2007. He did and does consult a chiropractor. For these reasons the Tribunal remits the claim for osteoarthritis of the knees to the Commission for reconsideration and the obtaining of further evidence.
86. The Tribunal affirms the decision in relation to PTSD and finds that Mr Sharley suffers from war-caused alcohol dependence in partial remission. The decision in relation to his osteoarthritis of the knees is also affirmed on the grounds relied upon by the applicant. This particular claim is remitted to the Repatriation Commission for reconsideration and the obtaining of further evidence on the basis that he may have war-caused osteoarthritis if he has been overweight (BMI greater than 25), for the10 years prior to the onset of his knee pain.
I certify that the eighty six [86] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan, Member
Signed: ...........................[signed].................................................... Grace Horzitski Associate
Dates of Hearing 22 & 23 March 2010, 14 April 2010
Date of Decision 28 June 2010
Counsel for the Applicant Mr C Thomson
Advocate for the Applicant Mr P Liefman
Solicitor for the Respondent Mr D Brown, Australian Government Solicitor
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