Spelta and Repatriation Commission - [2001] AATA 946

DECISION AND REASONS FOR DECISION [2001] AATA 946

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/581

VETERANS' APPEALS DIVISION       )
           Re      BARRY ALEXANDER SPELTA
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr KL Beddoe (Senior Member)

Date16 November 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes a decision accepting Alcohol Abuse and Depressive Disorder as being war caused disabilities. The claim for Generalised Anxiety Disorder is refused.

(Sgd) K L Beddoe
Senior Member

Decision No: 946/2001
CATCHWORDS
VETERANS' AFFAIRS - whether Alcohol Abuse, Depressive Disorder and Generalised Anxiety Disorder were war-caused
Veterans' Entitlements Act 1986
Statements of Principle - Nos 48/1994 and 275/1995, 58/1998, 58/1998

REASONS FOR DECISION

16 November 2001 Mr KL Beddoe (Senior Member)

The respondent refused the applicant's claim that generalised anxiety disorder, depressive disorder and alcohol dependence (or abuse) be accepted as war caused disabilities within the terms of the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board subsequently affirmed the respondent's decision. The applicant applied for review in this Tribunal.
Initially at the hearing the respondent conceded diagnosed conditions of Generalised Anxiety Disorder and Depressive Disorder, but did not concede that these conditions were war-caused. The respondent subsequently also conceded the diagnosis of Alcohol Dependence.
The applicant was represented at the hearing by Mr Honchin of Counsel and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant. The applicable Statements of Principle are:
Generalised Anxiety Disorder                   Nos 48/1994 and 275/1995
Depressive Disorder  No 58/1998
Alcohol Dependence  No 76/1998
I make the following findings of fact. The applicant was called up under the National Service Act having been born on 30 November 1946. He enlisted on 18 April 1967 and was discharged on 1 March 1969. He served in South Vietnam from 15 March 1968 until 25 February 1969. There is no dispute that the service in South Vietnam was operational service.
The applicant did basic recruit training on enlistment and then did an army cook's course and was posted to the Royal Australian Army Service Corp as a cook. His duties in South Vietnam were initially as a cook at the Officers' Mess at Vung Tau, then a period as a cook at the Sergeants' and Other Rank's "(O/R's)" messes at Vung Tau and thirdly a further period at the Officers' Mess. There is no evidence that the applicant participated in any operation away from Vung Tau.
The applicant described the Officers' Mess as being on a sandhill in an elevated position and close to the Australian Army Hospital. A feature of the applicant's experience is that while working at the Officers' Mess he observed helicopters landing in an area proximate to the hospital with injured and deceased soldiers who had been evacuated from fighting zones. In some instances the applicant was unable to determine by his observation from a distance whether the particular soldier was injured or deceased. This he says upset him at the time and he recalls this experience from time to time.
He also saw caskets being loaded onto Hercules aircraft and saw two bodies of persons who had been shot. One of them in his immediate presence although he did not observe the shooting by the South Vietnam police. The applicant also experienced rocket attacks on the Vung Tau barracks. Local staff employed in the messes warned the Australians of the presence of enemy in the area and because of this, weapons were kept in the mess kitchen. In relation to the O/R's mess the applicant was concerned about the weapons and also knives being available to local staff in the mess. I understood this concern to be based on a lack of trust by the applicant in relation to the local staff.
After service in South Vietnam the applicant was discharged from the Army at the end of his two years service. He then worked for Telstra Ltd and its antecedents for 31 ½ years and is still an employee of Telstra although he has been on sick leave since 1999.
Exhibit A is a statement of evidence by the applicant which exhibits extracts from letters written by the applicant while he was in South Vietnam. Those letters refer to several instances of excessive consumption of alcohol and instances of raids on Vung Tau. While there is much discussion in the extracts about other matters there is no mention of any other traumatic events experienced by the applicant. In that the applicant linked his excessive drinking to anything, which most extracts do not, it was to the fact of being in South Vietnam.
The applicant attended for counselling at the Vietnam Veterans' Counselling Service for the first time in 1999.
The Medical Evidence
Document T4 includes a copy of a report by Dr Likely, Consultant Psychiatrist, dated 30 September 1999 and addressed to the applicant's general practitioner. Dr Likely sets out a history generally consistent with the evidence before the Tribunal.
Dr Likely reported a history of recurrent intrusive thoughts and dreams with intense psychological distress and physiological reactivity when exposed to reminder events. Dr Likely also recorded reported excessive consumption of beer on a daily basis.
Relevantly Dr Likely diagnosed Generalised Anxiety Disorder and Major Depressive Disorder with Alcohol Abuse with likely dependence. Post Traumatic Stress Disorder was specifically excluded. Dr Likely referred to physical conditions and also found stressor of chronic mental and physical ill health with work stress.
In a report to an RSL Advocate dated 16 March 2000 (T4/38) Dr Likely said treatment had only resulted in a slight improvement with slight "attenuation of his symptoms of anxiety and depression." Dr Likely noted continuing alcohol abuse.
Dr Likely sent a further report dated 1 February 2001 to the applicant's solicitors (Exhibit B). He said that the applicant had continued to attend for treatment but the applicant still experienced significant symptoms of anxiety and depression with excessive use of alcohol.
The report discusses the reasons for decision of the Veterans' Review Board.While his discussion is not relevant for present purposes, his opinion that the applicant's symptoms of anxiety and depression with comorbid alcohol abuse arose as a result of the applicant's service in South Vietnam and for no other reason must be taken into account. Dr Likely also expressed the opinion that the symptoms are so severe and deeply ingrained as to render the applicant totally and permanently incapacitated from undertaking any type of remunerative work.
The applicant's general practitioner (Dr Fraser) made a pro forma report to the Department of Veterans' Affairs dated 25 November 1999. He noted severe psychiatric illness described as Generalised Anxiety Disorder, Depressive Disorder and Alcohol Abuse, all said to have the date of onset at 1969 and to be permanent conditions. Dr Fraser said the psychiatric illness was too severe for rehabilitation and the applicant was totally unfit for work (T4/15-31).
Exhibit C is a copy of a report by Dr Duke, consultant Psychiatrist, addressed to Telstra Corporation. The report was made in response to a letter from Telstra but that letter is not before this Tribunal. Nor does this Tribunal have the benefit of the medical report and medical certificates available to Dr Duke. It would be reasonable to infer that the reports and certificates relate to an employee compensation claim.
Dr Duke relates a history of alcohol abuse dating from the time of service in South Vietnam. He thought the applicant was not physically or psychologically fit for his work. He attributed the applicant's medical condition to untreated alcohol abuse and alcoholism. Dr Duke noted that the applicant commenced drinking alcohol in South Vietnam but does not discuss any relationship between war service and the alcohol abuse. Given the apparent purpose of the report that would not be a relevant issue.
Exhibit 1 is a report by Dr Richards, Psychiatrist, dated 22 September 2000 and addressed to the Department of Veterans' Affairs. Dr Richards reports excessive consumption of alcohol and symptoms of depression, suicidal thoughts and night terrors. None of those symptoms were said to relate to his service in South Vietnam. Dr Richards diagnosed alcohol dependence which he considered had its genesis in the applicant's South Vietnam service. He was "unable to find a stressor of the severity postulated in the appropriate statement of principles". Dr Richards did not nominate the statement of principles referred to.
Consideration
The hypothesis linking the applicant's Generalised Anxiety Disorder, Major Depressive Disorder and Alcohol Abuse with likely dependence with the service in South Vietnam is raised by Dr Likely's report of 30 September 1999 (T4).
The applicant contends and the respondent conceded that paragraph 1(b) of Statement of Principles No 48/1994 re Generalised Anxiety Disorder was satisfied except the respondent does not concede the time of clinical onset.
The applicant also contends that paragraphs 5(b) & (c) of Statement of Principles No 58/1998 (Depressive Disorder) and paragraphs 5(a) & (b) of Statement of Principles No 76 of 1998 (Psychoactive Substance Abuse or Dependence) are satisfied.
It is the applicant's case that there is a hypothesised causal connection between the diagnosed condition(s) and the applicant's operational service.
In relation to Instrument 58 of 1998 (Depressive Disorder) and Instrument No 48 of 1994 (Generalised Anxiety Disorder) the definitions of "stressful event" (48/1994) and "severe psychosocial stressor" (58/1998) are to be assessed subjectively as to how the applicant reacted personally and not on an objective basis.
By comparison, says the applicant, the stressor in No 76/1998 ie "experiencing a severe stressor" which raises a subjective experiencing of events actually occurred. There is a reasonable hypothesis in Dr Likely's evidence which connects the diagnosed conditions with the applicant's service in South Vietnam.
Virtually none of this was disputed by the respondent. However the respondent's case is that there was not a relevant clinical onset of the diagnosed conditions at a time proximate to the stressful events experienced in South Vietnam.
Instrument 58/1998 refers in paragraph 5(b) to experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of Depressive Disorder. Paragraph 5(c) requires that the veteran have a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder.
Dr Likely noted the stressful events leading to the diagnosis as being linked back to the applicant's experiences in South Vietnam. Dr Duke noted a history of alcohol abuse from the time of the applicant's return from South Vietnam.
The respondent says the clinical onset of the conditions has not been established although Mr Stoner acknowledged the history of alcohol abuse.
The applicant had not required medical intervention for the subject conditions until 1999 indicating a lack of causative link between the experiences in South Vietnam and the now diagnosed conditions. Also, the respondent submits, the applicant held down a responsible job at Telstra until 1999 when he went on sick leave. That is inconsistent with diagnosed conditions being caused by stressful events in South Vietnam given that the applicant did not seek medical assistance until 1999.
The events described by the applicant are stressful events but not events that would have any lasting effect on everyone who witnessed them. That was not the case with the applicant. His abuse of alcohol dates from the time of his service in South Vietnam so that it is more likely than not that the events he witnessed there had a causative effect in relation to the alcohol abuse. I am satisfied that the applicant's alcohol abuse resulted from his experiences in South Vietnam including events that can fairly be characterised as severe stressors coming within the definition of "experiencing a severe stressor".
Whether it is correct to diagnose the applicant as suffering alcoholism (Dr Duke and Dr Richards ) or Alcohol Abuse (Dr Likely) the onset is attributable to the service in South Vietnam as shown by the applicant's uncontested oral evidence and the contemporaneous letters written by the applicant (Exhibit A).
In my view Dr Likely's diagnosis of Alcohol Abuse is to be preferred because the applicant managed to maintain a sufficient control over his drinking to hold down active employment until 1999. While I accept that does not rule out alcoholism, it is my reason for preferring the opinion of Dr Likely. That alcohol abuse has been shown to be related to the applicant's service in South Vietnam because I am satisfied the applicant experienced a severe stressor(s) within the two years immediately before the clinical onset of alcohol abuse. That the condition was not diagnosed at a time proximate to the service in South Vietnam does not make paragraph 5 of Instrument No 76 of 1998 inapplicable.
I am satisfied that the diagnosed condition of Alcohol Abuse (which may include Alcohol dependence in this case) can be attributed to the South Vietnam service and it is a reasonable hypothesis within the terms of Instrument No 76 of 1998.
As to Instrument No 58 of 1998 (Depressive Disorder), I am satisfied that the condition has only been diagnosed in recent times so that it is not open, on the material, to find that the condition is directly related to the applicant's service in South Vietnam. Unless it can be accepted that the applicant had a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder the terms of the instrument will not be satisfied.
Given that I have accepted that the condition of Alcohol Abuse is related to the service in South Vietnam it follows that the connection with that service is satisfied because the applicant had a clinically significant psychiatric condition (the Alcohol Abuse) within the two years immediately before the clinical onset of the depressive disorder. In that regard Dr Likely described Alcohol Abuse with likely dependence as an Axis 1 disorder.
As to Generalised Anxiety Disorder (Instrument No 48 of 1994) the hypothesis will only be a reasonable hypothesis, on the facts of this case if the definition of "generalised anxiety disorder" is satisfied and the applicant experienced a stressful event not more than two years before the clinical onset/worsening of the condition or there was an inability to obtain appropriate clinical management for the condition.
In the light of the material before me I am reasonably satisfied that the Generalised Anxiety Disorder does not arise directly from the service in South Vietnam but like the Depressive Disorder is caused by the Alcohol Abuse and therefore excluded from the definition of Generalised Anxiety Disorder. Furthermore I am not satisfied that the applicant experienced a stressful event related to his service not more than two years before the clinical onset or worsening of the condition, nor was there an inability to obtain clinical management for the condition.
The claim for Generalised Anxiety Disorder does not satisfy the terms of Instrument No 48 of 1994.
There is no basis for a conclusion that the Tribunal is satisfied, beyond reasonable doubt that the conditions of Alcohol Abuse and Depressive Disorder were not war caused.
For these reasons I will set aside the decision under review and substitute a decision accepting Alcohol Abuse and Depressive Disorder as being war caused disabilities. The claim for Generalised Anxiety Disorder will be refused.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 March 2001
Date of Decision  16 November 2001
For the Applicant  Mr Honchin
For the Respondent                 Mr Stoner