Travers and Repatriation Commission
[2005] AATA 170
•28 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 170
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/851
VETERANS' APPEALS DIVISION )
Re ASHLEIGH TRAVERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date28 February 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................[Sgd]......................
M J Carstairs
Member
CATCHWORDS
VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety disorder - alcohol dependence or abuse – gastro-oesophageal reflux – impotence - whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1), 120(3), 120(4), 120A(3), 196B(3)
Meehan v Repatriation Commission (2002) 64 ALD 366
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 74 ALD 366
White v Repatriation Commission [2004] FCA 633
Woodward v Repatriation Commission (2003) 75 ALD 420REASONS FOR DECISION
28 February 2005 Ms M J Carstairs, Member 1. This is an application by Ashleigh Travers (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 11 September 2003. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 14 January 2003 that anxiety disorder, gastro-oesophageal reflux, impotence and alcohol dependence or abuse suffered by the applicant were not war-caused.
2. At the hearing on 18 February 2005 Mr D O'Gorman of counsel instructed by McCallum Mylne Lawyers represented the applicant and Mr J Kelly represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T21), plus exhibits marked A1‑A2 for the applicant and R1-R3 for the respondent.
BACKGROUND
4. The applicant was born on 1 May 1948 in Geelong, Victoria. After leaving school he partly completed an apprenticeship as a motor mechanic. He was called up for National Service in the Australian Army (the army) and served from 2 October 1968 to 1 October 1970. He completed his recruit training at Puckapunyal after which he joined the Armoured Corps and was posted to A Squadron, 1st Armoured Regiment, and was allotted for service in Vietnam for the period 10 December 1969 to 10 September 1970. This period is operational service for the purposes of the Veterans' Entitlements Act 1986 (the Act).
5. On 29 November 2002 the applicant made a claim for disability pension for post traumatic stress disorder, hearing loss and tinnitus, solar keratosis, gastric reflux and impotence. On 14 January 2003 a delegate of the respondent accepted the claims for hearing and solar keratosis but refused the claims for the remaining conditions on the grounds that they were not war-caused. The VRB affirmed the decision in relation to anxiety disorder, gastro-oesophageal reflux, impotence and alcohol dependence or abuse. On 8 October 2003 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
6. The issues before the Tribunal are what is the appropriate diagnosis for the applicant’s psychiatric condition(s), and whether the psychiatric condition(s), together with gastro-oesophageal reflux, impotence, and alcohol dependence or abuse, are war-caused. The parties agreed that acceptance of impotence and gastro-oesophageal reflux depended upon acceptance of alcohol dependence or abuse as war-caused. The parties also agreed that the assessment of the rate of pension payable, if any of the conditions are determined to be war-caused, should be remitted to the respondent for further determination.
EVIDENCE
7. The applicant referred in written statements and oral evidence to two incidents of stress during his service in Vietnam:
·He was carrying out a fuel resupply operation to vehicles from A Squadron which were undertaking operations in the area near the Long Hai mountains when he observed a burning armoured personnel carrier (APC) which had been hit by a rocket propelled grenade (the APC incident). He found the event frightening, his fears being increased because he believed his vehicle, loaded with fuel, could be a target;
·About August/September 1970 he was driving an officer to the site of an encounter that had occurred the previous night between Australian soldiers and the enemy near Baria (the dead Vietnamese incident). He observed the bodies of Vietnamese killed in this encounter being buried in a mass grave which was being dug by Australian troops using a backhoe.
8. In two written reports dated 14 September 2004 and 7 January 2005 (exhibit R2 and R3) Mr H Conant, researcher, Writeway Research Service, investigated and confirmed the occurrence of each of these incidents.
9. In his oral evidence the applicant confirmed that he observed the APC incident from a distance which he described as a lot further up from where we were. He said he did not observe casualties, and learned later that two Australian soldiers, whom he did not know, had been killed. He was directed by radio to draw back from the area and he did so.
10. With regard to the dead Vietnamese incident he said that he stayed with his vehicle during the time that the officer was at the burial site. He said he saw, from a distance of some fifty to eighty metres, three or four bodies of dead Vietnamese being buried. He described feeling emotionally and physically sick, and said that the area had an eerie atmosphere.
11. The applicant agreed under cross-examination that he had not assisted in the burial of the Vietnamese casualties as was stated in a document he had signed on 3 July 2003 (T4, pp 43-44) and he could not explain why he had not mentioned the dead Vietnamese incident to Dr Katz (consultant psychiatrist) except to say that his interview with Dr Katz had been brief and he did not feel comfortable with Dr Katz.
12. The applicant set out in a written statement dated 25 June 2004 (Exhibit A1) that he had no desire to be conscripted to the armed services or to serve in Vietnam. He said that his posting to Vietnam caused him stress and anxiety and that this was possibly one of the contributing factors to his commencing drinking alcohol on a regular basis. He also cited peer pressure and the amount of available leisure time at Puckapunyal. He said he now believed that an earlier document signed by him on 27 November 2002 (T4, pp 19-19A) stating that he commenced drinking on a regular basis when he joined the army in 1968 was incorrect. He said that he recalled that he began to drink regularly after being posted to Puckapunyal where he joined in binge drinking sessions with other recruits.
13. The applicant said that during his Vietnam service his drinking habits increased significantly to about 12 to 14 cans of beer per day, with more beer being consumed on weekends. He was barman in the officers’ and sergeants’ messes and later in the other ranks canteen. He said beer was cheap in Vietnam and he was able to consume as much as he wanted in the canteen. He stated that, despite this, he was able to contain his alcohol consumption until after the APC incident.
14. In oral evidence the applicant stated that he continued to drink heavily on a daily basis when he returned from Vietnam. He said that his drinking sessions then frequently lasted until the early hours of the morning and he recalled being away without letting his wife know his whereabouts. He said that he was involved in brawls and experienced problems in his marriage. The applicant described himself as having a short fuse; he said he had a reputation for brawling and was banned from a number of hotels at this time as well as being charged with assault and drink driving. The applicant said that in the early 1970s he consulted a psychiatrist and attended about five or six sessions of group counselling because of his alcohol problems. He continues to consume between ten and twenty beers each day and has recent drink driving offences.
15. In a written report dated 18 December 2002 (T4, p31) Dr M Katz stated that in his opinion the applicant suffers from alcohol abuse/dependency according to criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and also has symptoms that reach the criteria for … the further diagnosis of generalised anxiety disorder. Dr Katz confirmed in his oral evidence that he considered that both diagnoses were warranted but he agreed that in filling out the document Emotional and Behavioural Medical Impairment Worksheet (T4) he had solely concentrated on symptoms of alcohol abuse and was unable to explain why this was so.
16. In oral evidence Dr Katz at first said that both conditions arose on service, but he later clarified that he did not elicit any history of generalised anxiety disorder during the applicant’s service and said that he believed that he changed in his personal functioning some time after service. He agreed that it was difficult to distinguish the condition of generalised anxiety disorder from mood disorder associated with alcohol consumption.
17. In a written report dated 21 January 2004 (exhibit R1) Dr J Wainwright, consultant psychiatrist, concluded that the applicant suffers from alcohol abuse rather than alcohol dependence, based on his history of continued alcohol use despite persistent interpersonal problems. In oral evidence he said that the alcohol abuse had been present from the applicant’s service in Vietnam or possibly earlier.
18. Dr Wainwright, however, concluded that the applicant did not suffer from generalised anxiety disorder or any diagnosable anxiety condition. Dr Wainwright said that in his opinion the applicant’s irritability and outbursts of anger are part of his personality structure exacerbated by the effects of chronic alcohol use.
Mental state examination revealed a man of stated age with short-cropped grey hair and dark glasses. He was well-groomed and casually and smartly dressed. He was quite tanned. He appeared quite relaxed throughout the interview, with no evidence of hyperarousal on discussion of traumatic incidents in Vietnam. He did, however, show some mild increase in agitation when discussing his return to South Vietnam in 1992. His speech was normal in rate, tone and volume, although he tended to speak in short, clipped sentences. His mood during the interview was euthymic (normal) and his affect, that is the observable range of his emotional expression, was slightly restricted, but congruent with his underlying mood state. There were no abnormalities of thought form, content, stream nor possession. There was no evidence of any anhedonia, that is an inability to experience pleasure. Mr Travers denied a morbid loss of self-esteem and there was no evidence of current suicidal or homicidal ideation. There was no evidence of any perceptual disturbance. Mr Travers appeared to be of average intelligence and was oriented in time, place and person. His attention and concentration throughout a 3 hour interview and psychometric testing was good. Mr Travers displayed some insight into the nature of his situation, and his judgment for day to day matters appeared to be unimpaired.”
19. In oral evidence Dr Wainwright said that he bases a diagnosis upon history taken at interview, mental state testing and any other testing undertaken, and the consistency between these. He said that he did not detect any significant signs of anxiety in the applicant and considered that the feelings of anxiety he described came within the normal range of human reactions to life events. Dr Wainwright said that in his clinical experience it is unsafe to diagnose generalised anxiety disorder in the presence of alcohol abuse. He said that if a person ceases consuming alcohol then the clinician is in a better position to diagnose whether there is any other psychiatric disorder present. Dr Wainwright acknowledged that it is possible for a person to suffer from both general anxiety disorder and alcohol abuse but he said that he did not consider it appropriate, when seeing a patient on a first occasion, to diagnose another psychiatric condition in the presence of alcohol disorders.
20. Dr Wainwright said that despite his having come from a difficult family background and having had an abusive and alcoholic father, the applicant did not have a personality disorder at or around the time of his service. Rather he considered that the applicant had demonstrated sufficient inner strength to overcome his early life circumstances.
CONSIDERATION OF THE ISSUES
21. Section 9 of the Act specifies the circumstances in which a veteran’s disease or injury is to be taken to be war‑caused. In particular s 9(1)(a), (b):
9(1) Subject to this section, 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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;
22. There was no dispute between the parties that the applicant had rendered operational service, and that s 120(1) and s 120(3) of the Act apply to determine the applicant’s entitlements. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). Section 120(3) is affected by s 120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s 120A depends upon whether there is in force a Statement of Principles (SoP) determined under s 196B of the Act, in respect of the kind of disease contracted by the applicant. Section 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by that person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
23. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.
24. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if a SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
25. The parties agreed that the relevant SoPs were SoP Nº 1 of 2000 for anxiety disorder and SoP Nº 76 of 1998 for alcohol abuse or alcohol dependence.
26. In SoP Nº 1 of 2000 for anxiety disorder, factor 5(a)(ii) requires:
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; …
Paragraph 8 of the SoP defines severe psychosocial stressor as:
….an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…
27. In SoP Nº 76 of 1998 for alcohol abuse or alcohol dependence, factor 5(b) requires:
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
The SoP then provides in clause 8 that:
“experiencing a severe stressor” means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
28. Mr O’Gorman submitted that the evidence of Dr Katz should be preferred to that of Dr Wainwright on the question of a diagnosis of generalised anxiety disorder. He noted that there was no dispute between doctors that the applicant suffers from alcohol abuse. He submitted that at least one of the incidents, or a combination as described by the applicant, were capable of being the severe stressor required by the SoP for alcohol abuse and the severe psychosocial stressor required by the SoP for generalised anxiety disorder so that the relevant factors in the SoPs were satisfied. Mr O’Gorman noted that Mr Conant had not suggested the incidents did not occur. Therefore he said the hypotheses were reasonable, and the applicant satisfied the third and fourth steps of Deledio.
29. Mr Kelly submitted that the Tribunal should prefer the evidence of Dr Wainright that the applicant does not suffer an anxiety disorder. In regard to alcohol abuse he submitted that this condition was present before the applicant’s Vietnam service, and thus the condition predated the occurrence of any stressor during the period of operational service. He said that neither incident satisfied the requirement of the definition of severe stressor and the applicant should be doubted in relation to the dead Vietnamese incident.
30. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that, when considering the first step, the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed, on the balance of probabilities. The Tribunal had before it psychiatric evidence provided from two psychiatrists. Of the two, Dr Wainwright was the more impressive witness. He had spent much more time with the applicant and had taken a more comprehensive history. The applicant confirmed in his evidence that he had a better rapport with Dr Wainwright and noted that his appointment with Dr Katz had been much briefer. Dr Katz had completed an Impairment Worksheet that almost exclusively referred to the applicant’s symptoms being related to alcohol abuse, and he was quite unable to explain the basis of his additional diagnosis of generalised anxiety disorder, and said that he might reassess in the light of questions asked in the hearing. Dr Wainright was better able to explain his clinical approach to diagnosis and was convincing about the need for caution when diagnosing another psychiatric condition in the presence of alcohol disorders.
31. Taking into account the evidence as a whole the Tribunal accepts the evidence of Dr Wainright that the applicant’s condition is sufficiently described by the diagnosis of alcohol abuse and finds that the applicant does not suffer from generalised anxiety disorder. The Tribunal is satisfied that the applicant suffers from alcohol abuse.
32. The Tribunal has identified the relevant SoP for alcohol dependence or alcohol abuse. Applying Deledio, the Tribunal is satisfied that the material points to hypotheses connecting the applicant's condition of alcohol abuse with the circumstances of the particular service rendered by him, and a SoP is in force, so that the first and second steps in Deledio are satisfied.
33. In respect of the third step, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP (Repatriation Commission v Hill [2002] FCAFC 192).
34. In relation to factor 5(b) of SoP Nº 76 of 1998 concerning alcohol dependence or abuse, it is necessary that the evidence points to incidents that meet the definition of severe stressor within two years of the clinical onset of alcohol dependence or abuse. The Tribunal notes that the definition of severe stressor in the SoP requires the occurrence of a particular stressor and a reaction by the applicant at the relevant time of intense fear, helplessness or horror.
68. In Stoddart v Repatriation Commission (2003) 74 ALD 366 the Federal Court stated (at 378):
…The adjectival clause “that involved actual or threat of death or serious injury...” explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not fall within the adjectival clause.
In Woodward v Repatriation Commission (2003) 75 ALD 420 the Full Federal Court concluded (at 445):
We consider that the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed. In doing so, however, we express no opinion about a situation in which the perception of a threat, although real in the mind of an individual, is not objectively reasonable.
35. The Tribunal notes that in evidence to the VRB about the dead Vietnamese incident the applicant had said that he could not recall his response at the time. The Tribunal notes the inconsistencies in the evidence about the incidents from the applicant before the Tribunal and the VRB, and in giving details to medical practitioners. The Tribunal took into account the applicant’s evidence that he felt physically and emotionally sick during the dead Vietnamese incident, and also that he stayed by his vehicle. He was very unclear in his evidence about how long they remained at the site. There was little in his description that suggested an emotional response at the level of fear helplessness or horror. Casualty clearance is envisaged within the definition of experiencing a severe stressor. However, what the applicant described was the end of the operation. It is notable that in speaking to medical practitioners he did not recount any majorly sensitising or traumatising experiences (Dr Katz) and Dr Wainright considered that he showed no hyper-arousal in discussion of the incidents in Vietnam. When all this is taken into account this material does not point strongly to meeting experiencing a severe stressor.
36. In relation to the APC incident the evidence of the applicant and Mr Conant points to the occurrence of the incident, but the applicant’s observation occurred at some stage afterwards. The applicant’s evidence about the APC incident suggested that it was worrying and even frightening to him, but his recollections of his reactions were more related to possible threat with the fuel he was carrying, rather than fear or horror related to the deaths or casualties represented by the burning APC. The incident, in terms of coming upon it after the event and from a distance where observation of casualties was not possible, suggests that the APC incident was not capable of evoking the required levels of substantial distress, particularly when the casualties were not known to the applicant. Accordingly the Tribunal considers that, although the applicant may have been concerned about a threat to himself carrying fuel, this does not meet the definition of experiencing a severe stressor.
37. For these reasons the Tribunal accepts Mr Kelly’s submission that the requirements of the SoP are not satisfied for two reasons: because the two incidents do not meet the definition of severe stressors as contemplated by the SoP, and also because the evidence points to the onset of the applicant’s alcohol abuse in a period of service that predated his operational service. Thus the evidence does not suggest that the applicant experienced a severe stressor within the two years immediately before the clinical onset of alcohol abuse as required in the SoP. Overall, the material does not point to the applicant meeting any of the relevant factors in the SoP concerning alcohol abuse, and therefore the hypotheses connecting this condition with the applicant’s service are not consistent with the template and are not reasonable hypotheses. The applicant does not satisfy the third step of Deledio in relation to alcohol abuse.
71. It follows that, because the applicant’s alcohol abuse is not related to his operational service his claims for gastro-oesophageal reflux and impotence also fail.
72. DECISION
73. The Tribunal affirms the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member.
Signed: Camille Banks
Associate
Date of Hearing 18 February 2005
Date of Decision 28 January 2005
Counsel for the Applicant Mr D O’Gorman
Solicitor for the Applicant McCallum Mylne Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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