Waller and Repatriation Commission
[2003] AATA 430
•12 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 430
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1620
VETERANS’ APPEALS DIVISION ) Re WILLIAM WALLER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Member Date12 May 2003
PlaceSydney
Decision The decision under review is affirmed. [SGD] Ms N Bell
Member
CATCHWORDS
VETERANS’ AFFAIRS - whether veteran suffers from post traumatic stress disorder and alcohol abuse - experience in the Army after World War Two - visited and observed child Hiroshima victims - recurrent dreams, some reaction to and avoidance of reminders of Hiroshima, some hypervigilance, heightened startle response and excessive drinking - absence of any impact on family, working and social life - no reasonable satisfaction that Applicant suffers from a disease - decision affirmed.
Veterans’ Entitlements Act 1986 - ss 5D, 9,120, 120A
Repatriation Statement of Principles Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder
Repatriation Statement of Principles Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Washington DC
The Macquarie Concise Dictionary, 2nd edition 1995, Macquarie University
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Sheldon v Repatriation Commission (1999) 85 FCR 587
REASONS FOR DECISION
May 2003 Ms N Bell, Member 1. This is an application by Mr William Waller (“the Applicant”) for review of the decision of the Repatriation Commission (“the Respondent”) dated 14 February 2001 to refuse the Applicants claims that his Anxiety disorder and Hypertension are war caused. The Respondent’s decision was reviewed and affirmed by the Veterans’ Review Board and the Board’s decision was notified on 23 July 2001.
2. At the hearing of the application before the Tribunal no oral evidence was presented. The Applicant was represented by Mr R Sherlock and the Respondent was represented by Mr Stephen Modder. The following documentary evidence was before the Tribunal:
Exhibit
Description
Date
TD1
T-documents T1 – T16 p1~111
-
A1
Comments made by the Applicant
20/03/2002
R1
Clinical Notes of Dr S Kuchta
Various
R2
Medical Report from Dr Lester Walton
16/07/2002
R3
Report from Mr J Church (Write Way Research Service)
04/02/2002
R4
Report from Mr J Church (Write Way Research Service)
05/08/2002
Background
3. There is no dispute that the Applicant had operational service from 12 March 1946 to 17 November 1948 in World War Two. The Applicant suffers from Ischaemic Heart Disease, Transient Ischaemic Attack and Diabetes Mellitus, conditions accepted by the Respondent as being war caused.
4. Mr Sherlock, for the Applicant, indicated, in the Applicant’s Statement of Facts and Contentions that the Applicant wished to pursue his claim for Hypertension and sought a change of diagnosis from Anxiety disorder to Post Traumatic Stress Disorder (“PTSD”). At the hearing, Mr Sherlock advised the Tribunal the Applicant did not wish to pursue his claim for Hypertension and wished to pursue instead a claim for alcohol abuse secondary to his PTSD.
Issues
5. The Applicant contends that he suffers not from Anxiety Disorder and Hypertension but from PTSD and Alcohol Abuse. It is therefore necessary to consider first, whether the applicant has a disease, and then, if so, the question of diagnosis of that disease. Both must be done to the standard of reasonable satisfaction.
6. If it is found that the Applicant suffers from a disease, whatever the diagnosis, the Tribunal must then consider whether the material before it points to a reasonable hypothesis of war causation. In the case of the condition contended to be PTSD, this must be done by reference to SoP No. 3 of 1999, concerning PTSD, and it must be considered whether the hypothesis put by the Applicant conforms with the template set out in that SoP. If the Tribunal concludes that the hypothesis is reasonable then it must consider whether there is evidence before the Tribunal to prove, beyond reasonable doubt, that the Applicant’s PTSD is not war caused.
7. As to the contended condition of alcohol abuse, a similar analysis must be undertaken by the Tribunal. However, the Tribunal notes the Applicant’s submission that the condition is one which does not conform with the diagnostic criteria contained in the SoP concerning Alcohol Dependence or Alcohol Abuse, No. 76 of 1998 and should be considered as a “non SoP” condition. The Tribunal must first, however, be reasonably satisfied that the Applicant suffers from a disease.
legislation
8. The relevant legislation in this application is the Veterans’ Entitlements Act1986 and in particular sections 5D, 9, 120 and 120A. The parties are in agreement that the Statements of Principles (“SoP”) relevant to this application are SoP No. 3 of 1999, concerning PTSD and SoP No. 76 of 1998, concerning Alcohol Dependence or Alcohol Abuse.
9. Section 5D of the Act provides:
“Injury/disease definitions
(1) In this Act, unless the contrary intention appears: blinded in an eye has the meaning given by subsection (3).
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2) In this Act, unless the contrary intention appears:
(a) a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or
(b) a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68 (1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note: for war-caused injury and war-caused disease see section 9.
Blinded in an eye
(3) For the purposes of this Act, a person is taken to have been blinded in an eye if:
(a) the person has lost the eye; or
(b) in the opinion of the Commission, the eyesight of the person in that eye is so defective that the person has no useful sight in that eye.”
10. Section 9(1) of the Act provides:
“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;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
11. Sections 120 and 120A of the Act are set out later in this Statement of Reasons.
Applicant’s evidence
12. The Applicant’s evidence is contained in statements made by him in his claim for disability pension (T4), his comments on the report of Mr J Church and in statements reported to have been made by him to Drs Robinson, Brash and Walton.
13. In his claim for disability pension (T4) the Applicant said:
“Began drinking on service. Drinking a major aspect of social life of unit. Average 7-8 schooners per day to present. Used to induce sleep because so distressed by Hiroshima experiences…
Served on outskirts of Hiroshima for two years. I spent a lot of time with friends visiting children in hospital. I was deeply distressed and disturbed by what I saw.”
14. In an alcohol questionnaire (T6/56) completed by the Applicant he stated the following:
“During service in Japan I was stationed a short distance from the atomic bomb scarred city of Hiroshima at a camp near Kiatachi. My duties took me to Hiroshima quite often and our off duties and on duty hours were spent in the city where a group of personnel from our camp was formed and we got involved with staff at the Hiroshima Hospital visiting and helping the patients who were burned and injured through radiation from the bomb blast which had killed 80 odd thousand people and which injured many and many thousand more which was a very sad affair. These pictures of the injured are imprinted on my brain. They have always been a great trouble to me but now in my latter years I constantly have these awful dreams which will not go away and they are so drastic they have ruined my health. On thinking back maybe we did come in contact with radiation but I suppose that is a debateable subject. The problem that I can recall that affected me most plus a lot of other army personnel was the mental anguish of the dreadful scenes we came across in the Hiroshima Hospital and city of the innocent victims such as the small children and men and women that were injured and scarred for life. These scenes I can never ever forget.”
15. The Applicant also said in that questionnaire that he began to drink alcohol on enlistment and would drink mainly beer but sometimes wine when available. The Applicant said the amounts he drank were an average of four or five schooners per day and that when his nerves were bad binge drinking occurred. He also said that he still consumes alcohol when his nerves are bad and that on his return to Australia after discharge he consumed “much in excess” because of his “nerves”.
16. A lifestyle questionnaire completed by the Applicant (T8) refers only to his heart condition as the cause of his problems in respect of personal relationships. He refers specifically to being unable to do the things he used to be able to do before his heart bypass surgery and to being “cranky with pain” and drowsy from the medication he takes. He also refers to shortness of breath, chest pain and tiredness.
17. Exhibit A1 is the comments provided by the Applicant in response to the report of Mr J Church dated 4 February 2002 (Exhibit R3) presented by the Respondent. Those comments are summarised below by reference to Exhibit R3.
18. Other evidence relied on by the Applicant was his statements as reported by Dr G Robinson, Consulting Psychiatrist, in his report dated 4 December 2000 (T7). Dr Robinson reported that the Applicant gave the following history:
“PROFILE
Mr. Waller presented as a 73 year old retired man who lived with his wife in Nelson Bay.
PRESENTING SYMPTOMS
Mr. Waller told me he had had bad dreams ever since being in Japan after World War II. His bad dreams were of the children in the hospital near Hiroshima. His bad dreams about the children have continued to the present day.
SERVICE HISTORY
Mr. Waller told me he had joined the army in 1946 at the age of 19. He told me he served in the army about 4 years, leaving in about 1950 (but documentation indicates that he served a little less than 3 years, from March 1946 to November 1948).
He served as Warrant Officer Class 2, in what was first known as the Australian Imperial Force, (subsequently renamed the Interim Army). His time included 249 days in Australia, and 535 outside Australia (according to information supplied by DVA).
STRESSFUL EXPERIENCES IN SERVICE
Mr. Waller told me when in Japan he was stationed a short distance from the Atomic Bomb scarred city of Hiroshima, at a camp near Kitachi. In his off duty hours, he told me, he spent a lot of time in the city. He became involved with a group of personnel from the camp; in their off duty hours, he and other members of the group would go to Hiroshima hospital to visit the children who were injured from radiation from the Bomb.
He told me that their injuries were 'horrific, unreal'. He told me a lot of the Australians would go to visit, but he was one of the most frequent visitors of all. He told me with some of the children, you could not recognise the face as a face. Others had unrecognisable legs or arms. He told me the kids were really nice. It upset him greatly that they really suffered.
In our second session on 14th November, I pressed Mr. Waller closely about any other traumatic experiences in Japan whatsoever. He told me that during his duty in Japan, that sometimes 'Japs armed with knives' would be around at night. They would be in groups. It was in the news that sometimes these gangs would attack people, even Australian soldiers. Such gangs apparently attacked a couple of his friends in Hiroshima, but they were not seriously injured (one had a broken arm, another a broken leg; he thinks that the gang must have had clubs). A couple of times he himself was threatened on the way back to camp after going to a nightclub. A mob of Japanese yelled out and came towards him. He was in a group of only four Australian soldiers. The Japanese mob started to call them names. He explained that they blamed the Australians for the Atomic Bomb. He and the other soldiers walked towards the mob and they ran away. He was not frightened. I went on to quiz him closely about his 'on duty' experiences. He told me that sometimes they had to chase 'Japs' who had been in the camp. On one occasion he and another soldier had to chase them. The Japanese on this occasion were armed with knives. It was part of his job to keep those blokes out, and that's how this particular event happened, he explained. The Japanese were trying to get to the stores to get food. They always took off like rabbits whenever you found them. He wasn't really scared of them, even though they were armed with knives. Asking him why he was not scared, he explained he had a revolver; and had been a professional boxer before he was in the army. At this session he denied any other traumatic experiences whilst in Japan.
On the 3rd interview, on the 27th November, without asking for any further detail from Mr. Waller about experiences in the army in Japan, he insisted on telling me about other things he had ‘remembered’.. He told me about ‘1947’ when he got a 'wog' and had to be put into the army hospital for three weeks. He felt really crook. He thinks he sort of passed out, and the next thing he remembered he was in hospital, and couldn't think properly. He also told me then about his experience of an earthquake in Japan, in 1947. He explained that he was one of many soldiers billeted in a four storey building on the coast. He was asleep when the earthquake happened, but everyone woke up. It was shaking so much it was hard to walk. The quake lasted about 10 minutes. No one around him was killed or injured. When he reads about an earthquake now, he thinks about it, and will occasionally dream about it (e.g. the night after reading about an earthquake in Japan, for example). He did go later on to visit other soldiers who had been injured in the earthquake. The injuries were minor (broken fingers and so on). He explained that it was a solid brick/concrete building. It got a 'shake' up, but none of it fell down. He was concerned it might collapse, so he had started down the stairs. It was hard to stand, so he ended up falling down the stairs. The building had some minor repairs before it was re-used. He was concerned during the earthquake about what might happen, but the experience did not appear to involve intense fear.”
19. The Applicant also relied on the information given by him to, and as reported by, Dr D Brash (T12). In his report dated 15 May 2001 Dr Brash reported the history given by the Applicant as follows:
“Mr Waller served in the Army between 1946 and 1948 and told me that he had risen to the rank of Warrant Officer. He spent nineteen months in Japan in the occupation forces and during that time spent a lot of this in Hiroshima and Nagasaki. During his stay in Japan he spent six weeks in hospital with an episode of pneumonia. He told me that his visits to Hiroshima and Nagasaki were distressing, in particular when he saw young children severely injured by the atomic blasts. He felt that the images of their horribly scarred faces have remained burned in his memory. While he was in Japan he had some difficulties with insomnia and dreaming, and tended to use alcohol to help him sleep.
After he left the service he trained as an Engineer at night school and worked with the Commonwealth Clothing Factory for eighteen years. He was gradually promoted up to managerial level. He left there to work in a private clothing factory where he then spent the rest of his working life.
Mr Waller has been married twice, first at a very young age. Unfortunately, his wife died very suddenly in her forties. They had twenty years of marriage which he described as being very good. His second marriage has lasted over thirty years and again he has very positive feelings about this.
As a young man he was a professional boxer for several years and in fact rose to the rank of Victorian Bantam Weight Champion. He did not sustain any serious head injuries during his time as a professional boxer.
Drug and Alcohol Use: In the past Mr Waller was a moderate user of alcohol but now drinks very little indeed. He has not used any illicit drugs.
… He told me that he continued to experience intrusive recollections and dreams about the war service, in particular witnessing the injured children. However, his symptoms have never been severe enough to require any psychiatric medication or sleeping tablets.”
20. Dr L Walton, in his report dated 16 July 2002 (Exhibit R2), after discussing the histories recorded in the reports of Drs Robinson and Brash, said of the information provided to him by the Applicant and the Applicant’s wife:
“In my view these documents ought to be relied upon preferentially compared with the virtually non-existent history surrounding the facts of this man's military service supplied to me.
I encountered similar difficulties in terms of obtaining an accurate history of alcohol intake. What Mr. Waller stated was that he had been a boxer, in fact he being the Victorian Bantamweight titleholder, and thus he avoided smoking and drinking, although he stated that prior to joining the Army he would ‘have a beer after training’.
He was adamant that during his period of military service his alcohol intake was quite modest, perhaps around two or three glasses of beer in the Sergeant's Mess and that his alcohol intake after discharge was minimal.
This account was contradicted by his spouse, she describing him as ‘a very heavy drinker’, and that most nights after work he was intoxicated. She stated that the pattern changed around 15 years ago, to that of minimal intake, a glass of light beer ‘once in a blue moon’.
In terms of specific psychological symptoms, Mr. Waller reports minimal non-troublesome anxiety, that he is not prone to unhappiness, that he sleeps reasonably well and that while his appetite is diminished, his weight is stable.
He does acknowledge some difficulties with memory but ‘It doesn't affect me that much at all’.
In contrast, his wife describes him as easily prone to agitation, often he arising in the early hours of the morning, pacing about.
She believes that he is depressed, in particular, lately he having been distressed about having failed his motor vehicle licence medical.
She describes his pattern of sleep as poor and that he is inclined to wake up wringing wet with sweat.
Mrs. Waller stated that her husband's memory had been fading especially over the past two years.
Mr. WalIer seems not to have received any active psychiatric treatment at any stage.
I understand that Mr. Waller ceased work around 15 years ago. He had been a staff manager with an electronics company and it seems that he did not require any extensive time off work. He had intended to resume work, with relocation to Nelson Bay, but he simply found that he was unable to attract employment.
Mr. Waller does attempt to remain active. He plays golf once or twice a week and he is a member of the Lions Club. While he lived at Nelson Bay, he was actively involved as a supervisor of the local Blue Light Disco.
Again, while he remained at Nelson Bay, he spent much of his time pleasantly occupied in his own workshop; welding, operating a metal lathe and the like.
Mr. Waller stated that he had moved to Nelson Bay some 14 years ago to be near his brother, however, his brother died some five years ago, that being a big loss to Mr. Waller, and there seemed to be little point remaining in Nelson Bay. It was only three months prior to my assessment that the couple has relocated to Bacchus Marsh, mainly to be closer to Mrs. Waller's sister and her own children, as well as medical assistance being more readily proximate.
Mr. Waller is a member of the RSL and he participates in ANZAC Day celebrations.
He stated that overall he is becoming less physically active and he has largely been preoccupied with setting up his new house of late.”
Mrs Waller’s Evidence
21. Mrs Eileen Waller, the Applicant’s wife, gave evidence by telephone at the Tribunal’s request.
22. Mrs Waller told the Tribunal that she had first met the Applicant in 1952 while working with him at a clothing factory, began living with him and married him in 1980. She said that his first wife died in 1975 and that it was the Applicant’s drinking and his relationship with her that broke up his marriage with his first wife.
23. She said that when she first met the Applicant he drank every night after work until he was drunk. She said he would drink about six large bottles of beer and occasionally would drink whisky and when drunk would fall over, drive while drunk, pass out and not be able to park the car. She said that he was charged in 1976 with drink driving.
24. Mrs Waller said that her husband would become aggressive towards her when drunk but not to other people. She stressed, however, that he was not violent. She said that when drunk the Applicant would be unable to take off his own clothes and she would have to put him to bed. The next morning he would have a hangover. She said he was drunk every night except Sunday and on ANZAC days would “wipe himself out”.
25. Mrs Waller said that the Applicant’s drinking did not affect his work. She said he was very clever and concentrated very well but every two months or so he would lose interest in what he was doing. She does not know why he resigned.
26. Mrs Waller said the Applicant has night sweats every few months and is very restless when sleeping and wanders around the house. She said he used to dream about his mother and father and the war. She reported that he said he could see the children in the hospital.
27. She described the Applicant as a sociable person who made many friends when he was working but who began to withdraw from people in about 1995. She said that he also began to have mood changes and would be happy some days and on other days would be very moody and would disappear. She said he was a difficult man to get information from.
28. She said, however, that the Applicant has always loved children and has never been irritable with his children or grandchildren and has always been very good to them.
29. Mrs Waller said that the Applicant talked about being in Japan and visiting the hospital and seeing the children injured by the bomb. He also talked about the earthquake he experienced. She said he would generally only talk about Japan when he was drinking.
30. Mrs Waller said the Applicant stopped drinking heavily about 10 or 12 years ago when he had a heart bypass and now will only have a few glasses of beer. She said she became aware he was suffering from memory problems from the time of the Applicant’s bypass operation in 1998. She said that with his dementia the Applicant is very withdrawn, cannot look after himself, doesn’t remember things and doesn’t remember his family or where he has been. She said he is no longer aggressive towards her.
31. Mrs Waller also told the Tribunal that when the Applicant joined the Army he was a champion boxer, very fit and not easily scared.
32. Mrs Waller described the Applicant’s employment of 20 years as a sewing machine mechanic at a clothing factory, then as a Manager of production at a shirt factory and then as Sales Manager at an electronics company. He retired when he was 65 years old. She said that the Applicant’s drinking did not interfere with these jobs and said that the Applicant was quite ambitious but every now and then would “let himself down”.
33. Mrs Waller said there is a history of Alzheimers Disease in the Applicant’s family, with his mother having developed the condition at age 75. She also noted that the Applicant had a mild stroke in early 2000.
Respondent’s Evidence
34. Exhibits R3 and R4 are reports by Mr J Church dated 4 February 2002 and 5 August 2002 respectively. Exhibit R3 is described by the author as research into the claims made by the Applicant of stressful episodes during his service in Japan. The author names the following as his sources:
“…
a. COL HM Pickering, (RL), then CAPT BCOF Base Ordnance Depot (BOD) which unit fostered the personnel of 10 Section Officers' Shop. COL Pickering spent nearly seven years attached to the BOD
b. BRIG JJ Shelton, DSO, MC, (RL), then LT 66 Australian Infantry Battalion
c. BRIG IGC Gilmore, OBE, (RL), then L T BCOF Engineer Regiment
d. Homer, D., (Ed), 1990, Duty First: The Royal Australian Regiment in War and Peace. Allen & Unwin, Sydney”
35. Mr Sherlock, for the Applicant, objected to this evidence on the basis that the sources used by Mr Church in his report are not experts or authorities but merely officers who had some experience of Japan at the relevant time. He also objected to Mr Church having referred only to the Applicant’s statements to medical practitioners and not to the Applicant’s statement in his claim for pension. The Tribunal, while deciding to admit the report into evidence, noted and was mindful of the objections raised by Mr Sherlock.
36. The report concluded that it is not possible to establish whether the Applicant was accommodated at the depot at Kaitaichi and nor is it possible to establish the extent of the Applicant’s visits to the hospital. However, Mr Church said (Exhibit R3,p3) :
“It is possible to say that those people still in hospital as a result of the bomb explosions and who survived that blast and radiation injuries were not a pretty sight to behold and even a short exposure in their presence would have had a profound effect.”
37. In relation to other matters raised by the Applicant in his discussions with medical practitioners, Mr Church said:
“18. Contention No.2. There is no record of the claimant being attacked by any groups of Japanese. Most authorities agree that there was little chance in 1947 of any Australians being attacked by civilians. Most aggressive action by such groups was generally directed against the civilian population.
19. Contention No.3. It is unlikely that the claimant would have been employed as a security guard in the light of his special expertise and because of his rapid elevation in rank.
20. Contention No.4. There were no major earthquakes experienced in KURE in 1948. By the same token, there were many minor tremors which caused little damage to structures in that city.”
38. In reply to Mr Church’s report, the Applicant made the following comments (Exhibit A1), referring to particular paragraphs of the report:
“1. Paragraph 7
I spent approximately 15 months in Japan, the first nine at Kure and final six at Kaitaichi.
2. Contention 2
It was a regular experience to face hostility from Japanese civilians, especially at night. We usually left camp in groups. I never saw anybody hurt.
3. Paragraph 15
This happened when I was at Kaitaichi. Only Australians were stationed at Kaitaichi and all were required to do guard duties. There were several attempts by Japanese civilians to break in.
4. Paragraph 16
The earthquake occurred whilst I was in Kure. I had never experienced an earthquake before. I could not stand and I panicked.
5. Paragraph 4
My statement is an honest and accurate account of my experiences in Japan. I am concerned that Mr Church felt the need to have my account verified by officers. They were a privileged group who looked down on other ranks and had very little knowledge of our daily activities and even less interest.”
39. Exhibit R4 is Mr Church’s response to the Applicant’s comments. The main point made by Mr Church in this document was that it would be expected that the Applicant would have spent his service at either Kure or at Eta Jima and that Kaitaichi was solely a depot for the transhipment of furniture for married quarters.
Medical Evidence
40. Dr Robinson (T7) reported that he had conducted the Davidson’s interview for PTSD with the Applicant. As it appears that that test employs criteria similar to the diagnostic criteria in SoP No. 3 of 1999, and no direct evidence is available to the Tribunal from the Applicant in relation to the criteria, it is useful to reproduce that part of Dr Robinson's report in its entirety:
“I conducted the Davidson's interview for Post Traumatic Stress Disorder on our second session. Mr. Waller (arguably) appeared to fulfil criterion A, in that he had seen children who were horribly disfigured from radiation as a result of the Atomic Bomb. His response involved horror.
On Item B1, recurrent intrusive recollections, I note his history was quite variable. During Davidson's Interview he told me he was troubled by the memories around five times per week. In a subsequent session, he told me he thought that he had worries about it every couple of weeks. Giving him the benefit of the doubt, I rated 3 (severe).
On Item B2, dreams, during Davidson's Interview he told me he frequently got the dreams, three or four times per week. He gets the shudders and breathes heavily and quickly when he wakes up. He is sweating and shouting and trembling, and having trouble breathing. His heart is racing. He is perspiring all over. He has slept in a separate room from his wife for ten years, or she would get no sleep. The scenes, for the most part, are about the kids in the hospital in Hiroshima, and how they looked. He recognises the people in the dreams, and they are actual scenes of the hospital. He wakes up wringing wet, and has to change his pyjamas and the bed too. I rated the severity at 4. In the next session, he told me that he had bad dreams about the children 'every couple of weeks', and about the earthquake 'every 6 weeks'.
On Item B3, acting or feeling as if the event were recurring, I rated 0.
On Item B4, intense psychological distress on exposure to reminders, he told me that he gets 'all uptight' if he sees something that reminds him of his experiences; for example, seeing small children who might have a bit of a resemblance to the children in the hospital; or it might be triggered by seeing someone who might have 'a similar action' to the Japanese people; or it might be triggered by talking to someone, for example a soldier, who has been in Japan. I rated the severity at 3, significant.
On Item B5, physiological reactivity, he tells me he can tremble when reminded of his experiences (but he seemed hesitant and unsure in his answer)). I rated 1 (a little bit, infrequent or questionable).
On Item C1, avoidance of thoughts or feelings, he tells me he does try to avoid thinking about the children; he tries to think of something else or do something. He might get on the grog or have a smoke (a cigarette), he told me. He tells me he still gets upset about it, and tries to get out of the house to be on his own when he gets upset. Sometimes this works, sometimes it doesn't. He explained he has cut down on his grog now. He walks to the RSL and there he has four or five beers, schooners, full strength, to settle himself down. He elaborated that he doesn't smoke anymore; he gave up six or seven years ago, as they were making him feel worse. He had been smoking 40 cigarettes a day. (On our next interview he told me that he had never smoked cigarettes, and that he drinks 3 middies of beer per week). I rated the severity at 4.
On Item C2, avoidance of situations or activities, he tells me he avoids movies that are about Japan, or the atomic bomb. There are some ex-army blokes who he avoids because they talk about Japan too much, and it will bring it all back, and he will have bad nightmares about the children. I rated the severity at 2.
On Item C3, psychogenic amnesia, he tells me he remembers it all clearly. I rated 0.
On Item C4, loss of interest, he tells me he lost interest in a lot of things since coming back from Japan. He used to like swimming and sport, and now he doesn't. He still enjoys TV, but even that can bring back bad memories as well. He still plays golf, but that makes him upset, for example if he hears a bird call of a particular type that reminds him of a bird in Japan; or the look of the land around the golf course will remind him of Japan and bring back bad memories, making him feel like he were 'flipping a lid'. He indicated that most activities were less pleasurable. Taking the answers at face value, I rated 3.
On Item C5, detachment/estrangement, he tells me he has a lot less to do with people than before he went to Japan. He spends a lot of time on his own, getting away where there are no people. He has long walks by himself on the beach to quieten himself down. He still has a few friends, and sees them several times a week, but they consist of small conversations, no 'deep' friendships. Really, he explained, he is a loner, with a lot of acquaintances, no friends.
On Item C6, restricted range of affect, he says he cannot really have warm feelings or feel close to other people. He says he supposes that he feels a bit numb, and insists that it was different before. Asking about how close he felt to family and friends, he told me 'yes and no'. He explained 'reasonably close to the wife and children, but not too much to the grandkids'. He explained further that when he sees the grandkids he starts to think about those children in the hospital in Hiroshima. I rated 3, severe.
On Item C7, foreshortened future, he tells me he doesn't like to think about the future. He thinks it would be better if he died, but he worries about leaving his wife and his family. He tries hard, he told me, to shake the ideas out of his head. He explained that he had tried to kill himself a couple of times in the past. The first was about five years ago, the second time about twelve months ago. He did this by taking an overdose of tablets, six or seven pills that he had. He told me that he did this when the memories of the children in Hiroshima were really strong. However, he each time changed his mind, and went outside straight away to put his fingers down his throat and vomit the pills; because of this, he explained when I questioned him further, he had never been to hospital for treatment, and similarly he had never told his doctor about these events or his ideas about suicide.
On Item D1, sleep disturbance, he tells me he has trouble falling asleep three or four times a week. He wakes up for about two hours in the middle of the night, and gets stressed and paces, and sometimes will go out for a walk (this last approximately once every two weeks). He has problems sleeping 'practically every night'. He averages 3 or 4 hours sleep a night, 5 hours is good. I rated 3, severe difficulty getting to sleep every night.
On Item D2, irritability, he tells me he does get more irritable since coming back from Japan. He tries to keep it to himself, so that he doesn't upset his wife. Despite this, he went on to tell me that he does have angry outbursts, (only verbal), about once a week. He tends to go outside and get a bit of wood and whack it at the fence when he is feeling angry, and this generally is in response to something somebody has said. He tells me he carries on a bit, and later on feels a bit 'guilty' and 'silly' about it. I rated the severity at 3, severe.
On Item D3, impairment in memory/concentration, he tells me it can be hard trying to remember things. Nevertheless, he can pay attention easily and has no problem watching TV. He feels he has been forgetful over the past 12 months, but his problems with concentration do not interfere in his life in any way. In asking him to perform Serial Subtractions of 7 from 100, he made a very long pause with eyes shut after getting down to 86. He then correctly calculated 79. He made no errors on the serial subtractions of 7. I rated the severity at 1, patient acknowledges slight problem.
On Item D4, hypervigilance, he says he has to stay on guard, and feels on edge. This has become a bit of a habit. He tells me sometimes someone will start talking, and next thing you know you are looking at something else, so he is easily distracted.
Sometimes you find yourself looking at people, and wondering if you can trust them, and wondering if they are telling the truth, he told me. He told me that this related to the Japs who would come and try to steal things at night. I rated the severity at 2, moderate.On Item D5, startle, he says yes he does startle very easily, he is 'off like a rocket' if there is any unexpected noise. He is likely to jump if he sees something that reminds him (of the trauma of the children in hospital). This happens about twice a week. He tells me a few friends and relatives have commented on how jumpy he is. I rated the severity at 3.
I note that he meets the criteria for PTSD on the Davidson's Interview (which I conducted on 14th November, prior to him giving me any history of the earthquake in Japan. I note that at no stage in giving his answers to Davidson’s Interview for PTSD did he mention that earthquake whatsoever).
41. Notwithstanding Dr Robinson’s conclusion that the Applicant met the criteria for PTSD in the Davidson’s interview, he gave the following opinion:
“I note that Mr Waller’s condition meets the criteria for Post Traumatic Stress Disorder on Davidson’s Interview. On this interview, I note that he also meets the criteria for alcohol abuse secondary to the disorder, as he claimed to frequently have alcohol to settle himself down from the memory of the traumatic experiences in Japan. Similarly, he used to smoke up to 40 cigarettes a day, on information gleaned during Davidson’s Interview, in order to settle his nerves. I note however that elsewhere in the history he has claimed to drink only 3 middies per week, and to have never been a smoker whatsoever. Accordingly I did not make a diagnosis of Post Traumatic Stress Disorder. Similarly, I did not make a diagnosis of alcohol abuse. I did not think he was confabulating in a way suggestive of organic impairment. I did not diagnose any psychiatric disorder. It is my opinion that he is not suffering from a psychiatric illness.”
42. Later in the report Dr Robinson says:
“I have noted that according to the answers given by Mr Waller on Davidson’s Structured Interview for Post Traumatic Stress Disorder, he does suffer from that disorder. I have further noted that due to major inconsistencies given at different times during history taking, I did not make a diagnosis of any psychiatric disorder. The inconsistencies were such that I speculated that he may have been ‘coached’ between his sessions with me.”
43. The report of Dr Brash dated 15 May 2001 (T12) notes that “(I) n the past Mr Waller was a moderate user of alcohol but now drinks very little indeed.” He also reported:
“Mr Waller presented as a well-dressed, very pleasant gentleman, who was frank and open in discussing his war service. There did not appear any suggestions of exaggeration and if anything he had a tendency to down-play the effects of his war service on him. There was no sign of any major depression. His affect was somewhat anxious. … There were no clear symptoms of avoidance of events that were likely to trigger memories. He was generally cognitively intact but did have some difficulty remembering one of his children’s names.
My opinion is that Mr Waller does suffer from a mild form of Post Traumatic Stress Disorder and still has some mild persisting symptoms. These have not required any specific treatment over the years and he has tended to cope with them with his own strength of character and sense of determination.”
44. Dr Walton in his report dated 16 July 2002 (Exhibit R2) said that because of the Applicant’s memory problems he was unable to obtain a comprehensive psychiatric history and has doubts about the reliability of the information provided to him. He confirmed that the Applicant is suffering from an organically based amnesic syndrome with the potential causes being alcohol abuse, diabetes and a small stroke. He noted well controlled diabetes, minimal alcohol intake in recent years and the unlikelihood of progressive deterioration in the aftermath of the stroke and considered that the Applicant may be suffering from a dementing process such as Alzheimer’s Disease, of which there is some family history. He concluded as follows:
“2…
Essentially I am unable to provide any diagnostic comment regarding functional psychiatric syndromes. I note that Dr. Brash makes a diagnosis of ‘a mild form of post-traumatic stress disorder’, which he seems to regard as war-caused, but that is not stated very explicitly.
I find the comments of Dr. Robinson rather confusing. On the one hand, he states that Mr. Waller does meet the diagnostic criteria for post-traumatic stress disorder and alcohol abuse secondary to such a disorder, but he then seems to discount these diagnoses on the basis that Mr. Waller tended to contradict himself. It may well be that Mr. Waller's memory problems remained at a subtle stage as at December 2000, producing the apparently contradictory information, and thus I believe it would be hazardous to dismiss such a diagnosis simply on that basis.
In relation to alcohol abuse or dependency, and for post-traumatic stress disorder, I am simply not in the position to provide you with any detailed considerations of the details of the relevant Statements of Principles. According to the spouse, Mr. Waller certainly seems to have consumed alcohol for a lengthy period, of medically injurious proportions, but I can take the matter no further than that.
3. It would appear that this man has been suffering from pathological disturbance of his memory for at least the past two years. I can provide you with no comment about the date of clinical onset of any other psychiatric condition.
4. The only other comment I would make is that to attain a comprehensive assessment of this veteran's current mental functioning he requires testing by a neuropsychologist. I would also suggest that you refer him for assessment by a neurologist.”
45. Dr David Palmer, Geriatrician, in his report dated 18 September 2001 to the Applicant’s General Practitioner, Dr S Kuchta (Exhibit R1, p18) was of the opinion that the Applicant has mild Alzheimer’s Disease. He also noted that the Applicant has a good distant memory for such things as army life.
46. In his report dated 25 October 2000 (T5, p30) to the Department of Veterans’ Affairs in support of the Applicant’s claim for pension, Dr Kuchta said that the date of clinical onset of alcohol abuse by the Applicant was in 1946 with remission taking place in approximately 1988 and a level of consumption prior to remission of 9 schooners per day. In answer to the question on the medical report form “Is there a history of alcohol consumption as part of a psychiatric condition, eg post traumatic stress disorder?, Dr Kuchta answered “No”. In answer to the question “Is there a history of using alcohol as ‘self medication’ for a medical condition eg to relieve chronic back pain?”, Dr Kuchta answered “No”.
47. Dr Kuchta also indicated on that form that the Applicant had not consulted him or any other medical practitioner for treatment of what was described in the form as anxiety disorder and said that the subjective distress caused to the Applicant by his anxiety disorder was “family situation stress” and that he “gets uptight”. Where the form asks Dr Kuchta to list the manifest features of the Applicant’s Anxiety Disorder observed by him or reported to him by others he indicated ”nil” and said that the Applicant’s Anxiety Disorder is perceived by him and others as resulting in “nil, minimal or rare signs of distress.” He also indicated that the condition gives rise to minimal or no interference with most aspects of living and ordinary social contacts. He said, however, that the Applicant has occasional friction with family members and has some loss of interest in activities previously enjoyed, but at the same time likes people and associating with people.
Submissions
48. Mr Sherlock’s submission was that the Applicant relied mainly on his experiences of injured children in Hiroshima as the event in his war-service giving rise to the conditions claimed in this application. He said that the Applicant’s experience of some hostility from the Japanese civilians and his experience of an earthquake form the context in which he experienced a stressful event giving rise to PTSD.
49. As noted above, at the hearing the Applicant, through Mr Sherlock, abandoned his claim for Hypertension and sought to pursue a claim for Alcohol Abuse as a consequence of the Applicant’s PTSD. It became apparent, as the diagnostic criteria in the relevant SoP were canvassed, that the Applicant did not satisfy the diagnostic criteria in the SoP for Alcohol Abuse. Mr Sherlock submitted that the Applicant’s alcohol related behaviour therefore constituted some other, unidentified condition that was not the subject of a SoP and should be considered by the Tribunal as a “non SoP” condition.
50. In a written submission to the Tribunal, Mr Sherlock referred to the Applicant’s contended condition of PTSD and submitted that where there is a clinical diagnosis of PTSD the Tribunal must decide whether it is appropriate to apply the SoP for PTSD. In his submission, if the Tribunal’s findings regarding the symptoms of the disease fit the diagnostic criteria in the SoP, then it is appropriate to apply the SoP and the question of war causation will be determined according to whether one or more of the causal factors set down in the SoP exists. Mr Sherlock submitted that, if the symptoms as found do not fit those diagnostic criteria then the Tribunal must decide whether the symptoms as found fit under another SoP dealing with another psychiatric disease and, if so, proceed in accordance with that SoP or, if no SoP applies, it must decide the question of the causation of the condition, whatever it may be, not by reference to any SoP but on the basis of reasonable hypothesis as for a disease for which there is no SoP. Mr Sherlock referred the Tribunal, in these submissions, to the decisions of the Federal Court in Budworth v Repatriation Commission (2001) 63 ALD 422 and Benjamin v Repatriation Commission (2001) 70 ALD 622.
51. Mr Modder, for the Respondent, submitted that the Applicant’s experiences of injured children in Hiroshima do not amount to a severe stressor within the meaning of the relevant SoP. In this respect he referred the Tribunal to the decision of Deputy President Forgie in Re Slattery and Repatriation Commission (AAT 12986, 16 June 1998). He also pointed to a number of diagnostic criteria in the relevant SoP that were not, in his submission, met by the Applicant.
Consideration
52. It is convenient to set out the provisions of sections 120 and 120A of the Act:
“Section 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.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(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.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B
Section 120A
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
53. Sections 5D and 9 of the Act are reproduced at paragraphs 9 and 10 of these reasons.
54. The parties identified SoP No. 3 of 1999 concerning Post Traumatic Stress Disorder and SoP No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse as relevant to the Applicant’s claim. Those SoPs provide the following diagnostic criteria:
“Kind of injury, disease or death
2. …
(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative
flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
2.…
(b) For the purposes of this Statement of Principles, “alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.”
55. The first issue for the Tribunal to consider is whether the Applicant has a disease. The Federal Court has held that the questions of whether an applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Commission’s or the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act (Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200.
56. In considering this issue, the Tribunal had regard to the decision of the Full Federal Court in Benjamin v Repatriation Commission (supra). In that decision Moore, Emmett and Allsop JJ held that the first question for the Tribunal is how to characterise the psychiatric problems exhibited by a veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is a SoP in force in respect of the disease. The diagnosis of that disease and the determination of whether or not there is a SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in section 120(4) of the Act. The Court also held that the characterisation of a disease, for the purposes of determining whether or not there is a SoP in force in respect of that kind of disease, is separate from the question of whether a claim relates to the operational service rendered by a veteran within section 120(1). The Court went on to say that if the Tribunal were to determine that there is no SoP in force with respect to the kind of disease contracted by the veteran, it would then be necessary for the Tribunal, after consideration of the whole of the material before it, to form an opinion as to whether that material raises a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran. If the Tribunal is of the opinion that the material does not raise such a reasonable hypothesis, the Tribunal will be taken to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease is a war caused disease for the purposes of section 120(1).
57. In considering the question of the characterisation of the condition claimed by the Applicant to be PTSD, the Tribunal looked to the definition of that disease in SoP No. 3 of 1999 concerning Post Traumatic Stress Disorder. In doing so the Tribunal had regard to the decision of the Federal Court in Repatriation Commission v Gosewinckel (supra) where Weinberg J said at 703:
“ It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP. As the Full Court held in Sheldon v Repatriation Commission (1999) 85 FCR 587 at [6] the SoP requires that the disease in question be ‘manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.”
58. The Applicant’s evidence and the histories he gave to reporting psychiatrists were inconsistent. The Tribunal is mindful, however, of the evidence of Dr Walton to the effect that the Applicant had been suffering from pathological disturbance of his memory from at least the year 2000 and the report of Dr Palmer in September 2001 who said that the Applicant has mild Alzheimer’s Disease but a good memory for things such as army life. Accepting this evidence of Drs Walton and Palmer, the Tribunal took the Applicant’s memory disturbance into account in assessing his evidence and in assessing the medical evidence before it.
59. The Applicant’s claim for pension was made in September 2000 and contains his earliest evidence of his experiences in Hiroshima. The history he provided to Dr Robinson some three months later is, in respect of his visits to see child victims of radiation, largely consistent with the information given by him on his claim form. The information given by the Applicant to Dr Robinson in relation to his experiences of gangs and of an earthquake in Japan was absent from his claim form and reported by Dr Robinson as being in response to Dr Robinson having “pressed Mr Waller closely about any other traumatic experiences in Japan whatsoever”.
60. The next reported information provided by the Applicant about his experience of Hiroshima children was to Dr Brash in April 2001. His account, as briefly reported by Dr Brash, is largely consistent with his earlier accounts.
61. The evidence of Mr Church was that, while it is not possible to establish the extent of the Applicant’s visits to the hospital to see child Hiroshima victims, he allowed that those survivors of radiation injuries “were not a pretty sight to behold and even a short exposure in their presence would have had a profound effect.”
62. Given the general consistency of the Applicant’s evidence in relation to this matter, and the lack of any contravening evidence, the Tribunal is reasonably satisfied that the Applicant visited and observed child victims of radiation in hospital in Hiroshima, that their injuries were horrific, that he was horrified by their injuries and that the images of the children have remained with him, particularly in dreams.
63. Dr Robinson saw the Applicant on three occasions and reported that on the second occasion he administered “Davidson’s Structured Interview for Post Traumatic Stress Disorder”, the Applicant’s answers to which met, in Dr Robinson’s opinion, the criteria for PTSD on that Interview. However, Dr Robinson did not make a diagnosis of PTSD or any other psychiatric disorder because he considered that the inconsistencies in the answers given by the Applicant at different times during history taking were such that he “speculated that he may have been ‘coached’ between his sessions” with Dr Robinson.
64. Dr Robinson gave no indication of the relationship that the interview administered by him bears to either SoP No. 3 of 1999 or to DSM-IV. However, a comparison of the subject areas of the interview indicated in Dr Robinson’s report with the diagnostic criteria in the SoP shows that the Davidson’s Interview administered by Dr Robinson covers items (A) to (D) of the SoP diagnostic criteria. Items (E) and (F), dealing with duration of relevant symptoms and clinically significant distress or impairment in social, occupational or other important areas of functioning, respectively, are not commented on by Dr Robinson in the context of the Davidson’s Interview.
65. However, Dr Robinson reported that, on the first occasion on which he interviewed the Applicant he reported happy relationships with his family and involvement in the Police Boys Club, the RSL and Lions but that, later he reported difficulties with his family. Dr Robinson reported a similar change of mind in relation to work, with the Applicant reporting problems giving rise to absences from work, but having originally said he had no problems with work prior to retirement.
66. Dr Brash’s report, although concluding that the Applicant suffers from mild PTSD, does not address any diagnostic criteria, except to report a history of having seen children in Hiroshima severely burned by atomic blasts and having experienced intrusive recollections and dreams about war service. He reported that there were no signs of any major depression and no symptoms of avoidance of events that were likely to trigger memories.
67. Dr Kuchta, the Applicant’s General Practitioner, indicated that the Applicant had had no treatment for Anxiety Disorder and that he had no manifest features of the disorder, that it gave rise to no interference with most aspects of living and ordinary social contacts.
68. In the absence of the Applicant’s diagnosed pathological disturbance of memory, the Tribunal would consider the inconsistencies in the histories given by the Applicant to reporting doctors to be a bar to its reasonable satisfaction that the Applicant meets the diagnostic criteria in SoP No. 3 of 1999 or that he has any disease of the kind contended by him. Together with the information provided by Dr Kuchta, which indicates an absence of a number of the diagnostic criteria in SoP No. 3 of 1999 and no manifest features of General Anxiety or any other disorder, the Tribunal would be prevented from being reasonably satisfied that the Applicant has PTSD or any other disease of a psychiatric nature.
69. The Applicant’s diagnosed pathological disturbance of memory provides some explanation of the inconsistency in the histories given by him. However, there is still the evidence of Dr Kuchta which was given in October 1999. Dr Kuchta’s clinical notes indicate that the Applicant was his patient from at least December 1997.
70. The Tribunal then looked to the evidence of Mrs Waller. Although she described very frequent consumption of alcohol to excess, her evidence was that the Applicant was a sociable person who made many friends when he was working. She also said he was very clever and concentrated well and was never irritable with his children or grandchildren. She also described a successful and uninterrupted working life. She described a decline in his sociability in about 1995, his practice of driving while intoxicated and his being charged with drink driving in 1976. She reported the Applicant’s disturbed sleep and restlessness. She also said that he stopped drinking when he had his heart bypass operation in 1988.
71. On the basis of this evidence, together with the evidence of Dr Kuchta, the Tribunal cannot conclude that the Applicant had or has clinically significant distress or impairment in social, occupational or other important areas of functioning. Taking into account the Applicant’s disturbance of memory, the results obtained by the Applicant on the Davidson’s Interview administered by Dr Robinson support the conclusion that he has recurrent dreams about Hiroshima, reacts adversely to and avoids reminders of Hiroshima and has some hypervigilance and heightened startle response. However, there is no medical or other evidence of those symptoms having ever had an effect on the Applicant’s family, social or occupational life. The Tribunal accepts that the Applicant drank to excess until 1988 but, on the evidence available to it, the only adverse consequence of that drinking was his use of a motor vehicle while intoxicated. It follows that his symptoms do not conform with the diagnostic criteria in SoP No. 3 of 1999 which includes, at paragraph 2F, the diagnostic criteria of clinically significant distress or impairment in social, occupational or other important areas of functioning. The Tribunal also looked to the diagnostic criteria in SoP No. 5 of 1999 concerning acute stress disorder, SoP No. 57 of 1996 concerning Adjustment Disorder, SoP No. 1 of 2000 concerning Generalised Anxiety Disorder and Anxiety Disorder due to a General Medical Condition, SoP No. 128 of 1996 concerning Bipolar Disorder, SoP No. 58 of 1998 concerning Depressive Disorder, SoP No. 9 of 1999 concerning Panic Disorder, SoP No. 143 of 1995 concerning Personality Disorder and SoP No. 132 of 1996 concerning Schizophrenia. The Tribunal found that the Applicant’s symptoms as accepted by the Tribunal do not accord with the diagnostic criteria in any of these SoPs. The Tribunal also notes that these SoPs are either derived from or reproduce, the diagnostic criteria set out in the American Diagnostic and Statistical Manual of Mental Disorders, DSM-IV.
72. As to the Applicant’s contended condition of Alcohol Abuse, notwithstanding the opinion of Dr Robinson that the Applicant “meets the criteria for” alcohol abuse secondary to PTSD, on the basis of the Applicant’s answers to the Davidson’s Interview that he claimed to have frequently taken alcohol to settle himself down from the memory of his traumatic experience, Dr Robinson does not address the diagnostic criteria in the SoP and does not conclude that the Applicant has either PTSD or Alcohol Abuse. Dr Brash describes the Applicant as a formerly moderate user of alcohol with little drinking now. Dr Walker does not address the question at all. Dr Kuchta describes alcohol consumption of nine schooners per day until approximately 1988 but does not address any diagnostic criteria. There is no evidence of the Applicant having had any of the problems listed in diagnostic criteria A (1) to (4) in the SoP, with the possible exception of (2) (recurrent use of alcohol in situations in which it is physically hazardous) in relation to his use of a motor vehicle when very intoxicated. On the contrary, Dr Brash and Mrs Waller describe a successful working life featuring promotion to the level of manager and a successful marriage. On this basis, together with the absence of excessive drinking for some 15 years, the Tribunal concludes that the Applicant does not suffer from Alcohol Abuse.
73. As to whether the Applicant suffers from some other disease, in respect of which there is no SoP in force, the Tribunal confined its consideration to diseases of the nature of “mental disorders”. There was evidence before the Tribunal, by Drs Walton and Palmer, of the Applicant’s disturbance of memory. However, no hypothesis of war causation was put forward by the Applicant in relation to this condition and none is available or pointed to on the basis of the material before the Tribunal. Therefore, the Tribunal has not included this condition in its consideration except to the extent that it may have affected the histories given by the Applicant to examining medical practitioners.
74. Given the narrow range of symptoms found by the Tribunal to have been suffered by the Applicant (that is, recurrent dreams, some reaction to and avoidance of reminders of Hiroshima, some hypervigilance and heightened startle response and excessive drinking until 15 years ago), the absence of any impact of those symptoms on the Applicant’s family, working and social life and the absence of any medical evidence of any other disease apart from memory disturbance, the Tribunal cannot, on the basis of the evidence before it, be reasonably satisfied that the Applicant suffers from a disease.
75. In reaching this conclusion, the Tribunal had regard to the decision of the Full Federal Court in Sheldon v Repatriation Commission (1999) 85 FCR 587 Their Honours said at 589:
“…
The Tribunal found as a fact, and it said that it did so beyond reasonable doubt, that the deceased did not suffer from psychoactive substance abuse within this meaning. In doing so, it relied on evidence that the deceased, whose drinking of alcohol had been at one stage heavy, and was perhaps generally, over a substantial period, somewhat above a moderate level, had reduced his intake of alcohol in the 1970s as a result of medical advice; that he had again reduced his alcohol intake in about 1985 to "two beers and two wines per day"; that he never took time off work because of drinking; was never violent; never had a serious car accident; was never charged with a driving offence; and had a good relationship with his children.
The Tribunal found there was no evidence the deceased's drinking was at a level he could not control. The principal question upon the appeal is whether the Tribunal erred in law in its construction of the Statement of Principles. The appellant's argument was that the definition in the Statement of Principles refers to "continued use of the substance despite knowledge of having a persistent ... physical problem that is caused or exacerbated by use of the substance." Reading this literally, Counsel said the reduction in use which occurred is not to the point; the use continued, albeit at a lower level, despite knowledge of the persistent physical problem of hypertension. The learned judge at first instance answered this argument by saying the use of which the Statement of Principles speaks is use at a harmful level, as otherwise the Statement of Principles would produce the absurdity that a beneficial use of alcohol by very moderate drinking would indicate psychoactive substance abuse.
We prefer to give a slightly different answer. It seems to us that the word "indicated" in the expression "means a maladaptive pattern of use indicated by either" - and then (a) or (b) - is equivalent to "pointed to by". But the definition still requires that there be the disease entity to which the named symptoms point. That disease entity is a "maladaptive pattern of use". If the level of drinking does not constitute that maladaptive pattern of use, the fact that some use of alcohol continues cannot indicate a condition which does not exist. If this construction were doubtful on the literal wording of the definition, read alone - which we do not think it is - it would be confirmed by reference to the American Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, which the definition specifies as its source. That manual states:
"The essential feature of Substance Abuse is a maladaptive pattern of substance use manifested by recurrent and significant adverse consequences related to the repeated use of substances. There may be repeated failure to fulfil major role obligations, repeated use in situations in which it is physically hazardous, multiple legal problems, and recurrent social and interpersonal problems".
Plainly, the deceased, after he reduced his consumption of alcohol, did not, on the Tribunal's findings, fall within this description. More importantly, for present purposes, a definition framed to reflect the manual is looking at a disease manifested by certain behaviour which is symptomatic of the disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease.
…”
76. The Tribunal considers that the Full Court’s reasoning in Sheldon (supra) applies beyond the instance of a claimed disease of alcohol abuse and that the mere presence of some symptoms, in a degree described in medical evidence as “mild” (see Dr Brash’s report) will not automatically constitute a “disease”.
77. The Tribunal also notes the definition of “disease” in section 5D of the Act as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The words “disorder, defect or morbid condition” denote matters of some substantial departure from the normal structure and functioning of the human body or mind. The word “ailment”, it could be argued, may denote something less. The Macquarie Dictionary defines “ailment “ as:
“n. a morbid affection of the body or mind; indisposition: a slight ailment”
78. The word “morbid” is, in turn, defined as:
“adj.1. suggesting an unhealthy mental state; unwholesomely gloomy, sensitive, extreme, etc. 2. Affected by, proceeding from, or characteristic of disease. 3. Pertaining to diseased parts: morbid anatomy.”
79. The Tribunal was also mindful of the decision of the Full Federal Court in Benjamin v Repatriation Commission (supra) in which their Honours said at 634:
“…
The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4).
…”
80. Earlier in their decision their Honours stated at 633 - 634:
“…
The facts that the claim originally lodged by the veteran referred only to "PTSD" and that the medical impairment assessment by Dr Dunstan in support of it assessed only the disability of "post traumatic stress disorder" do not preclude the relevant decision-maker, be it the commission or the tribunal, from reaching a conclusion that the veteran suffered from a different disability. Certainly, the tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration. However, where a finding is made by the decision-maker, for example, that a veteran has contracted a disease, and it would be open to conclude that such a disease may be war caused, it would be incumbent upon the decision-maker to consider that possibility and make a decision concerning it.
The tribunal found that the veteran suffers from some psychiatric problems and that those problems affected his ability to continue in remunerative work. However, the tribunal did not consider whether they were war caused, simply because they could not be characterised as "post traumatic stress disorder", as that condition is defined in SoP 15 of 1994. Rather, it assumed that such problems, "however labelled", were not conditions accepted as being war caused "as a matter of law". That appears to have been a reference to the conclusion that the Veteran did not suffer from PTSD, that determination having been made by reference to SoP 15 of 1994.
The tribunal erred in so far as it failed to consider whether or not those psychiatric problems might be a disease and might be war caused within the meaning of the Act. The primary judge correctly held that the tribunal erred in regarding itself as bound to apply the definition in SoP 15 of 1994. However, the primary judge erred in failing to conclude that the tribunal fell into error in not considering whether the psychiatric problems were war caused. It is not clear that his Honour was referred to the principles enunciated in Grant's Case. We do not understand the Commissioner to contest those principles. His Honour erred in so far as he failed to have regard to those principles. The application of those principles in the present case would have required that the matter be remitted to the tribunal for decision according to law.
If the tribunal were to conclude that the psychiatric problems constitute a disease and are war caused, that could affect its conclusion concerning entitlement to the special rate. That is to say, if it were a combination of psychoactive substance abuse and other war caused psychiatric problems that prevented the veteran from undertaking remunerative work, the prerequisites of s 23 may be satisfied so as to entitle the veteran to the special rate. Whether the prerequisites are satisfied will be a matter for the tribunal.
…”
81. The Tribunal takes these passages to mean that the mere existence of some “psychiatric problems” does not automatically lead to the conclusion that an applicant has a “disease” and that the questions of fact as to what symptoms are suffered by an applicant and whether those symptoms constitute a disease are to be considered by the Tribunal as separate questions, sequentially.
82. In this application, the Tribunal concludes, for the reasons outlined above, that although the Applicant suffers from some symptoms, it is not reasonably satisfied that he has a disease within the meaning of the Act. It follows that an inquiry into war causation is unnecessary.
Decision
83. The decision under review is affirmed.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: .......................................................................................
AssociateDates of Hearing 6 November 2002, 6 February 2003
Date of Decision 12 May 2003
Advocate for the Applicant Mr R SherlockAdvocate for the Respondent Mr S Modder
6
0