White and Repatriation Commission
[2003] AATA 616
•30 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 616
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1293
VETERANS' APPEALS DIVISION ) Re LESLIE JOHN WHITE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal REAR ADMIRAL A R HORTON Date30 June 2003
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes it’s own decision that: paragraph 51
a. the diagnosis of post traumatic stress disorder with alcohol dependence is varied to personality disorder and alcohol dependence;
b. the condition of personality disorder is found not to be war-caused.
c. the condition of alcohol dependency is found to be war-caused effective to date 5 September 2001 and the matter remitted to the Repatriation Commission for assessment of the rate of pension.
…….…………………………………………
REAR ADMIRAL A R HORTON, Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans entitlements – disability pension – whether applicant has alcohol abuse or dependence – army service – service in Vietnam at 1 Australian Field Hospital – operational service - whether severe stressor experienced – whether SoP factor(s) met – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120,120A
Statement of Principles 76 of 1998
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 49 ALD 193
Lees v Repatriation Commission [2002] FCA 398
Stoddart v Repatriation Commission [2003] FCA 334
Robertson and Repatriation Commission (AAT 12666, 2 March 1998)
REASONS FOR DECISION
REAR ADMIRAL A R HORTON 1. This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by Leslie John White (“the Applicant”, ”the Veteran”). The Applicant seeks review of a decision of the Veterans’ Review Board (“the VRB”) dated 18 July 2002, which affirmed a decision of the Repatriation Commission (“the Respondent”) dated 15 February 2002 which refused a claim for post traumatic stress disorder with alcohol dependence, and set aside the decision of the Respondent in relation to the condition of impotence, substituting its decision that the condition was war-caused, and remitting the matter for assessment of the rate (if any) at which pension should be paid. Neither the claim for post traumatic stress disorder nor the latter decision are issues before the Tribunal.
2. At the hearing before the Tribunal on 3 June 2003, Mr White was represented by Mr B Winship of Counsel. Ms P Hook represented the Respondent. The Applicant gave oral evidence, and evidence was heard from Dr A Dinnen, Consultant Psychiatrist.
3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and additional service documents (TD1). The Tribunal also took into evidence the following
Exhibit A1 Report by Dr A Dinnen dated 27 November 2002
Exhibit A2 Report by Dr A Dinnen dated 7 February 2003
Exhibit R1 Medical Records from Dr R W Pescud, General Practitioner
Exhibit R2 Additional documents from Departmental Hospital file
Exhibit R3Report by Dr P Morris, Consultant Psychiatrist, dated 28 November 2002
Exhibit R4Report by J M Church for Writeway Research Service dated 12 December 2002
Exhibit R5Supplementary report by J M Church dated 28 February 2003
ISSUES
4. On 5 December 2001, the Applicant lodged a claim for post traumatic stress disorder (“PTSD”)/anxiety, impotence and hearing loss with tinnitus. The Respondent accepted bilateral sensorineural hearing loss with tinnitus, and impotence was subsequently accepted as being war-caused by the VRB. PTSD with alcohol dependence was not accepted by the Respondent, this decision being affirmed by the VRB, which found the conditions not to be war-caused. Before the Tribunal, Counsel for the Applicant submitted that whilst personnel difficulties and relationship problems are attributable to life long problems of personality disorder, the Applicant does not suffer from a psychiatric condition (PTSD or dysthymic disorder) due to service, but does suffer from psychoactive substance dependence attributable to service, the relevant Statement of Principles (“SoP”) being No 76 of 1998.
5. Mr White served in Vietnam from 15 October 1968 to 4 June 1969, this being operational service. Hence this matter is to be considered under the provisions of sections 120(1) and (3) of the Act, the relevant standard of proof relating to reasonable hypothesis, and section 120A, whereby as the claim was made after 1 June 1994, the reasonableness of the hypothesis is to be assessed by reference to Statement of Principles. Both parties agreed that the applicable SoP is No. 76 of 1998.
STANDARD OF PROOF
6. Sections 120 and 120A of the Act state relevantly:
"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.
...
(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.
....
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;
...
(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."
BACKGROUND AND EVIDENCE
7. Mr White was born in November 1946, and after completing school on gaining his Intermediate Certificate at the age of 15, joined the New South Wales railways, working initially at Moss Vale and then Port Kembla as a junior porter/shunter. In 1967, he was called up for army national service, and posted to the Royal Australian Army Medical Corps (“RAAMC”). He was medically classified Class A, consideration having been given to reports of a heart condition as a young child. Mr White stated to the Tribunal that if there had been a problem as a child, he just grew out of it, and had no relevant problems in adult life.
8. He trained as medical orderly, which he initially enjoyed, albeit he did not want to be in that field of work as “I don’t think it was part of my life” and it had no relationship to his civilian occupation. He described his drinking habits at that time as about the same as before he joined the army, “a beer here and a beer there”.. Dr Morris, Consultant Psychiatrist, records at Exhibit R3 that he “was not a heavy drinker until joining the army” but became one “just before he went to Vietnam”.
9. He left Sydney by air for Vietnam on 14 October 1968 (Record of Service at T3), his service with 1 Australian Field Hospital, located at Vung Tau, commencing on 15 October 1968. He informed the Tribunal he had no wish to go to Vietnam, again “it was not part of my lifestyle”. His posting is recorded as “Med Ord ECN 564” which has been crossed out and replaced by “Maint Dutyman ECN 563”.. In a later entry, a posting effective 14 October 1968 is recorded as “Now Maintenance GD ECN 118”. These entries imply that from the outset, he was employed as Maintenance General Dutyman (“MGD”), this being the interpretation placed on these records by Colonel (“COL”) J M Church at Exhibit R4 and by the Respondent. The evidence of the Applicant on the contrary, is that he was first employed as medical orderly, initially for an orientation period of 1 to 2 weeks and then in this primary role for a further 4 to 6 weeks, before being transferred to maintenance duties. He then continued to carry out maintenance duties for the remaining 6 months of his tour.
10. Mr White described his medical orderly duties as doing whatever was required by direction from doctors and nursing sisters, what he called “general duties”.. These included assisting in the transfer of patients from helicopters (at the adjacent helipad) to the hospital for triage. During his subsequent allocation to the maintenance team, which he attributed to recognition that he was not coping, he, like others, was called upon to assist during “dust-offs” when wounded personnel were being brought in to the hospital.
11. In January or February 1969, Mr White returned to Australia for rest and recreation (“R and R”), during which time he married the girl who had accompanied him during his early army service. There is no record as to exactly when this R and R period occurred, nor could he recall the date of his marriage, but he was quite positive that his transfer to maintenance duties had taken place prior to this period. This period is also relevant in that it may have coincided in part at least, with the 1969 TET offensive. His involvement in activities during the TET offensive, and the extent of any increased tempo during TET was an issue before the Tribunal. Indeed, the Respondent argued that it had been “the consistent focus of Mr White’s contention” in terms of activities relating to assisting with wounded personnel.
12. Dr Koller, Psychiatrist, examined Mr White on 6 February 2002 (T20). He records that Mr White was in Vietnam in 1967/68 and was present at the “TET Offensive. “We lost a big bulk of blokes” …He was involved in treatment “bringing them off the choppers, cleaning them up to go to hospital, also the bodies”. Before the VRB in July 2002, Mr Casey, advocate for the Applicant, confirmed that Mr White had not been present at the major TET offensive in 1968, but that he had been present at the lesser TET offensive in 1969, where “dust-offs” occurred “not that often”. No mention is made of Mr White being present in Vietnam for the major TET offensive in 1968 in reports by other psychiatrists (Dr Robbie in 1988 and Drs M Fairley and R Kaplan in 1990 (Exhibit R1)), and Dr Dinnen notes in November 2002 that Mr White corrected the earlier reference to being present at that offensive. In the same month, however, Dr Morris notes that Mr White thought he was in Vietnam in the 1968 TET offensive.
13. In cross examination, Mr White described his observations during TET 1969 as “seen helicopters, they would come in, blokes being hurt, take them off, but that happened all the time”.. He stated that there was no difference during TET 1969 to the levels of activity experienced before TET, and when asked to indicate how frequently medivac helicopters with injured personnel would arrive at 1 Field Hospital, he said it was hard to answer as there was no regular pattern.
14. He described his experiences, both as medical orderly and as a MGD as “something I never want to see again in my life”. He stated “I seen soldiers shot…One bloke shot through the leg, in the stomach…There was flesh hanging out. It didn’t make you feel real good”.. On another occasion there was a soldier “shot through the shoulder down through his rib cage and stomach” and another “got hit with shrapnel, he just had marks all over him sort of thing. Just blood and just flowing everywhere”. He further described the sickly sight of “soldiers screaming and crying out for help” and notwithstanding that he expected to see such things as a medical orderly, when it happened “I could not do my job”. He also stated that he had been required to assist in removing clothing from wounded personnel.
15. Mr White gave varying versions as to how frequently he was required to act as a stretcher-bearer, both in the primary role as a medical orderly and as a MDG. To the VRB he had stated 40 to 50 times, Dr Dinnen subsequently records 6 to 7 times during “major dust-offs”. In evidence to the Tribunal he stated 30 to 35 times at least, during his posting. In cross examination, he held to “at least 30 times”, 4 or 5 of which involved really serious wounds that distressed him. He subsequently stated, still in cross-examination, that of the 30 or more occasions, he had not always been involved, but when pressed, maintained that his personnel involvement was about 30 – “I’d say very close”.. Mr White stated that his duty involved 10 hour shifts on a rotating basis. Anyone might be called out to assist with medivacs, but of the 30 incidents he was involved in, only once was he called out at night.
16. The Tribunal had before it two reports by COL Church (Exhibits R4 and R5). Both addressed questions asked by the Respondent. COL Church gives his sources variously as COL M A Naughton who commanded 1 Australian Field Hospital in 1971 – 1972, Lieutenant Colonel (“LCOL”) J Lambie, who was present as the Quartermaster of the hospital in the period under consideration, and the author himself, who was the commanding officer of 2 RAR/NZ Battalion in 1970 – 1971. As earlier referred to, COL Church interpreted from the Record of Service that Mr White was transferred to maintenance duties immediately on arrival at Vung Tau. The Tribunal has some reservations that this is the correct interpretation given the seemingly somewhat unusual manner in which this official record was amended. In respect of whether Mr White would have assisted in undressing wounded personnel, as claimed, both COL Naughton and LCOL Lambie are reported as advising that this would not have been permitted, as this was “a delicate task only performed by nursing sisters and doctors”. The Respondent also asked COL Church whether Mr White, as a MGD, would have been required to take bodies to the mortuary. This earlier claim (made to Dr Koller) was not made to the Tribunal, and the response by Col Church was in the negative.
17. Both reports by COL Church addressed the level of activity in the TET period in 1969, the precise dates of which were not defined. The Respondent also sought detail on the number of casualties transferred into 1 Field Hospital during Mr White’s posting. The response provided in the second report gave detail of medivac cases received in the period 21 February to 23 March 1969, some 37 in number, but no specific detail was provided outside this defined period. The report notes however, “little activity” in the general area, based on the records of one deployed battalion. The evident purpose of the Respondent in seeking this information was to establish the likelihood of Mr White having been involved in, or witnessed casualties to the extent claimed. COL Church makes the unequivocal statement that on the evidence, Mr White could not have been involved to the extent claimed, and the workload on the hospital was such as to make the need for “other than medical assistants to be involved in transferring patients to the triage unlikely”.
18. Mention has been made of the evidence of Mr White in respect of his minimal drinking habit prior to joining the army. He gave evidence that this continued at about the same rate in his early service, but resulting from his experiences in Vietnam it increased dramatically. He stated he drank every evening in the wet canteen after his duty, consuming “as much as he could”. He also drank “just about every day …two maybe three cans …mainly 13 ounce cans” when on duty, the alcohol being kept in eskies hidden about the camp. He believed he had a need to drink “to get me through the day and to get over what we are going through and what we’d been through”. This pattern of drinking started after about 3 to 4 weeks in Vietnam, and increased as time went on; he also stated that his drinking started to increase on receiving notice of his posting to Vietnam. In cross examination, Mr White said he coped “by being inebriated most of the time” but he also stated he never got drunk when on duty to the extent that it would be noticed. He further stated “we never drank that much during the day until we got off duty” and that he was never caught. Mr White agreed with a suggestion by the Tribunal that his drinking habit, as described, showed he was able to exercise control, his response being that this was the case when drinking on duty. Outside that period, his drinking was not under control.
19. Dr Morris noted in his report that Mr White had numerous blackouts when he could not remember what he had done. Whilst Mr White considered these occurred after Vietnam, he stated that he had drunk in Vietnam until he could not remember something the next day. He attributed his failed marriage some 8 years after Vietnam to excessive drinking and associated violence. His current habit is about “a dozen schooners a day” sometimes plus spirits, this being a habit since Vietnam, although on occasions he has sought to reduce his intake without success.
MEDICAL EVIDENCE
20. In a report by Dr D Serisier on 10 November 1987 (T5), following an examination in respect of headaches, it is recorded that the Applicant drank alcohol only occasionally. In February 1988, as previously referred to, Dr Robbie examined him at the Repatriation General Hospital. Dr Robbie notes in his report to Dr Pescud, general practitioner, that “I could not establish excessive strain during Vietnam”, and “he began drinking during service …there was a two year period of very heavy drinking after Vietnam”. He diagnosed a dysthymic disorder. Of particular relevance are the case notes of Dr Robbie, which whilst available to the VRB were seemingly not made available to other examining psychiatrists, and which relevantly state:
“Orderly Vung Tau 10/12 1968. Lacklustre account getting blokes on and off choppers. Mainly around camp. Night patrols on perimeter fences – unconcerned. Saw various surgical sights. Coped at the time, would think about it later, only thinks about it now and then now, but first few years after would have intrusive memories unaccompanied by distress. Nothing really unpleasant he feels. Was there for TET offensive (In Vn Oct 1968-69). However feels Vn “just unravelled me life sort of thing” Drank a lot on return”
21. Dr Kaplan at Exhibit R1 saw Mr White in September 1990, and as with other doctors, notes that he is not a forthcoming historian. He refers to facial injuries received from an exploding cylinder in Vietnam, an injury elsewhere referred to but not addressed during the hearing, and suggests that a previous heavy drinking problem has been “sorted out”. He opined that Mr White had an intermittent explosive disorder, formerly fuelled by alcohol, but based on personality factors by 1990. The report of the examination by Dr Koller on 6 February 2002 has previously been addressed, but it remains to note that he diagnosed a condition of PTSD with alcohol dependence.
22. Dr Morris observed in November 2002 (Exhibit R3) that Mr White became a heavy drinker just before he went to Vietnam, and his drinking increased on his return. Seemingly Mr White did not tell him that he drank whilst on duty, but he records he drank every day from early afternoon on completion of work. He records previous attempts by Mr White to reduce his drinking, which related to flare ups of his peptic ulcer. He notes that the drinking history he obtained corresponded with that obtained by Dr Robbie some 12 years earlier in respect of a two year period of heavy drinking after Vietnam. He further notes the history of driving convictions and suspensions of licence. Dr Morris considered Mr White to be slightly depressed, and he appeared to have some reservations as to the Applicant’s credibility. He diagnosed alcohol dependence and chronic dysthymic disorder. Dr Morris opined that a reasonable hypothesis can be drawn linking alcohol dependence to war service, and that a severe stressor of “witnessing casualties or participation ” was evident. He did not consider dysthymic disorder to be service related.
23. Dr Dinnen provided two reports (Exhibits A1 and A2) and gave oral evidence. His first report noted a daily drinking consumption in the canteen in Vietnam of 4 to 5 26 ounce cans - he was not aware of the claim by Mr White that he also drank on duty – and thereafter it corresponded to that recorded by Dr Morris. He refers to, but makes no comment on, an excerpt from a “previous psychiatric report in 1988” (that by Dr Robbie) as detailed in the VRB decision. Dr Dinnen opined that Mr White does not suffer from PTSD, and that his account of events in Vietnam was “consistently inconsistent”.. He saw the Applicant as an unreliable historian, particularly in the absence of him describing to the VRB any particularly traumatic experiences, and no corroboration, could not see a severe stressor, although a diagnosis of alcohol dependence might be warranted.
24. The second report by Dr Dinnen maintained that a condition of PTSD was not present, albeit Mr White has a personality disorder, but he accorded with the views of Dr Morris that a war-caused diagnosis of alcohol dependence was appropriate. The turning point in Dr Dinnen’s position was his becoming aware that the 1988 psychiatric excerpt referred to by the VRB had been written by Dr Robbie, and access to Dr Robbie’s letter to Dr Pescud (R1 p 18). Dr Dinnen emphasised that he paid particular regard to the comments and views of Dr Robbie.
25. In oral evidence, Dr Dinnen confirmed his view that Mr White has an underlying life long personality disorder, not related to war service. He also now took into account the evidence by Mr White that he had drunk on duty. He opined that he had a drinking problem, perhaps initially classified as alcohol abuse, which had degenerated into alcohol dependence. Dr Dinnen found the additional documents and the case notes by Dr Robbie to be most helpful, providing further reason for his acceptance that the condition of alcohol dependence was war-caused, given that he had seen and helped with casualties. He particularly drew attention to the phrase “saw various surgical sights”, which although not defined, must nevertheless be read as meaning “more than just a few cuts and abrasions, something a surgeon would deal with”. Dr Dinnen confirmed that the Applicant had told him that he had assisted with casualties, and hence the phrase had a real meaning. He saw this and other evidence as sufficient to meet the criteria of severe stressor. Further, he opined that taking part in patrols, particularly given the general dislike by Mr White at being in Vietnam, could also meet the definition of severe stressor.
26. Under cross examination, Dr Dinnen affirmed that his revised opinion was strongly influenced by the additional data acquired by Dr Robbie, and his recent knowledge of the authorship of that report, which allowed him to place greater weight on the evidence of the Applicant. However, unlike Dr Robbie, he considered that on the evidence, including the views of Dr Morris, Mr White had been exposed to severe stressors in Vietnam. He accepted that inconsistencies in the Applicant’s statements and evidence during medical examinations remained, but in the circumstances and, considering matters subjectively as well as objectively, he believed the hypothesis connecting Vietnam service through a severe stressor with alcohol dependence was raised. He saw that the subjective issue of service in Vietnam over the period needed to be taken into account, and opined “I don’t think objectively carrying some people from the helicopter or assisting transferring them from the helicopter to the hospital on a number of occasions, and working as a maintenance man around that hospital for 7 months in Vietnam would equate with what generally would be regarded objectively as a severe stressor”.
FINAL SUBMISSIONS
27. Counsel for Mr White emphasised the view of Dr Dinnen that a causal link between alcohol and Vietnam service had been established, that service in Vietnam had an impact because of his vulnerable personality, and that the severe stressor necessary to meet the definition in paragraph 8(iii) of the SoP arose in the course of his employment in the casualty area. This was evidenced in Mr White’s description of soldiers wounded and in shock, seeing blood and damaged flesh, and seeing “surgical sights”. He submitted that like Dr Dinnen, Dr Morris also had no doubt that alcohol dependence arose from service in Vietnam.
28. Counsel submitted that such factors as Mr White being moved from medical orderly duties showed that he could not cope; he may well have been a vulnerable person, but his own evidence confirmed that he found it stressful and distressing. He emphasised that Mr White had told the truth in giving his evidence, and indeed, for the first time, confessed to drinking on duty.. In respect of his drinking habit, there was no evidence to suggest a pattern of alcohol abuse before Vietnam. Finally, the suggestion by Dr Dinnen that his perimeter patrol duties exposed him to stress as defined in the SoP, was realistic in that there was a real threat – the base was open to attack and hence paragraph 8(i) of the SoP could also be well satisfied.
29. The Respondent conceded that Mr White had symptoms of alcohol abuse within two years of Vietnam service, but submitted that the later alcohol dependence, accepted as a current condition, is not related to Vietnam service. In referring to the decision by the Full Court in Repatriation Commission vDeledio (1998) 49 ALD 193, in which steps to be to be undertaken in reaching a decision were defined, the Respondent submitted that step one had been met in that a hypothesis – that the Applicant was exposed to injured patients and was involved in stretcher bearing from the helipad to the triage section causing him, in his own words, to be sickened and to feel hopeless – is before the Tribunal. The Respondent also accepted that step two was met in that SoP 76 of 1998 was relevant.
30. The Respondent submitted that step 3 is not met, that is, the hypothesis raised does not fit the template, because the severe stressor definition is not met. The Respondent drew on the view of Dr Dinnen that the events relied upon by Mr White could not meet the objective criteria for a severe stressor as defined in paragraph 8 of the SoP. The Respondent relies on Stoddard v Repatriation Commission [2003] FCA 334 at 50, where in considering the meaning of the word “threat”, Mansfield J stated:
“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 in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury"
The Respondent submitted that only a subjective element has been met, and therefore step 3 is not met.
31. The Respondent submitted that if the Tribunal formed an opinion that step 3 had been met, then the evidence would not support step 4. Firstly, there was a credibility issue, relating to the consistent reference to events during the major TET offensive, when in fact the Applicant had not been in Vietnam and the again later reference to TET 1969 events, when it was a possibility that the Applicant had been in Australia on R and R at that time. But if he was in Vietnam at that time, then he was employed as a GMD rather than a medical orderly. Secondly, details of persons killed in action or injured for the full 7 months period of Mr Whites’ deployment are not before the Tribunal to enable a realistic assessment of casualties and dust-offs that he could plausibly have witnessed. Thirdly, the records clearly show that Mr White was employed as a GMD from the outset. The only evidence before the Tribunal to suggest that he commenced Vietnam duty as a medical orderly is that of the Veteran himself in oral evidence, and as given to Dr Dinnen. The Respondent also submitted that the differing numbers given by the Applicant as to base personnel at 1 Field Hospital, made it difficult to gauge his level of involvement in respect of assisting with casualties.
32. A further inconsistency in the evidence of the Applicant, the Respondent submitted, was the number of occasions he had assisted with casualties; 40 to 50 to the VRB, closer to 30 to the Tribunal. It also seemed illogical that a person identified as not coping with injured personnel, the reason suggested by Mr White as leading to his change of employment, would then be called upon to assist with such duties.
33. The Respondent raised concerns at the change of opinion by Dr Dinnen, based on another specialist’s report (Dr Robbie). Yet he, Dr Dinnen, did not agree with some opinions expressed by Dr Robbie, and selectively relied on certain elements of that earlier report and the case notes. In respect of the “threat” when undertaking perimeter patrols, the Respondent relies on the Applicant’s own assessment as recorded by Dr Robbie, that he was “unconcerned”.. The Respondent submitted that the criteria under paragraph 8(i) of the SoP could not be met. The final submission of the Respondent was that as originally suggested by Dr Dinnen, that alcohol dependence can be associated with an underlying psychiatric condition, which is identified as a factor in the SoP, but in this matter has not been put forward as a war-caused condition.
CASE LAW AND STATEMENT OF PRINCIPLES
34. The High Court considered the proper application of s.120 of the Act in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
“The position may be summarised as follows: (1) First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific fact or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis”
35. The Full Federal Court has held in Deledio (supra) that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved”.
36. SoP No 76 of 1998 relevantly states:
“2. (a) …
(b) For the purposes of this Statement of Principles,
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria are those specified in DSM-I, and are as follows….
“alcohol abuse” means the presence of ….however these symptoms have never met the criteria for alcohol dependence. Additionally signs of tolerance or withdrawal are absent.
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse …with the circumstances of a person’s relevant service are:
(a) …
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse
(c)…
7.“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other peoples physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence forces, …events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii) engagement with the enemy
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
APPLICATION OF THE LAW AND DECISION
37. Section 120(4) defines the standard of proof, that of reasonable satisfaction, relevant to the diagnosis of the injury or disease. In this matter, and based on a consistent diagnosis from a number of medical specialists, both parties are in agreement that the Applicant has an alcohol dependence, and the Tribunal accords with this diagnosis to its reasonable satisfaction. The condition of PTSD, as addressed by the primary decision maker and again by the VRB, is not supported by the majority of medical opinion, nor the Respondent, who identified at the outset that no psychiatric condition was before the Tribunal. On the contrary, the predominance of medical opinion is that the Applicant has a personality disorder, not related to his war service. The Applicant is not pursuing a claim in respect of this condition.
38. The Respondent has conceded that the material before the Tribunal points to a hypothesis connecting alcohol dependency with the circumstances of the Applicant’s army service in Vietnam, and thus Step one of Deledio (supra) is satisfied. The Tribunal so finds. Both parties accept SoP 76 of 1998 as the relevant Statement of Principles in respect of considering alcohol dependency in this matter and the Tribunal so finds.
39. Step three of Deledio (supra) requires the Tribunal to form an opinion as to whether the hypothesis raised is a reasonable one. As the Full Court stated, “it will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP”. It must contain one or more of the factors at paragraph 5 of SoP 76 of 1998, and be related to service. Counsel for the Applicant relies on factor 5(b) which requires the experiencing of a severe stressor within two years of clinical onset, primarily relying on sub-paragraph 8(iii) of the SoP. This sub-paragraph refers to “witnessing casualties or participation in or observation of casualty clearance, ” as being events that qualify as severe stressors. Counsel also postulated, but did not particularly dwell on, that the Applicant could also meet the severe stressor qualification in sub-paragraph 8(i) which refers to threat of serious injury or death because of his duties as a perimeter sentry on the base at Vung Tau.
40. The Applicant submits that the evidence by the Applicant himself, supported by medical opinion, as to his involvement as a stretcher bearer of wounded personnel, his observation of those wounded persons, and the resultant descent into a heavy drinking pattern “in order to cope” is sufficient to meet the criteria of a severe stressor as defined. The Tribunal has before it relevant material. As to the alternate suggestion that the Applicant could have experienced a severe stressor under sub-paragraph 8(i) by dint of carrying out perimeter patrols, no material other than comment by the Applicant that he carried out such duties is before the Tribunal.
41. Clinical onset has been defined in Robertson and Repatriation Commission (AAT 12666, 2 March 1998) and followed by the Full Court in Lees v RepatriationCommission [2002] FCA 398, but in this matter, the preponderance of views is that clinical onset had occurred within two years of the Applicant completing his service in Vietnam and the Tribunal so finds. The Respondent accepted the onset of alcohol abuse within two years, but seemingly sees alcohol dependence as occurring later, although no basis for such an opinion was given.
42. The Respondent submitted that Step three could not be met in the absence of objective evidence of a severe stressor, drawing on the evidence of Dr Dinnen, and following Stoddart (supra). Mansfield J stressed the need for an “objective and assessable state of affairs” with limited recourse to personal perceptions, which in turn must be judged objectively. The Tribunal has difficulty with the narrow interpretation seemingly placed by the Respondent in this matter, given the extent of material before the Tribunal. Notwithstanding the inconsistencies referred by medical specialists and the VRB which would of course be addressed at Step four, “objective” oral evidence has been placed before the Tribunal by the Applicant. Thus the Tribunal must reach a decision that the hypothesis is consistent with the “template”, and accordingly Step three is satisfied.
43. Step four requires the Tribunal to consider under section 120(1) of the Act whether it is satisfied beyond reasonable doubt that the incapacity of alcohol dependency did not arise from a war caused injury, and if not so satisfied, the claim must succeed. The concern the Tribunal has in this matter is the consistent reservations expressed by Drs Robbie, Kaplan, Morris and Dinnen as to the adequacy of the history being obtained; those histories also indicated differing explanations as to what occurred during the Applicants service in Vietnam, a case in point being the claim that the Applicant had witnessed the main TET offensive, when he had not been in Vietnam at that time.
44. The facts that may be drawn are:
(a)Mr White served in Vietnam from 15 October 1968 to 4 June 1969, as a member of the Royal Australian Army Medical Corps.
(b)the majority of his duties, if not all, were as a Maintenance General Dutyman.
(c)with the exception of a period of R and R, and perhaps at other times for short periods, he was located at 1 Australian Field Hospital, and available to be called to assist with casualty clearance or administrative tasks as required by the command.
(d)either before he left Australia or at some time shortly after arriving in Vung Tau, he increased his alcohol consumption to a level where, by his evidence, he drank on duty and to excess each evening to the point where he has an alcohol dependency.
(e)37 medivac casualties were transferred to 1 Field Hospital in the month period between 21 February and 23 March 1969 (Exhibit R5 Attachment 1). No figures are available as to medivac casualties between 15 October 1968 and 20 February 1969 or between 24 March and 4 June 1969, a total period of about 6 ½ months.
45. The Tribunal was concerned at the numerous instances of conflicting material available to the Tribunal; in various doctor reports, in the evidence as described by the VRB and, in the course of giving oral evidence. By the same token, the Tribunal has some difficulty in accepting that the Applicant could be expected to recall whether he had acted as a stretcher bearer on some 40 to 50 occasions (as stated to the VRB) or some 30 to 35 as defined before this Tribunal. It may be that the differences are not significant depending on other issues. So too, the Tribunal must place some reservation on the initial conclusion by COL Church at Exhibit R5, based on the views of COL Naughton and LCOL Lambie, and his assessment at Exhibit R4 of casualties in TET 69, that Mr White “could not have” assisted in transferring patients, a conclusion that was subsequently modified to “unlikely”.
46. The issue before the Tribunal is to establish whether the Applicant’s experiences in Vietnam meet the criteria for a severe stressor as defined in SoP 76 of 1998. To address the inconsistencies point by point :
(a). The reference, be it as stated by the Applicant or as understood by the author, to an involvement during the major TET offensive in 1968, is recorded by Dr Koller (T13) and is reflected in a smoking questionnaire at (T7) dated 16 December 2001. In 1990, Dr Kaplan notes Vietnam service in 1967, but makes no mention of TET. In his case notes in 1988, Dr Robbie notes the Applicant serving in Vietnam between “Oct 68 – 1969”.. Dr Morris questioned the Applicant re his TET experience, and notes “he still believes he was there …but later said he might have mistaken this for being in Vietnam for the TET …in 1969”.. Before the VRB, the Applicant’s advocate clarified the matter at the outset, as did Dr Dinnen. Before the Tribunal, Mr White suggested that medical examiners may have assumed he was speaking of the 1968 TET offensive.
(b) The Record of Service indicates at (T3 p 24) on 14 October 1968, an entry of “Med Ord ECN 564” has been deleted and “Maintenance Dutyman ECN 563” substituted. In a later entry (T3 p25) dated 14 June 1968, which follows entries made on 21 December 1968, the notation is “Now Maintenance GD ECN 118”.. The Tribunal must question whether the substitution was carried out on 14 October or a later date. The Applicant maintains that he initially served for about two months as a medical orderly before being transferred – because he could not cope – to maintenance duties. That is the explanation given to Dr Morris and Dr Dinnen. Dr Robbie records “orderly”, and the VRB records that he described his duties as “mainly maintenance”.. The Applicant’s claim on 5 December 2001 makes no mention of his duties. In his oral evidence, the Applicant described some 1 to 2 weeks of orientation, then a further 4 to 6 weeks of medical orderly duties before being “downgraded” to maintenance duties.
(c). The evidence as to how frequently, if at all, the Applicant assisted in casualty transfer from helicopters to the hospital varies as earlier noted. The Applicant held to the view that he had assisted, or witnessed, casualty transfer on some 30 occasions, 4 to 5 of which involved seriously wounded patients. He maintained that he had assisted in removing clothing from wounded personnel, a task disputed by both COL Naughton and LCOL Lambie as being a task only carried out by qualified medical staff. The Applicant gave oral evidence as to particular stressful incidents.
(d) COL Church notes in Exhibit R4, the view of COL Naughton that in general, the duties of Mr White in respect of casualty assistant as claimed were not consistent with the role of a MGD. However, he notes that COL Naughton conceded that in an urgent situation, all hands might have been called on to assist. As earlier noted, COL Church suggested this could not have happened (on the basis of his calculations of likely casualty numbers), but modified that opinion to “unlikely”. In other words, the possibility was accepted.
(e) The Respondent submitted that the absence of figures in respect of the injured or dead except in the TET month inhibited the ability of the Tribunal to ascertain the number of dust-offs and casualties that the Applicant could plausibly have witnessed. To an extent that may be, but the Tribunal has before it the respective numbers for what is assumed to be the TET period, and notes the Applicants contention that the level of activity, at least before TET, was much the same. In response to the Respondent, the Applicant also said that at times the hospital might have some 35 to 50 patients.
47. Dr Dinnen changed his opinion as to the causal connection with alcohol dependency as a result of finding that Dr Robbie (Exhibit R1 p 22-23) had originated an unidentified psychiatric report. Of significance, in the view of the Tribunal, was his appreciation that the clinical notes extract included in the VRB decision were those taken by Dr Robbie. He placed particular emphasis on the phrase “saw various surgical sights” as being evidence that the Applicant had been exposed to wounded personnel. The Respondent submitted that his revised opinion was based on selective interpretation and use of the case notes, exampling the statement by Dr Robbie that “l couldn’t establish excessive stress during Vietnam”. The Tribunal acknowledges this view, but takes into account that Dr Dinnen has the benefit of more histories than did Dr Robbie, and maintained his position when giving oral evidence.
48. As earlier noted, Counsel did not pursue the matter of perimeter patrols and the effect they may have had on the Applicant, during examination-in-chief, this being postulated by Dr Dinnen as a further indication of stress during Vietnam. However, Counsel suggested in final submission that the Applicant, particularly as a vulnerable person, could have been subject to threat of serious injury or death when carrying out those duties, bringing subparagraph 8(i) of the SoP into play. There is little evidence before the Tribunal as to what duties in this regard the Applicant actually performed, and as indicated, the issue was not pursued during oral evidence. Further, Dr Robbie noted that the Applicant was “unconcerned”. In the absence of objective evidence, the Tribunal sees no requirement to pursue this aspect of service.
49. Addressing the issue properly raised by the Respondent as to whether the Applicant objectively, as well as subjectively, experienced a severe stressor, and the relevance of the decision in Stoddart (supra), the Tribunal concludes that the evidence before it is sufficient to meet the criteria in SoP 76 of 1998, and sub-paragraph 8(iii) in particular. The Applicant was stationed at 1 Field Hospital for most of the his 7 and ½ months deployment to Vietnam, at all times he was posted to the RAAMC, and whether his duty was as a medical orderly or a GMD, he was exposed in an objective manner to “witnessing casualties or participation in or observation of casualty clearance”. It would be unrealistic, in the view of the Tribunal, to suggest otherwise during his relatively lengthy period at 1 Field Hospital. The Applicant described witnessing events that he considered stressful and with which “he could not cope”. Whilst it is not possible to establish to what extent he assisted with and witnessed casualty evacuation pursuant to sub-paragraph 8(iii) of the SoP, his own evidence before the Tribunal remained reasonably consistent, and placed some earlier statements and evidence attributed to him in perspective.
50. Whilst reservations as to his credibility remain, the Tribunal cannot be satisfied beyond reasonable doubt that the incapacity of alcohol dependency did not arise from the Applicant’s Vietnam service, and hence the claim must succeed.
51. The Tribunal sets aside the decision under review, and substitutes its decision as follows:
a.the diagnosis of post traumatic stress disorder with alcohol dependence is varied to personality disorder and alcohol dependence;
b.the condition of personality disorder is found not to be war-caused.
c.the condition of alcohol dependency is found to be war-caused effective to date 5 September 2001 and the matter remitted to the Repatriation Commission for assessment of the rate of pension.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON
Signed Georgie Zuzak
Associate
Date/s of Hearing 3 June 2003
Date of Decision 30 June 2003
Counsel for the Applicant Mr B Winship
Counsel for the Respondent Ms P Hook
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