Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193

1. This is an application to review a decision of the respondent dated 29 June 2007 that the veteran's claimed conditions of anxiety disorder, alcohol abuse and post traumatic stress disorder (PTSD) were not war caused. This decision was affirmed by the Veterans' Review Board (VRB) on 28 February 2008.
2. At the hearing the applicant, Mr R A Gawley was represented by Ms J. Bornstein of counsel and the respondent by Mr K Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by Mr Gawley.
3. On 8 December 2006, Mr Gawley advised of his intention to make a formal claim for anxiety disorder and alcohol abuse and dependence. The formal claim was lodged on 14 February 2007. The claim for anxiety disorder stated that this was Due to my being posted to SVN. I was always in fear of my life and afraid that I would never see my wife and recently born daughter again. The claim for alcohol abuse and dependence was said to be due to the horror, fear and helplessness during my period in SVN. Drove me to self medication, to try and forget.
4. Mr Gawley was born on 22 October 1946. He served in the Royal Australian Army (army) from 7 February 1968 to 6 February 1970 and had operational service in Vietnam from 4January 1969 to 23 December 1969. Mr Gawley had commenced work as a printer prior to conscription which was deferred until he completed his trade training. After three months basic training, he had corp training in ordinances before being transferred to Broadmeadows on store duties. After further training at Kanungra he was transferred to Nui Dat in Vietnam as a storeman attached to 106 Field Workshops. His duties were primarily within the base at Nui Dat.
5. In his evidence at the hearing, Mr Gawley referred to five stressful events which occurred during his service in Vietnam. The first of these was requirement to be on perimeter guard duty in a bunker at night on about two occasions per month. On two or three occasions he heard gunfire from nearby and he was in fear of his life. The second was soon after July 1969, mortars were fired into the area at night. He awoke to the noise and was ordered to stand-to near the tent line. Again he was fearful. The third event was in November 1969 when he was one of eight men on patrol outside the base. He was woken from his sleep by flares and gunfire which he believed was fairly close. He felt vulnerable although no actual fire occurred in his immediate vicinity.
6. The fourth and fifth events were not described by Mr Gawley in his evidence-in-chief but arose in cross-examination relating to the history given to psychiatrists. One was being bitten by a monkey, his concern at contracting rabies and the need to have protective injections. Mr Gawley accepted that this event was treated as a joke at the time and he could not specifically recall why he was concerned. The next was his apparent sighting of the bodies of two Vietnamese at the side of the road when in a truck with others. His primary concern was the indifference of other soldiers in the truck. It is relevant to note that the only mention of the monkey incident was to his treating psychiatrist, Dr Stamp, who commenced treating Mr Gawley in August 2006. The first and only reference to seeing dead bodies was at his examination by Dr Glaser in August 2008 for the purpose of this application.
7. Mr Gawley said that he was a light drinker of alcohol prior to service in Vietnam consuming no more than 2 or 3 glasses over one or two weeks. However, from early in that posting, he commenced to drink to excess. He said that alcohol was readily available and cheap, there was peer pressure to drink and he believed that alcohol soothed his nerves. He accepted that his drinking had increased after enlistment and prior to Vietnam but said that it increased considerably after arrival in Vietnam. He believed that, prior to Vietnam, he drank some 4-6 glasses each night when available but this increased to eight or more cans of beer plus spirits each night. He said that, on return from Vietnam, he continued to drink beer and spirits to excess on most days. This caused considerable friction in his marriage and difficulty in maintaining employment. Mr Gawley said that, currently, his alcohol consumption is generally under control although he suffers binge drinking episodes approximately once per month.
8. After unsuccessfully obtaining regular employment after discharge from the army, Mr Gawley obtained employment with Kalamazoo Business Systems (formerly Triset Business Systems) in approximately 1974 and remained there for 20 years until 1994 when the factory closed and the business was transferred to Sydney. At that time he had been promoted to the position of manager of the Moorabbin printing workshop. Mr Gawley said that he enjoyed his career at Kalamazoo and was motivated to obtain promotion. He said that he worked long hours to the detriment of his family. He said that he continued to drink heavily but was able to cope with the work. He would regularly drink at lunch time then return to work at 2.30pm for the afternoon shift and work through to 10.00pm.
9. Clearly 1994 was a difficult time for Mr Gawley. His employment with Kalamazoo ceased and he subsequently obtained employment as a storeman. In that year, also, his wife committed suicide. It is relevant that it was not until 1994 that Mr Gawley sought treatment through his general practitioner for psychological problems. In 2006 he was hospitalised in a psychiatric ward of Heidelberg Hospital. He commenced treatment with Dr Stamp in 2006 although he had been examined by Dr D Baron, consultant psychiatrist, on three occasions in 2000.
10. The diagnosis of Dr Baron in 2000 was Chronic Anxiety Disorder with symptoms of PTSD and excessive drinking. In a report of 11 May 2007, the treating psychiatrist, Dr Stamp diagnosed Generalised Anxiety Disorder, PTSD and Alcohol Abuse. Dr Stamp considered that the anxiety disorder and alcohol abuse constituted 60 per cent of Mr Gawley's problem and PTSD 40 per cent. Dr Glaser diagnosed PTSD and alcohol dependences.
11. Mr Gawley has operational service in Vietnam from 4 January 1969 to 23 December 1969. Section 120(1) of the Veterans' Entitlements Act 1986 (the Act) provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s 120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act.
12. Each of the relevant SoPs set out the factors, one of which relate to the veteran's service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.
13. In the decision in Repatriation Commission v Deledio (1998) 49 ALD 1993 the Full Court of the Federal Court set out the four step process which a decision maker should follow. These four steps are:
    1. whether the material points to a hypothesis connecting the injury, disease or death with the circumstance of the particular service rendered by the veteran;
    2. whether there is in force an SoP;
    3. whether the hypothesis is reasonable under the terms of the SoP; and
    4. whether, on the facts determined from the material before the decision maker there can be satisfaction beyond reasonable doubt that the incapacity or death was not war-caused. It is only in this fourth step that fact finding arises.
14. In relation to the claim for anxiety disorder the relevant SoPs are Instrument No 1 of 2000 which was in effect at the date of the claim and Instrument No 101 of 2007. The applicant is entitled to the benefit of the Instrument which is more favourable. In relation to alcohol abuse the relevant SoPs are Instrument 76 of 1998 which was in effect at the date of the application, Instrument No 17 of 2008 which came into effect on 5 March 2008 and Instrument No 1 of 2009 which came into effect on 14 January 2009, six days prior to the hearing. In relation to PTSD, the relevant SoPs are No 3 of 1999 as amended by Instrument No 54 of 1999 which was in effect at the date of the claim and Instrument No 5 of 2008 which came into effect on 9 January 2008. While the psychiatrists who have examined Mr Gawley attribute his psychiatric condition to his experiences in Vietnam, predominately nervousness and fear of the unknown and possible attacks, each of the SoPs specify specific factors which must exist. It would appear that, subject to the terms of the SoPs there is an hypothesis connecting his claimed condition with the operational service as found by the psychiatrists.
15. For anxiety disorder the factor in Instrument No 1 of 2000 relied on is experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder. Severe psychosocial stressor is defined as an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, lose of employment, major financial problems or legal problems. I am unable to accept that the experiences outlined by Mr Gawley satisfy this factor. Under Instrument No 101 of 2007, the factors relied on are set out in 6(a)(ii) and (iii) of the Sop which are experiencing a category 1A stressor or a category 1B stressor within the five years before the clinical causal of anxiety disorder. These stressors are defined as follows:

"a category 1A stressor" means one or more of the following severe traumatic events:

(a) experiencing a life-threatening event;

(b) being subject to a serious physical attack or assault including rape and sexual molestation; or

(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;

"a category 1B stressor" means one of the following severe traumatic events:

(a) being an eyewitness to a person being killed or critically injured;

(b) viewing corpses or critically injured casualties as an eyewitness;

(c) being an eyewitness to atrocities inflicted on another person or persons;

(d) killing or maiming a person; or

(e) being an eyewitness to or participating in, the clearance of critically injured casualties;

Given that Mr Gawley did not fire his weapon at any time, was aware of gunfire on a few occasions only at a distance, was never attacked or directly threatened, was not an eyewitness to any other person being killed or attacked and was not involved in any injured or dead casualties, the only possible traumatic event dealt with by the SoP was the possible viewing of corpses described to Dr Glaser. However, it is relevant that this matter had not been mentioned by Mr Gawley to anyone prior to August 2008, his concern was stated as being primarily the indifference of other soldiers and there is no evidence that there were casualties. It is difficult to accept this apparent sighting as a severe traumatic event to satisfy the requirement of the SoP. Consequently, I am satisfied that the claim for anxiety disorder cannot be considered as upheld by this SoP.

1. In relation to the three alleged incidents involving gunfire and mortar attack, the respondent tendered a report from Lieutenant Colonel P Pearson of Writeway Research Service dated 14 August 2008. Based on the Commander's diaries and reports and other research material, Lt Col Person concluded that Mr Gawley is likely to have heard gunfire at some distance while on perimeter guard duty. He was unable to locate any record of a mortar attack on the Base after June 1969, prior to the date alleged by Mr Gawley. Of the earlier mortar attacks there were no casualties and no damage and none in the immediate vicinity of 106 Field Workshop. The conclusion of Lt Col Person in relation to the alleged gunfire while on patrol in November 1969 was that it was likely that gunfire was heard but this would have been approximately 5500 metres away. In his evidence to this Tribunal, Mr Gawley accepted that the gunfire could have been that distance away.
2. For alcohol dependence or abuse, Instrument No 76 of 1998 sets out as a factor that must as a minimum exist experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.

"experiencing a severe stressor" means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;

Instruments No 17 of 2008 and No 1 of 2009 both require the experiencing of a Category 1A or Category 1B stressor within the five years before the clerical onset of alcohol abuse. These stressors are defined in identical terms to Instrument No 101 of 2007 concerning anxiety disorder.

1. In the totality of evidence of Mr Gawley there is no event which involved an actual threat of death or serious injury. it is accepted that Mr Gawley was nervous and concerned at the possibility of such threat but none eventuated. Consequently for the same reasons relating to the claim for anxiety disorder, I am satisfied that the claim for alcohol abuse is not upheld by any of the relevant SoPs.
2. For PTSD, Instrument No 5 of 2008 again requires a factor of experiencing a category 1A or category 1B stressor before the clinical onset of PTSD. Again those stressors are defined in identical terms to Instrument No 101 of 2007 concerning anxiety disorder. Instrument No 3 of 1999 requires the factor that must exist as experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder. The definition of a severe stressor is in identical terms to that of Instrument No 76 of 1998 concerning alcohol dependence or abuse although omitting the words which event or events might involve intense fear, helplessness or horror. Again and for the same reasons as set out above, I am satisfied that the claim for PTSD is not upheld by either of the relevant SoPs.
3. There is a further issue in this matter which is the date of clinical onset of the conditions claimed. In relation to the claim for alcohol abuse, Mr Gawley completed an alcohol questionnaire on 8 March 1994 in which he stated that within 2/3 years from discharge from army alcohol consumption reduced to approx. 1 can of beer per week or less due to health and that he consumes alcohol less than once per week when he consumes 6 to 8 cans on each occasion. In the similar questionnaire of 26 April 2000 this had changed to 6 to 8 beers 3 to 4 times per week and 1 Bottle Bourbon per fortnight. Mr Gawley believed he had been untruthful in the answers in the 1994 claims. He did accept that it was not until 1994 that he first sought treatment for psychological problems and the first attempted treatment by drugs for alcohol was in 2000. It is noted that Mr Gawley said in his evidence that his son was born in 1974 and things were somewhat settled then and he had a reasonable family life. It is further noted that he was in stable long term employment with promotion to manager from 1974 to 1994. It is clearly likely that it was not until his dual problems of loss of job and suicide of his wife in 1994 that his alcohol abuse became a clinical problem. There are no records of his treating practitioner or any other medical practitioner of any psychological problems prior to 1994. Consequently, I cannot be satisfied that the clinical onset of anxiety disorder or alcohol abuse was within either the two or five years from any alleged stressor so as to satisfy the relevant SoPs.
4. In following the four step process outlined in Deledio, the material contained in reports from psychiatrists and the evidence of Mr Gawley does point to a hypothesis connecting the claimed conditions with the circumstances of the service rendered by him in Vietnam. If the claim had been made prior to June 1994 that finding is likely to have resulted in the claim being accepted. However, there are now in force the SoPs concerning each of the conditions claimed. Under these SoPs the hypothesis is only reasonable if one of the factors set out in the SoP exists. On the facts of this case I am satisfied beyond reasonable doubt that the conditions claimed were not war-caused.
5. It follows that the decision under review should be affirmed.

I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of

Solicitor for the Applicant Michael Jorgensen, Williams Winter

Advocate for the Respondent Ken Rudge, Department of Veterans' Affairs