tag:blogger.com,1999:blog-48588843216266946562024-03-05T14:52:00.944+10:00The Repat RacketThis book, originally published in 2010, is now out of print, and since it discusses important issues of public policy, I have decided to publish it in blog form. The chapters can be navigated using the links provided, or the Archives list.Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comBlogger14125tag:blogger.com,1999:blog-4858884321626694656.post-27465137125031124312013-03-08T11:06:00.000+10:002013-05-24T11:45:45.394+10:00Index<div style="text-align: center;">
<span style="font-family: Monotype Corsiva, cursive;"><span style="font-size: x-large;"><b>The Repat Racket</b></span></span></div>
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<span style="font-family: Monotype Corsiva, cursive;"><span style="font-size: large;"><b>An Insider’s Report on Veterans’ Affairs</b></span></span></div>
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<b>© <a href="http://malcolmshome.blogspot.com.au/" target="_blank">Malcolm Smith</a></b></div>
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<b>DEDICATION</b></div>
To my former colleagues at the Department of Veterans’ Affairs – a great bunch of folks.<br />
<br />
<div style="text-align: center;">
<b>AUTHOR’S NOTE</b></div>
<div style="text-align: center;">
</div>
This book describes the broad details of veterans’ law, and how the system went hopelessly wrong. The legislation is very complicated, and to include every reservation and exception which should be made to every statement would both bore and bewilder the reader, while obscuring the big picture. <br />
No-one’s privacy has been breached. The court decisions discussed in the text are in the public domain, and form an integral part of every veterans’ law course. Indeed, many of the cases described in chapter 7 are also in the public domain, and can be accessed on the internet. However, I have chosen to disguise them with letters.<br />
If you recognize yourself in any of the cases, it is most likely because so many stories are alike. If you think you recognize your neighbour or your friend, you are probably mistaken. My experience is that people have a very incorrect knowledge of their acquaintances’ history. <br />
<br />
<div style="text-align: center;">
<strong>CHAPTERS</strong></div>
<div style="text-align: center;">
<br /></div>
Each chapter ends with a link to the next chapter, and another link back to this index. You can access the chapters by either simply scrolling down the page and, when you reach the bottom, click on the link to "Older Posts", or, you can follow the links at the end of each chapter. Alternatively, you can simply turn to the Archives section on the right. <br />
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But before continuing, may I suggest you check the button at the top marked, "Why This Book?"</div>
<ol>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/1-repat-will-provide_8.html" target="_blank"><span id="goog_1392853791"></span>Repat Will Provide</a><span id="goog_1392853792"></span></em>. This is the introduction. </li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/2-system-as-it-is-supposed-to-work.html" target="_blank">The System as it is Supposed to Work</a></em>. This explains the various types of pension, the eligibility requirements, and the appeal system ie the essential background to the system.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/3-how-system-went-up-in-smoke.html" target="_blank"><span id="goog_159304312"></span>How the System Went Up in Smoke</a><span id="goog_159304313"></span></em>. This explains how a badly worded law, and an over-generous interpretation of it by the courts, resulted in pensions being handed out to anybody who could claim to have started smoking on eligible service. Although most of the applicants are probably sincere in their claims, I show how the rationale behind it is essentially bogus. Yet this is the basis of approximately two thirds of pensions.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/4-more-horses-bolt.html" target="_blank">More Horses Bolt</a></em>. This describes how the courts now sought to grant pensions for every condition under the sun, and Parliament's valiant rearguard action to maintain some semblance of sanity.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/5-myth-of-agent-orange.html" target="_blank">The Myth of Agent Orange</a></em>. These are the facts, and this is the science. After you read this chapter, I hope you never again fall for the line that Vietnam veterans have been adversely affected by this sinister chemical.</li>
<li><em><a href="http://www.blogger.com/"><span id="goog_781981820"></span>Sundry Rorts by Honest People<span id="goog_781981821"></span></a></em>. How the effects of old age are regularly treated as the effects of war.</li>
<li><em>The PTSD Epidemic</em>. Anybody who works in the Compensation section will tell you that psychiatric claims are the one major area overwhelmed by lies, rorting, and dubious practices. Yes, there are a lot of men genuinely traumatized by their combat experiences. But there are an equal number of people who never faced the enemy, and never had anything serious happen to them, yet are claiming the same status, and being supported by doctors and - what is worse - the law. You will be shocked at the case histories you read here. This long chapter has been divided into three parts: <a href="http://repatracket.blogspot.com.au/2013/03/7a-ptsd-epidemic-part-1-of-3.html" target="_blank">7A</a> (part 1), <a href="http://repatracket.blogspot.com.au/2013/03/7b-ptsd-epidemic-part-2-of-3.html" target="_blank">7B</a> (part 2), and <a href="http://repatracket.blogspot.com.au/2013/03/7c-ptsd-epidemic-part-3-of-3.html" target="_blank">7C</a> (part 3).</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/8-paid-to-be-sick.html" target="_blank">Paid to be Sick</a></em>. One of the saddest aspects of it all is the way the process inhibits rehabilitation. People genuinely sick or traumatized by war are being sucked into a system which makes them worse.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/9-war-widow-racket.html" target="_blank">The War Widow Racket</a></em>. Forget the relatively young diggers being killed in action in Afghanistan. According to Veterans' Affairs, most of the people giving their lives for their country today are over 80 years of age.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/10-through-looking-glass.html" target="_blank">Through the Looking Glass</a></em>. This is essentially a supplement to chapter 2. It allows you to follow a claim through all the levels of decision making, and all the deficiencies in the process.</li>
<li><em><a href="http://repatracket.blogspot.com.au/2013/03/11-what-is-to-be-done.html" target="_blank">What is to be Done?</a></em><span class="Apple-converted-space"> </span>Twenty-six suggestions for fixing the problem.</li>
</ol>
<strong><a href="http://repatracket.blogspot.com.au/2013/03/1-repat-will-provide_8.html" target="_blank">TO CHAPTER 1</a>.</strong> (or just scroll downMalcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-40021444198554610902013-03-08T11:00:00.000+10:002013-03-08T12:30:37.306+10:001. Repat Will Provide<br />
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Let me tell you about my uncle. He wouldn’t mind, even if he were alive. One
day he signed a piece of paper, and received a free trip to a lot of exotic
places, such as Greece, Crete, Egypt, and North Africa. He also got a free trip
home which, he cheerfully used to add, had never been guaranteed.</div>
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Several decades later, when he was closer in age to eighty than seventy, he
happened to muse to a friend at the R.S.L., “It’s a bit of a nuisance. My
hearing’s getting worse, and I’ll have to get a new hearing aid. They’re so
darned expensive.”</div>
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“Don’t worry!” said his friend. “Repat [that is, the Department of Veterans'
Affairs] will provide it” – and he got him to sign another piece of paper. Then,
in no time at all, so it seemed, he found himself in receipt, not only of a new
hearing aid, but also of a 40% disability pension.</div>
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All this rather puzzled him, so, knowing I was an employee of Veterans’
Affairs, he broached the subject on his next visit. “What I can’t understand,”
he said, “was how I got that pension. I never applied for it.”</div>
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“Oh yes, you did,” I replied. “That form you filled out was headed: ‘Claim
for Pension and Treatment for a War-Caused Condition’.”</div>
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“But it wasn’t war-caused,” he replied. “It was due to plain old
age.”</div>
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“Well,” I explained, “the Department would have taken the view that if you
hadn’t heard all those guns, you wouldn’t have reached the current level of
hearing loss for perhaps another five years.”</div>
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He looked dumbfounded. “Well, that is quite amazing,” he said.</div>
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"And that," said I, "is the difference between Social Security<span style="color: black;"> [now Centrelink]</span> and Veterans' Affairs. Social Security is
designed so that any lying parasite can rip off the system. Veterans' Affairs is
designed so that even honest people can rip off the system."</div>
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<br /></div>
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And that’s about it. I could tell you innumerable anecdotes about the claims
I have processed. Take, for example, the old man who lodged a claim for “eyes”
because he suffered from cataracts and glaucoma – which are major problems, I
agree, but not obviously connected to any military service. It never occurred to
him to ask how many men of his age group suffer from these diseases, or what
sort of conditions cause them. Rather, he automatically assumed they may must
have resulted from his service in the Pacific Islands forty years before. When I
telephoned him for more details, the following conversation ensured:</div>
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“Well, there were the batteries.”</div>
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“The batteries?”</div>
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“Yes, I had to fill the batteries for the trucks, and the fumes from the acid
made my eyes water.”</div>
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“I see.”</div>
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“Then there were the centipedes.”</div>
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“The centipedes?”</div>
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“Yes, you know what a centipede is? Well, in the Islands they were about a
foot long. Sometimes you would lift a stone, and there they were. You couldn’t
avoid them.”</div>
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By now my mind was starting to boggle, but I had to ask the obvious question:
“So, how would they affect your eyes?”</div>
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“Well, they’d spray some sort of vapour at you, and it’d get in your
eyes.”</div>
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Good grief! I thought. <i>Where do people get these ideas?</i></div>
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All right, he probably left school at fourteen. The younger generation should
be a bit better educated or more savvy. Or are they? A much younger soldier – I
think he was even too young to have gone to Vietnam – lodged a claim for about a
dozen non-specific symptoms – such as aches and pains, chronic constipation and
diarrhoea (!), and general fatigue. In fact, they had caused him to give up his
favourite recreation of marathon kayak racing. He could no longer do it without
aching all over and feeling exhausted.</div>
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Primitive savages believe that disease and death are not natural, but must be
the result of witchcraft. We, on the other hand, have educated several
generations of Australians to believe that anything which happens to a veteran
cannot be natural, but must have been caused by the war. The result is that
people are lodging endless claims for every condition conceivable and, what is
worse, they are being accepted on the basis of legal fictions.</div>
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Most people, if they consider the matter at all, probably assume that the
Department of Veterans' Affairs is involved in compensating former diggers
maimed or sick from their experiences in war. This is not true. Mostly it is
involved in handing out pensions and treatment for conditions which have very
little, if anything, to do with any war service. Genuine war-caused diseases and
deaths account for only about a tenth of the pensions being granted.</div>
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The assumption that a man “must have” been physically damaged by the stresses
of war is perhaps a natural one, but it is facile. The medical effects of war
are well established, and it depends on the theatre, and the serviceman’s role
in it. The Second World War is probably better known than later wars, and so
will be used as an example. If a man served in the air war over Germany, he had
one chance in two of being shot down and killed. Nevertheless, if he survived,
although his nerves may well have been affected, he would probably be physically
healthy, because flying in a plane, even into acute danger, is not physically
demanding work. On the other hand, if he had been a footslogger in the New
Guinea campaign, he would have had a much better chance of survival, but he
would have exposed his body to much greater stress, strain, and opportunity for
infection. Even so, if any medical consequences were to occur, it would most
likely be within the next twenty years. At the other end of the spectrum, being
in the ground crew of the air force, especially in the last half of the war,
when we were on the offensive, would simply be the equivalent of a civilian
occupation.</div>
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I myself had been employed by the Department for thirty years, initially as a
menial handing out entitlement cards, then as a delegate, handing out pensions,
and finally as an advocate before the Administrative Appeals Tribunal, arguing
against pensions being handed out. In that time, I have watched the system grow
into a monster, fed by good intentions, ivory tower judges, and a lack of
political courage by the people who matter. Today, the benefits provided
uniquely by Veterans’ Affairs, exclusive of any duplication by other
departments, amount to <i>two
billion</i> <i>dollars</i> per year, most of it unwarranted.</div>
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To understand the situation, it is important to understand the veteran
community, and neither idealize nor demonize them. In my career, I have dealt
with people who would pass unnoticed in the street, but who once took part in
deeds of extraordinary fortitude and courage. There were others whose lives had
been genuinely tragic, with little blame attached to either themselves or the
war. A few had been shirkers who, despite having been farthest from the front
lines, were at the head of the queue when the benefits were being handed out.
War sweeps up a cross section of society: the high and the low, the clever and
the stupid, the saint and the sinner. Some are the salt of the earth and some
are the scum of the earth – although the second group is probably
underrepresented, due to their successful attempts at avoiding war service.
Mostly, however, they are ordinary people who were once caught up in
extraordinary situations.</div>
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Objectively, I doubt if the proportion of rogues and rip-off merchants among
them is greater than in the general community – probably only a couple of
percent. Of course, if you are a Claims Assessor in the Department, that means
you always have one or two of them on your books. They are a constant galling
irritation, because their lies are as transparent as they are difficult to
disprove, but that is not the real problem. It is not that the system is open to
abuse, but rather, that the law is an ass, and allows perfectly honest people to
rip off the system without even knowing it.</div>
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Conversely, the staff of Veterans’Affairs are neither fools, nor hard hearted
bureaucrats. The Department contains the usual amount of dead wood present in
every big organisation, but by and large, they are ordinary people trying to do
a difficult job under pressure, and preferably getting it right the first
time.</div>
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Also, you will find little discussion of party politics in this book. There
is bipartisan support for most measures. Both Labor and the Coalition know that
the situation is out of hand, but is too politically dangerous to touch. In the
meantime, Veterans’ Affairs is one department which can more or less run itself.
It is under the authority of a junior Minister, usually appointed to that
position to see if he or she can handle weightier portfolios.</div>
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Veterans’ administration is long overdue for criticism and reform. Back in
1969, a book by a Department doctor, and war veteran, John Whiting,
entitled, <i>Be In It, Mate!</i> hit the stands and circulated among the
denizens of the R.S.L. As they read of widespread rorting and chicanery in the
manipulation of pension claims, they nodded their heads and agreed they knew
many people who fitted the bill. Some enquiries are initiated in the upper
echelons of the Department but, ultimately, nothing much was done. Forty years
later, this book can be considered a sequel to <i>Be In It, Mate!</i>, but not even Dr
Whiting could have imagined what was going to happen next.</div>
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But before we learn what went wrong, it is important to understand how the
system is supposed to work. This will be covered in the following chapter. In
the meantime, however, may I suggest you click on the button at the top of the
page marked "Acronyms". It will stand you in good stead for the remainder of the
story.</div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/2-system-as-it-is-supposed-to-work.html" target="_blank">Go to Next Chapter</a> </strong>(or simply
scroll down)<b>.</b><br />
<strong><br /></strong></div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a>.</strong></div>
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</div>
Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-8632848316235589542013-03-08T08:07:00.000+10:002013-03-11T14:17:14.746+10:002. The System As It Is Supposed to Work<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1.27cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<span style="font-family: inherit;">When the First World War broke out, Australia was a new country with a population of<span class="Apple-converted-space"> </span>only five million, including women and children. Yet 416,809 volunteered for active service. Of these, 331,781 went overseas, 59,330 were killed, and another 152,171 were wounded. By any standards, it was one of the greatest movements of mass enthusiasm in British history, and one which, one hopes, will never happen again, or need to. It became the defining experience of that generation and, not surprisingly, there was an immediate clamour for special care for the countless soldiers returning crippled, wounded, or sick, and for the dependents of those who failed to return at all.</span></div>
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To their credit, the governments of the day were not slow in acting. A<span class="Apple-converted-space"> </span><i>War Pensions Bill</i><span class="Apple-converted-space"> </span>was introduced before the war was four months old. But it was a task, the scope of which no government had tackled before. To assist it, a Repatriation Commission was appointed to advise the Governor-General on the granting of benefits. Of particular concern were those servicemen who had been blinded, or lost limbs in the conflict. This can be seen by provisions of the current law for special benefits for such disabilities, archaic provisions which have been in the legislation from the beginning, despite the many additions and rewrites which have taken place in the interim.</div>
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A couple of early attempts at legislation where eventually replaced in 1920 by the<span class="Apple-converted-space"> </span><i>Repatriation Act</i>, which held sway for the next 66 years. The department which administered it – now the Department of Veterans’ Affairs – was, for most of that period, called by some variation of the name, Repatriation Department, and known to the older generation as “Repat” – hence the title of this book. But after six decades of amendments and regulations, along with supplementary legislation for later conflicts, the<span class="Apple-converted-space"> </span><i>Repatriation Act</i><span class="Apple-converted-space"> </span>bore more than a passing resemblance to a dog’s breakfast, so in 1986 it was given a complete rewrite. The<span class="Apple-converted-space"> </span><i>Veterans’ Entitlements Act</i><span class="Apple-converted-space"> </span>was the result.</div>
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The<span class="Apple-converted-space"> </span><i>VEA</i>, as it is known for short, consists of 1315 pages of verbiage drafted before plain English became the vogue. Rumour has it that some law schools cite it as an example of how not to draft legislation. This chapter will attempt to provide a thumbnail sketch, leaving out much of the confusing detail. But before we do that, it is germane to mention a certain legal fiction which underlies the whole framework.<br />
<br />
Just as every government action is performed in the name of the Queen, so, one step down, all the decisions in the veterans’ administration are officially made by the Repatriation Commission. It is what the Romans called a triumvirate, and the Russians a troika: a cabal of three, consisting of the President, Deputy President, and a Commissioner nominated by the ex-service organisations. The law requires the Commission to determine all claims for pension. Since the Commission is only three men, and it has no staff, it delegates this function to employees of the Department of Veterans' Affairs known as Claims Assessors. However, before a claim can be determined, the law also requires the Secretary of the Department to investigate it. The Secretary is also a very busy man, so he appoints one of his own staff to do the work – invariably the same Claims Assessor delegated by the Commission. The Secretary is on a short term contract, and can be dismissed at any time, but the President of the Commission has a much more secure tenure. In practice, it makes no difference, because the Secretary and the President are one and the same person.</div>
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As you can see, it is all basically a legal fiction. The work and decision making are all done by bureaucrats in the Department of Veterans' Affairs. Where does the Minister fit in? He has the ultimate oversight over the Department and its legislation, as well as the Veterans' Review Board. But he is not a member of the Commission. That means he cannot make any decisions about granting pensions. Veterans who approach the Minister or their MP asking him to intervene in their claims are wasting their time.<br />
<br />
The<span class="Apple-converted-space"> </span><i>Veterans’ Entitlements Act</i><span class="Apple-converted-space"> </span>covers those who served in wars or peacekeeping roles. Members of the peacetime forces are covered by the general legislation involving workers’ compensation – in particular, the<span class="Apple-converted-space"> </span><i>Safety, Rehabilitation and Compensation Act</i>, or SRCA (pronounced “serca”). However, certain anomalies are present. Whereas the periods of the minor wars are clear-cut, at the end of World War II, the government was uncertain how large their peacetime army needed to be. In order to encourage people to stay on after the war, or to enlist, they extended Repatriation eligibility for various periods after the war, the exact cut-off date depending on when one enlisted, and whether one had volunteered at the start of the war, or was a career serviceman. It is thus possible to be a World War II veteran even if you enlisted after hostilities ceased, and never left Australia.</div>
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Furthermore, the VEA also covers “defence service” after 7 December 1972, providing one served three years, or completed national service. (If you are wondering where the date came from, it was two days after the Whitlam Government was elected.) Service personnel with defence service are covered by both the VEA and SRCA, but benefits from the former are off-set against those from the latter. To make matters more confusing, some people are not covered for defence service, some people are eligible only until 1994, and defence service for everybody ceases on 30 June 2004. After that date, everybody, in both peace or war, is covered by the<span class="Apple-converted-space"> </span><i>Military Rehabilitation and Compensation Act</i><span class="Apple-converted-space"> </span>or MRCA (pronounced “merca”). This book describes the rorts and abuses of the VEA but, as will be seen in the last chapter, many of them have been carried over into MRCA.</div>
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The VEA provides for the payment of three types of pension. A<span class="Apple-converted-space"> </span><i>Disability Pension</i><span class="Apple-converted-space"> </span>is payable for medical conditions notionally determined to be war- or defence-caused, and should not be confused with the Disability Support Pension paid by Centrelink for invalidity. A<span class="Apple-converted-space"> </span><i>War Widow’s Pension</i><span class="Apple-converted-space"> </span>is payable to the dependents of those whose death is notionally determined to be war- or defence-caused, or who were in receipt of certain rates of pension. In practice, it is determined in the same way as a Disability Pension, the specific disability being death. The<span class="Apple-converted-space"> </span><i>Service Pension</i><span class="Apple-converted-space"> </span>is the Veterans’ Affairs equivalent of the civilian old age or invalid pension.</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">These pensions come with various fringe benefits, the most valuable being medical treatment. Any condition determined to be war- or defence-caused can be treated at government expense. Furthermore, full medical benefits are provided to anyone holding a Gold Card, which is granted to anyone in receipt of:</span></div>
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<li><div class="western" lang="en-AU" style="color: black; direction: ltr; font-family: 'Times New Roman', serif; line-height: 16px; margin-bottom: 0cm; orphans: 2; text-align: left; widows: 2;">
<span style="font-family: Times New (W1), Times New Roman, serif;">a Disability Pension of at least 100%;</span></div>
</li>
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<span style="font-family: Times New (W1), Times New Roman, serif;">a Service Pension above a certain threshold;</span></div>
</li>
<li><div class="western" lang="en-AU" style="color: black; direction: ltr; font-family: 'Times New Roman', serif; line-height: 16px; margin-bottom: 0cm; orphans: 2; text-align: left; widows: 2;">
<span style="font-family: Times New (W1), Times New Roman, serif;">a Disability Pension of at least 50%, plus any level of Service Pension; or</span></div>
</li>
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<span style="font-family: Times New (W1), Times New Roman, serif;">a War Widow’s Pension.</span></div>
</li>
</ul>
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<span style="font-family: Times New (W1), Times New Roman, serif;">It is also awarded to a few other minor categories of people. Since full medical benefits includes dental and optometric treatment, surgical aids, admission to private hospitals, and a number of other benefits not normally covered by Medicare, you can well understand that the Gold Card is highly in demand. It is worth, indeed, a lot more than even membership of a private medical fund, and many claims are lodged, not so much for the pension involved, but for the Gold Card.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Since the rest of this book will be taken up with the abuse of the Disability Pension, it is opportune to discuss the Service Pension at this stage. During the Depression, there arose the concept of the “burnt out digger”, suffering from the “intangible effects of war”, and statistics were produced to show that ex-servicemen were finding it harder to obtain and keep employment. The solution was the introduction in 1935 of the Service Pension (Old Age), identical to the normal old age pension except that it could be taken at the age of 60, rather than 65.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Two points should be made. Firstly, in those days people were self-reliant, and took pride in the fact that they did not need to go on the pension. These days it is regarded as a right. Secondly, as will be shown in later chapters, the law has been expanded to such an extent that even the slightest connection between a disease and service will result in a pension. In other words, there are no longer any intangible effects of war. A Service Pension is simply an opportunity to retire five years earlier as a reward for serving one’s country, and no-one can complain about that – as long as you acknowledge that that is what it is.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A veteran who is physically incapable of work – in other words, an invalid – can also receive a Service Pension (Permanently Incapacitated). The invalidity need not be due to the war; it could be due to brain cancer, or a congenital disease, or even being hit by a bus. Both Service Pensions are equivalent in value to each other, and the corresponding Centrelink pension, and are subject to the same income and assets tests.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">There is one other matter, however. To receive a Service Pension, it is not only necessary to be a veteran, but also to have “Qualifying Service”, which means in operations against the enemy and in danger from the enemy. In the past, this was interpreted very generously to mean being outside the three-mile limit. All Tasmanians automatically qualified, because they had to cross the Bass Strait to enlist, even if they subsequently never left Australia. An army unit travelled from Brisbane to Townsville. Most members travelled by rail, but one of them went by sea, weaving in and out of the three-mile limit – and he got a Service Pension. However, twenty years or more ago, court cases put an end to that practice.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">But Australia is a nation of immigrants, and many of them had also served the common cause in time of war. Therefore, eligibility to Service Pension was extended first to members of the Commonwealth forces, and then to all Allied veterans. It is worth noting, however, that they do not receive the coveted Gold Card, like Australian veterans, but have to rely on Medicare. They are also not entitled to a Disability Pension. If they consider that any of their infirmities are due to the war, they must apply to the government of their country of origin.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">It is interesting to note that, when the law was rewritten in 1986, the then Labor government attempted to remove our allies in the Vietnam War from any eligibility to Service Pension. This was clearly motivated by the Party’s shameful support of the enemy during that conflict, but they could hardly say so, and that particular amendment was overturned by the Senate.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Finally, this should not need to be stated, but the whole aim of Repatriation benefits is to repay the debt the country owes to those who defended it in time of war. Therefore, in order to be eligible for the Service Pension, you have to have fought on our side, and never with the enemy. It’s amazing how many people don’t understand that. I remember a Hungarian arguing, quite passionately, that it was not his fault that he had served with the Axis forces. He had been conscripted; he had no say in the matter. The answer, of course, is that it was certainly true, and we do not hold it against him, but equally, we do not owe him anything.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The Service Pension is open to the occasional abuse, but not much. In eligibility and fringe benefits, it is more generous than pensions provided by Centrelink, but no-one can take much issue with that. After all, the recipients did fight for their country. In theory, the Disability Pension should also be non-contentious. It is intended to compensate ex-servicemen for what is essentially impossible to compensate for: pain and suffering due to war-caused disabilities, restrictions on lifestyle, and the loss of income due to days off work, loss of a preferred career, and so forth. A person’s position in life makes no difference to the rate payable. If you were an unskilled worker, and never expected to be anything but an unskilled worker, you might find a pension of (say) 60% was a significant supplement to your wages. However, if you were a highly paid professional, or the son of a millionaire, you might well considerate it a paltry compensation for being shot up in the war.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Over the years, pensionable conditions have been the subject of varying terminology. Currently, the legal term is war- or defence-caused injuries or diseases, but departmental staff, and most ex-service advocates, call them simply<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>A/Ds</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, or accepted disabilities, and this is the term which shall be used in future. Payment is assessed at the General Rate in 10% increments from zero to 100%.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Since 1988 this has been done by reference to a book called the<span class="Apple-converted-space"> </span></span><i>Guide to the Assessment of Rates of Veterans’ Pensions</i>, otherwise known as GARP. (A certain popular film was still in people’s mind when this name was coined.) This requires that every A/D be given an impairment rating from zero (insignificant) to 100 (comatose or dead). For example loss of half the range of movement of a knee incurs an impairment rating of 20 points, as does the loss of a thumb, or impotence at the age of 30- 39. It’s arbitrary, but nobody has come up with a better system.</div>
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Obviously, however, a bad knee (say) will have a greater effect on a young infantryman whose recreations are football and marathon kayak racing than on an elderly retiree whose hobbies are reading and jigsaw puzzles. Therefore, GARP takes into consideration lifestyle effects. In four areas - personal relationships, mobility, recreation and community activities, and domestic and work activities – the effects of A/Ds are rated from zero (negligible restrictions) to 7 (all activities prevented). Then the average of these four areas is taken, and linked with the impairment rating to obtain a pension assessment. Thus, an impairment of 40 points with a lifestyle rating of 3 equates to a pension of 70% of the General Rate, while 45 points and a lifestyle 3 results in an 80% pension.</div>
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100% is not the maximum pension payable. It is the maximum of the General Rate – the maximum a veteran can get and still work full time. If his A/Ds prevent him from working more than half the normal working hours, he is entitled to the Intermediate Rate. If they get worse, and prevent him from working more than 8 hours a week, then he is eligible for the Special Rate, better known as TPI (total and permanently incapacitated). If he only temporarily unable to work, the same pension is called the Temporary Special Rate, or TTI, but this is only rarely awarded. Most incapacities are assumed to be permanent, and once a veteran receives such a pension, there is a very strong resistance to rehabilitation and return to work. The fact is, although the TPI pension is not very large in absolute terms, most recipients are also entitled to the Service Pension. Those who aren’t are still entitled to a Disability Support Pension from Centrelink. Together, along with the fringe benefits provides, they amount to more than the average wage.</div>
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The legislation concerning TPI is extremely complicated, and somewhat contradictory, and has been the subject of more litigation than any other section of the Act. Any attempt to summarise it will therefore result in oversimplification. However, the point to remember is that the veteran must have ceased work, and be out of pocket, because of his A/Ds<span class="Apple-converted-space"> </span><i>alone</i>. If any other factor, even a minor one, is involved, then he is disqualified. The rationale is that the Special Rate is not a veterans’ superannuation scheme, but rather, compensation for lost income, and a person cannot be compensated for opportunities he never had in the first place. As the Acting Minister said in Parliament in 1985:<br />
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The special or TPI rate pension was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families or put away money for their old age. It was never intended that the TPI rate would become payable to a veteran who, having enjoyed a full working life after war service, then retires from work possibly with whatever superannuation or other retirement benefits are available to the Australian work force.</div>
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This was clarified by the courts, and later by Parliament, just at the time when many World War II veterans were reaching retirement age. To their dismay, they realised that, after the age of 65, there would be no more TPI pensions available. For many of them, that had been their ultimate financial goal, and now their dreams were shattered. So the government introduced a special Extreme Disablement Adjustment (EDA) worth 150% of the General Rate for those ineligible for the Special Rate. It had three criteria: the applicant had to be at least 65 years old, and have an impairment rating of at least 70 points, and a lifestyle rating of at least 6. That was a very high bar to cross. Indeed, if a person really were that severely restricted, one might wonder what he could spend the money on. It was assumed that very few people would qualify, but somehow a lot have managed to slip through.</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The system of administering the claims has varied over the years, but basically, there is a primary decision making process, and two levels of appeals. If a person wishes to claim a condition, or the death of a spouse, as service-related, or believes that his accepted conditions have worsened, he lodges a claim with the Department of Veterans’ Affairs. A Claims Assessor will then do all the investigations, and ultimately make a decision as a Delegate of the Commission. If the claimant has any evidence, or a good argument, in support of his claim, he would be advised to submit it, but he is under no obligation to do so, and many claims in fact succeed with minimal input from the claimant.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">At this point, mention might be made of issue estoppel. Essentially, this means that the Commission is not “estopped” or bound by its earlier decisions. An example might assist in making it clearer. Hypertension, or high blood pressure, is a risk factor for strokes and heart disease. If a veteran has hypertension as an A/D, therefore, you might assume that any later stroke or heart disease would be automatically accepted. Not necessarily. The decision maker has to look at hypertension afresh. It may be that the original decision was made when the law was more lax in the way it handled such diseases – as will be made clear in the next two chapters. Or the original decision maker may have simply interpreted the evidence incorrectly, and got it wrong. The veteran’s entitlements to pension and treatment with respect to hypertension will never be lost, but stroke or heart disease can only be accepted if hypertension can also be accepted </span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>under the current law</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In any case, if the claimant is dissatisfied with the Delegate’s decision, he can appeal to the Veterans' Review Board (VRB). This is a separate body from the Commission, and quite independent of it. The Department will provide both the veteran and the VRB with copies of all the documents used in the original decision. The veteran is then free to submit whatever new evidence he can obtain, and eventually he will able to sit around a table with the Board and explain to them why he thinks the Commission got it wrong. He is permitted to be represented at the hearing by anyone he likes – provided that person does not have legal qualifications. The government, in its wisdom, decided that lawyers, with all their demurring and objecting, will only slow things down.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">If the claimant comes up with good evidence, or a good argument, his appeal need not even go to the Board. Section 31 of the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Veterans’ Entitlements Act</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>permits the Commission – in practice, a delegate of higher rank than the original Delegate - to review its decision if it thinks the original decision maker got it wrong.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">It he is still dissatisfied with even the Board’s decision, he can appeal to the Administrative Appeals Tribunal (AAT). This time, it will be best if he obtains a lawyer and legal aid, and the Commission will send an Advocate of its own to argue the case against him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Sometimes it occurs that the VRB has accepted one condition, but not another, or has increased his pension, but he still wants more. If he appeals to the AAT, it is possible for the Commission to ask the AAT, not only to refuse his appeal, but to take from him the entitlements granted by the VRB. It doesn’t happen very often, but it does occur, and the veteran can get around it by simply withdrawing his appeal. This is one of the few opportunities for mistakes in the claimant’s favour to be rectified. As a general rule, however, mistakes against a veteran are corrected, but mistakes in a veteran’s favour accumulate.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The role and nature of the AAT are not often appreciated in Australian society. It is under the aegis of the Attorney General, and reviews a wide range of government decisions, including those related to compensation, immigration, social security, taxation, and various lesser administrative areas – not just Veterans’ Affairs. Anyone who comes before it would imagine it to be an informal court, but it is fact a branch of the executive government, whose task is to make the correct or preferable decision, which the original decision maker could have made and should have made if all the evidence had been available. As such, its decisions do not have precedence value. A particular tribunal is not bound by the decisions of earlier tribunals in similar cases but, in practice, they do attempt to maintain some degree of consistency. The AAT produces lore, rather than law.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">There is, however, one awkward consequence of the AAT’s independence of any other government department. In the case of Veterans’ Affairs, the minister’s input is via the Commission, not the AAT. The Commission produces policy guidelines on practical matters on which the law is unclear – for example, in their understanding of a particular Statement of Principles (see chapter 4), or the circumstances under which they will accept alcohol consumption to be war-caused. Policies are binding on the delegates of the Commission, and result in a certain consistency and predictability in decision making. But the Tribunal is not bound by them. In fact, it is not the least bit interested in the Commission’s policies. Any Advocate who was foolish enough to raise them at a hearing would be treated with scorn.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">This is clearly a defect in Australian administrative law. The Tribunal is an agent of the executive government, and there is no reason why it should not be bound by government policies – providing the latter are consistent with the law. Indeed, it is hardly conductive of good government if the Minister’s agents are busy telling its delegates how to act in certain circumstances, only to be overruled by another branch of government. But that is how it stands, and it has resulted in at least one very bizarre course of action.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">As mentioned before, the legislation regarding TPI is neither simple, nor internally consistent. You might consider that the logical thing for the Commission to do would be to provide a set of guidelines introducing some clarity into the situation – at least until some judge decided one of them was inconsistent with the law. However, they would still have to run the gauntlet of the AAT, so the Commission decided on another approach. They would test the law, and let the AAT produce<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>de facto</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>guidelines. Instructions went out to the various delegates that they were to take a very hard line, rejecting every claim where anything at all other than the A/Ds could be suspected of preventing a veteran from working. The veterans then had to appeal to the AAT, and after enough rulings had been made, the Commission reviewed the (often contradictory) Tribunal decisions, decided which way the wind was blowing, and<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>then </i></span><span style="font-family: Times New (W1), Times New Roman, serif;">issued policy guidelines which they hoped would stand the test of future appeals. The Commission advocates, as well as the AAT and its attendant staff, were all paid by the government. So were the veterans’ lawyers, under legal aid. Everyone had cause to be happy except the taxpayer – and, of course, the many sick, unemployed veterans who were forced to go through the appeal mill in the first place.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Even if the AAT finds against him, there is still further action a claimant can make. The simplest is to just wait a few months, and then claim again. It probably won’t be successful, but you never can tell. Even if no new evidence is adduced, and there has been no change in the legislation, and both the Delegate and the VRB reject it again, there is always the possibility that it will end up in front of a more sympathetic, or more gullible, Tribunal member. There is no restriction on the number of times a person can claim the same condition as war-caused. There is no cost involved to the claimant – at least at the first two decision making levels. Most ex-service organisations (ESOs) will provide an advocate at the VRB level, even when they know the case is hopeless, and many of them will appear, free of charge, at the AAT when no lawyer is prepared to go. Wasting the taxpayer’s money is never an issue.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The second option is to appeal to the Federal Court. This will cost money, so legal aid needs to be sought. Otherwise, some ESOs will be prepared to finance an appeal if it shows promise of setting a precedent for easier acceptance of claims in the future. Also, the appeal must be on a point of law, rather than the facts of the case. What this means is that the veteran must make a case that the Tribunal misconstrued the legislation or the Statement of Principles, used the wrong standard of proof, failed to consider a vital piece of evidence, or considered the wrong evidence, or make some other similar mistake in law, but<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>not </i></span><span style="font-family: Times New (W1), Times New Roman, serif;">that, after following all the legal requirements, and considering all the evidence, the Tribunal simply<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>got it wrong</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. Even a perverse or stupid decision may still be legally valid.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">You may think this is a bit rough, but the courts are already overworked, there must be some end to the litigation, and experience shows that judges are just as liable to make perverse and stupid decisions as tribunals. Also, it must be remembered that any case which goes to the AAT has already been effectively rejected four times: by the original Delegate, by the review officer considering a section 31 intervention, by the VRB, and by the Advocate who could have conceded the claim prior to the hearing. This process effectively removes all the straightforward cases with good evidence, and leaves only the weakest to go to a hearing. In other words, a perverse or stupid decision is more likely to be made in favour of a claimant than against him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The Commission can also appeal a decision of the AAT, but is circumspect in doing so. No policy maker in Veterans’ Affairs loses sleep if some elderly digger or widow gets an unwarranted pension. However, the Commission is concerned if the Tribunal is egregiously flouting the legislative requirements, or if some decision, left uncontested, can serve as a precedent for a blow-out of pensions in a direction the lawmakers never intended. They are also aware that judges are human and, despite being paid huge salaries to be dispassionate, may not always dissociate their feelings from the strict requirements of the law. When the Commission initiates an appeal, therefore, it tends to avoid cases where the applicant is likely to arouse sympathy.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The AAT knows this, and acts accordingly. When you’ve actually appeared for the Commission in hearings, as I have, you realise that the written reasons do not always tell the full story, and you gain the strong impression that many a case has been decided on its sympathy value, rather than its merits, after the Tribunal has decided they can “get away with it” in that particular incident.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The workings of the Federal Court are another anomaly about which the general public know very little. If you do not understand the precise meaning of something I have said, the logical thing to do would be to ask me to clarify it. But when an aspect of the law is perceived to be ambiguous, you don’t ask the government; you ask the court. Indeed, the government has to go to the court to find out what Parliament intended in writing the law. The Minister, you see, in his capacity of administering the law, is considered to be a separate entity from Parliament, even though he is a Member of Parliament, and introduced the law through Parliament, and oversaw the passing. In fact, we can lay down three rules of thumb concerning the workings of the Federal Court:</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">As a matter of politics, when the government is upset by a decision of the Tribunal, its first act is to appeal to the court, and only after all legal avenues are exhausted does it go back and change the law.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">There is a legal fiction that the executive government is somehow independent of the legislature.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The judges consider that they know the intentions of Parliament better than those who are actually members of that body.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In 2007 the reputations of the Courts received a severe blow when Dr Jason Pierce published the interviews he had with various assorted judges, including nine from the High Court, current and retired, and twenty-four from the Federal Court. Many candidly revealed that they had based their decisions on their own political opinions instead of the wording and intentions of the law, and saw their role as making the law, rather than simply expounding it<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;">[Jason L Pierce (2007):<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Inside the Mason Revolution: the High Court of Australia Transformed</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. Caroline Academic Press].</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In the field of veterans’ law, the courts have had a long history of frustrating the intentions of the elected government. In the next chapter you will read about the ground-breaking cases of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Law</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>and<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>O’Brien</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. In the former case, the government who fought hard, and failed, to get the courts to see its point of view was the very same government which produced the legislation. In the second case, a new government was in power, but there was bipartisan support for its position. You did not hear a peep from the opposition concerning its action.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Sometimes the government reacts by changing the law; sometimes they just cop it on the chin. But one perverse decision, involving the old favourite, TPI resulted in a very perverse reaction. Section 24(1)(c) of the VEA requires that, in order to qualify for TPI, a veteran must have been preventing from working due to his A/Ds alone. However, since it is harder to obtain employment than to keep it, this is ameliorated by section 24(2)(b): if a veteran is not working, but has been genuinely seeking work, and his A/Ds were the substantial (not sole) reason why he was unable to obtain employment, then he will be treated as being prevented from working by virtue of his A/Ds.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In the 2005 case of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/2005/846.html" target="_blank">Giesen</a></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, the Federal Court voiced the opinion that this could only apply to a veteran who had never been working at any time. If he had once been working, and then was made redundant (say), he could never take advantage of section 24(2)(b). This is definitely, absolutely<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>not</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>was the government had intended. And since the ex-service organisations looked askance at it as well, the government simply promised them they would never invoke it, and instructed their servants to totally ignore<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Giesen</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. It’s the law, but it is never going to be enforced. Doesn’t that give you a warm feeling about the way the country is being run?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Clearly, we are here contemplating another defect in Australian administrative law. All decisions of the government can be challenged on matters of law, and that is how it should be. The law is so complicated, that agents of the government can be in error unwittingly. Also, sometimes a government decides to ignore a law which had been passed by its opponents, but which it does not have the moral courage, or the numbers in the Senate, to change. They should not be allowed to get away with it. But, in the vast majority of cases, government policy is a reasonable interpretation of the legislation and, as such, should be allowed to stand.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Yes, we know that governments win power with only slightly more than 50% of the vote. Yes, we know that the particular matter involved is seldom an issue during an election – or even on the list of campaign promises. But the bottom line is: they are elected by the people, and ultimately responsible to them, and that is more than can be said for any judge.</span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"><br /></span><span style="font-family: Times New (W1), Times New Roman, serif;"><b><a href="http://repatracket.blogspot.com.au/2013/03/3-how-system-went-up-in-smoke.html" target="_blank"><span id="goog_671840078"></span>Continue to Chapter 3<span id="goog_671840079"></span></a></b></span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"><b><br /></b></span><span style="font-family: Times New (W1), Times New Roman, serif;"><b><a href="http://repatracket.blogspot.com.au/2013/03/index.html" target="_blank">Return to Index</a></b></span></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-2892918232239278812013-03-06T15:46:00.000+10:002013-03-08T12:36:38.490+10:003. How the System Went Up In Smoke<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font-family: 'Times New Roman', serif; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 0.98cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
Every organisation has its own culture. The Department of Veterans’ Affairs has a long and recognized culture of courtesy and helpfulness to their clients. While many ex-service organisations complain that it ought to be more generous in the assessment of pension claims, they are virtually unanimous in not wanting its functions transferred to another Department, such as Centrelink – which apparently has a reputation of seeing claimants as potential rorters. (Perhaps they know something.)</div>
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Originally, the department was staffed wholly by veterans, with all the advantages and disadvantages that entailed. They took a sympathetic view of claims, they could draw on the experience of their colleagues in various areas of conflict, and understand the sort of experiences the applicants had been through. They also found it easier to recognize phonies. On the debit side, there was a tendency to look after one’s own, and often staff members were given a TPI pension as a retirement present. It may well be, nevertheless, that the level of respect and sympathy received by veterans is actually greater now that most staff have never been to war. Their clients are, for the most part, a generation older than them, and actively served in the defence of their country – and that counts for a lot in most people’s eyes.</div>
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Prior to 1977, the method of dealing with pension claims was rather hit and miss. Although a different determining system prevailed, it still involved a primary decision making body and two levels of appeals, and incorporated a medical opinion. But medical examinations were often not thorough, and psychiatric reports, in particular, tended to be brief and open to question.</div>
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It also involved a peculiar interpretation of the law. Diseases and injuries can be linked to service in a variety of ways: due to an occurrence on service, or if it arose out of, or was attributable to service, or was caused by an accident going to or from service, or would not have been contracted but for service, or was aggravated by service. (I am paraphrasing the more complex wording of the legislation.) Within this broad framework, it is not necessary for a condition to be <i>wholly</i><span class="Apple-converted-space"> </span>due to service; any minor contribution is sufficient.</div>
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But at least from the 1920s, the terms “occurrence” and “arose out of” were considered to have been satisfied if a condition was first discovered on service. In this way, we saw such conditions as “congenital syphilis” and “horseshoe kidney”, diseases which, almost by definition, were present at birth, labelled as war-caused. Another favourite was “refractive error”, popularly known as weak eyes – something we all acquire eventually, some in middle age, others while we are still children. But if the first prescription for glasses was made on service, then the condition was deemed to have been war-caused. Not only that, but the resultant pension was calculated on the<span class="Apple-converted-space"> </span><i>un</i>corrected visual acuity ie how good his vision was without the use of glasses. Thus, a significant number of people were receiving substantial pensions, even though they could see perfectly well with the free spectacles the department provided. This sort of thing does not happen any more.</div>
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Even so, on reading some of the old files, one is often at a loss to understand how some of those early decisions were made. There was no obvious connection to service – not even a temporal one – and a medical officer had specifically said so, but the determining authority accepted it anyway. On the other hand, many claims were rejected which appeared quite reasonable, even under the standards of the time. Perhaps the department handed out the right number of pensions, but to the wrong people.</div>
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In 1963 a group of Departmental Medical Officers wrote to the<span class="Apple-converted-space"> </span><i>Medical Journal of Australia</i>, with allegations of widespread manipulation of the system, typically by people who were the farthest from the front line, of millions of pounds being paid in pensions for diseases which were not realistically war-caused, of veterans working towards the TPI pension as their ultimate financial goal, and of departmental staff colluding in granting pensions to one another. As far as I know, the government did nothing to rectify the situation. However, it did inspire one of those doctors, John Whiting, himself a veteran, to turn it into a book,<span class="Apple-converted-space"> </span><i>Be In It, Mate!</i>, already mentioned in the first chapter.</div>
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The year 1977 was the turning point. The first important change in the law was a reform which applied across the board, not just to veterans’ legislation: henceforth all decision makers had to provide written reasons for their decisions. Incredible as it might seem, up till then, a veteran could be absolutely convinced his disease was due to the war, make a claim, have it rejected, submit an appeal, using the same arguments he had used before, have it rejected again, appeal, and again see it rejected, without ever knowing why.</div>
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The second change related to the standard of proof. In criminal cases, the jury has be convinced of the defendant’s guilt “beyond reasonable doubt”, but in ordinary civil proceedings, the standard is that of “balance of probabilities”. If, for example, you lodge a claim for worker’s compensation, it must be established that there is at least a 51% chance that your injury was caused by your work. Should the same apply to veterans? Not only can it be argued that they are a more deserving group of applicants, but there are special circumstances relating to war.</div>
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In the few cases when I had to deal with First World War veterans, it was surprising how meagre were their wartime medical records. There was a good reason for this. At the end of the war, the bulk of them were held by the British Museum. In 1919 they ran out of storage space, and destroyed the lot! But even in later wars, it is common to find that medical records, though very detailed while the serviceman is in Australia, suddenly become scarce once he goes overseas. Over there, the military is too busy fighting a war to worry about paperwork. If a man gets sick he is given some pills and put on light duties. Sometimes it might be recorded; at other times it may not. Or he may simply “soldier on”. If he is posted to a distant outpost or, worse still, a small ship, there may be no medical aid available – only a first aid officer.</div>
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Even when the war ends, there are difficulties. A final medical examination is performed at discharge, but if he says he has anything wrong with him, he will be held a few more weeks while they process his claim. Meanwhile, his wife is awaiting him, and other dischargees are grabbing the jobs. Even if he had a clean bill of health at discharge, it might be another couple of decades before he starts to make a connection between his increasingly bad back (for example) and what happened on service. In the interim, the civilian doctor who first treated him has retired, and his medical records have disappeared.</div>
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Good reasons therefore exist for the law having taken an increasingly lenient view of the evidence required to grant a disability pension. Decision makers are obliged to take into account the typical deficiencies of records in time of war, and the passage of time on the availability of witnesses and the preservation of records. The result is that – and this cannot be emphasized too strongly – in the majority of cases, the only evidence for a particular event is the unsupported testimony of the veteran himself, or even, indeed, merely that of his widow. No doubt, it would be unreasonable not to take their word for it under such circumstances, but the problems involved can well be imagined.</div>
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What happens if the exact cause of a disease is unclear? The RSL had always contended that such questions should be resolved by assuming the disease to be war-caused. In the 1960s they were campaigning to have all cancers be made pensionable. The government refused, but as a sop, offered free treatment for cancers – thus removing a great weight from the victims’ shoulders.</div>
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It would be tedious to both the writer and the reader to detail the gradual change in the standard of proof used by the department over the years, but it came to a head with the <em>Toose Report</em> of 1975. In it, Justice PB Toose recommended that :</div>
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“[A] determining authority should accept as proof of any fact favourable to the member, any credible evidence in respect thereof submitted to him that is not contradicted. This may be but another way of stating that a member shall have the benefit of all favourable inferences and of any doubt.”</div>
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In other words, he was recommending a modified civil standard of proof. The decision makers should be required to weigh all the evidence, pay due attention to the difficulties in obtaining evidence, listen to what the veteran said, and if it came down to the wire, instead of tossing a coin, they should find in the veteran’s favour. It was all quite reasonable, and not very different from the way the department was already acting. When the government got around to amending the Act in 1977, the minister indicated that that was the intention of the amendment. Unfortunately, that was not what the amendment actually said.</div>
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Departmental rumour has it that, on a wall in the Canberra office hangs a copy of the memo of the drafter of the amendment: “What about<span class="Apple-converted-space"> </span><i>beyond reasonable doubt?</i>” - kept as a reminder of how things can go terribly wrong. The fact is, the actual wording of the new amendment was that the determining authority:</div>
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“shall grant the claim or application or allow the appeal, as the case may be, unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application or allowing the appeal.”</div>
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Little did they know that, already working its way through the appeal system, was a claim which would turn the entire Repatriation compensation system upside down.</div>
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On 15 September 1976, James Law finally succumbed to lung cancer, and one month later his widow, Nancy applied for a war widow’s pension. She remembered quite well that, when her husband had enlisted at the age of 30, he had been a non-smoker, and when he came home, emaciated and sick, he was smoking. In her mind, there was thus no doubt that the smoking habit which killed him was a result of his war experiences.</div>
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This was all very well, but the decision to smoke was still a personal choice, and the Commission rejected the claim. Thus began a long series of appeals, reconsiderations, and new appeals lasting almost three years, in the middle of which the law changed. The result was, when the last administrative avenue of appeal was exhausted, she was able to go to the court and cite the new standard of proof.</div>
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Now, we know that the law is supposed to play no favourites. Whether a veteran’s service was meritorious should, strictly speaking, make no difference to the case. Nevertheless, the court found is necessary to record that James Law had served in both the Middle East and Java, and had survived three and a half years in Japanese prisoner of war camps. He had come out a living skeleton, suffering from enteritis, bacterial dysentery, malaria, hookworm, beriberi, and middle ear infection. In later years he suffered from sarcoidosis of the liver and sigmoid diverticulitis of the colon. He had had a piece of his bowel removed.</div>
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In other words, this was one case which the Commission would definitely<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>have chosen to fight. But they had no choice; hard cases make bad law. They took it all the way to the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1981/57.html" target="_blank">High Court</a>, and when that august body agreed with Mrs Law, the law itself had been changed.</div>
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The government should have acted to amend the legislation then and there. It was a little cloud no bigger than a hand, but everyone could see how it would soon develop. Looked at dispassionately, the court’s decision was probably right – for that specific case. If the fallout could be restricted to the very severe and deserving cases represented by James Law, not much would have been at stake. But even as the Law case was going to the Full Federal Court, another case was wending its way up to a single judge of the same court – that of the late <a href="http://www.austlii.edu.au/au/cases/cth/FCA/1981/205.html" target="_blank">Edward McGlynn</a>.</div>
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Here was another prisoner of the Japanese, who had commenced smoking on service, and had died of lung cancer. Evidence was provided as to how prisoners used tobacco to deaden the gnawing pangs of hunger, how they would scrounge rank, wire-like tobacco from the local Chinese, and how the less fortunate were reduced to smoking paper, bark, even pine needles. But there was a twist. There were people still alive who could testify that Mr McGlynn had been a non-smoker on enlistment, but had taken up the habit in Australia,<span class="Apple-converted-space"> </span><i>before</i><span class="Apple-converted-space"> </span>he went overseas. It made no difference. It could not be disproved, beyond reasonable doubt, that he did not acquire the tobacco addiction because of the changed circumstances of service: the handing out of cigarettes to troops, the example of other soldiers, and the stress of knowing that he would shortly be posted to a war zone, nor could it be disproved that his addiction was not intensified by his POW experiences.</div>
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That did it. The floodgates were open. Soon would be swept away everything which stood in the way of disability pensions. The standard of proof was the reverse of the criminal standard. Now a veteran only had to claim that he started smoking on service to receive a pension and treatment for any disease for which smoking is a risk factor. Remember: it only needs a contribution from service for a condition to be ruled as service related.</div>
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Of course, we all know that smoking causes lung cancer. No doubt most of us are aware that tobacco harbours many other dangers. But it is a fair bet that very few people know the full extent of the tobacco peril. So, for those of you who need yet another reason to stop smoking, here is the current comprehensive list. No doubt more will be added in due course. For some of these conditions, you need to smoke heavily for most of your life before it becomes a risk factor; for others, a mere whiff of the weed is sufficient. In a few cases, the risk is only a possibility, rather than a probability. For many conditions, giving up smoking reduces the risk, or even eliminates it completely. For others, the risk remains strong for most of your life.</div>
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First of all, cancers: smoking has been linked to cancers of the lung, liver, and pancreas, the skin of the lip, the mouth, hypopharynx, and larynx, oesophagus (gullet), stomach, colon, rectum, anus, kidney, renal pelvis and ureter, bladder, the skin of the anus and genitals, the cervix, as well as Hodgkin’s disease, and acute and chronic myeloid leukaemia, not to mention squamous cell carcinoma of the skin. Thus, most of the body involved in breathing, digestion, and waste disposal is covered. However, you will be relieved to know that smoking does not cause cancer of the small intestine, the muscles, brain or nerves, or the breast. Nor, to the chagrin of the ex-service organisations, can it be blamed for prostate cancer.</div>
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Moving to non-cancerous conditions, smoking obviously enough, destroys the lung by producing bronchitis and emphysema – but not asthma, or pulmonary fibrosis.</div>
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The next major group of smoking related diseases are those involving atherosclerosis or hardening of the arteries ie ischaemic heart disease (the most common type of heart disease), carotid artery disease, aortic atherosclerotic disease, renal artery atherosclerotic disease, pulmonary thromboembolism, peripheral vascular disease of the legs, and various types of cerebrovascular disease (stroke), and well as the dementia which multiple strokes can cause. For most, but not all, of these conditions, the risk of disease gradually returns to normal after giving up smoking.</div>
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By reducing the blood supply to the back, smoking can lead to intervertebral disc prolapse (slipped disc). By reducing the blood supply to the eyes, it has been implicated in the cause of cataracts and macular degeneration, the latter of which is a major cause of blindness in elderly people. (So let that be a lesson to you smokers: stop it! or you’ll go blind.) Other effects on blood flow can result in impotence (now<span class="Apple-converted-space"> </span><i>that’s</i><span class="Apple-converted-space"> </span>a good reason not to smoke) and aortic aneurysm (which can kill you).</div>
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Smoking is also a risk factor for a whole host of other diseases: type 2 diabetes, osteoporosis, goitre, gastro-oesophageal reflux disease (heartburn), stomach and duodenal ulcers, Crohn’s disease, colorectal adenoma (which can lead to cancer), rheumatoid arthritis, and Buerger’s disease. It is possible, but not proven, that it can cause chronic sinusitis, myelodysplastic disorder, and motor neurone disease, which is both crippling and fatal.</div>
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Lastly, and also least, smoking does<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>cause ulcerative colitis, nor does it protect you from it. But<span class="Apple-converted-space"> </span><i>giving up</i><span class="Apple-converted-space"> </span>smoking puts you at risk.</div>
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Any of the above conditions can become a royal road to a pension for any veteran who tells the right story about smoking. Now, ask yourself: if you were sick, and needed treatment, and could do with some extra money, wouldn’t you at least be tempted to bend the truth a little? It is a well established principle that the best way to get money out of the government is to tell a lie which cannot be disproved. Veterans’ Affairs staff are long acquainted with stories bearing the ring of untruth. One professional soldier had only three weeks of service covered by the legislation: when he was seconded to Malaya, and he patrolled the backwaters without ever encountering the enemy. By then he had been in the army for nine years, and had reached the age of thirty while resisting all the peer pressure, advertisements, and temptations to smoke – until those three weeks. I contacted him by telephone to confirm it, but could not shake his story.</div>
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Sometimes veterans say the wrong thing the first time round, and then get themselves tangled up trying to counter a prior inconsistent story. But even then, it is possible to brazen it out. Yes, said one, I know there are many references on file to my being a non-smoker. I made numerous attempts to quit, and it seems every time I got involved with the Department was during one of those attempts. The prize must surely be given to the man who came out straight and said: I lied. I thought that if I admitted I was a smoker, it would harm my claim. Now that I have discovered it will actually assist me in getting a pension, I have decided to tell the truth. Did he get his pension? Ask yourself: can you be certain, beyond reasonable doubt, that he wasn’t telling the truth the second time round?</div>
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Not only does one have to deal with dishonesty from veterans (and their widows!), but also from the advocates employed by the ex-service organisations to assist them. I would not want to leave you with the wrong impression of these advocates. They are ordinary people, and most of them, I suppose, put themselves in the same position as the ethical lawyer, whose job it is to put the best spin on a client’s case, without actually telling a lie, or revealing anything which might harm the claim. Some are scrupulously honest. After I had defeated one veteran at the AAT, one advocate telephoned to congratulate me. He’d known he was a phoney from the start. Another pair of advocates asked my advice on how to “dob in” a client whom they were sure was telling lies.</div>
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Unfortunately, there remains a handful of advocates who believe that anything goes as far as getting a client a pension, and only occasionally are they found out. Once an advocate submitted a smoking questionnaire from an ex-merchant mariner indicating that he had started smoking while on a particular ship. Merchant mariners are eligible only for the specific voyages they made outside of the country, and in this case, the dates he gave did not coincide with our records. I therefore picked up the telephone, and asked him exactly when he started smoking. It was some time during the war years, he replied. Was it while he was at sea or on shore? I asked. Could he relate it to a specific voyage? “How on earth would I know?” he responded. “How can anybody remember when he started smoking?” How, indeed? After the conversation had continued in this vein for some time, it became perfectly clear that everything on the smoking questionnaire was fiction. The advocate had simply made it up, and the veteran, already sick and in hospital, had signed it without proof reading it. (This same advocate also signed a smoking questionnaire on behalf of a veteran on the day he died – of dementia.)</div>
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Another advocate was more forthright. “Some of these old fellows are too honest for their own good,” he told me. “I told Joe Blow to say that he started smoking during the war, but he refused. He kept saying he started before the war.” Presumably, some of his other clients had fewer scruples about taking his advice.</div>
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So, the system is open to abuse. What system isn’t? But, as I pointed out in Chapter 1, most people are honest. How did the decision in<span class="Apple-converted-space"> </span><i>Law</i><span class="Apple-converted-space"> </span>affect the average veteran? We will start off with the veterans of World War II, because they were the contemporaries of James Law, and because 99% of smokers from that war claim to have started during the war.</div>
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The first point to understand – and this will need to be reiterated many times in later chapters – is that the human brain is not a computer. It does not have perfect recall. You have no doubt had the experience of listening to a song after an absence of years, and discovering that some of the words were different from the way you remembered them. Or else you viewed a painting, a scene, or a film a second time, and realised that, not only had you forgotten some details, but your memory had also been false about some of the details, such as colour or shape. Whenever we remember something, the mind has to recreate the event from all the original perceptions of sight, sound, and smell. Every time we do so, there is the opportunity for details to be lost, or reassembled incorrectly. In matters of contention, there is also the subconscious tendency for our memory to morph into a version which supports our position – and all this for concrete events, not just vague trends over time, such as a smoking habit.</div>
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The second point is that, in those days, starting to smoke was not a memorable occasion. It was no big deal. Even if a boy’s parents disapproved of smoking – and only a few did – he would still see grown men smoking. He may even have sneaked a couple of fags as a boy, and been punished because he was “too young to smoke”. As soon as grew up, he would enter a workplace and social setting which regarded smoking as normal. Advertisements for cigarettes were everywhere, and on the silver screen he would watch glamorous stars light each other’s cigarettes as part of their courtship ritual. Smoking, in other words, was something grown ups did. It wasn’t a temptation he resisted stoutly until some extraneous pressure, like a war, was put upon him. It was something he just drifted into.</div>
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Considering how the<span class="Apple-converted-space"> </span><i>Law</i><span class="Apple-converted-space"> </span>decision revolutionised the legal landscape, it is remarkable that there has never been a study into whether veterans are more likely to be smokers than their contemporaries who stayed in civvies. However, there are some pointers. According to Quit Victoria, a coalition of government and private organisations set up to help people quit smoking, the first year that reliable prevalence data became available was 1945, at which date 72% of the adult male population of Australia smoked. Such a level is much too high to be explained by the sudden return of newly addicted servicemen. Although a million Australians enlisted at one time or another, twice as many stayed home. Also, many veterans remained non-smokers. Besides, as already mentioned, anyone who follows the popular culture of the interwar years – books, films, and magazines – knows that smoking was the rule rather than the exception. If there was any increase in smoking rates among veterans, it is unlikely to have been more than (say) 10%.</div>
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It is a safe bet, therefore, that most of those who started smoking on service would have done so in any case if they had remained civilians. The age at which men normally start smoking – between 18 and 21 – was also the age at which that generation enlisted. Prior to joining up, most of them were working for low teenage wages. For many, their introduction to the military was the first time they had been away from home. But, of course, those who stayed in civvies were also, at the same time, leaving home, setting themselves up independently in their own homes and careers, and joining the general community of peers where smoking was the norm, and cigarettes were almost as readily available as in the services. Therefore, I would say that the veterans are being perfectly accurate when they say that they commenced smoking on service, but for most of them, the military was not the cause of their smoking habit, but merely the setting of various pressures and enticements which applied equally to civilian life. At least, that is what I<span class="Apple-converted-space"> </span><i>would</i><span class="Apple-converted-space"> </span>say – except for one thing.</div>
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Any man who wanted to become an airman had to pass a medical exam a couple of months before he enlisted, at which a quite different form was completed to that required for the army, navy, or the R.A.A.F. ground staff. It was not obviously more comprehensive than other medical forms, but for some reason or other, it contained three questions about the enlistee’s habits: athletics, drinking – and smoking. Driven by curiosity, I once did a survey of a hundred such files which passed my desk. In more than half of them, the veterans were recorded as smokers before they enlisted. Admittedly, there was usually no reference to the amount smoked, so it was open to them to state that they increased their tobacco consumption on service. But that is not what they claimed. In nearly every case, they claimed to have started smoking on service. Many of them have been genuinely surprised when informed of the facts.</div>
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I have no reason to doubt their honesty or sincerity. It is just a natural transformation of the memory forty to fifty years after the event, when self-interest is at stake. As the merchant mariner quoted previously said, “How can anybody remember when he started smoking?” And since there is no obvious reason why airmen should be any different from the other members of the defence forces, I thus conclude that this memory failure is general. At least half the veterans who claimed to have taken their first cigarette on service are mistaken.</div>
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Contemporary references to smoking habits are frequently encountered on veterans’ medical and hospital files, and from these it becomes clear that there are two other areas where memories are regularly defective. The first is the date a man gives up smoking. One did so as a fiftieth birthday present to himself. Another gave up after a severe illness the year after his marriage. But without such an anchor, how does anyone remember just when he ceased smoking? As the actual date recedes into the past, the tendency is for memory to bring it closer to the present. So, for example, in 2000 a veteran might say that he gave it up in 1980. However, his admission sheet to hospital in 1995 contains the annotation, “Smoking: nil for 20 years.” That would put it back to 1975. Further research reveals that, in 1982, he told a doctor: “Gave up smoking 12 years ago.” Now we are back to 1970. Not infrequently such details are vital, because certain diseases require a certain minimal amount of tobacco consumption, or onset within certain time limits.</div>
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To be fair, it should be recorded that many smokers deny their habit to their doctors, because of the latter’s propensity to nag. However, it is hard to see why anybody would tell his doctor he smokes twenty cigarettes a day when the correct figure is thirty. This brings us to the second area where veterans’ histories are regularly false: the amount smoked. The average smoker has a pretty good idea of how many cigarettes he buys, and how often. But if it has changed over a lifetime, how can he possibly remember when it was he started buying a second packet at the end of each day because his consumption had gone up from twenty a day to thirty? Mostly, of course, the veteran’s account must be accepted on the “benefit of doubt”, but where contemporary records actually are available, time and time again they contract the official story. The tendency is to overestimate the quality smoked in the past. Sometimes a veteran provides a complex history of five or six fluctuations over the course of decades. He is no doubt telling the truth as he sees it, but you know it is about as accurate as a peak hour bus timetable.</div>
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So much for World War II veterans. What about those of later conflicts? The statements in the above two paragraphs still hold good, but the issue of commencing smoking is more complicated. For the World War, the whole of a veteran’s service, from enlistment to discharge, is covered by the legislation, but for the smaller wars, only the period outside of Australia is covered. It is a credit to most people’s basic honesty that very few actually claim to have started smoking in Vietnam – or Malaya, or Korea, as the case may be. Nearly always, they claim to have started on enlistment. The first batch of Vietnam veterans to enter the system got a raw deal. They were mostly older, professional soldiers who had been in the defence forces, and smoking, for years before they went to war, and their longtime smoking habit was unaffected by it.</div>
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However, in less than a decade a younger set of veterans was getting sick and lodging claims, and a consistent pattern began to emerge. Almost invariably they claim to have started smoking when they enlisted, usually at around five cigarettes a day. Then, a year or so later, when they were dispatched to a war zone, what with the stress of war and the ready availability of cheap cigarettes, their tobacco consumption went up to twenty or thirty a day, and remained high after the war. The only difference was how high, and whether and when they stopped smoking. On this basis, most smoking related diseases are now accepted for veterans of this era.</div>
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If you stop to think about it, however, a couple of questions should spring to mind. The first is: is it credible? Commencing smoking upon enlistment rings true, especially since the servicemen were usually quite young at the time. (However, even that is open to doubt. These days, when the services are more aware of the hazards of tobacco, the habit is often recorded on the enlistment medical form.) But, apart from that, how can anybody remember, decades after the event, the detailed progression of his smoking habit in the first couple of years? How can he remember when it went from five a day to ten a day, to twenty a day? No-one kept records at the time; no-one considered the issue important.</div>
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But even if his memory were accurate, what does it signify? The entire thrust of the claim, the logic by which they are accepted, is that, had it not been for the war, the man’s smoking habit would have remained at five cigarettes a day for the rest of his life. How many smokers do you know who smoke like that? It can be safely asserted, with a confidence close to certainty, that if a young man started smoking on enlistment, his tobacco consumption would have reached twenty or thirty a day before very long. If it took place in Vietnam, it was only because the timing of his overseas service happened to intersect with the normal progression of the habit.</div>
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In the original<span class="Apple-converted-space"> </span><i>Law</i><span class="Apple-converted-space"> </span>case, the courts took judicial notice of the fact that tobacco is strongly addictive, and the addiction very difficult to break – especially in an environment where the drug is readily and cheaply available and socially acceptable, and its inherent dangers little known. If the addiction is the result of war service, then every cigarette smoked from then on becomes a result of service. But there has<span class="Apple-converted-space"> </span><i>never</i><span class="Apple-converted-space"> </span>been any evidence provided as to how the addiction can be increased.</div>
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Under such circumstances, one might have recourse to common sense, and say that a smoker’s tobacco consumption is ultimately conditioned by his body’s need for nicotine. Despite the caveats already mentioned about official smoking histories, two definite trends are evident. In some cases, the smoker develops a greater and greater tolerance to the drug throughout life, and his smoking increases slowly but consistently over the years. The other trend is that, shortly after commencing, he reaches a plateau which satisfies his nicotine cravings. Most commonly, this is about twenty or thirty cigarettes a day – which is why they are packaged in such quantities. After that, his tobacco consumption tends to fluctuate up and down around that level, depending on such factors as finances, availability, and pressure of work. “Stress” can certainly make a person smoke more in the short term, but nobody has ever presented evidence that it can produce any long term change in the level of the addiction.</div>
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Despite all this, it is an article of faith at all levels of decision making that any increase in smoking on eligible service is a direct result of service, even if the increase is permanent. This applies even if the veteran was a confirmed smoker prior to service; increases from thirty a day to fifty a day are accepted without question. And the only evidence is the veteran’s say so.</div>
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To summarise: the change in the standard of proof, and the actions of Nancy Law completely revolutionised Veterans’ Affairs. Overnight, disability pensions turned into a massive growth industry, with smoking the main engine driving it. At a rough guess, it accounts for about two thirds of all pensions. And the premises on which it is based are essentially bogus. At least half on the successful claims are the result of faulty memories. Even when a veteran did, in fact, commence or increase smoking on service, it was due to circumstances which applied equally to civilian life. In very, very few cases did service actually “cause” the smoking habit.</div>
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Even then, we tend to forget, it was still a matter of personal choice. “Look,” one R.S.L. advocate said to me, “I always think they made a mistake in ruling smoking was due to war service. Of course, I argue it at the VRB when I’m assisting veterans, but the fact is, I served in the same battles as they did, and I don’t smoke.”<br />
<br />
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-56969552440369121922013-03-06T07:49:00.001+10:002022-12-18T20:26:30.845+10:004. More Horses Bolt<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium "Times New Roman", serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 0.5cm; text-size-adjust: auto; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
Let’s suppose you took 1000 people from Brisbane, and 1000 from Melbourne, and measured a whole set of parameters: height, number of children, whether they had skin cancer, high blood pressure, fallen arches, or what not. It is likely that there would not be a single match. But how would you know that the differences were due to the location, rather than just the luck of the draw?</div>
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Fear not, mathematicians have devised complex statistical formulae to determine the degree played by chance. In applying them, scientists traditionally adopt the 5% rule ie they accept that a difference is “significant” if there is no more than 5%, or one chance in 20, that the results are due to chance. This is an arbitrary figure, chosen as the happy medium between the dangers of rejecting a genuine difference, and the risk of accepting as genuine the mere result of random sampling.</div>
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However, even if the results are significant, there is still the question of interpretation. Suppose, for example, you found that significantly more of the Brisbane sample suffered from skin cancers and solar keratoses (“sun spots”). You might assume that it was due to the greater amount of sunlight in Brisbane – and you would probably be right. But there are still other possibilities. Perhaps Melbourne has a higher proportion of people of southern European ancestry, whose olive skin is more resistant to sun damage. Or perhaps more retirees have moved to Brisbane, and old people, by their very nature, have had longer exposure to the sun.</div>
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Confounding factors such as these lurk in nearly every study, sometimes where you least expect it. Scientists, therefore, always attempt to compare their study group with a “control group”: one which is identical to the study group in every detail likely to be relevant except the one under consideration. In practice, this is often very difficult to achieve. Experience shows that bad habits tend to run together eg people who eat too much often drink too much, and smoke, and fail to exercise, and all of these behaviours vary with social class and location. On the other hand, if you wanted to see whether giving up smoking reduces the risk of a certain disease, it is no use simply comparing smokers, never-smokers, and ex-smokers. Many ex-smokers have given up<span class="Apple-converted-space"> </span><i>because</i><span class="Apple-converted-space"> </span>they were sick.</div>
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I mention all this because most people haven’t a clue how epidemiologists determine the causes of disease. Most journalists are equally ill-informed. Yet every week you will read in the paper, or a popular magazine, of a recent study which shows that X causes/cures/prevents cancer/diabetes/ingrown toenails, or whatever. In almost every case, the results are merely tentative. They are based on a preliminary investigation, and more detailed, more controlled studies with much larger sample sizes will now be required to validate it.</div>
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One other source of inaccuracy is often overlooked. If you are using the 5% or one in twenty rule of significance, and you perform twenty tests, you should not be surprised if one of them comes up trumps. This multiple test phenomenon is responsible for any number of bogus correlations. When I was studying biological statistics the classic example was the close correlation between the birth rates in German cities and the population densities of nesting storks. Bogus correlations crop up all the time. Leukaemia clusters are a good example. A hospital in a country town reports an unusually high incidence of childhood leukaemia. “There is only one chance in a hundred that this happened by chance,” a worried spokesman exclaims. Well, there are more than a hundred country hospitals, aren’t there?</div>
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Remember, too, that the human brain is programmed to always notice the outstanding exceptions rather than the mundane rule. A while ago there was a hue and cry over an unexpectedly high incidence of breast cancer in the Brisbane office of the ABC. “Only one chance in a million!” shouted the headlines. The office was evacuated and condemned, on the assumption that it was contaminated – although no possible contaminant is known to cause breast cancer.</div>
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Well, the first thing we should ask is: what is so special about the Brisbane ABC? Why not look at the Melbourne ABC, or the Roma CWA, or the St Joseph’s ladies’ guild, or a hundred thousand other organisations? Indeed, what is so special about breast cancer? It would be considered just as noteworthy if any of the above groups were inflicted with Hodgkin’s disease, stomach ulcers, haemochromatosis, or a thousand other diseases. Looked at this way, there are almost endless combinations of disease clusters which could have happened, but didn’t.</div>
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It is like winning the lottery. The chances of any individual winning it are very remote, yet there are winners every week. Likewise, the chances of something terrible happening to your own small group is quite small, but some bad thing is bound to happen to some group somewhere. Thus, the only reason the Brisbane ABC was singled out was because someone noticed it stood out from the great mass of mediocrity. In the absence of some known cause, however, this must be regarded as just another example of the multiple test phenomenon. But people never look at it that way. It is human nature to always try to find some reason behind one’s tragedies.</div>
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You should not be surprised, therefore, that epidemiologists have additional methods of determining if a correlation is valid. They are:</div>
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Repeatability. If one study reveals a correlation between<span class="Apple-converted-space"> </span><i>X</i><span class="Apple-converted-space"> </span>and cancer, a second, more thorough study should also reveal it.</div>
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Dose effect. If<span class="Apple-converted-space"> </span><i>X</i><span class="Apple-converted-space"> </span>causes cancer, then heavy users of<span class="Apple-converted-space"> </span><i>X</i><span class="Apple-converted-space"> </span>should show a higher incidence of cancer than light users.</div>
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Finally, although some well established correlations are inexplicable, it is helpful if physiological mechanism can be hypothesized to explain the correlation. (That makes it rather difficult to accept the stork-birth rate correlation at its face value.)</div>
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What has this all got to do with veterans’ legislation? Plenty. Because once you start invoking the “beyond reasonable doubt” test, every rogue hypothesis and tentative speculation becomes grist to the pension mill.</div>
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As an example, one might mention the case of <a href="http://www.austlii.edu.au/au/cases/cth/FCA/1981/201.html" target="_blank">several widows</a> who appeared before the Federal Court in 1981. Each of their husbands had suffered from malaria in New Guinea, and each of them had died of lymphosarcoma (cancer of the lymph glands) decades later. No statistical connection – not even a multiple test connection – could be cited between malaria and lymphosarcoma, nor was any alleged. You might think, therefore, that their case was pretty weak. However, they were able to cite the testimony of Dr Donald Metcalf, who had investigated the causes of the disease for more than 25 years, both in Australia and overseas, and was one of the world’s leading experts on the subject. He explained that such cancers typically display a latency period of up to 30 years between the initiating event and the manifestation of the disease. Furthermore, no one particular factor can be isolated as a cause for cancer. Nearly always it results from a combination of factors involving both the body’s own workings, and influences from the outside world. However, because cancer is, by definition, a result of runaway cell division, any factor increasing cell division acts to increase the risk. In this case, he believed that widespread, systemic infections, such as malaria, would cause a massive proliferation of lymphoid cells, and this might set in a train a course of events leading to cancer 30 decades later. He admitted it was only an hypothesis, but there was some support from experiments with mice.</div>
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When the Federal Court decided this was good enough to grant a pension under the “beyond reasonable doubt” principle, the Department had no choice but to accept such claims. However, there was still the question: how severe is severe? Multiple hospitalisations for malaria would certainly meet the mark, one brief incident might not. Dr Metcalf, being an honest researcher, kept refining his hypothesis in the light of additional information. It got to the point where he was essentially co-opted into the decision making process. Whenever such a claim was received, the relevant information would be sent to him with the question: does this accord with your current views? Eventually, after about four years, he finally abandoned his hypothesis, and anyone who lodged a claim after that date was out of luck.</div>
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Then there was the case of Joseph Rose. After he came back from the Second World War, he did not resume cohabitation with his wife, but went to live in a private hotel. On 21 July 1951, he disappeared. Then, in June 1955, a skeleton was found in bushland on Mt Coot-tha, then on the outskirts of Brisbane, and identified as his. Presumably, he had died of unknown causes while bushwalking.</div>
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The war widow’s pension was originally intended for relatively young women, often with children, tragically deprived of their husband’s emotional and financial support by enemy action. Looked at this way, Mrs Rose could hardly have been greatly inconvenienced by her estranged husband’s mysterious demise. Just the same, they had never been divorced, and she never had remarried. Then, in 1976 when, one presumes, she was no longer supported by her own labour, she applied for a war widow’s pension. He probably died, she contended, of a sudden heart attack, brought on by the war, naturally. This, said the three layers of decision makers, sounded a little tenuous. Various friends testified that he had complained of heart problems, but no supporting medical evidence whatsoever could be found. Nevertheless, in 1982 the Federal Court <a href="http://www.austlii.edu.au/au/cases/cth/FCA/1982/218.html" target="_blank">ruled</a> that one could not be certain that death was not due to a heart attack.</div>
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A pattern was emerging. “Beyond reasonable doubt” was beginning to look like “beyond all shadow of doubt whatsoever”. It was no longer a reverse criminal standard of proof. The gaols would be empty if such a standard applied in criminal cases. But you should not be surprised that certain decision makers started taking it to heart.</div>
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Prior to 1985, the appeal avenue did not proceed: Delegate of the Commission → VRB → AAT. Instead, the initial decision would be made by a three-man Repatriation Board, with appeals first to a Delegate of the Commission, and then to the Repatriation Review Tribunal (RRT). It was the RRT which was the weakest link. Widows were a particular weakness. Confronted with the sight of an elderly widow, the critical faculties of the RRT would melt away. In 1983 alone, 98% of war widow’s appeals succeeded at the RRT. That wasn’t a bad score when you consider these were the cases too weak to be accepted at the other two levels. The Commission took the Tribunal to court many times, but even when they won, it made no difference. The RRT simply found another excuse to grant the appeal. Was it any wonder that the government eventually abolished it?<br />
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The government should have locked the stable door once the<span class="Apple-converted-space"> </span><i>Law</i><span class="Apple-converted-space"> </span>horse had bolted. Now another horse, by the name of<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/HCA/1985/10.html" target="_blank">O’Brien</a></i>, was about to make its run. The case involved high blood pressure, or hypertension. By itself, it is not particularly incapacitating, but it is a gateway condition for much higher pensions down the track, because anyone suffering from it runs a much higher risk of heart disease, stroke, and other vascular diseases. The contention raised was that it was a result of a war-caused anxiety state. Intuitively, this hypothesis would appear to have a lot going for it. Everyone knows that your blood pressure goes up when you are anxious, and if you had a long term anxiety state, it seems reasonable that the pressure would end up reset at a higher level. It all makes perfect sense. The trouble is, there is not much scientific evidence to support it. And, indeed, it has been pointed out that exercise also raises blood pressure, but athletes are not particularly susceptible to hypertension. In the vast majority of cases, the cause of hypertension is unknown.</div>
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The case also went all the way to the High Court, and when Their Honours made their ruling in 1985, it was a bombshell. If you did not know the exact cause of a disease, then one cannot be certain “beyond reasonable doubt” that war service did not play a part. Broken bones and bacterial infections incurred after discharge would be out, but high blood pressure, prostate cancer, brain cancer, kidney stones, irritable bowel – every disease whose cause is unknown, or is incompletely known, in fact 90% of diseases – would be in. The stable door was not just open, it was smashed flat and lying battered on the ground, and the whole blessed herd was about to get away.</div>
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This time, the government sprang into action and changed the law. But for a few glorious months it was open slather. The change became effective only from the date of royal assent. Pre-existing claims, and all those who got in for their chop before the effective date, were entitled to an automatic, rubber stamp acceptance.</div>
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Why was this so? It is a basic principle of parliamentary government that laws are not made retrospective – and for good reasons. It would be iniquitous if you could be punished or sued for something that was perfectly legal at the time you did it. Even with administrative law, the principle holds good. When, for example, the government changes the rules relating to superannuation, the new rules apply only from the date of the legislation. Before that date, it is assumed that you have been planning your finances according to the old rules.</div>
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But in this case the principle was not valid. The issue was how to establish that a disease was war-caused. Nobody had planned to be sick, and certainly nobody had ever planned for the war to make him sick. Nobody would have been denied justice if the law had been made retrospective. Failure to do so simply handed a windfall to hundreds of people whose illnesses were not, by any rational assessment, due to the war.</div>
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Be that as it may, the reforms of 1985 can be summarised as follows:</div>
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Although there was no onus on the claimant to prove his case, there was no assumption that a medical condition was, in fact, war-caused. Up till then, the court decisions had carried the presumption that every veteran or veteran’s widow was entitled to a pension unless proved otherwise.</div>
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Before the “beyond reasonable doubt” test applied, the material had to raise a “reasonable hypothesis”. That effectively ruled out those cases where there was no evidence at all.</div>
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For the first time, eligible service was divided into separate categories. Operational service essentially entailed overseas service in time of war, or in certain parts of Australia which came under enemy attack in World War II. If a veteran went overseas at any time during the Second World War, the whole of his service before and afterwards counts as operational service. Peacekeeping service speaks for itself. The Minister could also designate certain episodes of peacetime service as “hazardous service.”</div>
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The “beyond reasonable doubt” standard of proof was to apply<span class="Apple-converted-space"> </span><i>only</i><span class="Apple-converted-space"> </span>to the connection between a disease or death and operational, peacekeeping, or hazardous service. Everything else was to be determined to the decision maker’s “reasonable satisfaction”, which was generally seen as the old civil standard of balance of probabilities. Effectively, this meant that service wholly in Australian during World War II, or simple defence service, would be judged in a much less generous manner. So would the assessment of pension.</div>
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Finally, the “reasonable satisfaction” test would apply to any disease with an onset more than forty years after the end of service, or any death which occurred after the said forty years’ delay. This was too much for the ex-service organisations. The Second World War was now forty years in the past. They could see their pot of gold slipping from their grasp. Worse still, their widows would miss out, and end up no better off than elderly civilian widows. That was the one clause they had to make a fuss about, and it was removed when the law was rewritten as the<span class="Apple-converted-space"> </span><i>Veterans’ Entitlements Act</i><span class="Apple-converted-space"> </span>the following year.</div>
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<b>Two Standards of Proof</b></div>
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<i>Stronger Standard (operational, peacekeeping, and hazardous service)</i></div>
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<i>Weaker Standard (everything else)</i></div>
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reasonable hypothesis (RH)</div>
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beyond reasonable doubt</div>
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reverse criminal standard</div>
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reasonable satisfaction</div>
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balance of probabilities (BOP)</div>
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civil standard</div>
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<span style="font-size: x-small;"><span style="font-size: small;">The two standards of proof are referred to in different ways, and even with different acronyms. They are listed here for reference purposes</span>.</span></div>
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When the reforms were introduced to Parliament, the Minister made it clear that a “reasonable hypothesis” meant one that was not “remote, fanciful or tenuous”, and it did not take long for the courts to confirm it. It took a lot longer to clarify that the evidence had to point to the hypothesis, however weakly, rather than merely leaving it open, and it was well over a decade before it was established that the diagnosis of a disease, or the cause of death, had to be established on the weaker standard. In the meantime, a lot of undeserved pensions were handed out.</div>
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Anomalies still existed. For instance, World War II is legally defined as ending in 1952, when the peace treaty was signed with Japan. Anybody who went overseas during that time still had operational service, even if all the enemies had laid down their arms. If he did, then the whole of his service was operational. Once I had a case which revolved around whether the claimant had made a single flight, lasting only one day, to New Guinea in 1946. “Surely,” said a colleague, “you’re not going to give him a pension because he went to New Guinea for just one day?” Indeed I was, because that’s what the law required.<br />
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Once the reforms were in place, the first action initiated by the Commission was to start rejecting all claims based on a smoking habit which commenced on non-operational service. All such rejections were accompanied by an explanation similar to what you have read in the last chapter: that smoking was the rule rather than the exception for men in the veteran’s age group in the period under consideration, and that access to cigarettes, and peer pressure were equally applicable to civilian life. On the balance of probabilities, military service was merely the setting, not the cause, of a smoking habit.</div>
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This common sense approach lasted only eight years, when it was overthrown, first by the Tribunal, and then by the Federal Court, in the case of<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/1993/39.html" target="_blank">Tuite</a></i>. Mr Tuite was one of those servicemen who was sent to a boot camp for several months, and then told to go home and wait till he got his call-up for full time service. Because the period in camp was isolated from the rest of his service, and it took place inside Australia, the service was non-operational, and standard of proof, in consequence, that of reasonable satisfaction.</div>
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At the time, he was 24 years old, and had successfully resisted all temptations to smoke. A more marked difference from James Law’s experience of heavy combat and imprisonment would be hard to come by, but he did suddenly find himself in an environment totally different from before. A truck used to come around and offer cigarettes for sale, and he saw other people accept them. There was nothing else to do but walk around, march, parade, and attend lectures. He was bored, and just a little apprehensive about going overseas sometime, so he decided to smoke. That’s good enough, said the Tribunal. Quite so, said the Court. The fact that the same inducements to smoke exist in civilian life is immaterial; just say the right words about smoking, and we’ll give you a pension. Being a decision maker at the time, I remember vividly how, in less than a year, we went from rejecting nearly all “reasonable satisfaction” smoking claims to accepting nearly all of them as a matter of course.</div>
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Just the same, there are two lines in the sand the Commission has decided to draw. Except in unusual circumstances, or in a moment of distraction, they will not accept increases in smoking on the balance of probabilities. Nor will they accept a claims if smoking commenced on defence service ie after 6 November 1972. By then the dangers of smoking were well known, even in the military, and warnings were placed on cigarette packets. Making the Tribunal understand that is, of course, another matter.<br />
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Quite apart from this, the vast majority of cases fell into the category of “reasonable hypothesis”, and there was still left open the question: how weak does an hypothesis have to be before it becomes “unreasonable”. The post-<i>O’Brien</i><span class="Apple-converted-space"> </span>reforms merely turned the clock back to the pre-<i>O’Brien</i><span class="Apple-converted-space"> </span>situation. It was no longer possible to obtain a pension with no evidence whatsoever, but medical authorities still differed as to how much smoking is required to cause a particular disease, or how much heavy work is needed to cause osteoarthrosis, and new, unsubstantiated studies were always coming out suggesting some connection between some little known disease and some commonplace item or experience. It needed only one rogue study or rogue doctor to set the cat among the pigeons.</div>
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Sometimes, no medical input was required at all. At one stage, the advocates of Legacy wracked their brains over the question: how can we get stomach cancer accepted as war-caused for non-smokers? and came up with the following chain of logic.</div>
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1. There is usually a long latency period between the insult to the body and the onset of cancer.</div>
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2. Nitrates can cause cancer.</div>
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3. During the war, troops were fed meat containing nitrate preservatives.</div>
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4.<span class="Apple-converted-space"> </span><i>Ergo</i>, the war can be blamed for stomach cancers forty years later.</div>
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No evidence was provided that stomach cancer was more common in veterans, or of the quantities of nitrate required before a risk is present, or even the concentration of nitrate present in war-time rations. It made no difference. It was an hypothesis; if it went unchallenged it would be deemed to be a “reasonable hypothesis”. Highly paid Departmental Medical Officers had therefore to be taken off their normal duties to investigate all the parameters and implications which Legacy had neglected.</div>
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Chasing these sorts of wild geese became a regular exercise for the Department. I honestly cannot remember any of the hypotheses initiated at the time by ex-service organisations turning out to have any validity, though they managed to get away with a few for a while.</div>
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Once the RRT was replaced by the VRB in 1985, it rapidly adopted its role as the weak link in the appeal chain. The current VRB is not too bad, but the original one was, to put it tactfully, a little over-enthusiastic in the thinness of an hypothesis it would accept as “reasonable”. Here are a few of the more memorable ones:</div>
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While stationed in Australia during the war, a soldier was promoted to sergeant, and granted access to the sergeants’ mess, where he gained a taste for the pastries served there, became obese, stayed obese, and eventually developed heart trouble. This, you might notice, is a far cry from the case of<span class="Apple-converted-space"> </span><i>Law</i>, whose tobacco consumption was the result of an actual addiction. What made the decision even worse was that his service was non-operational, and so the “beyond reasonable doubt” principle failed to apply.</div>
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Another digger, at a time when most Australians were tea drinkers, was seconded to the American army, and got addicted to coffee. (They used to brew it in their tanks, so he told me.) He came up with some evidence that caffeine is a risk factor for heart disease, and the Board accepted it. But I wouldn’t suggest you coffee drinkers worry too much; scientific research has failed to confirm it.</div>
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The prize, however, must go to the time the Board accepted Legacy’s tortuous contention about the death of an elderly veteran from Alzheimer’s disease. It went as follows:</div>
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1. Although he was diagnosed with Alzheimer’s disease, this can only be established by autopsy. It may have really been some other form of dementia such as Creutzfedt-Jacob disease (CJD), a disease which received worldwide attention in the wake of the British “mad cow” epidemic.</div>
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2. CJD is thought to be caused by a “slow virus”, an old term for what is now known to be a strange biological particle called a<span class="Apple-converted-space"> </span><i>prion</i>.</div>
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3. “Slow viruses” are known to be present in New Guinea, in the form of<span class="Apple-converted-space"> </span><i>kuru</i>, or “laughing disease”, infecting a tribe called the South Fore.</div>
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4.<span class="Apple-converted-space"> </span><i>Ergo</i>, the deceased may have died from a dementia mimicking Alzheimer’s disease caused by a dreaded “slow virus” picked up in New Guinea.</div>
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Had the Board not been in a rush to hand out pensions, but had actually done its homework, it would have discovered a couple of pertinent facts. First, although CJD, kuru, and Alzheimer’s disease all involve dementia, they present quite differently, and whereas the progress of the first two diseases is a few months, Alzheimer’s disease lasts 6 to 10 years. Secondly, “slow viruses”, or prions, are not just floating around New Guinea haphazardly. Kuru was transmitted among the South Fore by mortuary cannibalism. In other words, instead of burying their dead, they ate them, the victims of kuru itself being considered especially delicious. As far as I know, this custom was not prevalent among Australian diggers.</div>
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Just to show that the lunatics really were in charge of the asylum, the Commission embraced this decision. At the time, there was a backlog of cases listed for the AAT, and the head of the Department’s advocacy section decided that the best way to reduce it was to concede cases willy nilly, even if it meant handing out large sums of taxpayers’ money. So, for some months, until saner policies prevailed, every claim involving New Guinea and dementia got smooth sailing.<br />
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The stable door, in other words, was still loose on its hinges, and now horse number 3 was about to bolt.<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/47.html" target="_blank">Bushell</a></i><span class="Apple-converted-space"> </span>was a partial re-run of<span class="Apple-converted-space"> </span><i>O’Brien</i>, in that it involved the same minority medical opinion about a connection between anxiety states and hypertension. The AAT had done the right thing; it had heard detailed evidence about when the scientific studies had actually found, and came out with the view that the connection had not been demonstrated. But this was too much for the High Court, which heard the case in 1992. Judges do not think like scientists. To them a scientist or a doctor is an “expert” – a keeper of arcane knowledge which a mere layman could hardly be expected to understand or analyse. They elected to follow the safer course, and not question it. Under the prevailing standard of proof, they ruled, it would be difficult to deny that an hypothesis was reasonable if it were raised by a specialist, even if most of his colleagues disagreed, provided he was eminent in his field, and had full knowledge of the veteran’s circumstances.</div>
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In practice, of course, the test was looser than that. The Department’s Claims Assessor, hard pressed for time, is hardly likely to question the eminence of any specialist who offered an opinion, or to ask what sort of studies he used as the basis for his opinion. What it meant, in other words, was that claimants could go doctor shopping, and as soon as they found someone who agreed with them, they were on a winner. It was not actually back to square one, but square two was looking very cosy.</div>
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The government’s attempt to correct the law met an unexpected hitch. Normally, Veterans’ Affairs legislation has bipartisan support, but now an election was in the offing. The ex-service organisations were therefore able to pressure the Coalition opposition in the Senate to quash the proposed amendments. Fortunately, it was merely a delaying tactic. Following the election, the re-elected Labor government appointed a committee headed by Prof Peter Baume to examine the issue. It was a masterful stroke. Prof Baume was an ex-Liberal MP. His party were unlikely to resist any recommendations he was to make. Also, as mentioned before, both sides of politics tend to think alike in this field, and the Liberals were probably glad to be let off the hook.</div>
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The<span class="Apple-converted-space"> </span><i>Baume Report</i>, ultimately made a large number of recommendations. It recommended, for example, that the standard of proof should revert to the modified civil standard originally intended by the 1977 amendments. Only a “courageous” government, unconcerned about political backlash, would have resorted to anything as radical as that. The veteran community had gotten used to regarding the standard of proof as their passport to the public purse. Also, as the<span class="Apple-converted-space"> </span><i>Tuite</i><span class="Apple-converted-space"> </span>case had proved, such a reform would not have put the smoking genie back into the bottle.</div>
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The committee also took note of the fact that, for a condition to be accepted as war-caused, the contribution by the war need be only very small. They recommended a two level scale of pension. If the contribution by the war were 50% or more, then the full pension would be paid. If it were less than 50% - even if it were<span class="Apple-converted-space"> </span><i>de minimis</i><span class="Apple-converted-space"> </span>– then only half the pension rate would be payable. Such a reform would have required a lot more public servants to administer, and would have created many more appeals, but it would have produced enormous savings. It would also have gutted the TPI industry.</div>
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Every chapter of the report contained numerous recommendations, but only one was acted upon in the immediate aftermath. Over the past year, the Department’s medical advisers had attempted to make the decision making process more consistent by producing Statements of Principles (SoPs) detailing under exactly which circumstances a disease could be accepted as war-caused – but leaving open, of course, the possibility of a doctor pulling a minority opinion out of the hat, and invoking<span class="Apple-converted-space"> </span><i>Bushell</i>. The<span class="Apple-converted-space"> </span><i>Baume Report</i><span class="Apple-converted-space"> </span>recommended that this process be formalised, with a special panel of medical experts being established to systematize the causes of every disease.</div>
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On this front, the government acted very quickly. The report had been published on 18 March 1994. From 1<sup>st</sup><span class="Apple-converted-space"> </span>June that year all claims were to be determined by reference to SoPs promulgated by a select body called the Repatriation Medical Authority (RMA). Once a SoP has been issued, the opinion of any other specialist, no matter how eminent, would be irrelevant. Doctor shopping under the old system would be possible only for diseases not yet the subject of a SoP – and there are precious few of those left. The amendment to the law also established a Specialist Medical Review Council to review the decisions of the RMA. Finally, in order to retain control over the whole situation, the government added section 180A, which essentially allows the Commission to issue its own SoPs. (We shall see examples in the next chapter.)</div>
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The RMA does not publish the reasoning behind its SoPs. Like God, it moves in mysterious ways, and like God, its decrees are binding on us mortals. However, outside bodies are permitted to make submissions, and the Commission frequently does so. So, occasionally do ex-service organisations, but they seldom have the facilities to properly analyse scientific data. The RMA is not concerned about majority medical opinion. Medical research advances so rapidly, that majority opinion is actually uninformed opinion. Instead, it studies all the most recent and thorough scientific papers, analysing them according to the tenets of scientific research. Consequently, SoPs are amended and replaced at irregular intervals as new information becomes available.</div>
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A SoP merely lists all the risk factors for a disease, no matter how obscure – even birth defects. It is up to the determining authority to connect one of them to eligible service, and sometimes this would be next to impossible. Nevertheless, the list of risk factors grows every year, as more research becomes available. (Now you know, for instance, where I got the list of smoking related conditions in the last chapter.) Two SoPs are produced for every disease, one for each standard of proof. Sometimes the risk factors are the same in both. In others cases, the SoPs differ in the level of exposure required, or the latency period between exposure and onset. What the RMA effectively does, is take the most likely situation for the “balance of probabilities” SoP, and the outer limits of the epidemiological data when the test is “beyond reasonable doubt”. Occasionally, a risk factor appears in one, but not in the other. For example, you will be interested to know that the hypothesis of<span class="Apple-converted-space"> </span><i>O’Brien</i><span class="Apple-converted-space"> </span>and<span class="Apple-converted-space"> </span><i>Bushell</i>: that of anxiety and hypertension, finally got the OK from the RMA in 2003 – but only as a possibility which could not be excluded “beyond reasonable doubt”. It is still regarded as improbable.<br />
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Needless to say, the Federal Court still managed to frustrate the intentions of Parliament. In 1999, for instance, came the case of<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/1999/1103.html" target="_blank">Keeley</a></i>. He was dismayed to find that, between the decision of the Commission and that of the Tribunal, the RMA had replaced his SoP with one less favourable to his claim. It wasn’t fair, he cried – and the Court agreed. He had an accrued right to be considered under the old SoP. Consider what this means. The most up-to-date scientific knowledge indicated that his condition could not be related to service, even under the most generous standard of proof, yet now he was entitled to a free pension on the basis of obsolete information.</div>
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The perversity of this logic was not completely lost on the Court. In the Full Court decision of<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/2001/1194.htm" target="_blank">Gorton</a></i><span class="Apple-converted-space"> </span>(2001), Justice Allsop gave the following minority opinion: “However, it seems to me that they [the SoPs] do not affect accrued rights at all and are not intended to. To put it bluntly, it might be said that no-one has the right to have his or her claim assessed by the tribunal erroneously by reference to the product of out of date science and medicine.” Exactly. Yet, law and precedent was still permitted to triumph over justice and common sense. (<i>Gorton</i><span class="Apple-converted-space"> </span>is also authority for the proposition that, when a SoP says “daily”, it does not mean “daily”; it means “just about daily”.)</div>
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Next came the ruling in<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2002/412.html" target="_blank">Kattenberg</a></i><span class="Apple-converted-space"> </span>(2002). In this instance, the veteran needed 30 pack years of tobacco consumption. (A pack year is 7,300 cigarettes: the equivalent of a packet of 20 per day for one year.) Unfortunately, he had started smoking before eligible service, and merely increased on service, so he had only 15.87 pack years directly due to service. Yes, said the judge, but he also had 19.4 pack years due to his original addiction, and the extra 15.87 were enough to push him over the threshold. He would not have had 30 pack years “but for” his eligible service, and the legislation does use the term “but for”. That was definitely<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>what had been intended by the legislation, and it threw the field wide open again. For a short time, the Commission considered asking Parliament to change the law, but decided against it because they could not think of a form of words that would work. The Commission, in other words, lacked imagination.</div>
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Worse, the Commission has chosen to adopt an incorrect interpretation of the judge’s decision, one much more generous to the applicants than the judge’s actual decision. Instead of using the “but for” test, they have decided that all that is needed is that eligible service make a “material contribution” to a disease. The difference is very important. If Mr Kattenberg’s original tobacco addiction has produced the full 30 pack years, his claim would have failed, because the extra 15.87 due to service would not have pushed him over the threshold. The threshold would have been crossed in any case, and “in any case” will always trump “but for”. Nevertheless, the Commission has now rewritten the department’s computer programs, and I have personal experience that they will automatically accept claims which a correct reading of the law should reject.</div>
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Finally, although the 2006 case of<span class="Apple-converted-space"> </span><i><a href="http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/1523.html" target="_blank">Cotton</a></i><span class="Apple-converted-space"> </span>did not have the overwhelming ramifications of the other two, it remains an object lesson for anyone who believes that judges are highly intelligent beings with superior faculties in logical reasoning. As a background to the case, you must understand that drinking too much alcohol will put you at risk of high blood pressure, or hypertension. The original SoP required:</div>
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“suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol”. (That’s little more than four standard drinks a day.)</div>
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However, the new SoP replaced it with:</div>
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“consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week.”</div>
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Obviously, the RMA had wished to include the hypothetical circumstances where a person was unable to reduce consumption for some unlikely reason unrelated to alcoholism. But that was much too sensible for Justice Steven Rares to grasp. After following the most tortuous and convoluted chain of logic imaginable, he reached the conclusion that the last phrase cannot mean what it says and, in practice, has no real meaning at all. <span style="font-size: normal;">(Why take my word for it? The full decision, in all its glory, can be found on the internet. Just follow the link already provided.)</span></div>
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(Shortly afterwards, the RMA, rather than correcting the misinterpretation, simply removed the reference to being unable to decrease. However, they did increase the quantity required.)</div>
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Despite all this, the SoPs swept through the department like a clean wind. Now the causes of diseases were clear cut and beyond question. The odious doctor shopping was largely a thing of the past. Nevertheless, they were not an unqualified blessing. Although a large number of diseases were now off the table as far as pension claims were concerned, the increasing number of risk factors for an increasing number of diseases resulted in increasingly imaginative contentions from ex-service organisations. Also, the ready accessibility of the SoPs meant that people could tailor their evidence to suit their requirements.</div>
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Not only that, but an air of unreality and artificiality still clings to them. A good example would be ischaemic heart disease, the most common type of heart trouble. Everyone knows that it can be caused by smoking. What everybody doesn’t know is that the risk very quickly reduces once you give it up. So, the “balance of probabilities” SoP states that, no matter how much you may have smoked, once you have given it up for five years, you are no longer at risk. However, when you consult the “beyond reasonable doubt” SoP, you find that the risk extends to 15 years after cessation, provided you have smoked at least five and less than 20 pack years (a pack year, you will remember, is 7,300 cigarettes). If you have smoked 20 pack years or more, then the risk is considered permanent.</div>
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You must understand the biological basis of all this. Smoking causes hardening of the arteries, but once it ceases, the body starts to clean itself, and after a short while returns to normal. Scientific studies have revealed that it is probably back to normal after five years, but the possibility that there is still some residual effect cannot be ruled out. Nevertheless, the probability most be very low. After 15 years, any residual effect would be very small, and after 20 years smaller still. In other words, we are operating at the very bottom limit of residual effects. Yet, when a claim comes up for consideration, we will often find ourselves arguing over whether the veteran had 20 pack years, or only 19, or whether he gave up 16 years ago, and not 15. Meanwhile, he has reached the age where heart disease is common, he is obese and does not exercise, and has non-war-caused high blood pressure – all of which are recognised risk factors, and which any ordinary person outside of the ivory tower would say were the “real” causes of his heart disease. Examples like this can be provided indefinitely.</div>
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Three years after the introduction of the SoP regime, the government commissioned Prof. D. Pearce to review the progress of the system. He determined that it was working quite well indeed. However, he did perform a few back-of-the-envelope calculations, and estimated that only one to ten per cent of successful claims would succeed without the “benefit of the doubt” rule. In other words, the department is accepting at least ten unworthy claims in order to avoid one worthy claim being refused.<span class="Apple-converted-space"> </span><i>And</i><span class="Apple-converted-space"> </span>this assumes the validity of the smoking contention, which is responsible for two thirds of all successful claims.</div>
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He also pointed out the irony that, although the Department of Veterans’ Affairs has the most generous pension system in the world, the ex-service organisations are constantly complaining about how niggardly it is. He corrected divined the cause: Veterans’ Affairs is evidence-based, whereas the ex-service organisations are reward-based. In other words, whereas the Department does it best to determine that diseases are at least theoretically related to service, the ex-service organisations believe that every veteran and widow should get a pension – preferably at the highest rate – merely for being a veteran or widow, and regard SoPs and the law as unreasonable barriers to that aim.<br />
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/5-myth-of-agent-orange.html" target="_blank">Continue to Chapter 5</a></strong><br />
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a></strong></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-7113084105979106822013-03-05T15:45:00.001+10:002013-03-11T14:20:52.995+10:005. The Myth of Agent Orange<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
Another uncle of mine was seriously affected by agricultural chemicals. I’ll always remember the sight of the very severe contact dermatitis which covered his hands. Indeed, it was commonly held that he in fact died from the effects of these chemicals. However, one day I happened to ask the cause of his death, and all I could get were vague generalities. From what I could gather, however, his death was more likely the result of the chemicals in cigarettes.</div>
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Another relative was popularly held to be suffering the effects of occupational exposure to sheep dip. But it turned this was also a family myth. What he had was a congenital metabolic disorder, which cannot be aggravated by any chemical except alcohol.</div>
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These two anecdotes are provided simply to illustrate a phenomenon. Most people’s understanding of chemicals is very limited, with the result that they tend to assume the worst, and when exposure to chemicals is known, or even suspected, they are quick to blame it for any and every disorder they may experience. Radiation has the same effect on people’s imaginations. In a wide zone around the burst nuclear reactor at Chernobyl, inhabitants are liable to attribute all their medical problems to it, even those which science has shown have never been linked to radiation.</div>
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Coupled with this is the same mental process which causes primitive people to believe in witchcraft: the natural human attempt to make sense of their misfortunes. If an African or a Papuan is bitten by a snake, his kinsmen’s first response is to ask who had placed a curse on him. Of course, they know that snakes are poisonous, and they do bite, but the question they want answered is the one science never asks: why did<span class="Apple-converted-space"> </span><i>this</i><span class="Apple-converted-space"> </span>person get bitten? We think we are beyond all that superstition, but are we? We know that snake bites, car accidents, and stomach cancer can happen to anybody, but should we come down with a disease which is rare, or perceived to be rare (though it may be well known to doctors) or, better still, one we’ve never even heard of, our intuitive reaction is usually to ask, how could this have happened? Could it be the result of chemical exposure years ago, or radiation, or close proximity to power lines or industrial magnets, or silicone breast implants, or the use of mobile phones?- all of which have been the focus of scares in the past. It goes against the grain to accept that a bolt from the blue like this might be “just one of those things”, without any obvious cause.</div>
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So now we come to Agent Orange which, along with Agents White, Green, Pink, Blue and Purple, was a code name for the herbicide mixture used to deny vegetation cover to the enemy in Vietnam from 1962 to 1970. By itself, this would have been unexceptional. Herbicide spraying had been previously used in World War II, Korea, and Malaya. Herbicides, of course, are poisonous – you wouldn’t put them in your soup – but the issue is how poisonous? How much exposure is needed to receive a dangerous dose? Long-term and repeated exposure is not advisable, and those who work with them on a regular basis wear protective clothing, but if one of them were to slip up and make contact with the chemical on a single occasion, it would not necessarily be a cause for alarm.</div>
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Agent Orange consisted of two major defoliants: 2,4-D and 2,4,5-T, of which the latter was the most significant, because it was discovered that the manufacturing process caused it to be contaminated with 2,3,7,8-TCDD, the most toxic of the dioxins, which is also known cause cancer. In fact, its toxic qualities had been known as far back as the late 1940s, but even so, the chemicals had been used effectively ever since then, for the simple reason that they had been known to have been safe in the concentrations used.</div>
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Nevertheless, there were certain factors in the social milieu of the 1960s which worked against them. This period saw the burgeoning of the environmental movement, with a concomitant sensitivity to issues of pollution and the dangers of unregulated chemicals, some of it justified, some of it exaggerated. Secondly, the Communist governments of North Vietnam and Red China had started a propaganda campaign against “chemical warfare”. Any pronouncements from that quarter were inevitably taken up by the vocal fifth column in the U.S. and Australia. In short, for good motives and bad, many people were prepared to believe the worst about anything involved with chemicals and/or the U.S. war effort.</div>
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The result was that the U.S. Department of Defence commissioned an independent investigation by the Mid-West Research Institute at Kansas City. Their authoritative report in 1968 was sufficient to establish that the concentrations deployed were far below anything which could be considered toxic to human beings or animals. Even spraying next to rivers or canals, or even in the water itself, would not be sufficient to kill the fish. The toxins would not accumulate in meat or fish to a sufficient degree to be dangerous to consumers. It would not accumulate in crops; rather, any residue would simply retard the growth of next season’s crop (which is what a herbicide is supposed to do). The major ecological effect would be the destruction of vegetation and wildlife habitat – quite apart from the fact that bombs and shells are also not good for the environment.</div>
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Needless to say, the report was not well publicised. Good news seldom is. (And if it were, it would have been branded a “cover-up”, no matter how independent it might be. Any study which suggests that government, and especially military, action is not as bad as is made out, is always labelled a cover-up.) Just the same, Agent Orange was banned in April 1970, and the defoliation program cancelled in February 1971.</div>
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Although health issues had been raised at the time, the main focus of the opposition was on the alleged ecological damage. That all changed in June 1977, as a result of a remarkable series of events. Charles Owen, one of the airmen actually involved in the spraying, was now dying of cancer, and decided that the two were linked. His wife phoned a counsellor at the Chicago Office of the U.S. Veterans’ Administration, one Maude de Victor who, herself in remission from another cancer, took a personal interest in his claim.</div>
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Using the Administration’s computer records, she checked for Vietnam veterans who were also cancer sufferers. Not surprisingly, she found a large number, because cancer is common, and does not discriminate against veterans. However, that was not the conclusion she reached. Instead, she began questioning other veterans about both cancer and herbicides, became convinced that Agent Orange was the cause of a large number of complaints, and encouraged them to file claims. Of course, she was neither medically qualified, nor authorised to call up computer records, so management told her to desist. To her mind, this was obviously a cover-up, so she decided to go public.</div>
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At her urging, a television journalist, Bill Kurtis produced a documentary entitled,<span class="Apple-converted-space"> </span><i>Agent Orange – Vietnam’s Deadly Fog</i>, in which veterans gathered together by Ms de Victor described not only cancer and birth defects, but also every other non-specific symptom imaginable, such as loss of libido and tingling in the extremities. No doubt Kurtis was honest in his misperceptions, but the documentary was essentially pseudoscience. Nevertheless, its emotional impact was strong, and was immediately picked up by the rest of the media. The Agent Orange panic had started.</div>
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As Justice Evatt so aptly put it: </div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">The development of the Agent Orange story should be contrasted with that of the normal epidemiological progress. Epidemiological progress is often made by the observation of a particular syndrome or set of symptoms and signs associated with a particular exposure leading to deduction by a trained observer of an hypothesis of a cause and effect to be tested by proper scientific inquiry. It involves a deductive leap from a large number of particular cases to an hypothesis for testing.</span></div>
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<span style="font-size: normal;"><span style="font-family: Times New (W1), Times New Roman, serif;">The Agent Orange story was this process in reverse. One man ascribed his cancer to being sprayed with Agent Orange. Others then ascribed a huge range of other disabilities to the same cause because of a wish to believe, not by any observation of value</span>.” [</span><i>Royal Commission of the Use and Effects of Chemical Agents on Australian Personnel in Vietnam. Final Report. July 1985. </i> vol. 8, pp E-34 to E-35 (Aust. Govt. Publ. Serv.). His Honour’s account of the events leading to the panic really deserve to be read in detail.]</div>
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The panic spread to Australia with an article in<span class="Apple-converted-space"> </span><i>Rolling Stone</i><span class="Apple-converted-space"> </span>magazine in August 1978, and was quickly taken up by the mainstream press. Journalists, I need to remind you, are mostly honest people, but they do know what sort of stories sell. They also vary a lot in how critically they approach stories, and very few have any scientific or medical training. When a controversial issue of this nature breaks, they do not even know the correct questions to ask, let alone how to analyse the data. As far as making sense of the matter, they were just as out of their depth as the poor veterans.</div>
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Those of us who worked in Veterans’ Affairs during the height of the panic remember veterans and their wives ringing up in alarm to ask what sort of conditions were caused by Agent Orange. No worthwhile guidelines had come down from the powers to be - who were, after all, equally scientifically naïve - and, in any case, the truthful answer (we don’t know, but probably very little) would not have gone down well. Anybody who<span class="Apple-converted-space"> </span><i>was</i><span class="Apple-converted-space"> </span>sick naturally assumed the worst because, after all, these things don’t just happen. You don’t get sick without a reason, do you?</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Middle age is often the time when the human machine first shows signs of breakdown. If you go around your workplace, your social club, church or PTA – anywhere where there is a significant number of middle aged people - and get the members to describe their physical ailments, you would be surprised at how many and varied they are. By the law of averages, some surprising coincidences will turn up. But, of course, we never do discuss such details, and thus never obtain a proper perspective on the matter. That is, unless we have reason to believe our very membership of the group is likely to be a cause of illness. At that point, we<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>do<span class="Apple-converted-space"> </span></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">talk about it, and the normal range of medical problems will look like an epidemic. The perception will be increased if the afflicted join forces to form lobby groups, because then everybody they are dealing with will be sick.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">This, then, was the situation that developed at the height of the Agent Orange panic. The Department responded by calling up medical and scientific evidence, as well as unit histories on the timing and extent of the defoliation program. Meanwhile, anybody who lodged a claim on the basis of Agent Orange was given a complete medical check up. Invariably, they presented with disorders which are widespread and unexceptional in the community. Some made no specific complaint, but just wanted to be checked up in case there was something present they were unaware of. Many attributed their psychiatric disorders to Agent Orange – as if being shot at wasn’t a sufficient cause. One man even claimed he was so chemically contaminated he was sweating excessively at night and turning the sheets orange!</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Notably absent from the list were the two disorders which were definitely known to be linked to dioxin exposure: chloracne and porphyria cutanea tarda. Chloracne is a specific type of acne caused by exposure to the class of chemicals to which dioxin belongs. In fact, it is virtually indicative of dioxin exposure. Experience with industrial accidents has shown that if you suffer any non-trivial exposure to dioxin you will get chloracne. No Australian serviceman has ever presented with chloracne. Porphyria cutanea tarda is a metabolic disorder which results in extreme sensitivity to sunlight. Mostly it is genetic in origin, but can be caused by viral hepatitis, alcoholism, and a large class of chemicals which include dioxin. It is quite rare; I can’t ever remember a case.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">As could be expected, these investigations turned up a number of conditions which could be related to the war on other grounds, notably smoking. But when various skin diseases and cancers kept being rejected, frustration set in because, after all, the press kept telling them that everything and anything was due to Agent Orange. A man with a Bachelor of Science degree, John Evans became the chief promoter of the Agent Orange theory, and it was largely due to his agitation that Justice Phillip Evatt, a judge of the Federal Court was appointed to head a Royal Commission in May 1983.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">From what you will have read so far, no Federal Court judge is a puppet of the Government. This would be a completely independent inquiry. Indeed, the judge freely admitted that, initially, he was sympathetic to the Agent Orange theory, but as the evidence piled up over a period of two years, he was unable to maintain that position. Normally, I would have small confidence in the ability of a legal enquiry to handle scientific matters. The methodology of science is foreign to that of lawyers, who have difficulty dealing with it. But this was the exception. The Royal Commission had at its disposal a wide range of earlier scientific studies, and was able to sift through them in a highly professional manner.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The final report consists of nine volumes, and well over a thousand pages. This is all very daunting to the average person, particularly if he or she is unfamiliar with the scientific method. Nevertheless, it behoves anybody who still believes in the Agent Orange myth to study it in detail, because its findings have never been refuted.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Firstly, there was the initial question of how many Australians were actually exposed to the chemicals. The Department had obtained the records of Operation Ranch Hand, the U.S. herbicide spraying program, noted the dates and areas sprayed, and the projected dispersal of the chemicals under the prevailing weather conditions, and matched them with the Australian unit diaries, to determine where Australian servicemen were on those dates. The conclusions were that few Australians, if any, were present anywhere near the spray zones.</span></div>
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This immediately brought a riposte from ex-service organisations that unit diaries were not always accurate, that sometimes transient movements of servicemen were not recorded. Point taken. However, a moment’s reflection will reveal that this applies only to the individual, not to veterans as a whole. An individual may be able to claim that he was in a spray zone, but hundreds or individuals, or thousands of individuals, cannot. One swallow does not make a summer, and one exception does not destroy the rule. In point of fact, witnesses to spraying have almost invariably confused insecticide spraying with herbicide spraying. The former was used against malaria, and exposure was almost universal, but it has no bearing on the Agent Orange claims. The mixture of this natural confusion, selective interpretations of memories, and anti-chemical hysteria produced some extraordinary claims. It was often said that Agent Orange was dripping off the trees, to be brushed off on one’s skin as one passed. Since the whole point of the herbicide use was to make vegetation die, and thus deny cover to the enemy, this is hardly likely.</div>
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Since there was a pervasive belief that Vietnam veterans were – and are – dying off at a faster rate than the general population, especially from chemically induced cancers, the Commonwealth Institute of Health, a branch of the University of Sydney, set up the Australian Veterans’ Health Study (AVHS) to investigate their morbidity. However, before looking at their results, it may be useful to examine some general studies.</div>
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The Vermin and Noxious Weeds Destruction Board of Victoria used a tremendous amount of 2,4-D and 2,4,5 –T (ie Agent Orange) in the control of blackberries. Their knapsacks and vehicles were often wet with it. They often had to reach their hands into the tanks to adjust the regulators. The 2,023 staff followed up to the end of 1984 had been exposed to the herbicides for anything from one to 25 years, a far heavier exposure than anything any Vietnam veteran could have experienced. Yet they suffered<span class="Apple-converted-space"> </span><i>no</i><span class="Apple-converted-space"> </span>increase in cancer rates over the general population.</div>
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In Finland, 16,694 man years of spraying produced even fewer cancers and fewer deaths from natural causes than the general population. Two separate studies in New York State revealed that, compared to non-veterans, Vietnam veterans experienced excess deaths only due to non-vehicle accidents and liver diseases. When the 1256 U.S. personnel of Operation Ranch Hand – the men who did the actual spraying in Vietnam – were compared to servicemen who did similar work, but had no contact with Agent Orange, there were no excess deaths, and most of their cancers were skin cancers, due to sun exposure. These were men whose aircrafts, clothes, and equipment were often covered with the herbicide, who walked through puddles of the stuff in their daily work, who often had to reach their arms into the chemical cocktail. It is estimated that each Ranch Hander received at least 1,000 times the exposure of a hypothetical serviceman who stood naked in a field under a spraying aircraft.</div>
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With this background, one might made a reasoned prediction of what the AVHS would find. Their first task was to establish a “control” group ie a group with very much the same characteristics as Australian Vietnam veterans, except that they hadn’t been to Vietnam. The solution was obvious: the national servicemen. Here was a group of the same age, chosen at random from the general population, all of whom then passed the bottleneck of a military medical examination, followed by military training. All they needed to do was to compare the conscripts who went to Vietnam with those who stayed at home. And since hardly anybody who served less than twelve months served in Vietnam, they decided to limit their examination to those with at least twelve months service.</div>
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It says a great deal for the determination and application of the AVHS team that they were able to trace more than 95% of the men on their list, and establish whether they were alive or dead as of 1<sup>st</sup><span class="Apple-converted-space"> </span>January 1982. For the deceased, they then had to establish the cause of death. In order to avoid bias, the investigators were not informed as to whether the subjects had gone to Vietnam until all this information was in. In total, there were 19,209 Vietnam veterans to compare to 26,957 fellow conscripts who stayed home. What were the results?</div>
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The death rate for Vietnam veterans was 18%<span class="Apple-converted-space"> </span><i>lower</i><span class="Apple-converted-space"> </span>than for men of the same age in the general population – for the simple reason that they were healthier than average to start with. The enlistment medical exam weeded out the unfit.</div>
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However, among national servicemen, Vietnam veterans had a death rate 29% higher than non-veterans. Interestingly enough, the excess deaths were largely concentrated in the immediate post-war period. Veterans who reached their mid- to late-30s were less likely to die than non-veteran conscripts.</div>
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Excess deaths did not correlate with length of time in Vietnam, or year of service. This is significant, because if death was due to Agent Orange exposure, or even to combat, it would be highest among those who served the longest periods, or served during periods of heaviest spraying, or most intense fighting.</div>
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It was, however, correlated with corps. To be precise, national servicemen were more likely to go to Vietnam if they belonged to infantry or armoured units. Obviously, such units would suffer more combat stress than support units, but national serviceman in infantry and armoured units had higher post-war death rates whether they went to Vietnam or not. Indeed, if the effect of corps membership was taken into account, the differences between veterans and non-veterans largely disappeared.</div>
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So far, we haven’t mentioned the causes of deaths. The excess deaths in veterans were due almost entirely to circulatory diseases, alcoholic diseases of the digestive system, and external factors, but not cancer. All this was consistent with exposure to chemicals: specifically, those in cigarettes and beer bottles. Perhaps the general impression that veterans were more likely to smoke and drink has a basis in fact.</div>
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However, the cause and effect relationship is not so straightforward. The two groups, veterans and non-veterans, were not completely comparable. National servicemen frequently had a choice in which units they joined and, with very few exceptions, they volunteered for, or at least consented to, service in Vietnam. (The Royal Commission went into a great deal of detail about this.) It is likely, therefore, that those who ended up in Vietnam had a more macho outlook on life, with a more reckless attitude to risk taking, and risky behaviour, such as drinking and smoking. This would also explain the increased death rate of infantry and armoured personnel, even among the non-veterans.</div>
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In any case, there is absolutely no evidence that Agent Orange has had any effect on the health of veterans. Vietnam veterans were not significantly exposed to herbicides. The sort of cancers linked to dioxins is not more common in Vietnam veterans. At the time, many veterans were prone to attribute their psychiatric problems to Agent Orange, the implication being that the chemicals had somehow got into their brains and caused neurological damage. There is no evidence of increased neurological problems in Vietnam veterans. Their psychiatric problems are the direct reaction to combat stress, not brain damage.</div>
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Given the above incidence of psychiatric disorders, it might be expected that many would have committed suicide. In 1981, Vietnam veterans’ groups were claiming that 470 of their comrades had already taken their own lives – more than had died in the conflict itself. The press picked this up and ran with it, without ever bothering to confirm it. One paper claimed this was statistically 100 times the society average. No-one asked where that figure came from either. Fact: the total number of suicides, both national servicemen and professionals, which the Department of Veterans’ Affairs was able to establish, was 106. They may have missed a few, but the figure of 470 had been plucked out of thin air. Among national servicemen, Vietnam veterans appeared to have a higher suicide rate than non-veterans, but the results were not statistically significant,<span class="Apple-converted-space"> </span><i>and</i><span class="Apple-converted-space"> </span>the rate was still no higher than in the general population. And those of us who have to investigate death claims know that suicide is still a very uncommon cause of death.</div>
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The second major concern during the Agent Orange scare was birth defects. It was not surprising. This is an area where laymen are running blind, but nothing pushes a parent’s panic button like a perceived threat to his or her children. Also, although we pride ourselves on being sophisticated and tolerant, having a “defective” child bears a similar stigma to mental illness. So we don’t talk about it. If we did, we would soon discover something interesting: although individual birth defects are rare, in the aggregate they are fairly common.</div>
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In approximately one per cent of births, a birth defect causes either death or severe incapacity. Less severe defects occur in between 3 and 10% of births. The exact figure depends on just where you draw the line on severity, and at what stage, for many minor defects are not present, or are not noticed, until some years after birth. By and large, veterans took a broad approach to the definition of “birth defect”. A submission to the Royal Commission included not only such things as cleft palate and clubfoot, but hyperactivity, skin rashes, slow learning capacity, eye problems, and being underweight – in fact, any childhood malady which was present very early in life, and which was not obviously due to an accident or infection, and which was not suffered by the child’s parents. I know the feeling. As a child I used to suffer from recurrent sinusitis until a specialist diagnosed, and corrected, a deviated nasal septum. It must always have been present, and it was almost certainly a birth defect. On the other hand, for unknown reasons, childhood asthma and allergies appear to be increasing in the community, but these were also included in the list of birth defects. Their wives’ miscarriages were often attributed to Agent Orange, unaware that, under the normal course of events, one out of every ten pregnancies ends this way.</div>
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All this goes to show that, if a group of you ever get together to discuss your children’s health, you will have a vast wealth of material to draw on. If, as in the case of worried veterans, the very reason people join the group is because their children are sick, it will look like a virtual epidemic is in progress.</div>
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What causes birth defects? In 70% of cases, no-one can say. By and large, however, causes divide into two categories: genetics and environmental. Since the average person’s knowledge of genetics is limited, here is a brief summary.</div>
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All your physical characteristics are encoded on units called<span class="Apple-converted-space"> </span><i>genes</i>, and you come in pairs, one from each parent. As an example of what can go wrong, we will take a typical birth defect, albinism. An albino lacks the tanning pigment, melanin and typically has white hair, pink eyes, and very pale, sun-sensitive skin. Let us label the albino gene<span class="Apple-converted-space"> </span><i>a</i>, and the normal gene<i><span class="Apple-converted-space"> </span>A</i>. As you get one set of genes from each parent, it is obvious that the following combinations of genes are possible:<i><span class="Apple-converted-space"> </span>AA</i>,<span class="Apple-converted-space"> </span><i>Aa</i>, and<span class="Apple-converted-space"> </span><i>aa</i>. The normal gene orders the manufacture of melanin. The albino gene does nothing; it simply does not work. If your genotype, as it is called, is<span class="Apple-converted-space"> </span><i>AA</i>, well and good. If your genotype is<span class="Apple-converted-space"> </span><i>Aa</i>, you will probably never know it. The normal gene produces melanin, and your body is normal. Only those with the genotype,<span class="Apple-converted-space"> </span><i>aa</i><span class="Apple-converted-space"> </span>suffer from albinism.</div>
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In the language of genetics, the normal gene is<span class="Apple-converted-space"> </span><i>dominant</i>, and the defective gene<span class="Apple-converted-space"> </span><i>recessive</i>. However, although the<span class="Apple-converted-space"> </span><i>Aa</i><span class="Apple-converted-space"> </span>person is physically normal, he or she is a carrier. This is because his or her offspring can inherit either the normal gene or the defective one. If you are a carrier, and you have the bad luck to marry another carrier, then there is a strong possibility that your child will be defective. From this, two other things follow:</div>
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If your child suffers from one of these genetic defects, then it means both of you are carriers, and there is a good chance another of your children will be affected. In fact, it can be statistically calculated that a quarter of the children of such unions will be affected.</div>
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Since the actual defective gene is very rare, it can be passed unseen from generation to generation to generation, only appearing when two carriers unwittingly meet and fall in love. Indeed, the same thing applies for other characteristics involving reduced melanin, but which are not considered abnormal. Fair skin is recessive to olive, blue eyes to brown, and fair hair to dark. Fair skin and blue eyes are, of course, the norm rather than the exception in this country. But blond hair is sufficiently uncommon for its sudden appearance in a family of brunets to be sufficient to cause comment – not to mention half-serious references to the milkman.</div>
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Explanations such as these are likely to encounter resistance among parents of afflicted children. It seems to imply that they have “bad blood”, or are of “inferior stock”. Yet there is nothing unusual about it. When I was studying genetics at university, I was told that the average person – you, me, the people next door – carries three lethal genes. The reason we were not born dead is that we have only one of each, and the good genes inherited from the other parent keep us alive. The reason our children do not die is that our partners in life carry a different set of lethal genes.</div>
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What I have just described – one gene: one character, and complete dominance – is known as simple Mendelian inheritance, from the monk who discovered it, and most of the notorious birth defects follow this pattern. On the other hand, the inheritance of most physical characteristics is more complicated, involving several genes, and incomplete dominance. This was probably the cause of my deviated nasal septum. The genetic card pack is shuffled each generation, and someone has to draw a bad hand. At least I have strong teeth and good eyes, but none of us is a perfect physical specimen. In that sense, the incidence of birth defects is 100%.</div>
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The second cause of birth defects is environmental, when external factors damage the baby in the mother’s womb. Thalidomide is a good example. Taken at a certain stage during pregnancy, it blocks the action of a natural chemical used in the development of the limbs, with the result that the victims end up with hands growing from their shoulders, or feet from their hip. Rubella, or German measles, has a more general effect, when the virus crosses into the unborn baby and damages multiple body systems.</div>
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And this is where Agent Orange comes in. This aspect of the scare started when experimenters showed that dioxin can cause defects if large concentrations are fed to pregnant laboratory animals.</div>
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I need to emphasize those two words.<span class="Apple-converted-space"> </span><i>Large</i><span class="Apple-converted-space"> </span>concentrations: it is extremely unlikely they ever reached those levels in Vietnam, even among the civilian population. (Then or now. The veterans who go back to Vietnam and repeat the government line that Agent Orange is “still” causing birth defects have learned nothing about Communist propaganda. But they ought to at least stop and think: Agent Orange was a herbicide, but the vegetation has grown back long ago. Agent Orange is no longer present in the environment.)</div>
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And<span class="Apple-converted-space"> </span><i>pregnant</i>: dioxin is a generalised poison, which can pass through the mother’s womb and, if the dosage is high enough, poison her developing baby. But a man cannot get pregnant. Even if he were heavily exposed to Agent Orange, even if he were to drink the stuff, it is<span class="Apple-converted-space"> </span><i>impossible</i><span class="Apple-converted-space"> </span>for it to affect the children he fathers after the event.</div>
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This itself should be sufficient to remove any worries about birth defects. Now, let us look at the studies. Two separate New Zealand studies revealed that the wives of professional sprayers experienced no more miscarriages or the birth of children with defects than the wives of non-sprayers – even though the women were often exposed to the chemicals themselves while assisting their husbands. The American city of Atlanta, Georgia keeps a record of serious birth defects, but a study of 7,122 afflicted babies revealed no difference in the in the offspring of Vietnam veterans and non-veterans. As for the personnel of Operation Ranch Hand itself, they exhibited no change in fertility, sperm count, miscarriages by their wives, or birth defects in their children.</div>
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So when we get to Australia, there will be no prizes for guessing what the results would be. The AVHS scientists enlisted the records of 34 hospitals and 4 cytogenetic laboratories for the years 1966 – 79, and obtained records of 8,517 birth defects. This was the test group. For a control group, they matched each of these babies with another born in the same hospital, at the same level of accommodation, to a mother of similar age, at close to the same date. Only then did they check whether the fathers had been to Vietnam. Obviously, if service in Vietnam was a risk factor, a greater number of veteran fathers would turn up in the test group. In actual fact, the figure was 127, as against 123 in the control group. Not only that, there was no increased risk for longer periods of service in Vietnam. It also made no difference whether the father had even been in the army, let alone been a national serviceman or in the regular army. Interestingly enough, though, it did reveal a greater risk of birth defects if the father was born in Australia, the British Isles, or New Zealand, rather than southern Europe.</div>
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So there you have it. The whole birth defects scare was a beat up fed by a general public ignorance of the subject. Studies of the effects of unrealistically high exposure levels to pregnant animals was morphed by Communist propaganda and unscientific journalism into an impossible threat to the children of exposed fathers. But it never had any substance.</div>
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Once the Royal Commission handed down its report, it recommended that the findings be made the subject of an educational campaign to relieve the worries of veterans and their wives, but this was never carried out. Even if it had, political experience shows that scare campaigns are taken to heart, while official reassurances are ignored, or treated as whitewashes.</div>
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Nevertheless, the Government had to make some political decisions. The birth defects issue was easily solved. The law had never provided for pensions or treatment for the children of veterans, so all the Government had to do was leave it as it was. The living veterans proved a more difficult quandary. The Government knew that none of them were affected by Agent Orange, but they also knew that nothing they could say would persuade them otherwise. As a sop, therefore, they made an executive decision to accept a number of uncommon conditions where there was some indication of a link with major occupational exposure to herbicides, and even a few conditions which had been statistically linked to Vietnam. The multiple test phenomenon (chapter 4) ensured that a few would turn up. Ten years later, it was left to the RMA.</div>
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What is the situation today? You will remember from the last chapter, section 108A permits the Commission to override the RMA and declare that certain conditions are war-caused. It did this for acute and chronic myeloid leukaemia and acute and chronic lymphoid leukaemia. What this means is that there is no real evidence that exposure to Agent Orange causes these diseases, or that anyone was actually exposed to Agent Orange in the first place, but the Department will hand out a pension for it anyway.</div>
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With respect to the RMA, it has accepted that service in Vietnam can cause chloracne, porphyria cutanea tarda, lung cancer, prostate cancer, myeloma, soft-tissue sarcoma, Hodgkin’s disease, non-Hodgkin’s lymphoma, and diabetes mellitus. This sounds grim, but in point of fact, many of these are quite rare (you would have a wait a long time before you saw a case of soft-tissue sarcoma), and those that aren’t rare have much more widespread causes. Furthermore, the wording of the SoPs suggests strongly that the decisions are partly political.</div>
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For a start, prostate cancer, Hodgkin’s disease, non-Hodgkin’s lymphoma, and myeloma have dioxin exposure only in the “reasonable hypothesis” SoP. In other words, it is only a possibility. On the balance of probabilities, there is no connection.</div>
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For the others, let us take lung cancer, which is very closely dependent on smoking. Believe it or not, a lot of things can cause lung cancer, such as arsenic, cadmium, beryllium, nickel, asbestos, mustard gas, diesel exhaust fumes, and industrial coke ovens. But these are trivial risk factors. By and large, if you have never been a smoker, you should lose no sleep over the danger of lung cancer.</div>
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The very first two SoPs, issued in 1994, concerned lung cancer. For the balance of probabilities standard of proof, the following factor was listed:</div>
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spraying or decanting insecticides or herbicides as an occupational requirement for at least ten years, at a time or times prior to the clinical onset of malignant neoplasm of the lung.</div>
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<span style="font-size: x-small;"></span> Understand what this means. Balance of probabilities means that there is a 50% chance that the above level of exposure is a risk factor. Many people would require more than ten years, but less than ten years was not considered probable. So when the “reasonable hypothesis” SoP reduced the exposure from ten years to <i>60</i> <i>days</i>, you know that they were really scraping the probability barrel. The risk that 60 days of exposure produces must be only slightly higher than zero. Also, since no Australian was involved in Operation Ranch Hand, only the few who thus sprayed or decanted insecticides would qualify.<br />
In 1996 the RMA changed the SoPs. This time, although the above risk factors were retained, another was added:<br />
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<span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;"><span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;">being exposed to herbicides in Vietnam before the clinical onset of malignant neoplasm of the lung.</span></span></blockquote>
This was defined as having occurred if the veteran had:<br />
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<span style="font-size: normal;"><span style="font-size: normal;">(a) rendered more than 30 days service on land in Vietnam; or</span></span> </blockquote>
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<span style="font-size: normal;"><span style="font-size: normal;"><span style="font-size: normal;">(b) regularly eaten fish, fish products, crustaceans, shellfish or meat from Vietnam; or </span></span></span></blockquote>
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<span style="font-size: normal;"><span style="font-size: normal;">(c) regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or<br />(d) regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or<br />(e) sprayed or decanted herbicides in Vietnam as an occupational requirement.</span></span></blockquote>
Consider for a minute what this implies. Spraying and/or decanting herbicides for 60 days was still listed as a risk factor in the same SoP. So merely being in Vietnam for just 30 days – even if confined to the base, even after the spraying had been discontinued – is just as bad as spraying or decanting herbicides for a full 60 days. The SoP is internally inconsistent, and smacks of politics rather than science. And, of course, it still needed ten years under the balance of probabilities.<span style="font-size: x-small;"></span><br />
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Lest anyone doubt that the lunatics were still in charge of the asylum, one of the first claims we received after the change of SoP was from a veteran who had already had already had his claim for lung cancer rejected. He had been a heavy smoker all his adult life, but had not gone to Vietnam until his mature years, when his smoking habit had been well established. Now he appealed to the new SoP. And was granted a pension. Of course, his lung cancer was caused by Agent Orange! How could we possibly have thought it was a result of smoking?</div>
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With the coming of the 21<sup>st</sup><span class="Apple-converted-space"> </span>century, the RMA sought to remove both references to spraying and decanting, and references to insecticides, and establish actual exposure to dioxin. So, when the new SoPs came out in 2006, both standards of proof included the following factor:</div>
<span style="font-size: normal;"><span lang="en-US"></span></span><br />
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<span style="font-size: normal;"><span lang="en-US"><span style="font-size: normal;"><span lang="en-US">inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD) for a cumulative period of at least thirty days, at least<span class="Apple-converted-space"> </span></span><span lang="en-US">five years [ten years on the balance of probabilities] before<span class="Apple-converted-space"> </span></span>the clinical onset of malignant neoplasm of the lung.</span></span></span></div>
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<span style="font-size: x-small;"><span lang="en-US"></span></span>For a reasonable hypothesis, an additional risk factor was included:<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: x-small;"><span lang="en-US"> </span></span></span><br />
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: normal;"><span lang="en-US"><span style="font-size: small;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span lang="en-US">being</span></span><span style="font-family: Times New (W1), Times New Roman, serif;">: </span></span></span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: normal;"><span lang="en-US"><span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;">(i) on land in Vietnam, or</span></span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: normal;"><span lang="en-US"><span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;">(ii) at sea in Vietnamese waters, or</span></span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: normal;"><span lang="en-US"><span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;">(iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least thirty days, at least five years before the clinical onset of malignant neoplasm of the lung.</span></span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: normal;"><span lang="en-US"></span></span></span>So now by merely being in Vietnam, or just sailing along the coast, a man is assumed to have inhaled, ingested, or had cutaneous [skin] contact with Agent Orange. The only people who miss out are the poor Vung Tau Ferry veterans, who escorted the troops to Vietnam, and were in port for only a day or two at a time. Nevertheless, some of them have managed to convince Delegates, or the Board, that they qualify by a clever argument. When in Vung Tau Harbour, the story goes, the ship took on sea water and distilled it for drinking purposes. Subsequently, although the tanks were topped up regularly, the contaminants were never removed, but just got more and more dilute. This is not true. The turnover time for water in the tanks was two days. Even if there had been actual Agent Orange in the estuary, after a week or so it would have been so dilute its concentration would have been<span class="Apple-converted-space"> </span><i>de minimis</i>. <br />
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At any rate, the above risk factors, with occasional slight word changes, is now current for all cancers allegedly linked to Agent Orange. Logic would suggest that the dose response of the body to dioxin would differ according to the cancer involved. The fact that 30 days occurs in all the relevant SoPs, including those where there is no dioxin risk on the balance of probabilities, suggests that political considerations are involved.</div>
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In practice, of course, lung cancer can usually be accepted on the basis of smoking, and the other cancers are uncommon. The real gift to the ex-service community lies in prostate cancer, because of widespread prevalence in the community, and the absence of significant risk factors. There is a saying that if a man lives long enough, he will get prostate cancer. (People like me, with longevity in their genes, have something to look forward to.) The balance of probabilities SoP contains no risk factor for Agent Orange, but if a victim had been to Vietnam for more than a month, he will get a pension, and his wife will become a war widow.</div>
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Nevertheless, although the RMA is reluctant to remove Vietnam service from a SoP once it has been inserted, it is also reluctant to include it in new ones. The earliest SoP for diabetes mellitus contained no reference to Agent Orange. Then, in 1999, an amendment came out which included the hand decanting or spraying, or the cleaning or maintenance of spray equipment of chemicals contaminated by dioxin for at least six months. (For the balance of probabilities, the exposure time was two years.) No Australian veteran would qualify. However, it also included having a serum dioxin level of 5 parts per trillion at the date of onset of diabetes. The 2006 SoP increased the threshold to 10 ppt.</div>
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Now, dioxin has a half life in the human body of 7½ years. If you know the current dioxin level, it will be possible to calculate the concentration at the date of exposure to dioxin. So, when this SoP first came out, a blood sample was taken from any claimant who had been to Vietnam and, at great expense, flown to New Zealand, where the only available lab for testing dioxin levels was situated. However, after a while the Department gave up this costly exercise, because the results were uniformly negative. No matter how long veterans may have served in Vietnam, they never had any significant traces of dioxin in their blood. It is not surprising. Back in 1988 the U.S. Center for Disease Control found that dioxin levels in the blood of veterans who had served in heavily sprayed areas were almost identical to those of the general population. So, by now, shouldn’t the evidence be sufficient?<span class="Apple-converted-space"> </span><i>Vietnam veterans were not exposed to Agent Orange</i>.</div>
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If you went to Vietnam, I can safely put your mind at rest. It is now 40 years since you came home. Any new medical condition you now acquire will be due to old age, or lifestyle choices, or sheer bad luck – but not service in Vietnam. But you can lodge a claim anyway. There is a good chance that the Department will find an excuse to give you a pension.</div>
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The issue still petered on. I have already explained that just talking to your friends about their illnesses is a poor way to ascertain whether your group is any sicker than the population as a whole. It had already been established that Vietnam veterans were healthier than the general population. Nevertheless, because ex-service advocates were constantly assisting sick veterans in their claims for pension, they were convinced that veterans were a predominantly sick group. Under this pressure, the Department commissioned another mortality study by a committee chaired by Prof John McCallum of the University of Western Sydney. This time, a new attempt was made to trace all national servicemen, and establish the causes of all deaths from 1982 to 1994.</div>
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The results were a repeat of the 1983 study. The death rate of Vietnam veterans was 16% higher than non-veterans. (You will remember that in 1983 the figure was 29%.) The greatest disparity was in lung cancer and cirrhosis of the liver – smoking and alcohol again. Cancers associated with Agent Orange were too few for any conclusions to be drawn. And veterans were no more likely to commit suicide than non-veterans.</div>
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In conjunction with the mortality study was a health study which was much less scientifically based. Questionnaires were sent to veterans, who indicated whether they had ever been diagnosed with specific disorders. Thus, they had to rely on the veterans’ own interpretation of what their doctors had told them. There was no control population ie no group with the same characteristics as the veterans except that they had not been to war, so the Commission was forced to search the literature for information to the incidence of each disease in the general population. In many cases, there was none. The results could be expected. Some conditions were found to be more common in veterans, but could be dealt with simply under the SoP régime, for some conditions no useful conclusions could be made, and there were some conditions which suggested the need for more research, but none was undertaken.</div>
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Ironically, there was one question which, had it been asked, would have been informative: “Are you, or have you ever been, a smoker?” The incidence of smoking in the community is well known, so it would have been possible, once and for all, to determine whether veterans smoke more than non-veterans. I asked the doctor responsible for the questionnaire why it wasn’t included. He said there wasn’t enough space.</div>
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In 2006 the outcome of three new studies was published, covering nearly every Vietnam veteran since they returned home. The results were as expected. Despite the very real presence of psychiatric illnesses in veterans, their suicide rate was still the same as the general public. They still had a lower death rate than the population as a whole. But, compared to national servicemen who didn’t go overseas, they do show a higher mortality and incidence of cancer associated with tobacco, alcohol and sun exposure. Naval veterans, who had least contact with the enemy, and the least hypothetical exposure to Agent Orange, were the worst. But, it might be added, the cancer rate was independent on the ship involved, or the length of time in Vietnamese waters, and so appears to be related to the naval culture and lifestyle.</div>
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Exposure to chemicals continues to generate paranoia, fuelled by the fact that, every now and then, one of the claims is found to be genuine. In the early 21<sup>st</sup><span class="Apple-converted-space"> </span>century, the big scare was the “Deseal Reseal” program, under which the sealants in the fuel tanks of the F111 bombers were removed and replaced. More than 1,500 people claimed a variety of non-specific symptoms due to direct or peripheral involvement with this unpleasant job over the period 1973 to 2000. The Department was forced to assess their claims against the current SoPs, and then hold the others in limbo until the SHOAMP (Study of Health Outcomes in Aircraft Maintenance Personnel) finished its investigations. It took them four years. Just how rigorous was the scientific investigation can be shown by the debriefing we received at the end of the study.</div>
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“Before the Government can decide on a course of action,” the manager said, “it has to first determine who was, in fact, ‘deseal reseal’. Was it only those who actually went inside the tanks, or those who were just casually involved?”</div>
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At that, I put up my hand. “What’s the problem?” I asked. “Why don’t they just use the definition used in the study?”</div>
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“That’s the problem,” she replied. “The study didn’t use any definition.”</div>
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“Wait a minute,” I said. “How can you do a study with a genuine control group if you don’t first define your test group?”</div>
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My manager, to her credit, did not try to justify that approach.</div>
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In the end, the RMA was able to produce SoPs for one additional disease, solvent related chronic encephalopathy, a form of brain damage normally associated with kids who sniff solvents, but can also be caused by applying the solvents in an enclose space (eg a fuel tank) for ten years. Not many veterans would qualify. None of the other non-specific symptoms could be realistically connected to the job.</div>
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Obviously, a political solution was required. All those directly involved in the deseal reseal program were given a lump sum of $40,000, with a sum of $10,000 available to those peripherally involved. The pension claims in limbo were finally activated, and all of them rejected.<br />
The veterans were not amused.</div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/6-sundry-rorts-by-honest-people.html" target="_blank"><span id="goog_781981825"></span>To Chapter 6<span id="goog_781981826"></span></a></strong></div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Back to Index</a></strong></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-54249383403630874832013-03-05T07:00:00.000+10:002013-03-11T14:22:24.776+10:006. Sundry Rorts by Honest People<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
Quite apart from the smoking contention, there are many ways honest people can rip off the system. Let us glance at a few.</div>
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<i>Assessment</i></div>
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You will remember from<span class="Apple-converted-space"> </span><span style="color: black;"><span style="font-family: Times New (W1), Times New Roman, serif;">Chapter 2</span></span>, that pensions are assessed on a combination of objective medical impairment and lifestyle effects. Medical impairment is frequently overestimated, because it is based on reports by the veteran’s own GP, who usually adopts a generous attitude towards his patient, and often does not fully understand the workings of G.A.R.P. For example, orthopaedists tend to find a greater range of movements in a joint that GPs can. When assessing effort tolerance (the amount of exercise possible with a particular lung or heart condition), an objective study such as a stress test almost invariably reveals a veteran to be fitter than his GP thought.</div>
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With respect to lifestyle, there exists a table of lifestyle ratings against impairment, with a “shaded area” where most people fit. There also exists an unofficial Commission policy which goes like this: (i) when legislative changes are introduced, implement a complicated procedure of investigation; (ii) when people complain – concede! Thus, when the G.A.R.P. was introduced, every applicant was sent a questionnaire about his lifestyle. Professional clerks have no problem with filling out forms, but it is all too much for many veterans and their advocates. Therefore, the Commission instituted a new policy: let the veterans assess their own lifestyle.</div>
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Of course, this assumes two things: (1) they are honest – and most are, and (2) they and their advocates are sufficiently familiar with the G.A.R.P. rating system to know what they are doing. Most of them are not. According to the powers that be, tests have shown that self-assessments are usually accurate. Everyone working at the coal face knows that this is nonsense. In cases of ambiguity, people are subconsciously driven to favour their own cause. When a properly completed lifestyle questionnaire is put in front of them, veterans’ advocates will consistently overestimate the ratings. Added to this is the fact that veterans normally rate their whole lifestyle, not just the conditions accepted or claimed as war-caused. In addition, they normally include several conditions in a claim, only some of which will end up being accepted. Thus, they end up including non-accepted conditions in their ratings. However, the Commission decreed that a lifestyle questionnaire should only be provided if the self-assessment was more than one point outside the “shaded area”, or it was manifestly implausible. Result: pensions are regularly overassessed.</div>
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<i>Skin Problems</i></div>
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Tinea is a ubiquitous condition in warm, moist environments, and people whose skin is vulnerable to it are liable to multiple infections, no matter how frequently it is treated and cured. If a victim is asked when he was first infected, he will look back over the years and remember that it took place during the war, and how can anyone deny it? Almost invariably, his discharge medical exam will show that his skin was clear at the time, but no-one draws the obvious conclusion that his current tinea is the result of a new infection. Therefore, most claims for tinea are accepted.</div>
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The same goes for skin cancers and the even more common solar keratoses (“sun spots”). Most readers will be aware the Australia is the world capital for these conditions, the unfortunate result of combining white skin with tropical and semi-tropical sun exposure. The Federal Court had long ago ruled that sun exposure is a normal part of life, and thus could not be attributed as service-related unless service resulted in more sun exposure than civilian life. Taking this to heart, the RMA made the following ruling: skin cancers and sun spots can be regarded as service-related if, on the balance of probabilities, service added an extra 20% sun exposure to the lifetime exposure. For the “benefit of the doubt”, this was reduced to 10%. Both figures, needless to say, were completely arbitrary.</div>
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The RMA also provided an extremely complicated formula by which sun exposure could be calculated. The Commission’s response was to acquire a computer program to handle the algorithm. They then drafted a questionnaire on sun exposure which was not only confusing, but inadequate, so that that the information fed into the computer followed the GIGO (garbage in, garbage out) principle. Nevertheless, it must be admitted that, where a person has a largely indoor civilian occupation, a couple of years of the outdoor life of the military will add significantly to his lifetime exposure to the sun. Just the same, it is the lifetime exposure, not service, which is predominantly to blame.</div>
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Anybody who failed the relative exposure test would be swept up by the new SoP issued some years later. A new factor was included that involved the absolute level of sun exposure. No allowance was made for whether your skin is fair, olive, or even black, and merely living in Australia is sufficient to satisfy the test. If the absolute threshold is not reached on service, one can always invoke<span class="Apple-converted-space"> </span><i>Kattenberg</i>.</div>
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Nearly all claims for tinea, skin cancer, and solar keratoses are accepted. There are also local traditions in pension claims. In Queensland, one practically never sees a claim for neurodermatitis, but some veterans’ advocates in southern states religiously attach it to any psychiatric claim. This condition has two things in its favour: (a) there is no SoP, so any medical opinion will do, and (b) in its milder form at least, there is no objective method of diagnosis, only the applicant’s say so.</div>
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<i>Hearing Loss</i></div>
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Nevertheless, the above skin conditions are, to coin a phrase, “small bikkies”. Rarely would they equate to more than five impairment points – useful in an on-going campaign to get the maximum pension possible, but not terribly important in the great scheme of things. More serious is the issue raised on the first page of this book: sensorineural hearing loss. As my uncle discovered, quite significant pensions can be accrued as a result of this condition even half a century after the end of a war.</div>
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Sensorineural hearing loss is the commonest form of hearing loss, and is regularly associated with noise exposure and ageing. Needless to say, anybody who regularly handles guns has a strong risk of being partially deafened, particularly in the ear nearest the firearm – and many riflemen, machine gunners, and artillerymen returned from the war with just this problem. But many did not. However, the way the SoP is worded, even a single gun shot is sufficient. Nor is this hypothetical; I remember a case where a sailor’s claim succeeded because, on a short voyage to Vietnam, he heard a group of soldiers practising with their rifles.</div>
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It makes no difference if the onset of hearing loss was 30 or 40 years after the firing had ceased, nor how much noise exposure the veteran may have experienced in civilian life. If he heard a gun shot, his pension is assured. The G.A.R.P. does adjust assessment for the effects of age, but in a perverse manner. It is discounted by five years. In other words, there is a legal fiction that all veterans are recruited from the ranks of the acoustically superior, and a 65 year old veteran, had he stayed a civilian, would have had the ears of a 60 year old.</div>
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Everyone’s hearing deteriorates with age, and common sense dictates that, for half of us, the deterioration will be greater than the average. However, presbyacusis, the hearing loss which accompanies ageing, is qualitatively different from that caused by simple noise exposure. Sound frequency is measured in Herz (Hz), or cycles per second. If a graph is produced of hearing loss against frequency, noise related hearing loss will show a sudden drop at a particular frequency, usually around 4,000 Hz, followed by a sudden rise at higher frequencies, such as 6,000 or 8,000. In other words, there is a partial deafness exactly at the frequencies of the loud noise that caused it. “Gunner’s notch” is a popular label for this phenomenon, but it was previously known as “weaver’s notch”, indicative of the industrial deafness caused by the weaver’s shuttle. In presbyacusis, on the other hand, there is no notch. There is a steady drop in hearing from 4,000 to 6,000 to 8,000 Hz. Occasionally, the lower frequencies are affected as much as the higher frequencies, indicating neither age nor noise exposure, but something else.</div>
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The SoP makes no distinction between these types of hearing loss. If gunshots have been heard in the distant past, then it is assumed that they have contributed to the current hearing loss, even if only to a very small extent.</div>
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Even if a veteran’s hearing loss is clearly due to his war service, you might think that his pension rate would be set by the level of hearing first detected, and that any worsening would be treated as function to age. Not so. If war contributed to a disease, it remains a contributory cause, even though the percentage contribution will be continually reduced with the passage of time.</div>
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One last peculiarity of this condition is the way the pension is assessed. With loss of eyesight, pension is paid on the<span class="Apple-converted-space"> </span><i>corrected</i><span class="Apple-converted-space"> </span>visual acuity ie how well the person can see while wearing glasses. Hearing, however, is never measured with a hearing aid in place. Hearing aids, of course, are not completely effective. For a start, their wearers are still at a disadvantage in crowds. But under most circumstances, they allow the user to operate fairly normally, and it would not be beyond the abilities of the powers that be to devise a formula to cope with this fact.</div>
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As it is, most veterans older than middle age have an entitlement to sensorineural hearing loss. Quite large pensions are being paid out despite the facts that any contribution by war service is minimal or non-existent, and its effects can be 90% corrected by means of hearing aids. As I said to my uncle, Veterans’ Affairs is designed so that even perfectly honest people can rip off the system.</div>
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<i>Impotence</i></div>
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Claims regarding impotence, or erectile dysfunction, as the latest SoP calls it, almost invariably occur as part of an omnibus claim. What this means is that almost nobody thinks to himself, “I can no longer rise to the occasion; it is all due to the war.” Rather, he attends the R.S.L., or some other ex-service organisation, with respect to some other condition, or just a hope of getting a bit more money. An advocate then says to him, “Well, while we’re at it, we might as well claim a few other conditions which are easily accepted. What about sun spots and hearing loss? And how is your sex life? We better add that to the list.”</div>
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Impotence can usually be accepted on the basis of either smoking, or anxiety and/or depression, but the action of these factors is quite different. Anxiety and depression cause a psychological block, whereas smoking produces a physical disease, by restricting the blood flow to the penis. A victim of smoking related vascular impotence should no longer experience nocturnal erections, in which case his mental state is irrelevant. Conversely, if he still has erections while asleep, his failure with his wife is likely to be all in his head. The SoP, however, fails to distinguish between these two effects, so many claims are accepted which should have been rejected.</div>
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But the reason this finds a place in the current chapter is the particular way some veterans’ advocates have found to manipulate the system. The assessment is made on how much the veteran has missed out on in life. Thus, if the onset of impotence was between the ages of 40 and 64, it is worth 15 impairment points, but only 10 points if the onset is between 65 and 74. So, for exanple, when a 70 year old veteran is being examined by his doctor, he will say he has been impotent for (say) four years. However, at the VRB hearing, his advocate will claim that the real age of onset was 60 – thus adding an extra five points in the campaign for maximum pension. This has happened so often in the case of certain advocates that it is hard to believe deliberate lying is not involved, but the Board never asks the veteran about the discrepancy.</div>
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<i>Osteoarthrosis / Spondylosis</i></div>
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Osteoarthrosis is what most people mean by “arthritis”, and it can appear in any joint, but the most common are the knee, hip, lower back and neck. When it occurs in the spine, it is known as spondylosis.</div>
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The only effective way to avoid it is to die young, for it is a degenerative disease. Essentially, our joints are gradually wearing away with the normal processes of living, but at the same time the body is constantly repairing itself. While we are young, the processes are in balance, but as we grow older the reparative ability of the body slows down, and the joints degenerate. (The same thing happens to the rest of the body, which is why our muscles lose tone and our skin grows thin and wrinkly.) However, there are a couple of factors which can tip the balance in favour of wearing away, and so lead to early osteoarthrosis or spondylosis.</div>
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The first is an injury, or trauma, so severe as to disrupt the bony integrity of the joint. This is defined in the SoP as:</div>
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“a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset” (ten days for “balance of probabilities”).</blockquote>
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It all sounds pretty impressive and clear cut. But the fact is, even the detailed clinical notes kept by the modern military in Australia seldom go into that much detail. Once a serviceman leaves the country for a war zone, the notes become even sketchier or non-existent. The result is that the blanks – or more often, the entire story – has to be filled in by the veteran’s memory, which is decades old at best, and likely to be subconsciously self-serving. A middle aged, or even elderly, man finds that his knee or back is playing up, and he casts his mind back to a time when he hurt that part of his anatomy, and went to the Regimental Aid Post, where the doctor or first aid officer gave him some liniment and put him on light duties for a few days. It might have been merely a soft tissue injury like a bruise or sprain, or it might have been more serious. Perhaps a record was kept, or perhaps it wasn’t. If it was, it may not have reached his file. In any case, no record was kept of how long all the pain<i><span class="Apple-converted-space"> </span>and</i><span class="Apple-converted-space"> </span>tenderness<i><span class="Apple-converted-space"> </span>and</i><span class="Apple-converted-space"> </span>altered mobility or range of movement lasted – and how many people remember such details?</div>
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Osteoarthrosis at multiple sites should always be suspect. A man writes that he fell heavily while entering a landing craft, injuring both knees and one shoulder. A brief reflection, however, should alert you that it could not have happened quite like that. When you fall, one part of the body takes the brunt of the blow. The secondary sites may be bruised or skinned, but they are not likely to incur the full seven days of pain, tenderness, and loss of range of movement. What the claims assessor should do is phone the veteran and get the full story, but most investigators do not go so far, and so a lot of dubious claims are accepted.</div>
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Sometimes a veteran really did suffer a serious injury to (say) his lower back, and his lumbar spondylosis was rightly accepted as war-caused. Years later, his neck also starts playing up, and he assumes it must have been injured at the same time. If the contemporary hospital records fail to mention it, he assumes it was because the doctors were paying attention to the more serious problem of his back.</div>
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Whenever I received such a claim, the first thing I would do is check the service medical record. In the vast majority of cases, the incident was not recorded. When it was, in nearly every case, the contemporary records did not match the veteran’s memory of events. From this, one can reasonably conclude that the same thing applies to the cases where records are absent. Like smoking histories, most injury histories are inaccurate – honestly held, no doubt, but inaccurate. And because we have to rely predominantly on faulty memories, a great many pensions are incorrectly handed out.</div>
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Another thing emerges from the medical records: on the few occasions where the veteran’s memory turns out to have been correct, the condition has been present, and accepted by the Commission, for several decades. This brings us to the biggest defect in the system. The “balance of probabilities” SoP requires that the onset of osteoarthrosis or spondylosis be within 25 years of the injury. If it doesn’t appear by then, presumably the body had been resilient enough to cope with it. However, the “benefit of doubt” SoP contains no time limit.</div>
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Consider the biological implications. It is not as if, on the balance of probabilities, there is one chance in 25 of osteoarthrosis developing every year until the 25 year limit, when the probability suddenly drops to zero. Rather, the probability would be low in the first few years, because it takes time for degeneration to set in, would peak somewhere in the middle of the period, and then slowly decline. In other words, if the damage is going to turn osteoarthrotic, it will most likely happen 5 to 15 years after the event, but may take place later. On the balance of probabilities, it will not first present after a lapse of 25 years, but the off-chance cannot be ruled out if we are considering “reasonable doubt”.</div>
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Nevertheless, after 25 years, the probability must be very low. After 30 years it would be lower still, after 40 vanishingly small. Nor is this situation merely hypothetical. The youngest of the Vietnam generation are now approaching 60, the age at which these conditions begin to make their appearance. The veterans of earlier wars are well into old age. Yet Veterans’ Affairs is regularly accepting claims on the basis of events which happened 40, or even 50 or 60, years ago, and based on nothing but the claimant’s memory.</div>
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A second major cause of osteoarthrosis and spondylosis, at least in the weight bearing joints (hips, knees, ankles, and back) is sheer hard work. To quote the “balance of probabilities” SoP, this means:</div>
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“lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of<span class="Apple-converted-space"> </span><span lang="en-US">osteoarthrosis [or spondylosis] in that joint.”</span></blockquote>
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For the “beyond reasonable doubt” standard of proof, the figures are reduced to 25 kg to a cumulative total of 120,000 kg.</div>
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Suppose a man lifts a 60 kg pack onto his back and carries it all day. That counts as 60 kg towards the required 120,000. But if he happens to sit down or squat ten times during that weary day, the pack still in place, then that counts as 600 kg. If he does this for 200 days, he will have reached the threshold. The logic of this might sound somewhat peculiar, but that is what infantrymen really did in Vietnam, and many of them really do have prematurely old backs and knees, so we should not begrudge it to them.</div>
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For other cases, however, the problems should be obvious. Nobody ever asked the weight of an item he was told to lift. Nobody ever counted how many times he lifted it. Equally pertinent, no official records were ever kept. Yet now, 40 or more years after the events, he is being asked to estimate these figures. The tendency is to massage them upwards because, after all, he does have a bad back/knee/hip, and what else could be the reason? Surely not old age? If the threshold still cannot be reached, one can always throw in weights lifted during non-eligible service, or even in civilian life, on the basis of <i>Kattenberg</i>. (Now you see the results of this perverse decision.) Thirty-five kilograms is half an average man’s body weight, but 25 kg is well within the range of required lifting in times of war. Many of the contentions, particularly sailors involved in unloading ships, and soldiers involved in stacking sandbags, sound exceedingly plausible. Many do not – such as the nurse who claimed to have been lifting 70 kg men several times a day (by herself?), but even these are frequently accepted without any challenge, or request for clarification.</div>
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But the real problem with the heavy lifting criterion is not its haphazard and unverifiable qualities. It is that, like the injury criterion, the “balance of probabilities” SoP requires onset within 25 years, and the “beyond reasonable doubt” SoP has no time limits.</div>
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Today there are thousands of pensions being given out for orthopaedic problems which are definitely, absolutely the results of old age. Any contribution by the war is so small it hardly matters. Not only that, but as the individual veteran grows older, more and more conditions get added to the list.</div>
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This phenomenon plays a major role in the TPI and EDA industries. In the next chapter, we shall examine the most complex racket of all.<br />
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<b><a href="http://repatracket.blogspot.com.au/2013/03/7a-ptsd-epidemic-part-1-of-3.html" target="_blank"><span id="goog_1118484999"></span>Continue to Chapter 7<span id="goog_1118485000"></span></a></b><br />
<b><br /></b><b><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a></b></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-82762490015003742632013-03-04T16:15:00.000+10:002014-01-23T09:16:50.331+10:007A. The PTSD Epidemic (Part 1 of 3)<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<span style="font-size: normal;"><span style="font-family: inherit; font-size: normal;">You have no doubt heard about workplace stress, and I won’t deny that it occurs. Nevertheless, if you are going through a nervous breakdown, for any reason, then you will most likely find that the normal pressures of work you once took for granted – the boss who keeps insisting you adhere to deadlines, the clients who keep ringing you up, the workmate who keeps tapping his fingers, the promotion you just missed out on – have become just too much for you. In other words, you should be able to convince yourself that the workplace is the cause, rather than merely the occasion, of your breakdown.</span></span></div>
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Of course, when it comes to claiming for worker’s compensation, a few things would stand in your way. There would be contemporaneous records of both your symptoms, and the sequence of events at work. Comcare could insist on using their own psychiatrist, and they would make their decision merely on the basis of balance of probabilities.</div>
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But suppose you based your claim on something that happened 20, 30, even 40 of more years ago, and you yourself are the only source of information. Suppose, too, that if the initial psychiatric report were not favourable, you go to another doctor, and then another, perhaps changing your story, or the focus of it, every time. Suppose too, that when you had finally got your case watertight, they<span class="Apple-converted-space"> </span><i>had</i><span class="Apple-converted-space"> </span>to believe you.</div>
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This is not fanciful. This is exactly what staff at the Department of Veterans’ Affairs face every day. For the last twenty years, the country has been in the grip of an epidemic of PTSD: post traumatic stress disorder, and the fundamental reason is money.</div>
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Nor am I alone in that opinion. Once in my travels I discovered that one of my companions was a psychiatrist practising in Northern Ireland – at the height of The Troubles, mind you – so I asked her if she had many PTSD cases.</div>
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“Quite a few,” she replied, “particularly from the security forces. They don’t represent an overwhelming section of my practice, but a significant part.”</div>
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“And are you able to cure them?” I asked.</div>
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“Yes,” she said, “but it takes time. The major problem is getting them away from the danger. Many of them have a quite realistic fear of being killed.”</div>
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“Well,” I said, “I work for the Department of Veterans’ Affairs in Australia, and most of our veterans claim that PTSD is incurable.”</div>
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At this point she went ballistic. “Well, what do you expect!” she exclaimed. “You’re paying them to be sick. You’re offering a prize, and wondering why the runners run. You keep baiting the hook and wonder why the fish keep biting. I refuse to have anything to do with compensation claims. Treatment must be completely divorced from compensation.”</div>
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In another vein, I could mention the visit of a group of South Korean officials who came to study the department’s computer system. “I suppose you have many PTSD claims,” my manager commented.</div>
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“We don’t recognize the condition,” they replied. Why not? During the 1950s their nation saw contending armies march twice down the whole length of the country. The capital, and innumerable towns were destroyed. Millions of internal refugees were driven into one small corner of the land. Hundreds of thousands were killed. As far as they were concerned, PTSD was the norm for everybody of that generation.</div>
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However, before we go into detail about the Australian experience, one issue should be made clear. Recently,<span class="Apple-converted-space"> </span><i>The Bulletin</i>, in particular, had been running articles, unaccompanied by any factual case history, about poor, broken warriors, psychiatricly traumatised by recent wars, being hung out to dry by the cold hearted Department of Veterans’ Affairs. So let me say here and now: this is ludicrous. The law is extremely generous. If anybody has been anywhere near the front lines, and has any sort of mental disorder then, except in a few very unusual circumstances, it will be nearly impossible to deny him a pension. This chapter has nothing to do with such people.</div>
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In any conflict, only about ten percent of the military are actual combat troops. Of course, it does not follow that the other 90 percent were not exposed to danger – even extreme danger – and hardship at times. You wouldn’t want to be a quartermaster during the retreat from Greece, let alone the fall of Singapore. But there were tens of thousands in the latter stages of the Second World War, when the enemy was in retreat, who served in bases well behind enemy lines, providing support for those in the front line, but never so much as suffered an air raid. In Korea, Malaya, and Vietnam, too, many others never left the base except to drive to secure villages or outposts, and the enemy ambush they worried about never eventuated. Yet Veterans’ Affairs is swamped with claims by the likes of these. Indeed, those who really were in the front line have commented that most of the claimants were rear echelon troops. And, inexplicably, many of them are successful.</div>
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War affects different people in different ways. Some of my clients had been seconded to the R.A.F., and the air war over Germany. These brave men were required to fly 30 sorties, knowing that they had one chance in 25 of being shot down<span class="Apple-converted-space"> </span><i>every time</i>. Their death rate was the highest of any units of the Western allies, higher even than the prisoners of the Japanese. Understandably, many of the survivors had psychiatric difficulties - but it is amazing how many didn’t.</div>
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Then there was Mr B, a naval gunner. The war took him to the Mediterranean, where he manned the guns against the Luftwaffe, while bombs splashed seemingly at arm’s length from the ship. A couple of years later, he was in the Leyte Gulf, manning the guns against the kamikazes. Of course, he told a psychiatrist, he was scared while the battle was on. But what he couldn’t understand was why many of his shipmates were shivering and shaking hours, sometimes days, after the action was over. It didn’t make sense, in his opinion; the danger was past.</div>
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On the other hand, let us consider Mr M. Admittedly, he was only 17 when his ship went to Vietnam, to escort the troops destined to do the fighting. Vung Tau harbour is so shallow that troop ships had to anchor off shore, while men and supplies were ferried on small boats. The day before they arrived, he was told his duty would be to operate a radio ashore, next to the disembarkation pier. This would be no storming the beaches at Normandy, but an orderly transfer of soldiers at one of the safest harbours in Asia. But, when given a pistol, he was so nervous, his hand shook so much he could barely aim it. The next day, on the shore, his nerves were so bad, his stuttering made his radio communication incoherent. He has been a nervous wreck ever since.<br />
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<em>The Nature of Mental Illness</em></div>
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To put everything in perspective, it is necessary to consider the incidence of mental illness in the general community. In medicine a distinction is made between the point prevalence – the percentage of people currently afflicted – and the lifetime prevalence, or the percentage who will be afflicted at some stage of their lives. The former will always be less than the latter, to take into account those who have not yet got the disease, and those who have got better. For generalised anxiety disorder, the point prevalence is approximately 3%, and the lifetime prevalence 5%. For dysthymia (chronic depression) the figures are 3% and 6% respectively. For specific phobias they are 4% – 8.8% and 7% - 11%, depending on the means of assessment. Further conditions can be added to the list as required. It has often been claimed – I don’t know on what authority – that a third of us will require psychiatric treatment at some stage, and I include myself in that category. In any case, it is clear that the scope of the problem is vast, and one must assume that a lot of those who went to war would have fallen victim to one of these disorders in any case.</div>
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Many, perhaps most, of the commonest mental disorders have their onset in early adulthood which, of course, also happens to be the age men go to war. Mr M would probably have fitted into that category. He appears to have been a naturally timid soul who should never have enlisted. A similar conclusion might be reached in the case of a Korean War veteran I interviewed. During the war, his duty was organise the transfer of supplies from ship to truck to the front. Yes, the base was bombed at one stage, but that wasn’t what bothered him. What caused his nerves, and the churning of his stomach, was the sheer pressure of the deadlines. After the war, he ran his own trucking company. Whenever accounts came due at the end of each month, he again got a nervous churning in the stomach. It is not difficult to see that he had a naturally anxious temperament, and that the war had nothing to do with it. But if he consulted the right psychiatrist, there is a good chance his claim would succeed.</div>
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Alcoholism is also such a pervasive evil in our society, that one can hardly expect that veterans would be exempt. But military service is also frequently the occasion when a man is introduced to the custom of social drinking. Indeed, in many cases, he was too young to drink before he enlisted. So did the war cause his alcoholism, or did it just provide the opportunity?</div>
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Veterans, like civilians, present with a wide variety of psychiatric disorders, but the ones most likely to be accepted as war-caused are, in order, PTSD, alcoholism, and generalised anxiety disorder. The first is a reaction to extreme experiences, such as combat, rape, or other physical assault. The second is something we are all familiar with. The third is more a personality quirk: a long term tendency to be anxious about anything and everything. But to understand the situation in Veterans’ Affairs, it is necessary to understand a bit about the nature of mental disorders.</div>
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Before a condition can be determined to be war-caused, a diagnosis is required, and the SoPs require that it adhere to the diagnostic criteria of the <i>Diagnostic and Statistical Manual of Mental Disorders</i>, fourth edition (DSM-IV), published by the American Psychiatric Association. As such, it reflects a particular American viewpoint – to be more precise, the viewpoint of the 200-odd psychiatrists who control the APA.</div>
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There is one small problem: the DSM-IV was never intended as a diagnostic tool. It was intended for research. If you want to research, for example, the causes of agoraphobia or the treatment of obsessive compulsive disorder, then it is useful if everyone agree on what is being discussed. But every realistic psychiatrist will admit a degree of artificiality in the diagnoses. Physical diseases are discrete. You can have osteoarthrosis in one knee, but not the other. You can have tuberculosis, but not asthma. But the mind is not so compartmentalised; everything is related to everything else. The diagnoses thus bear some resemblance to vegetation maps. It is useful to look at a map and see that one area is said to be covered with wet sclerophyll forest, and another with dry sclerophyll woodland, but anybody who expected to see as clear a demarcation on the ground as on the map would be setting himself up for disappointment. Similarly, placing a circle around a set of symptoms which tend to go together and calling it a diagnosis has some practical value, but overlapping symptoms and incomplete diagnoses are going to be commonplace. Nevertheless, experience shows that if psychiatrists are allowed to be sloppy in their diagnoses, a lot of highly questionable situations will result.</div>
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An appendix to DSM-IV covers “culture-bound syndromes” ie disorders which are found only in certain cultures. Most appear to be variations on more familiar themes, but some can be bizarre. Such is<span class="Apple-converted-space"> </span><i>koro</i>, included in the<span class="Apple-converted-space"> </span><i>Chinese Classification of Mental Disorders</i>, and which causes males of east and south Asia to go into a panic about their penises receding into their bodies. It was also suggested that anorexia nervosa and multiple personality disorder are culture-bound syndromes of the West, being rare or non-existent elsewhere. The former, certainly, appears to be of recent origin.</div>
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This illustrates something which most people would find counterintuitive: manifestations of mental illnesses are, to a certain extent, influenced by society’s expectations. It is from society that we learn, not only how to behave under given circumstances, but also the conditions we can expect to put up with, the ones we can expect to be beyond our powers to cope, and how we are expected to react when we cannot cope. A minor example of this is the fainting fit, or “fit of the vapours” which 18<sup>th</sup><span class="Apple-converted-space"> </span>and 19<sup>th</sup><span class="Apple-converted-space"> </span>century ladies were expected to exhibit when distressed, and which allowed them to unconsciously escape from difficult situations. There is no point in developing a private neurosis, Freud is alleged to have said, if there is a public neurosis available.</div>
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Readers are no doubt aware of physical diseases, such as diabetes and Parkinson’s disease, caused by chemical imbalances in the body. The same thing applies to the mind, because impulses are passed between cells in the brain by chemicals called neurotransmitters, and when they are out of balance, the victim’s emotions and thought patterns go awry. Indeed, mood-altering drugs, such as the opiates, and even caffeine, have their effect by means of their close resemblance to certain brain chemicals. Schizophrenia may even be the flip side of Parkinson’s disease. Whereas Parkinson’s disease is caused by a lack of the chemical dopamine, the drugs which control schizophrenia block the effects of dopamine. (Yes, I know this is an oversimplification.)</div>
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Likewise, such disorders as bipolar disorder, in which the victim alternates between a manic and a depressive phase, probably result from the imbalance of other neurotransmitters. Depression, in particular, has been linked to low levels of a chemical known as serotonin. These problems appear to be constitutional in origin, but serotonin can be knocked out of you by events. Everybody knows that a severe setback, such as bereavement, or the loss of a job, can trigger a bout of depression. But one thing we know about such reactive depression is that, after a while, you snap out of it. If depression lasts for years, the odds are it is not due to an external event. Nevertheless, many sufferers have had it accepted as war-caused.</div>
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A case can be made that such conditions are the only true mental “illnesses”, and that everything else is a social or personal problem dressed up in medical terminology. This is certainly the case with personality disorders, which might be simplistically defined as an inappropriate attitude to life and other people. The advent of the SoPs has made such conditions almost impossible to accept, but it wasn’t always the case. Dr Whiting (<i>Be In It, Mate!</i>) marvelled at pensions being granted for something labelled “inadequate personality”, which he interpreted as meaning “bit of a no hoper”. (I was told it was a code word for alcoholism. In one case I know for a fact it meant “bone lazy”.) I shall never forget one fellow who, somehow or other, got obsessive personality accepted as defence caused. He was no doubt pleased with the pension, but was outraged by the diagnosis, and immediately sent to the VRB, and his local Member of Parliament, a fourteen page letter, with fourteen pages of attachments, to prove that he was not obsessed.</div>
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A great variety of personality disorders are listed in DSM-IV, some apparently well-established, and some designated for further study and comment. A victim (if that’s the right word) of histrionic personality disorder always wants to be the centre of attention, while someone with a narcissistic personality is, to use the vernacular, full of himself. In contrast, avoidant personality disorder implies painful shyness. Someone with paranoid personality disorder thinks the world is against him. If he has depressive personality disorder he is a chronic pessimist. If a person resists doing anything anybody else wants him to do, he has a negativistic personality disorder. Antisocial personality disorder (psychopathy) refers to someone who has no conscience, or respect for others. Often this is preceded by conduct disorder, which is a label given to children who are really, really bad.</div>
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As you can see, there tends to be an overlap between the mental disorder label and what would commonly be regarded as moral defects though, to be fair, the editors of DSM-IV do stress that people are still responsible for their own actions. Nevertheless, there does appear to be a certain arbitrariness about what makes the list. Sexual sadism is included, but rape is not. Childhood gender identity disorder is still included, but the condition it often develops into, adult homosexuality, was removed from DSM-IV in 1977 after a <a href="http://www.scribd.com/doc/69609293/The-Trojan-Couch-Satin-Over" target="_blank">major political campaign</a>, and in defiance of mainstream psychiatric opinion, not to mention common sense. Thirty years later a move was made to discuss the removal of all the paraphilias (perversions), but this time they ran into a snag. A long series of child molestation scandals had recently alerted the public, and when word got out that the APA was about to declare pedophilia normal, the political counter-campaign proved too strong. Incidents like this tend to tarnish the APA’s claims of objectivity.<br />
<br />
<em>Diagnostic Problems</em></div>
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In between the chemical imbalance disorders and the personality disorders lie those conditions which are essentially, a failure of the mind’s coping mechanism – with the proviso, of course, that some events are so severe that very few people could be expected to cope with them. This is where PTSD comes in. It is not a new disorder; it used to go by such names as shell shock and combat fatigue, but it was only after the Vietnam War that it received its current format, which is shown in the table on the top of this blog labelled, <a href="http://repatracket.blogspot.com.au/p/ptsd-criteria_27.html" target="_blank">PTSD Criteria</a>. I would suggest you keep it open while you read the following.</div>
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Taken at its face value, the syndrome is easy to understand. This is what happens when a person’s coping skills are completely overwhelmed. The victim cannot get the traumatic event out of his mind. It comes back to haunt his dreams and his waking thoughts. Any reminder makes him feel like he is back there again. Consequently, he seeks diligently to avoid anything which reminds him of it. He is irritable, he cannot sleep. He jumps at shadows, because responding with lightning reflexes was once the only thing which kept him alive. Not surprisingly, full blown PTSD is not difficult to diagnose.</div>
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Unfortunately, things are never as simple as that where money is concerned. When the PTSD epidemic first made its presence felt, psychiatrists tended to be rather rough and ready in diagnosing it. When the SoPs arrived in 1994, and the department insisted on the DSM-IV criteria being used, it did not result in more considered diagnoses. Rather, it meant that psychiatrists became more imaginative in artificially forcing their patients’ symptoms into the mould of PTSD. Let us examine them one by one.</div>
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Section B, re-experiencing, is probably the most characteristic feature of PTSD. Note, however, that only one item needs to be present, and some can be easily fudged. Distressing dreams are a good example. Frequently, the psychiatrist fails to ask the content of the dreams. Often it transpires that they bear no resemblance to anything which actually happened on service. The psychiatrist will then claim that they are symbolic of actual events – which may well be the case, but they also may be totally unrelated to any actual trauma. With a bit of imagination, any dream can be regarded as symbolic of anything. What about (1) recurrent and intrusive distressing recollections? Often this is not distinguished from ruminations. People tend to ruminate over negative life experiences when they are depressed. If a person is pursuing a pension related to the war, it is likely that thoughts about the conflict will start to dominate his consciousness. Not only that, but if you have ever had a dramatic experience, whether good or bad, the memory of it will jump into your head whenever you see something similar. However, many veterans – and quite a few psychiatrists – incorrectly call these “flashbacks”, thus fitting themselves into B(3), although a flashback, by definition, means that the person feels he is back in that situation again. B(4) and (5), along with C(1) and (2) are particularly instructive. The victim of PTSD will typically break into sweat or trembling, or display other signs of distress and arousal, when discussing the traumatizing event. Yet, I have lost count of how many times I have stood in the AAT and watched a man, on minimal or no medication, spend half an hour to an hour in the witness box, calm as a cucumber, while he describes the events that allegedly left him a nervous wreck. In most of such cases, his psychiatrist will then state that he satisfies B(4) and (5). (And yes, I have met people who really did have PTSD – and it showed.)</div>
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Let’s go to section C: avoidance. Only three items are required, but it will be noted that only the first three are directly referable to the alleged traumatic event. Numbers (4) to (7) could easily be the result of non-war-caused anxiety, depression, or simply alcoholism. Number (7) might even be a realistic assessment of the situation! Even (1) and (2) may have nothing to do with PTSD. Most of us will avoid thoughts, conversations, activities<span class="Apple-converted-space"> </span><i>etc</i><span class="Apple-converted-space"> </span>about negative experiences in our lives. Why rake over the past? Put it behind you! This is a normal reaction, not pathological. Likewise, a veteran may avoid marching on ANZAC day, or joining the R.S.L., because it brings back too many disturbing memories – or it may be because of the way he was treated when he came back from Vietnam, or because of personality clashes with the members of the local R.S.L, or because he dislikes their political stance, or because he is simply not interested. If he doesn’t watch war movies or read war stories, he might simply be joining a lot of non-veterans who regard them as a load of rubbish.</div>
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As for section D, these are simply anxiety-type symptoms, not necessarily specific to PTSD. Only two are required, and it is not difficult to list a couple – say (1),(2), or (3) – which even healthy people may experience.</div>
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To alleviate their suffering, the most common method victims of any significant psychiatric disorder use is to self-medicate with alcohol. The result is a short term relief, but the long term effect is to make the condition worse. Conversely, if excess alcohol is not taken then, over a period of decades, PTSD tends to<span class="Apple-converted-space"> </span><i>get better</i>. (I know it is an article of faith in many veterans’ organisations that PTSD is incurable, but I have seen enough case histories to the contrary to know better.) The result is, by the time a claim reaches Veterans’ Affairs, the condition is almost invariably complicated by alcoholism.</div>
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But even here, problems arise. How do we know that alcoholism is not the sole diagnosable condition? Alcoholism is known as the great imitator. Sections D, E, F, and at least half of C could quite easily be the side effects of alcoholism. Even when the veteran has really experienced a traumatic event, how do we know that it was the cause of his alcohol abuse or dependence? He may have simply followed the same route most civilian alcoholics do: by commencing as social drinkers and not knowing when to stop. In most cases, war service occurs at the same age as social drinking, but there have been a number of cases where the veteran’s own testimony reveals that he was an alcoholic before he went to war. Indeed, it may well have already drowned his coping skills, and made him more vulnerable to PTSD.</div>
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Most psychiatrists accept a patient’s own account of his drinking habits, but occasionally one of them double checks by requesting biochemical tests. Not infrequently, the tests reveal that he could not possibly have drunk so much for so long.</div>
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“There is a lot of exaggeration of alcohol consumption,” one psychiatrist said to me.</div>
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“Surely it is the reverse?” I said, and then added the comment made by a reformed alcoholic: “If a man says he had four drinks, it means he had fourteen.”</div>
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“Under normal circumstances, yes,” replied the doctor, “but not in veterans’ claims. Veterans’ Affairs is the only venue where claimants are rewarded for their heavy drinking.”</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">You will also note the reference in Table 7 to “delayed onset”. The existence of such a delay cannot be doubted. Although many a soldier was evacuated from the battlefield suffering from “shell shock”, quite a few bore themselves up well during the conflict itself, when their whole effort was concentrated on staying alive, and they had the support of their comrades, only to “decompensate”, to use the technical term, on the way home. You may well have seen that joke poster hung up at work, proclaiming: “As soon as the rush is over, I’m going to have a nervous breakdown.” Sometimes, it is not a joke.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Just the same, some suspicion must be raised when the onset is excessively delayed. Every other psychiatric SoP requires the onset to occur within a certain short period after the putative traumatic incident. PTSD has no such requirement. Years, even decades, may elapse, and the claim need not fail. One soldier was returning home during peacetime when he came across a terrible accident. The victim, in fact, died in his arms. No-one would dispute that this was traumatic. However, by the time PTSD was diagnosed, and he was unable to work, eight years had gone by, and there was no evidence that he had sought so much as a tranquilliser from his GP.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Remember: this was non-operational service. The standard of proof was balance of probabilities, the same which applies to you and me in worker’s compensation claims. You too could witness an horrific accident on your way home from work. You too could then return to work the next day, continue climbing the promotion ladder, seek no treatment whatsoever, and then, after eight years, find yourself such a nervous wreck that you can no longer work.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In the above case, he was sent to two separate psychiatrists, but he could not be shaken on the presentation of his symptoms. This brings us to the major problem with the diagnosis: we are not dealing with naïve subjects. The symptoms of PTSD are common knowledge. In the 1980s, so the story goes, psychiatrists were perplexed to hear veterans insert into their litany of symptoms, “And I’m knitting a survivor quilt.” It turns out that the handout sent to veterans’ organisations contained the typographical error, “survivor quilt” for “survivor guilt. [David Straton (1999). The Trouble with PTSD.<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Traumatology</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-style: normal;">e<span class="Apple-converted-space"> </span></span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>5:1, Article 4</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">.</span></div>
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This eminently readable, and amusing, article deserves to be read in its entirety. It can be accessed <a href="http://psyberspace.com.au/articles/troublewithPTSD.pdf" target="_blank">here</a>.]</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Veterans have attended meetings held by ex-service advocates and been shocked to find they are being coached on the right things to say to get their claims accepted. One advocate boasted that he used to attend the psychiatric consultation with the claimant in order to “assist” him. In fact, he even boasted of writing Dr M’s reports for him. Of course, he may have been exaggerating, but having read Dr M’s reports, I am not at all sure.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Probably such bare faced lying afflicts only a minority of claims. But there are infinite gradations between outright malingering and complete, objective honesty. People can be self-deluded. They also have a tendency to act and feel the way society expects them to. As explained in the discussion on culture bound disorders, a public neurosis is available; they might as well take it.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Typically, a veteran’s first encounter with a psychiatrist is in relation to a pension claim. He has talked to someone in an ex-service organisation, and a helpful pensions officer explains to him that his problems are quite common. It’s called PTSD, and he really ought to put in a claim. The advocate then shows him the PTSD SoP, which includes the diagnostic criteria. His natural tendency will be to see himself in the list of symptoms, because he had been told he should, and it all makes sense anyway. At least a month or two will elapse between the claim and the consultation, and by then it is likely he has familiarised himself with the criteria. Unless he is brutally honest with himself, there will always be a temptation to exaggerate his own case to make it fit. In any case, a person going through a nervous breakdown is especially vulnerable to suggestion. If he is told that he should be having intrusive, distressing recollections of the event, then distressing recollections he will have. They will prey on his mind, and disturb his sleep, because he is now obsessed with the progress of his claim.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">And if the psychiatrist fails to support him? He goes back to the advocate, who gets him to appeal to the VRB. At the same time, he suggests he ask his doctor to refer him to another psychiatrist – one recommended by the ex-service organisation, who can be relied upon to say the right thing.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Added to this is the fact that so many psychiatrists use what is known as the Davidson Interview. Why they even imagine it can be objective is a mystery to me, and a greater mystery why the Department encourages, and pays for it. Perhaps I should quote a couple of the questions, so that you can see for yourself:</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">B.1. Have you experiences painful images or memories of your experience which you couldn’t get out of your mind, even though you may have wanted to?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Have these been recurrent?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">How often are you troubles by the memories?</span></div>
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…<span style="font-family: Times New (W1), Times New Roman, serif;">.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">B.2. I’d like to ask you about your dreams. Have you had repeated dreams of violence, death, or other themes related to your experiences?</span></div>
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…<span style="font-family: Times New (W1), Times New Roman, serif;">..</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">And so on. It goes straight through the PTSD criteria in a cookbook fashion, asking nothing but the sort of leading questions which would never be allowed in a court of law. Any interviewee can see what the “right” answer is. Even a completely honest veteran is likely to be subconsciously influenced to give replies that will assist his case. It mentions no other symptoms except those of PTSD and, unlike some questionnaires, contains no trick questions to determine if the interviewee is lying or, less culpably, is prone to agree with whatever question is put to him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Thus, by a combination of deliberate lying, suggestibility, the natural tendency to subconsciously advance one’s own interests, and the credulity of professionals, mental disorders tend to change over time to assimilate to the format of PTSD. Let us take a few examples:</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">J was a decorated war hero. “He was the bravest man in my unit,” his commanding officer said, “and I put him in the most dangerous of situations.” Some years after he returned from Vietnam, he had personal conflicts with his superiors, and suffered a breakdown. He cheerfully agreed with me that he had more trouble with his own hierarchy than with the enemy. As a result, schizophrenia was accepted as defence (not war) caused. In hindsight, this diagnosis appears dubious. It was more likely an isolated psychotic incident. In any case, the symptoms bore no resemblance to those of PTSD. It is also certain that, when he was examined some years later, he was psychiatricly normal. Yet, several years after that, he lodged a claim for PTSD and Dr M (remember Dr M?) supported him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">K also saw conflict in Vietnam, but by his own account, he had been an alcoholic for a long time prior to that date. Twenty years after the war, it all came to a head. A psychiatrist diagnosed alcoholism, along with a number of anxiety type symptoms but, despite sympathetic questioning, he was unable to detect any of the re-experiencing symptoms typical of PTSD. K was then sent to another psychiatrist, who<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>did</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>discover re-experiencing symptoms. Tellingly, the subject reported that they had been present only after he attended an army reunion. Moral of the story: have a nervous breakdown, talk to your friends about it, and they’ll give you a whole set of new symptoms.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">After his return from peacekeeping in Somalia, H came down with a whole suite of bizarre symptoms, the chief of which were night terrors (which are not the same as nightmares). A battery of military psychiatrists examined him, but were unable to reach a diagnosis, except to discover that it was<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>not</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>PTSD. They had specifically questioned him about the characteristic symptoms of PTSD, and came up negative. Next thing we knew, he had turned up in another state, with a report from a tame psychiatrist, and this time the whole panoply of PTSD, and nothing but PTSD, was displayed.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Of course, in hindsight, one can agree that H’s condition, however misdiagnosed, was at least due to his eligible service. J’s and K’s probably were not, but one hardly be upset if men of their calibre receive a pension. The next case, however, does not fit so well with the others.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In 1978 an air force dental technician had a nervous breakdown. The Department decided it was due to overwork, and determined it to be defence caused. (This was before the change in standard of proof.) Twenty years later, he came back with a report from a tame psychiatrist, who diagnosed PTSD stemming from his service during the Indonesian Confrontation. Interestingly enough, the psychiatrist failed to mention any traumatic event which could have precipitated PTSD. The veteran then mentioned running into a bout of strong turbulence when flying, which he had strangely omitted to mention to the psychiatrist. The irony is, he was already receiving a pension for it under the label, anxiety state. Moral of the story: PTSD is the diagnosis everybody likes.</span></div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/7b-ptsd-epidemic-part-2-of-3.html" target="_blank">Continue to Part 2 of Chapter 7</a></strong><br />
<br />
<strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Back to Index</a></strong>Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-91426493842648731992013-03-04T08:59:00.001+10:002013-03-11T14:26:26.991+10:007B. The PTSD Epidemic (Part 2 of 3)<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: x-normal;"><em>The Problem of Diagnosis</em></span></span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: x-normal;"> This, of course, brings us back to criterion A: a traumatic event. PTSD is unique in being defined, in part, by its cause. Theoretically, a patient can suffer all the other symptoms, but if there were no traumatic event, PTSD cannot be diagnosed. Indeed, this is not just theory; it happens all the time. As can be seen by the above example, psychiatrists are constantly making the diagnosis on the weakest of precipitant. There is no point is writing back to the doctor and saying: we don’t accept this diagnosis; tell us what is really wrong with him. The tame psychiatrist will stick to his guns. It might be useful obtaining a second opinion, but even then, the patient may stick to his guns about the symptoms he knows he has to have. When that happens, all psychiatrist no.2 can say is: it certainly looks like PTSD, but I don’t think he had a traumatic event.</span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: x-normal;">The SoP for PTSD requires a “severe stressor”, which is defined in much the same manner as “traumatic event”. So does alcohol dependence or alcohol abuse, but the onset of the dependence/abuse must be within two years of the stressor. Anxiety state, on the other hand, used to requires a “severe psychosocial stressor”, also within two years. This was defined quite differently from a “severe stressor”, but many decision makers failed to make the distinction. The latest SoP, however, contains a whole string of diverse stressors and varied time frames, with the result that it is somewhat more generous and somewhat less generous than the previous one.</span></span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;">So let us examine closely the definition of “severe stressor”/“traumatic event”:</span></div>
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<blockquote class="tr_bq">
“The person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.”</blockquote>
<span style="font-family: Times New (W1), Times New Roman, serif;"> The intention was to cover events well out of the normal range of experience, and which overwhelmed the victim’s coping responses. But immediately you should be able to see ways in which it can be watered down. Surely, we are all “confronted” with death whenever we attend a funeral? How far away do you have to be when you “witness” something? Does visiting an injured friend in hospital count? Just how immediate does a “threat” have to be? These days even an unattended bag can be a “threat”.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The RMA therefore decided to make an addition to the definition:</span></div>
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<blockquote class="tr_bq">
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“In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlement Act applies, events that qualify as stressors include:</div>
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(i) threat of serious injury or death; or</div>
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(ii) engagement with the enemy; or</div>
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(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”</div>
</blockquote>
</div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">That should make it clear that the intention was to include only events that were really, really stressful – events involving close up encounters with death, danger, and destruction.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Or does it? Obviously, being required to clear out the emaciated bodies from a Nazi concentration camp would fit example (iii), but what about seeing a dead body by the side of the road? Some Tribunal members will accept that. And how severe does a “threat” have to be. Examples (ii) and (iii) clearly represent very severe situations, but veterans’ advocates will argue that (i) can mean, well, just about anything. Occasionally, they succeed.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Frequently, I have heard veterans state at a Tribunal hearing, “I didn’t know my problems were due to the war until I went to the R.S.L./Vietnam Veterans’ Federation<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>etc</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, and had it explained to me.” As you might expect, such comments are never made by those who have been in the thick of the battle, whose days are haunted by memories of it, and who are afraid to go to sleep because of the nightmares. They always knew it was due to the war. What they needed to be told was that they needed help, and a pension. They never needed to nominate a stressor; it was with them all the time. The men who make those comments never got close to an enemy. But now that they are convinced the war is responsible, they wrack their memories for a stressor. If their claim fails the first time, they think back for a second stressor that might pass muster. There must be one, because they have been told it is all due to the war.</span><br />
<br />
<em>Weak Claims</em></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Below are typical examples of the sort of “stressors” delegates of the Department of Veterans’ Affairs are faced with every day, in descending order of severity. Typically, the diagnosis is PTSD or alcoholism, and usually both. In every case, they were supported by a psychiatrist.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man spent the night in a secure concrete bunker, listening to random rifle fire on the perimeter of the base, as VC and Australian infantry exchanged shots a hundred metres away.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man was in what is assumed to be a secure area, when he saw an armed guerilla in the distance. No gunfire was exchanged; the enemy simply left, presumably knowing he was outnumbered.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">An airforceman was working in a hangar when he heard a loud explosion. On racing outside, he saw that a mortar or rocket had fallen a couple of hundred metres away. Then he went back to work in the hangar.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A soldier went out in a vehicle for supplies, and found himself surrounded by a teenaged street gang. They appeared menacing, but were unarmed, and when he pointed his own rifle at them, they dispersed.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man was driving in a convoy when they came to a bridge or culvert which had collapsed, apparently blown up, and they had to detour to the side. He was afraid of an ambush, but nothing happened.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man went out on a patrol through the jungle, but never encountered the enemy.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man was in camp when suddenly another soldier accidentally discharged his firearm, and everyone ducked for cover for a minute or two. (We get a lot of claims like that.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man was on sentry duty, when he heard a noise, and blasted away with his gun, only to discover it was a pig, or a bird.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A man was on sentry duty, afraid of what would happen if the enemy appeared, but nothing happened. (We get a lot of these claims, too.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Perhaps the most persistent, and irritating claims are from members of the Vung Tau Ferry, that is, the naval vessels involved in the transport of troops and supplies to Vietnam, and their accompanying escort vessels. The voyage to and from Australia lasted a couple of weeks, and they were anchored off shore in Vung Tau Harbour for a day, or sometimes two. Originally, their service was not covered by the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Veterans’ Entitlements Act</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, but once it was allotted, the claims started coming in.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">I wouldn’t want to denigrate a class by the self-selected group that I encounter. The Vung Tau Ferry veterans are, I am sure, just ordinary sailors, embodying the full range of strengths and weaknesses, virtues and vices, of sailors everywhere. Regrettably, however, that means they have their quota of drunks. And every one of these alcoholics is claiming that his drinking stems from PTSD or anxiety, as a result of the terrifying events of his visit to Vung Tau.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Remember, these are men whose fathers’ generation held the line at Tobruk and Kokoda. Their grandfathers stormed the beaches at Gallipoli and the trenches of the Western Front. So just what did happen during the day or two in harbour which has left them mentally scarred for life? Basically, nothing. In the distance one could see American planes bombing the landscape. The ships were on high alert for possible enemy attacks which never came. In order to deter underwater saboteurs, “scare charges” consisting of a pound of explosives were thrown clear of the ship (in water, such an explosion can kill a diver), and sometimes one of these scare charges caught a crew member by surprise and made him jump.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Very few of these claims succeed, but enough slip through to encourage the others to apply. (You will no doubt not be surprised that most of them also claim to have started, or increased, their smoking habits on these brief voyages. Those claims are nearly always successful.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">On a par are claimants from the naval component of the Far Eastern Strategic Reserve (F.E.S.R.), who served in the latter half of the Malayan Emergency and in the Confrontation with Indonesia from 1957 to 1967. This service had also originally been excluded from coverage under the legislation, and for the same reasons: there had been no danger involved. Their experiences were somewhat more varied than those of the Vung Tau Ferry – they pursued and arrested unarmed Indonesian smugglers, occasionally blasted away at unseen targets on shore, and picked up soldiers who had been involved in real fighting, but at no time did they face anybody who could shoot back.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Particularly pathetic are those members of both groups who were victims of the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Voyager</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>disaster. When H.M.A.S.<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Melbourne</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>collided with, and sank H.M.A.S.<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Voyager</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>on 10 February 1964 with the loss of 82 lives, it left in its wake a host of severely traumatised survivors from both ships. The fact that it took twenty years for them to obtain compensation was a tragedy of the first order. Nevertheless, it was a peace time disaster, and not covered by veterans’ legislation. Rather, their compensation claims were decided under the worker’s compensation legislation effective at the time. But now, having received compensation (but not, as far as I can see, effective treatment), many of them are coming forward and attributing their PTSD and alcoholism to the very trifling events of their voyages to Vung Tau, or along the Bornean coast, and expecting us to ignore the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Voyager</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>elephant in the living room.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">As one psychiatrist put i</span><span style="font-family: Times New (W1), Times New Roman, serif;">t</span><span style="font-family: Times New (W1), Times New Roman, serif;">: “I think that once a diagnosis gets entangled in compensation and litigation issues, we clinicians and researchers should abandon it as a scientific entity. The populations described by it will be hopelessly contaminated by members sneaking in the door for financial purposes, or suitable members being left out because it would cost the public purse too much if the definition was such as they were left in.” [Straton,<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i><a href="http://psyberspace.com.au/articles/troublewithPTSD.pdf" target="_blank">ibid</a></i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-style: normal;">]</span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><em>Tame Psychiatrists</em></span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"> By now you will have noted my references to “tame psychiatrists”. The starting point in understanding veterans’ mental problems is to realise that, although their veteran status makes them uniquely vulnerable to particular disorders, they are still ordinary human beings, and thus subject to the same range of psychiatric conditions afflicting the civilian population. Therefore, a point must be reached where even the most sympathetic psychiatrist will have to say: “This problem is not a result of the war, but of social and constitutional problems common in the rest of society.” However, there are certain psychiatrists who have<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>never</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>been known to reach this conclusion. If their patient is a veteran, they invariably attribute his problems to his service, no matter how bland it might have been. Nor is this blindness uncommon. There are whole sections of the country, especially in rural areas, where it is virtually impossible to find a psychiatrist who can be relied upon to be objective.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Tame psychiatrists also exhibit two other attributes. They exaggerate the severity of the veteran’s symptoms. If two psychiatrists rate the same patient under G.A.R.P., the tame psychiatrist will always give the (much) higher impairment rating. Secondly, their patients never seem to improve under their treatment.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A tame psychiatrist will say<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>anything</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. Once I had to deal with the sad case of a World War II veteran who had committed suicide. He had taken part in the naval support of the invasion of Borneo, but it did not appear that he had been involved in actual fighting. Dr R took a history from his widow, who was claiming a War Widow’s pension, and made a posthumous diagnosis of longterm depression. This was almost certainly correct, and was corroborated by a more reliable psychiatrist. So far, so good. The widow’s main problem was that she did not meet him until after the war, and so was unable to provide any evidence of depression within two years of the war, as the SoP required (that, and the fact that he did not appear to have experienced anything to be depressed about). However, on the day of the Tribunal hearing, her lawyers came up with a number of letters she had just found – letters which he had apparently written to his parents at the time.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">They were quite ordinary letters – the type you or I might write if we had been assigned a not-too-pleasant foreign posting. But as soon as she read them, the doctor announced that she had changed her diagnosis. She was now convinced he had had PTSD. I was flabbergasted. There was nothing contained in them remotely suggestive of a mental disorder, or even combat. Dr R was putting remarkable constructions on the most unremarkable statements. “I tend to walk the decks at night; it’s so noisy, I have difficulty sleeping.” Obviously, he is suffering from nightmares induced by the battle, nightmares he had never mentioned – either in the letter, or in the following fifty years when his wife was sleeping beside him. “Thank goodness I’ve now found a quiet place where I can sit down and write this letter.” Obviously, he is complaining of the intense reaction to noise, so common with PTSD.</span></div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">Surely, doctor,” I asked her in cross-examination, “it’s perfectly normal for a person to look for somewhere quiet to write a letter? You wouldn’t want the TV to be blaring in the next room, for example.”</span></div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">Oh, no!” she insisted, “a healthy person can write a letter under any circumstances.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Incredibly, the Tribunal believed her.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Are any of these doctors dishonest? You be the judge.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Once Dr M (remember him) diagnosed PTSD, and was called to the Tribunal to justify his opinion. At that time, anxiety state was much easier to accept than PTSD, but most veterans and psychiatrists were too fixated on PTSD to know it. But the barrister knew it. Just prior to the hearing, he got on his mobile phone and asked Dr M if generalised anxiety disorder were not a more realistic diagnosis. An hour or two later, when he gave evidence, the doctor said he had changed his diagnosis to generalised anxiety disorder. Dr M also once told one of the Department’s doctors, categorically, that he considered his role was to get veterans their pension, and he would say whatever it took to do so.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Another time, a veteran based a claim of PTSD on an event on service which no amount of investigation could substantiate. At last, the canny bureaucrat called up his worker’s compensation records. Lo and behold! The event had actually taken place in Australia, at the workplace, and he had received compensation for it. But - would you believe? - the psychiatrist who wrote the report for the worker’s compensation claim was the same one who was now supporting his claim under the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Veterans’ Entitlements Act</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Both of these, however, pale in comparison to Dr D. (My colleagues will all know whom I’m talking about.) Dr D undertakes occasional medico-legal work in worker’s compensation cases, but all his actual patients are veterans. Since, under the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Veterans’ Entitlements Act</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, all veterans are entitled to free medical treatment for PTSD, anxiety, or depression, irrespective of whether or not it is service related, this means that almost the whole of his income derives from you and me, as taxpayers. But all of Dr D’s patients are suffering from war related trauma, no matter how uneventful that service may have appeared to a disinterested onlooker.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Not only that, but all of them are very severely psychiatricly disturbed. If they are not already incapable of working, even eight hours a week, they are nevertheless in imminent danger of losing their jobs. In applying G.A.R.P., Dr D has never been known to rate any veteran’s impairment at less than 40 points, which is close to the point where one tends to drop out of the workforce. It is not unknown for a veteran to be assessed by two other psychiatrists, and Dr D’s rating will always be 50 to 100% higher than the others.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Perhaps Dr D is an acknowledged specialist in veterans’ care? There are two ways this could be demonstrated. One is in publishing papers in the peer-reviewed literature on the treatment of PTSD. But all Dr D has ever published are a couple of articles on New Age type therapy. Another is when medical colleagues refer their difficult cases to him. But no fellow psychiatrist refers cases to Dr D. In fact, they regard him with contempt.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">And, needless to say, Dr D’s patients never get better. When one of my fellow advocates raised the issue with him at the Tribunal, he said, in effect, “Well, the purpose of treatment is not so much to obtain an improvement, but to ensure that they do not regress even further.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">To this, I might quote what two more professionally motivated psychiatrists have told me:</span></div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">If your patient fails to improve, you should (1) reconsider the treatment, (2) reconsider the diagnosis, or (3) seek a second opinion.”</span></div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">Dr D always undermedicates his patients, and then steers them into his yoga classes.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Dr D is the sort of person who ought to be blackballed by the Department of Veterans’ Affairs. He is a medical parasite battening off the taxpayers’ bounty, assisting undeserving characters to rip off the system, while ensuring that those genuinely traumatised victims unfortunate enough to fall his way are left to suffer under inadequate treatment. The only consolation is that his incompetence and dishonesty is so egregious that even veterans’ lawyers are starting to see through him. Some barristers will not give prospects unless another psychiatric opinion is obtained.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">So why, you may ask, does the department use such psychiatrists? Well, they try to avoid them as much as possible. But, once an unfavourable report has been received, and the primary claim lost, there is nothing to stop a veteran from obtaining a second opinion from a tame psychiatrist for his VRB appeal. Often he will relate symptoms not mentioned to the original psychiatrist, and describe “stressors” never mentioned before. When pushed for an explanation, he will then say that he was unable to “open up” to Dr X, but Dr Y was so professional he was able to build up a rapport with him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Added to this is the fact, mentioned before, that in some areas reliable psychiatrists are thin on the ground. Furthermore, many veterans’ organisations seek to pre-empt the department’s investigation by referring them direct to a tame psychiatrist of their own choice, and the department hierarchy, in a fit of generosity, promised the ex-service organisations that they would use the veteran’s treating psychiatrist, if he had one.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Now, although the provision of a medico-legal report by the treating psychiatrist is not exactly unethical, it is something their professional body tries to discourage, for obvious reasons. Objectivity is lost. A treating psychiatrist must empathize with his patient, must put himself in his shoes, and see things from his perspective. Besides that, the patient is providing his income, and psychiatrists are not immune to the psychological tendency to interpret the world according to their own self-interest. Also, it interferes with the doctor-patient relationship. Imagine what would happen if a psychiatrist told a patient, “I’m sorry, Mr Jones, but I can’t support your claim. Your problems were not caused by the war. Let’s withdraw the whole claim, and get back to trying to make you better.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">At one point in the pre-SoP days, the Government announced plans to set up specialist panels for the diagnosis of difficult cases. No mention was made of psychiatric disorders, but the ex-service organisations could see through it. They recognised it as an attempt to curtail the influence of tame psychiatrists. Although the ex-service organisations contain many members who have genuinely fought in battles, the idea that anybody should miss out on a piece of the cake merely because he had stood on the sideline, out of danger, was too much for them to bear. They raised such a fuss, that the plans were shelved.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><em>A Culture of Weakness</em></span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"> Such problems, of course, are not confined to veteran’s compensation. Claims for “workplace stress” have been open to so much abuse, that there have been moves by governments to wind back the scope of such entitlements. Then, in 1990, the press carried the tale of the toy penis.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Someone once introduced something similar into my own office: a small plastic phallus attached to a pair of legs, which allowed it to walk with a little clatter if the surface bore a slight slope. At the time, we considered it mildly amusing, if somewhat tacky, but in another office it had a more dramatic effect. When a woman brought one to work and placed it on her own desk, the man at the next desk complained to the sexual harassment officer. His wife, who worked a few metres away, also got into the act. The offending item was removed after a fortnight, but the damage had already been done. Husband and wife both had a case of the canniptions. He was off work for 19 months getting his sensitive psyche sorted out. Comcare agreed that he was entitled to worker’s compensation, and he received $45,000 in sickness benefits, along with $14,500 in rehabilitation expenses, including membership of a gym. Comcare also paid for his wife to attend a TAFE course in house decoration, and receive psychological counselling.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Sit down and ask yourself: how do people have the effrontery to make such claims? More importantly, how do they get away with it? What is it that makes otherwise sensible bureaucrats, judges, and psychiatrists lose all sense of proportion when dealing with contentions like this?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">As a British psychiatrist once said: “Once it becomes advantageous to frame distress as a psychiatric condition people will chose to present themselves as medicalised victims rather than as feisty survivors.” [Derek Summerfield (2001): The invention of post-traumatic stress disorder and the social usefulness of a psychiatric category.<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Brit. Med. J.<span class="Apple-converted-space"> </span></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">322:95-98 , assessable <a href="http://www.dinarte.es/salud-mental/pdfs/DSummerfield-The%20invention%20of%20PTSD.pdf" target="_blank">here</a>.]</span><span style="font-family: Times New (W1), Times New Roman, serif;"> </span><br />
<span style="font-family: Times New (W1), Times New Roman, serif;"> To put it more bluntly, modern society encourages and rewards weakness.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In the old days, people were expected to be tough. As a matter of course, you were expected to put up with lousy bosses, overbearing workmates, and sullen customers, not to mention illnesses, loss of employment, and sundry other negativities. If your house burnt down, you lost a leg in a road accident, or some equally serious event took place, then you were supposed to commiserate with your friends, or talk it over with a minister, then pick yourself up, dust yourself off, and start all over again. You called yourself a battler, and took pride in the fact that you hadn’t let it get you down. Above all, you did not visit a psychiatrist, because that would mean you were “crazy”.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">All this, I will agree, was rather tough on those people who really were traumatised or who, by reason of constitution or upbringing, had poor coping skills. But for the vast majority of people, it because a self-fulfilling prophesy, and allowed them to deal effectively with the normal trials of life, and often with the abnormal ones as well – such as the trenches of Gallipoli and France.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The first subtle change occurred after the Second World War, with the craze for trendy Americans to have a pet therapist to assist them in the everyday problems of life. Next came the new touchy-feely style of management, with an emphasis on a stressfree workplace. You can see the process at work with the issue of sexual harassment. Originally, it meant sexual extortion ie being forced to choose between one’s chastity and one’s job, but within a few years it became defined as a “hostile environment”, which essentially implied anything a member of the opposite sex does which you don’t like. Then the concept started to apply to all sort of hassles unrelated to sex. At the same time, counselling was introduced for any alarming or shocking experience out of the ordinary – even though recent studies suggest it may do more harm than good.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Perhaps the best example of the new outlook could be seen in the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Star Trek</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>franchise. The 1980s’<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Next Generation</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>starship actually included a full time counsellor among its crew of just a couple of hundred – something Captain Kirk’s tough old crew of the 1960s would have found incomprehensible.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A lot of positive things can be said for this new approach, but it sends an invidious message. If counselling is needed in the wake of any major fright or tragedy, then obviously you can’t be expected to deal with such matters on your own. If the workplace has to be stressfree, then it means you can’t possibly expect to be able to perform if your little feelings are hurt. And if you do happen to break down, it doesn’t mean you’re weak; if means you were right all along in claiming that people were victimising you – and you can expect someone to pay.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Many people also find it very easy to adopt the victim role. Back in the 1980s, I remember a pensioner coming out on TV and explaining that he was so poor he was forced to eat pet food. Of course, the very next day, members of various pensioners’ associations came forth and explained that he was on the same pension as everybody else, that pet food was more expensive than human food, and that there were many cheap methods of feeding oneself. But I doubt if he took any notice. It would mean taking responsibility for his own fate, and no longer blaming others.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">To an extent, that last phenomenon can partly explain the attitude of many Vietnam veterans. Running like a red thread through their psychiatric reports is a well-articulated resentment of the way they were treated on their return. In earlier wars, the servicemen knew that the country was behind them. They didn’t have to put up with the jibes and insults of traitors. They didn’t have to read newspapers about the enemy’s flag being paraded boldly at political rallies addressed by Members of Parliament. On coming home, the troops from Vietnam were often whisked away under cover in order to avoid mobs of screaming, abusive fifth columnists. One veteran had an egg thrown at him by his own mother at a demonstration. Another was estranged from his sister for thirty years. Soon, they found that the people who had supported the enemy were now in power, and claiming the enemy’s victory as vindication. And the last people they wanted to deal with were the veterans themselves. Can anyone blame them for being resentful?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The society they came home to was also different to that faced by World War II veterans. The latter returned to a period of full employment; by the time the Vietnam War ended, Australia was in the grip of a recession. Veterans of the Second World War went back to rebuild their lives in a society where marriages were expected to last, and where the media, political parties, the churches, and the older generation reinforced a consistent consensus on moral standards. By the 1970s this consensus was being swept away by the general revolt against moral standards which had lost the war in the first place. When society abandons its rudder, those who have no rudder of their own must drift – and often run aground.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">There is also another factor I hate to admit, but it is nevertheless the truth: my generation, the Baby Boomers, are not the men our fathers were – just as Generations X and Y are degenerate versions of us. Yes, I know this has been the wail of the older generation since Adam lost Abel, but in this case there are statistics to back it up. Every index of social disintegration who wish to name – be it divorce, illegitimacy, suicide, juvenile crime, adult crime, or drug abuse – has been increasing since the end of the Second World War.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In the course of my work, there were two additional trends noticeable among Vietnam veterans. Firstly, a few of them lodged claims for psychiatric conditions (usually self-labelled as “nerves” or “nervous condition” shortly after their return from service. Some of them were accepted, others, perhaps unfairly, were rejected. But in nearly every case, the condition was mild. It was only twenty or thirty years later, when the great PTSD epidemic was in full swing, that it became serious enough to interfere with their work. Secondly, half of those who went to Vietnam were national servicemen, including half of the front line soldiers (who, one professional soldier said to me, were some of the bravest men he had known.) However, perhaps because they failed to keep up the network of military ties, they were at least a decade behind the professionals in getting on the PTSD bandwagon. Certainly, before the mid-1990s, it was extremely rare to see such a claim from a national serviceman.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">From all this, you may suspect that I have an animus against Vietnam veterans, and regard them as the “villains” of this chapters. On the contrary, it is merely to point out that, because of the generational difference, they present with problems different from those of earlier conflicts. Whether their claims are less genuine, or more numerous, than the others’, I am not prepared to judge. Certainly, a lot of them are genuinely traumatised and, of course, I don’t see all those who have never made a claim.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">On the other hand, when I first joined the Department, the large number of World War II veterans with some sort of psychiatric disorder (usually labelled “anxiety state”) did attract my attention. In a straw poll, I found that a tenth of those turning 60 had such a condition accepted as war-caused, and another tenth had one rejected. (Whether these were correctly determined, I cannot say.) Its value as a source of income was not unknown in the veteran community. “I’ve been told it’s the best condition to have,” said one newly successful claimant, because its severity was purely subjective. In monetary terms, it could be worth as much as you wanted it to be.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">When the PTSD epidemic commenced in the 1980s, veterans of the Second World War – and Korea, and Malaya as well – stepped forward with just as many claims as those from Vietnam. Many of them were genuinely traumatised old diggers who had only now been persuaded to claim what was owing them, but many others were highly questionable, yet hopelessly confused by the actions of uncritical tame psychiatrists, and by the veterans already knowing what they were expected to say. Exactly the same as Vietnam veterans, in other words.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Once the Second War generation had passed retirement age, and were no longer eligible for TPI, advocates from the RSL have taken it upon themselves to see that as many as possible get EDA. Omnibus claims for all the usual suspects – hearing loss, arthritis, solar skin damage, impotence – are submitted on their behalf, and “nervous condition” or “PTSD” is nearly always added to the list, if it has not already been accepted. Often enough, all that is wrong with the veteran is the general malaise of knowing that life is swiftly coming to an end, and he is left unfulfilled. In most cases, this is the first time a nervous condition has ever been broached, even with their GPs. Many of these old codgers front up to the psychiatrist without the slightest idea why they are there. If the claim fails the first time round, they will be sent on another round of appeals and psychiatric reviews, and eventually they really will be obsessed with everything that happened to them during the war.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Remember Mr B, originally mentioned at the start of the previous section</span><span style="font-family: Times New (W1), Times New Roman, serif;">? Towards the end of his life, some advocate decided he would be doing the courageous old gentleman a kindness by getting him to make a claim for PTSD. When he finally told his story to a psychiatrist, the latter couldn’t find anything wrong with him. That was too much for the advocate, who immediately got him to sign an appeal to the VRB, and referred him to a tame psychiatrist. Even<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>he</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>could find nothing wrong with him so, true to form, he reported that he must have PTSD, but he had hidden it too well. When the VRB rejected the appeal, his advocate immediately turned over the decision to a solicitor, with instructions to lodge an appeal to the AAT. This last action was taken without any consultation with Mr B, because if anyone had sought his opinion, they would have found out that he had just passed away.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Looked at objectively, surely this is a perfect example of what is wrong with the system of ex-service advocates and tame psychiatrists.</span><br />
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/7c-ptsd-epidemic-part-3-of-3.html" target="_blank">Continue to Part 3</a></strong><br />
<strong><br /></strong><strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a></strong></div>
Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-88452355735732145762013-03-03T16:12:00.002+10:002013-03-08T12:42:22.273+10:007C. The PTSD Epidemic (Part 3 of 3)<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font-family: 'Times New Roman', serif; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<span style="font-family: Times New (W1), Times New Roman, serif;"><em>The Court Steps In</em></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Even when the decision makers do all the right investigations, and the AAT delivers a realistic decision after looking at the big picture, the Federal Court can pick out one specific piece of the decision, and demand that future claims be determined in a manner that defies reason.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Such was the 2003 decision in the case of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/2003/334.html" target="_blank">Stoddart</a></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">. You will recall that the definition of a “severe stressor” refers to “actual or threat of death or serious injury”. Mr Stoddart had been a young sailor who made five short voyages while attached to the F.E.S.R. You will also recall that this particular service was noteworthy in that no danger was present whatsoever. Nevertheless, he told the Tribunal that, when he had to work in the bowels of the ship below the waterline, particularly when “action stations” were called, he was terrified that they might be hit by enemy fire, and he would be killed. In fact, so terrified was he, that whenever he got to port, his only recourse was to hit the grog. Whether any reasonable person would have formed the same view as to the danger of the situation, especially after surviving the first action station, was not examined by the Tribunal. There was no objective threat to life or limb; end of story.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Wrong, said the judge. A threat is a threat if you honestly believe you are in danger, even if you are mistaken. After all, if a person put a gun to your head and threatened to shoot, you would be rightly terrified out of your mind. Even if the gun were not loaded, or were only a replica, provided you were ignorant of the fact, it would still be a threat.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Viewed in that light, it makes perfect sense. But the fact remains, Stoddart’s own case was ludicrous. Without any concern for the outcome of future claims, the judge had broken the door wide open for any number of bogus claims. Provided a person could say, with some degree of plausibility, “I honestly believed I was in grave danger,” he would be in line for a pension.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">You will remember that, not only must there have been an event involving actual or threat of death or serious injury, but the veteran must have “experienced, witnessed, or [been] confronted with” it. Close on the heels of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Stoddart</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>came the that of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i><a href="http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/160.html" target="_blank">Woodward</a></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, which addressed the issue of confrontation. Mr Woodward had been a clerk in Vietnam. He had never faced the enemy, but he did have to process the forms concerning the deaths of those who did, and he was required to pack the belongings of one of the victims, and view photos of the deceased’s wife and daughter in his tent.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The Commission might have explained that this was all very trivial, but instead it argued that the victim had not been a relative or close friend. The Full Court pointed out that nothing in the definition required such an interpretation. True enough. But anyone can see that, in Woodward’s case, the decision was ludicrous. PTSD was originally conceived as a reaction to events well outside the normal range of human experience. Now, virtual everybody can be a victim, because all of us are “confronted” with death at some stage. Or have you never been to a funeral?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Veterans’ lawyers frequently try to get read into these two decisions more than is actually there. Often overlooked was the fact that neither decision dealt with the question of how severe a stressor had to be. It was not until 2004 that this was tackled, in the case of<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i><a href="http://www.austlii.edu.au/au/cases/cth/FCA/2004/633.html" target="_blank">White</a></i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, which essentially ruled that the examples provided by the SoPs in the definitions of “severe (psychosocial) stressor” are there for a purpose. Anything which counts as a severe (psychosocial) stressor must be at least as severe as the examples. This put a brake on some of the most extreme claims, but not all. With<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Stoddart</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>and<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Woodward</i></span><span style="font-family: Times New (W1), Times New Roman, serif;">, the Federal Court handed live ammunition to every phony with an anxiety and/or drinking problem. And, the irony is, everyone knows it. To invoke either of those two decisions is a virtual admission that your “stressor” is very, very weak, and you are trying to get in on a technicality. Nobody who really was involved in battle, or in any other situation of extreme danger, ever has to refer to them.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif; font-size: normal;">Just before Christmas 2007, the RMA issued a new SoP, replacing a “severe stressor” with “category 1A” and 1B stressors”. These are defined as one of the following events:</span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;">1A: (a) experiencing a life-threatening event;</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (b) being subject to a serious physical attack or assault including rape and sexual molestation; or</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured.</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;">1B: (a) being an eyewitness to a person being killed or critically injured;</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (b) viewing corpses or critically injured casualties as an eyewitness;</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (c) being an eyewitness to or atrocities inflicted on another person or persons;</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (d) killing or maiming a person; or</span></span></span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-family: Times New (W1), Times New Roman, serif;"> (e) being an eyewitness to or participating in, the clearance of critically injured casualties.</span></span></span></div>
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</span><span style="font-size: small;"><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: 11pt;">As you can see, the system has been tightened up a bit, but it still leaves the basic problem unresolved. A1(a) is still vulnerable to the<span class="Apple-converted-space"> </span></span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: 11pt;"><i>Stoddart</i></span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span style="font-size: 11pt;"><span class="Apple-converted-space"> </span>distortion, while 1B(b) is something we’ve all experienced – if we’ve ever attended a funeral with an open coffin.</span></span></span></span>
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<span style="font-family: Times New (W1), Times New Roman, serif;"><em>The Liars</em></span><br />
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<span style="font-family: Times New (W1), Times New Roman, serif;">Finally, after all the symptom coaching, bogus psychiatric reports, and unrealistic legal decisions, there is one additional group who really are ripping off the system: the Liars.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Heaven only knows how many there were, and how many got away with it in the past. The tendency was to always take the veteran’s word for it. Most of what they said sounded reasonable and, anyway, there was no suggestion that it would be possible to check up on it. Then, about the middle of the 1990s, things began to change. It started when the Veterans' Review Board noticed that they were hearing accounts of “stressors” which had not been put to the Department in the first instance, and many of them had the ring of untruth about them. The Board therefore directed the Department to obtain an historian’s report on the allegations.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Not everything that happens in wartime ends up in the written records, but enough is present to definitely rule out some accounts. The Department was taken by surprise by the instructions, but it persevered, and what it turned up was such a vast web of duplicity that, within a couple of years, virtually everybody not known to have been a front line soldier was having his story double checked. Pretty soon, the Department had on contract a whole team of investigators, former officers in the armed forces, who could not only access the unit diaries, ships’ logs, and other records held by the Australian War Memorial, but also contact other members of the unit or ship who were in a position to know. The team is thoroughly hated by the ex-service community, but the facts they have turned up have been invaluable.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">At its simplest, a veteran attends a psychiatrist and gives a highly graphic account of his service, and the psychiatrist laps it up. When an historian casts doubts on it, he comes back with a much watered down version of events. No, he wasn’t actually present when the helicopter crashed; he heard about it the next day. He heard gunfire one night, but he was a long way off. He didn’t personally attend to injured comrades; he visited them in hospital after they had all been properly bandaged and taken care of. And so on.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The demonstrably false stories are mostly, I am convinced, based on some specific incident, mixed with a certain degree of wartime rumour and innuendo, then exaggerated and elaborated to such an extent that the genuine details are impossible to recognize. But there is usually a grain of truth buried somewhere at the bottom. The reason I say this is that, if they had been making it up from scratch, they would be expected to do a better job.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Nevertheless, many of the accounts presented to psychiatrists definitely have been cut from whole cloth. Here a brief selection of some which come to mind:</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A Second War veteran described being involved in an ambush with Japanese troops in New Guinea on the occasion when Ted Kenna won his Victoria Cross. However, his military record revealed that he did not arrive in New Guinea until two weeks before the end of the war, no interaction with the Japanese occurred, and although Ted Kenna's action would have been much talked about at the time, it happened some time before he arrived. (I mention this case to demonstrate that it is not just veterans of later wars who bend the truth. However, it is rarely possible to follow up allegations made about World War II incidents.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Another soldier spent just three months in Vietnam. “If he had nominated just one good stressor, I would have accepted him,” said the Claims Assessor. However, he described more action in those three months than Indiana Jones experienced in three films, so the researchers were called in. His Commanding Officer was quoted as saying, “It’s the biggest work of fiction I’ve ever heard.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">According to one sailor, while his warship was cruising off Vietnam, he saw an enemy combatant aim a machine gun at the ship from a truck on the beach. He didn’t fire at the ship, but the sight caused him “intense fear, helplessness or horror”. This story, implausible at best, was easily disproved by the consideration of the draught of the vessel and the depth of the water; it could not have approached closer than five kilometres from the shore. What was infuriating about this claim, however, was that I still had to concede it. He also claimed to be suffering nightmares, flashbacks<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>etc</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>due to a fire on board which<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>could</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>be proved to have taken place. But I knew he was a liar.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Another ship had to sail up the Mekong River during which time, according to one sailor, it was fired on from the shore. He heard the shots, and the sound of the machine gun rounds striking the hull. He was apparently the only one to do so, because the captain’s official report of the voyage read: “Although the passage was without incident, it was nevertheless interesting and quite scenic.”</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">While a ship was in Vung Tau Harbour, a sampan sailed within 75 metres of it, and suddenly exploded. Since the vessel was on close alert for sabotage and attacks, one would think that such an incident would be noted and acted upon, but no report makes mention of it. Nevertheless, the same story has been told by several different veterans, all alleging different dates, and some of them have been successful, so the decision makers haven’t completely woken up to this furphy.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">At various stages, members of the R.A.A.F. were seconded for several months at a time to the great U.S. Air Force base at Ubon, in Thailand. This service was also originally regarded as non-operational, for the very good reason that Thailand was not a war zone, and no Australian flew missions into North Vietnam or occupied Laos. Once it was included, however, the claims started rolling in, because Ubon offered fine facilities for those who liked their beer to become alcoholics. The most dramatic event was the night a U.S. F4 Phantom exploded on takeoff. No Australian was involved in clearing out the charred bodies, but a number have had successful claims by alleging that they did. Others have claimed Viet Cong attacks, and ground missions into combat zones. Lies, all lies. In 1967 there arose a Ubon version of an urban legend about a Thai officer who came upon a sleeping sentry and promptly shot him. Most Australians who were in Ubon in 1967 have heard it, and five of them have claimed to have been present when it occurred. Curiously, they all gave different accounts of where, and under exactly what circumstances, it happened, but they were all apparently alone at the time, and mentioned it to no-one. But if any of you want to make use of such a story, beware! Unlike the exploding sampan legend, this is one lie both the Commission and the Tribunal are on to.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">My favourite is the sailor who missed his ship in Singapore, and spent the next two weeks travelling across Vietnam to rejoin it. On the way, he stayed with some American soldiers who, after drinking all night, invited him to come out on a “skirmish”. It turned out to be an absolutely horrifying expedition to collect arms and legs strewn around a recent battlefield. This implausible story was riddled with holes. Nevertheless, he may have gotten away with it, except for one thing. The same day he missed the boat, another sailor was put ashore on health grounds, and they rejoined the ship together, having travelled together. When he made up his story, it probably never occurred to him that the Department’s researcher would know about, let alone locate, the one man who could expose him.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Reading such stories, you may be inclined to fall into the trap most people in veterans’ administration fall into: losing a sense of perspective. Take the fourth example. If it took place as described, it would satisfy the definition of a “severe stressor”. It would certainly be very frightening. It would be understandable if he were badly shaken by the event. But, when all is said and done, it was, in fact, over and done with. Admittedly, he would have to return by the same route the next day, and he would be right to be anxious about that. But afterwards, it would be plain sailing home. He is not like a soldier who, having survived an enemy ambush, knows he will have to risk the same thing on the next patrol, and the next. Realistically, should we expect it to traumatise him for life?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The rationale of the whole veterans’ compensation industry says yes. The idea is to find one, and only one, episode which can be made to fit the definition of “severe stressor”, no matter how loosely, and you are home and hosed.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A friend of mine gave a speech about the worst day of her life, when she was robbed at gunpoint in the pharmacy she manages. The rest of the day was spent in the police station. The next day she came to work apparently unaffected, but at midday – the same time as the incident – she broke down into tears and accepted counselling. “I can tell you what the future holds for you,” I told her. “Twenty years from now, you will be a nervous wreck and an alcoholic, and be totally incapable of working. I know, because I have lots of clients in exactly the same situation.”</span></div>
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“<span style="font-family: Times New (W1), Times New Roman, serif;">Oh, no!” she scoffed, “you get over it pretty quickly.”</span></div>
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<em>What They Get Away With</em></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">So, up to now you have read only about the outrageous claims being made. But what do they get away with? After all, you might assume, decision makers are not fools. Certainly, the Commission’s Delegates and the Board attempt to exercise common sense. The weak link is the Administrative Appeals Tribunal. Even here the position is unclear. Some members are more generous than others, so while one claim will be laughed out of court by one Tribunal, a similar one will be eagerly accepted by another. Also, even quite sensible Tribunal members have their off days. So we should not expect too much in the way of consistency, but the evidence is that the bar is set very low.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Below are just a few of the weak cases which have been accepted in recent years. When you read them, please remember what I said about putting things in perspective. These are just<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>single</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>episodes which have allegedly traumatised a person for life. All of these incidents were unpleasant, so please also remember that the test is not that the victim was apprehensive, scared, startled, shocked, disgusted, dismayed, or faced with existential issues about the human wastage of war. It is whether the event was so overwhelming that his coping mechanisms failed for all time.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In 1970 a drunken soldier decided to celebrate Christmas by going to the sergeants’ mess and shooting three sergeants, two of them fatally. (The killer later had the temerity to claim his PTSD and depression as due to his imprisonment, but that is another story.) One soldier was in the latrine when the shots rang out, and hastened to the mess. No, it wasn’t his brief glimpse of the bodies that shattered his nerves and drove him to drink. It was the fact that a sergeant pointed his pistol at him and told him to go back to his tent, and reinforced the order by sticking the gun in his back.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A diver in Vietnamese waters was suddenly startled when what he thought was a sea snake briefly darted at his mask.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A sailor went ashore in Borneo and saw two human heads stuck on a pole, and immediately vomited. The Tribunal ruled that this was not a severe stressor. (The second time round, another Tribunal member refused to believe that it even happened.) However, when another sailor told of a British commando coming aboard with a severed human head in a bag, a more generous Tribunal member awarded him a pension. (And, as is often the case, the Tribunal did not include in its reasons for decisions the evidence for doubting it occurred on operational service.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Another sailor went on a bus trip with a group of soldiers in Vietnam. They were not attacked, but he was afraid they might be. That was good enough for the Tribunal.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A soldier was driving through Vietnam when his vehicle got a flat tyre, and he had to stay behind and repair it in the dark.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A cook in Malaya was assigned to guard duty a couple of times, and although the enemy never turned up, he was afraid they might, because he had heard stories about ambushes.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">An airman was barracked at Ubon close to the ammunition dump, and he was afraid of what might happen if it exploded.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">One night, a ship was anchored off the coast of Vietnam, with sentries every twenty feet on the look out for enemy swimmers. One of them saw something. Panic stricken, he blasted away at it. He blasted away again. Fortunately, it turned out to be only a sonar buoy, but the damage had been done. He now had PTSD and alcohol dependence.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">In Vung Tau harbour ships were considered to more secure. The weapons of the sentries were not loaded. This really worried one such sentry, so much so that he nearly jumped out of his skin when an officer tapped him on the shoulder. Now he has PTSD – and a pension.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Finally, remember Mr M , at the start of Part 1</span><span style="font-family: Times New (W1), Times New Roman, serif;">, the young sailor who stood quaking on the beach, so nervous he could not speak coherently? The first Tribunal treated his appeal with the contempt it deserved. He then lodged a new claim, which went its course through the Delegate and the Board, and when it reached the Tribunal the second time, a normally sane member let it up.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">One trusts that all these raiders of the public purse are very grateful to Justice Mansfield, who was responsible for the<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>Stoddart</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>decision.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Meanwhile, back in the real world, there are men who really did serve in the heat of battle, who faced the enemy close up, and looked death in the eye. Many of them have got back on with their lives. But others have never managed to get over it; they jump at shadows, and at night they wake up screaming. Many of them are on TPI pensions, because they can no longer cope with work, let alone the demons that haunt them. And what, pray tell, do<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>they</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>think of all these pathetic weaklings and cowards who are making themselves out to be just as victimised, and getting away with it?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Here are a few more questions you might reflect upon:</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">It is clear that a great many psychiatrists diagnose PTSD on the flimsiest of grounds. So even if a man served in the front lines, and really did experience a “severe stressor” (or a “category 1A or 1B stressor”), how do we know that his diagnosis of PTSD is valid? Surely even combat troops can suffer from the same mental illnesses as the rest of us?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">With so many lies and distortions being uncovered, how many successful claims have been based on falsehoods which cannot be disproved? There are large gaps in the official records, so a cautious liar will allege the sort of thing which would not normally be recorded. (And, no, I do not intend to assist by explaining what such events might be.)</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Why do those members of the R.S.L., and other veterans’ organisations, who were themselves combat troops, continue to support the sort of claimants just described?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The answers, my friends, are blowing in the wind.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The whole issue is so confused by deceit, self-deception, and dubious psychiatric practices that it is impossible to resolve. Nevertheless, my overall impression, gained from long experience as both a Delegate and an Advocate, is that no more than half the successful psychiatric claims can be considered valid.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">So what? you might ask. If pensions are granted to a lot of undeserving persons, isn’t that a reasonable price to pay, provided those broken and traumatised heroes get their deserts? The trouble is, we are not really helping the broken and traumatised heroes – as will be explained in the next chapter.</span></div>
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<span style="color: #783f04;"><strong>Addendum:</strong> I originally intended not to up-date this book with recent developments. However, I make an exception for the article by Dr Douglas McKenzie, for 30 years a member of the naval reserve, entitled "An holistic view of post-traumatic stress disorder" in pages 24- 26 of the <em>Journal of Military and Veterans' Health</em> (10 April 2010), in which he records typical instances of fraud and psychiatric credulity. In particular, he notes that whereas naval personnel have the lowest incidence of PTSD symptoms in the US, and the highest incidence in Australia.</span></div>
<blockquote class="tr_bq">
<span style="color: #783f04;"></span></blockquote>
<blockquote class="tr_bq">
<span style="color: #783f04;">The fact that the RAN contingent of the first Gulf War (16 Jan - 28 Feb 91) has over 20% of the personnel on mental disability pensions, mainly for PTSD, despite firing no weapons offensively, sustaining no battle damage and taking no battle casualties, is of serious concern.</span></blockquote>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/8-paid-to-be-sick.html" target="_blank">Continue to Chapter 8</a></strong></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-80663139237412595772013-03-03T11:36:00.002+10:002013-03-08T12:42:59.022+10:008. Paid to be Sick<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
You will catch flak from the welfare lobby if you say this, but some of the people on unemployment benefits are not serious about finding work. Not all of them, not most, probably not even a large minority, but some. It is an inescapable drawback of the welfare system that, in helping genuinely needy people you are also financing antisocial behaviour. Thus, in giving money to the needy unemployed, you are also paying people not to work. Obviously, of course, if the dole were a pittance, far fewer people would take up the offer than if it were a fortune, but even in the Bad Old Days, there were individuals who preferred the idleness of begging for the prosperity of hard work.</div>
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Likewise, in providing a supporting parent’s pension, you are paying single women to have illegitimate children, and encouraging married couples to split up. In supporting homeless teenagers, you are paying children to run away from home. And in compensating people for their illnesses, you are paying people to be sick.</div>
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What’s that you say? That’s impossible! Sickness is a result of external forces, outside of the victim’s control. You cannot choose to be sick. Think again. You have all probably been brought up on stories of the Aboriginal custom of “pointing the bone”. Believe me, human beings are very much the same under the skin. If a black man can will himself to die because a witchdoctor places a curse upon him, then a white man can get sick, or at least stay sick, or get sicker, if he is offered money to do so.</div>
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It has to be emphasized once again that there are infinite gradations between outright, conscious malingering and totally objective incapacity. The unconscious mind is a powerful agent, and affects the way the body functions. A positive attitude to life tends to lead to a shorter convalescence and fewer limitations. On the other hand, there are many who subconsciously fall into the invalid role, when the secondary advantage of attention and reduced responsibilities is seen to outweigh the difficulties of mastering one’s incapacity.</div>
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It has long been known that compensation litigation tends to prolong the process of convalescence. When someone is suing another for injury, it is in the interests of the defendant to delay the court decision until the plaintiff’s condition has improved, and damages are consequently reduced. Conversely, it is in the plaintiff’s interest for his symptoms to remain severe until a larger settlement has been reached. Similarly, victims of orthopaedic injuries which are not covered by worker’s compensation tend to return to work earlier than those who are. This is not, as you might think, because they need to earn money before they have fully recovered. Instead, they actually complain of less pain and restrictions than those who are being paid to stay sick.</div>
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Needless to say, such effects are likely to be magnified when the disability is psychiatric rather than physical. Let me illustrate with two cases I personally dealt with, both genuine and meritorious.</div>
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P was a national serviceman from the country, who found himself clearing mines in Vietnam. For six months after he came home, his hands were shaking so much he could not hold a cup of tea without spilling it. His parents decided it would be best if they moved further west to a more isolated property, where there were fewer people to get under his skin. Later, he moved even farther out. He never sought any treatment, but he did not make the mistake of self-medicating with alcohol. When he did finally lodge a claim a quarter of a century after the event, his symptoms had settled down to a fairly mild level,<span class="Apple-converted-space"> </span><i>and</i><span class="Apple-converted-space"> </span>he had many good reasons to be anxious: the area was in the middle of a severe drought, there was an economic crisis, and his wife was living away from home to earn money while he struggled to make ends meet on the home front.</div>
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Q had been a forward scout in Vietnam. When he claimed, and received, a pension for PTSD, his impairment rating under G.A.R.P. was 20 points. This is a moderate degree of impairment, which would be noticeable to those familiar with him. It would require medication and supportive therapy, and would a moderate degree of disruption to work, leisure, and family life. This was what he had been able to put up with for the previous quarter century. Yet, the following year, he applied for an increase in pension, and his impairment rate was 30 points. A year later, it had increased to 45 points, and he was no longer able to work – despite the fact that he was seeing a psychiatrist every six weeks and a psychologist every fortnight. (This, of course, begs the question as to what was the benefit of such intensive treatment if it failed to even stabilise his condition. And if it were so ineffective, why was the Department continuing to pay for it?)</div>
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It is hard to think of a better example than this of the corrosive effect of the system. Looked at objectively, who got the better deal: Mr Q, who received his money, but cannot enjoy it, or Mr P, who asked, and received, nothing for his severe mental problems, but who watched it slowly subside to manageable proportions?</div>
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And yet – here is the irony and tragedy of it all: I was not able to follow up P’s case, but it is more than likely that the modest pension I awarded him was the beginning of his downfall. Where he lived, there were few facilities for psychiatric treatment. He had a lot of genuine causes of anxiety. His farm income was low, and there would be the constant temptation to apply for an increase in pension. In any case, his ex-service advisers would certainly urge him to appeal the decision. This would likely drag on and on, with constant to-ing and fro-ing between him and his advocate, adding even more to his worries. In short, he was now being paid to be sick.</div>
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Where considering payment for being sick, the trail sooner or later leads to the big issue of the Special Rate, or TPI. When the term, “totally and permanently incapacitated” is raised, you probably visualise a battle-scarred veteran valiantly trying to hold onto his job, taking more and more time off work, perhaps even reducing his hours of work, until eventually either his boss or his doctor tells him he cannot keep it up any longer. At least it may be said that the majority of claimants in that predicament generally have an easy run through the system, but most TPI cases are quite different</div>
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As far back as 1969, Dr Whiting alleged [<i>Be In It, Mate!</i>] that, for many veterans, it was considered their ultimate financial goal, that it was being handed out to many who were still capable of working, that, indeed, it was often a retirement present for the Department’s staff, who were all veterans at that stage. Now, fast track to 1992. In that year he Auditor-General reported that nearly all the TPI grants to World War II veterans involved either:</div>
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(a) a veteran having a reasonably full working life,</div>
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(b) a professional or self-employed man retiring after the age of 65,</div>
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(c) a weak link between service and the conditions that made him cease work, or</div>
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(d) circumstances which did not appear to correspond to what the average person would call “totally and permanently incapacitated”.</div>
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Since then, the Korean, Malayan, and now the Vietnam veterans have been approaching retirement age, and I am prepared to state that the same thing applies to them.</div>
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At that time, a grant of TPI was estimated to amount to a million dollars over the life of a veteran. Perhaps this was an overestimate, because the alternative is not zero pension, but pension at the 70% to 100% rate. On the other hand, the rates of pension have increased with inflation, so it is still known as the Million Dollar Decision. And Departmental staff, under pressure and often inexperienced, are required to make it all the time.</div>
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Since pension rates are adjusted regularly, any comment I make about monetary value will be out of date by the time you read this. So I shall discuss it in terms of the MTAWE, the Male Total Average Weekly Earnings. What does this mean?</div>
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Suppose you have ten men earning, respectively, 10, 20, 30, 30, 40, 60, 80, 100, 120, and 140 dollars per hour. What are their average earnings? Most people are unaware that the term “average” applies to three different measurements, which coincide only under special circumstances. The first is the <i>mode</i>, the most frequent figure, the high point of the graph, if the figures were graphed. In this case, it is 30, because that amount occurs twice. The second is the<span class="Apple-converted-space"> </span><i>median</i>, the figure which divides the sample in two. In the above example, the median would be 50, because there are five items above that amount, and five below. This is what most people assume is the “average”. They intuitively expect that half the population will be earning less than the average, and half more.</div>
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Wrong! The average implied by the MTAWE is the<span class="Apple-converted-space"> </span><i>mean</i>: the sum of all the values divided by the number in the sample. In the above case, it would be (10 + 20 + 30 + 30 + 40 + 60 + 80 + 100 + 120 + 140 = 630) ÷ 10 = 63. You will note, however, that only four men in the sample earn more than the mean, and six earn less. This is typical. Minimum wage laws, and well as the law of supply and demand as regards to labour, mean there is a lower limit to wages, but no upper limit. The minority of high flyers drag the mean upwards. In real life, 62% of male full time employees earn less than the average. And, of course, not everybody works full time.</div>
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Now, let us apply this to the Veterans’ Affairs pensions. The percentages will have changed slightly by the time you read this, but only marginally. The TPI rate is approximately 57% of the after-tax MTAWE. That might not sound much, but remember: if the veteran’s wife or de facto is not working, he will normally be eligible for the service pension, which will bring his income up to 89% of the average wage. If he had no qualifying service, he cannot get the service pension, but he will be eligible for a Centrelink pension, which is much the same. If his wife or cohabitee is unable to work, or is at an age where she can no longer be expected to work, she can get one too.</div>
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The conclusion is obvious:<span class="Apple-converted-space"> </span><i>a majority of people would be better off on a TPI plus service pension than working</i>.</div>
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Well, perhaps a small reservation may be admitted. Few people go straight from zero to TPI in one hit. Typically, the veteran will have been supplementing his wages with a modest disability pension, say for hearing loss or solar skin damage, and has been relying on that as a regular income. Therefore, the issue becomes: how does (wages plus disability pension) stack up against (TPI plus service pension)?</div>
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But, of course, money is not the whole issue. To quote a Garfield poster, “Work is so horrible, they have to pay you to do it?” So, be honest with yourself. Suppose you could get by more or less comfortably on 80% of your current income. What would you prefer to do: retire on 80%, or continue slaving 35 or 40 hours a week for the other 20%? What if you were sick, and were finding work a burden?</div>
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Considering all of the above, is it any wonder that the TPI rate exerts such a magnetic attraction to veterans one they step on the compensation bandwagon, and the ex-service organisations urge all those who may be hesitant to apply?</div>
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In Chapter 2 I explained that the TPI provisions are the most complex and litigated section of the law, and it is not possible to summarise it without becoming misleading. Here, therefore, are the most important sections, verbatim. The barrier has been deliberately set high, for the reasons outlined above. If they appear a bit unfair at first sight, there are a few things you should remember. Firstly, decision makers tend to cut a bit of slack for the really genuine cases: those who have struggled manfully to hold onto their jobs, but have been forced out by ever increasing sick leave and medical advice. Secondly, there are provisions in the law for the unemployed. Thirdly, as you will have appreciated from reading earlier chapters, most of the “war caused” disabilities are not really caused by the war. And, finally, despite the height of the hurdle, it is amazing how many get over it.</div>
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<b><b>Section 24 of the<span class="Apple-converted-space"> </span></b><i><b>Veterans’ Entitlements Act</b></i></b></div>
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24 (1)(a) either:</div>
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(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or</div>
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(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and</div>
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(b) the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and</div>
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(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity.</div>
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There is more to it, of course. Veterans’ legislation is nothing if not complex. Because finding a job is harder than keeping a job, there is an ameliorating provision for those who are looking for work. Also, this only applies to those under 65. The barriers for veterans over 65 are raised higher. However, they are enough to illustrate the general principles. I don’t wish to confuse, or bore, the lay reader with the fine details of the case law I had been arguing before the Tribunal for nine years. [Anybody who<span class="Apple-converted-space"> </span><i>is</i><span class="Apple-converted-space"> </span>interested is invited to read the 2003 <a href="http://www.vrb.gov.au/pubs/verbosity19-special.rtf" target="_blank">Special Issue</a> of<span class="Apple-converted-space"> </span><i>Verbosity</i><span class="Apple-converted-space"> </span>put out by the VRB.]</div>
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We shall start with subsection (c), which is the stumbling block of many claims. The operative word is “alone”. The veteran’s accepted disabilities (A/Ds) may be the predominant, indeed crucial, factor in preventing him from continuing to work, but if any other factor is involved, the “alone” test is not satisfied. Most veterans intuitively fail to understand this, and many veterans’ advocates refuse to understand it, no matter how well they have been trained, because they continue to make the same false contention time and time again. They come out with such statements as: “It was his bad back (an A/D) which caused him cease work. His neck trouble (a non-A/D) gave him trouble, but it never prevented him from working.” That is beside the point. The non-A/D does not have to prevent a man from working; it only has to contribute.</div>
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It is an unfortunate fact of life that older workers are discriminated against in the labour market. If an employer is looking for a suitable worker, he is less likely to choose someone just five years off retirement age than someone with another twenty years to run. The result is that, if a veteran loses his job in his later years – say by reason of redundancy or business failure - he is unlikely to get back into the work force. He will not qualify under subsection (c). It is tough, but the Special Rate pension was designed to compensate for loss of employment. You cannot be compensated for chances you never had in the first place. Also, when a man is close to 60, he has had a pretty full working life.</div>
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For many people, the choice to take early retirement means a balance of finances, and other factors such as health. Perhaps your superannuation scheme allowed you to retire at 60, or even 55, with a higher payout the longer you wait. If you are a veteran, you are entitled to a service pension at age 60. Or your company may be “downsizing”, and you have the option of taking a redundancy package. If you were healthy, you may have been prepared to stay the course, but if you are sick, and finding work a burden, this might be the opportunity to get out. In that sense, health was the crucial factor tipping the balance in favour of retirement, but it cannot be said to have been the only one.</div>
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If a veteran really has been taking extending sick leave before losing his job, he usually lodges a claim about the same time, and the case is fairly straightforward. However, it not infrequently occurs that the claim is lodged several years after he ceased work, after he has had a talk with members of an ex-service organisation, and there has been minimal sick leave. The result is some creative pleading from the veteran and his advocate. In many cases, he had first applied for a service pension on the basis of permanent invalidity, and had listed all his significant impairments – including some which later failed to be accepted as war-caused. He must now explain that these conditions really did not affect him much at all. Or else he contends that the involuntary redundancy he was handed was really a constructive dismissal because of his medical conditions. Or else the argument with his boss which caused him to resign was really a manifestation of his undiagnosed PTSD. And all the time, the Department’s delegate is left with nagging thought: he was working, albeit with difficulty, right up to the redundancy/resignation, so he must have been capable of working. If he could come in on Friday, why couldn’t he come in on Monday?</div>
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I have no intention of disparaging people who, after all, have found themselves in the difficult situation of being unable to support themselves. Nevertheless, most of them are close to the traditional retirement age in any case, and the social security network does provide for the unemployed and invalids. Most of the above contentions are no doubt made in complete sincerity, but they are more believable to the veteran than the decision maker. But you never can tell. One man I knew announced to his employer that he would have to retire for health reasons. But to allow his boss time to train a replacement, he gave him twelve months’ notice. You might conclude from this that he was still capable of working, but the Tribunal gave him his TPI.</div>
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Particularly in the case of mental illnesses, it is often several years after the veteran has ceased work before he consults a specialist. Indeed, according to many, it never occurred to them that they had a psychiatric disorder until it was suggested to them by someone at the R.S.L. or some other ex-service organisation. (Refer back to the previous chapter for how this affects his presentation.) The result is that we no way of knowing how severe it was when he gave up work. However, sometimes that evidence is available, and it turns out his condition wasn’t too bad at the time. In fact, sometimes the psychiatrist actually reports: “He says that he has got worse in the last<span class="Apple-converted-space"> </span><i>x</i><span class="Apple-converted-space"> </span>years”. The fact is, in many cases, they go to pieces after they finish work because they have nothing to distract them from their symptoms. What such people really need is a reduction in work hours, along with appropriate medication.</div>
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So much for the minefield of subsection (c). Let us turn our attention to subsection (a). Essentially, this states that, before TPI can even be considered, the veteran’s pension must be at least 70%. Originally, it was 100%, but this was rather difficult to attain, so the Government reduced it to 70%. The intention was good, but hindsight reveals that it was too generous. Once a veteran’s pension reaches 60%, the great neon glow of “<b>TPI</b>” looms in front of him. After that, rehabilitation, or even effective treatment, becomes impossible. He needs only another 10%, and he has a “Get Out of Work Free” card, to be played whenever he finds it convenient.</div>
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A 70% pension equates to 40 impairment points. An orthopaedic, heart, or psychiatric disorder of such magnitude would indeed be severe, and place the sufferer’s ability to work in jeopardy. However, as likely as not the applicant is already being bolstered by such A/Ds as hearing loss, solar skin damage, tinea, or even impotence, whose effect on his work is minimal. If, for instance, a veteran has 20 points for a hearing loss (but can hear reasonably well with a hearing aid), he needs only 23 points for PTSD or alcoholism to cross the 40 point threshold.</div>
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Added to this is a certain amount of good natured fudging on the part of doctors – most likely unconscious. It has already been mentioned that tame psychiatrists always rate psychiatric impairment higher – often outrageously higher – than disinterested psychiatrists. Other conditions are usually assessed by the veteran’s own GP, who is usually a decent fellow, but who has a good rapport with his patient, sees things through the patient’s eyes, and regards filling out form as a tedious bureaucratic necessity. It has been shown time and time again that an orthopaedic specialist will find more range of movement in a limb than the patient’s own GP will. Heart conditions can often be assessed by means of a stress test. Almost invariably, they reveal that the patient’s capacity for exercise is greater than he told his GP.</div>
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A 70% pension is thus not so difficult to achieve as you might think.</div>
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Now we come to the next step: subsection (b). The veteran’s A/Ds alone must be sufficient to prevent him from working eight hours a week. (For the Intermediate Rate, the test is set at half the normal working hours, or 20 hours per week.) The veteran may have other, serious non-A/Ds, and these would likely be a barrier under subsection (c), but providing the A/Ds are bad enough to prevent work for eight hours a week, subsection (b) is satisfied.</div>
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An important point to note is that, whereas subsection (c) refers to work he was already doing, subsection (b) is concerned with any sort of work he would be capable of undertaking. Another part of the Act, section 28 requires the decision maker to consider only the effects of the A/Ds on his ability to work in any capacity which his “vocational, trade and professional skills, qualifications and experience” would permit. There is case law that this includes work of a lower skill than that of his last employment. It also covers only the ability to work, not the ability to obtain work. The state of the labour market is not to be taken into account.</div>
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“It is agreed,” I said to a tame psychiatrist at a Tribunal hearing, “that he can no longer work at his last field of employment. But why can’t he work as, say, a car park attendant for eight hours a week? That’s only two hours a day, four days a week.”</div>
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“Well, if you put it that way,” the doctor replied, “most of my TPI patients could work at that level.”</div>
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Exactly.</div>
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From this you might conclude that TPI is very hard to obtain. It would be, except that the rules are not correctly applied. As the above psychiatrist so aptly demonstrated, doctors do not understand the law. They invariably think in terms of the patient’s last job, not all those he was qualified for, and they look at employability, not workability. Also, realistically, not many doctors are familiar with the requirements of workplaces other than their own.</div>
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Time and time again, the following scenario is played out. A veteran applies to have certain conditions accepted. He is granted pension at 70% or 80%. He appeals to the VRB – because appealing is something everybody does, he has nothing to lose, and his advocate advises him to do so. Then, some months later, but certainly before the VRB hearing, he resigns from his job, and requests TPI.</div>
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Typically, the veteran’s sick leave has not been spectacular. If the issue is PTSD, or some other mental illness, then, no matter who made the original diagnosis, he will be getting treatment from a tame psychiatrist who, as you will recall from last chapter, are consistently inadequate in their treatment. In some cases, the veteran has never returned to the psychiatrist after the initial consultation, or sought any treatment whatsoever, until he comes back for a report that he can no longer work. In any case, even if he receiving treatment, the psychiatrist will have no hesitation in certifying that the condition has worsened, without any shame at what this says about his own treatment régime. As for the GP, he is the patient’s friend. If the patient says he can no longer work, who is he to ask questions?</div>
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The timing of such resignations raises serious suspicions. So does its all-or-nothing character. Surely, the normal progression of most diseases is that, at some stage, the sufferer can no longer work full time, or can do so part time? In few of these cases has any attempt been made to cut down the hours of work, or to work on a casual basis. Not every employer can, or will, accede to such a request, but it would be useful to at least ask. Why don’t the doctors recommend that course to their patients when the latter raises the spectre of resignation? No matter. The patient wants out; the doctor will oblige him.</div>
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Strictly speaking, in such cases, the proper course would be to refer the veteran to an occupational specialist, to determine whether he is still capable of working, at least part time, and whether he is qualified, or capable, of working in any alternative employment. In practice, this is rarely done unless subsection (c) is also an issue and, in any case, the Department seldom performs investigations when the case is under appeal to the VRB. Besides, an occupational specialist is in no position to assess psychiatric impairment, but must rely on the tame psychiatrist. So, unless the veteran has some significant non-A/D, it is a lay down misère.</div>
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In short, nothing has changed since the 1992 audit. TPI is still a million dollar industry. People are still being paid not to work. Its lure leads veterans, advocates, and doctors into all sorts of questionable artifices. It is still being treated as a veterans’ superannuation scheme. It is still being handed out to men who have achieved a more or less full working life, many of whom could not hope to earn as much as the combined TPI and service pensions provide. It is not uncommon for 64 year olds to be granted TPI pensions.</div>
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The 1992 Audit also reported that the legislation and administration provided little incentive for younger veterans to gain rehabilitation. How could they, when the pension is at least as good as their possible wages? The<span class="Apple-converted-space"> </span><i>Veterans’ Entitlements Act</i>, in fact, contains no real provision for rehabilitation. It offers treatment, and mandates pensions. But treatment is voluntary, and if it is effective, the pension is reduced. If you talk about rehabilitation to groups of veterans – especially those in the PTSD club – they look on it as a sinister plot to take away their pensions. Finally, the Department produced a scheme whereby veterans could voluntarily make an attempt at a return to work, with their wages topped up to the TPI level, with the option for them to cease, and revert to TPI whenever they feel they can no longer cope or (to take a cynical view) decide it is time to retire. The candidates who presented themselves could easily be predicted: a handful of professional people who could earn more than the MTAWE. It is commonly held that many of these are not really incapacitated, but have simply found a way to manipulate the system.</div>
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The TPI racket has one other interesting sequela. After gaining their TPI pension, often by means of PTSD or some other psychiatric condition, quite a few veterans have found their purpose in life helping other veterans do the same. They serve as volunteer pension officers, advisers, and advocates for the local ex-service organisation, arranging and advising on claims, writing submissions, and even appearing before the VRB. Often this involves a considerable amount of time, not to mention creative pleading. But in the process, a nagging worry kept recurring: what is to stop the Department from ruling that they have proved themselves capable of working, and then cancelling their pension?</div>
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Therefore, they came to the Commission and asked for an assurance that it wouldn’t take such dastardly, if logical, action. And the Commission, for the sake of good relations with the ex-service organisations, gave them its word. The official rationale is that such voluntary work is different from paid employment, with its concomitant deadlines, quality control, regular schedules, and supervision. If the Commission really believes that, it is deceiving itself. The RSL, in particular, has paid pension officers and advocates doing what these volunteers are doing. If they really have difficulty adhering to specific working hours, they can be paid on a<span class="Apple-converted-space"> </span><i>pro rata</i><span class="Apple-converted-space"> </span>basis. And eight hours a week is only two hours a day, four days a week. These characters are disqualified under section 24(1)(b), and everyone knows it.</div>
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Not only does the system pay people to be sick, it also encourages bad medical practice. Veterans are entitled to free treatment for PTSD, anxiety, or depression, whether or not it is service related, and this itself is a good thing. But there is no quality control of the treatment. One psychiatrist, who does treat PTSD patients with some degree of success, spoke to me contemptuously about the “PTSD Industry”, where veterans are booked into various clinics for several weeks at a time, all at government expense, on a regular basis, without any real progress being made.</div>
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Recall the psychiatrist who told me at the Tribunal hearing: “Most of my TPI patients…” If I had had my wits about me, I could have asked a few further questions – like: What proportion of your veteran patients are on TPI, and why aren’t you able to improve their condition?</div>
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Recall poor Mr Q., who was attending a psychiatrist every six weeks, and a psychologist every fortnight, yet his affliction was not even stable, but was steadily, and rapidly, deteriorating, and he could no longer work. Why did the Department continue to pay for such treatment? In no other field of medicine would such a thing be tolerated. The Department would never agree to pay for an open-ended physiotherapy course. It would approve only a limited course of treatment, and if no progress was made, no more treatment would be approved without at least an orthopaedic report and recommendation.</div>
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Let me propose a scenario. Suppose a veteran lodges an application for an increase in pension, and his psychiatrist reports that he has got worse under his treatment. Suppose then, the Department accepts this report for pension purposes, but insists that the psychiatrist come up with an alternate treatment plan to reverse the process. If this fails, then the Department will say, in effect: That’s it; we are no longer paying for the treatment. The Department would then refer the veteran to a member of a team of psychiatrists who have a good track record for treating PTSD and related illnesses. Attendance by the veteran would be voluntary, but his treating psychiatrist would not be paid until the super team had established a successful treatment plan, or determined that his case was intractable.</div>
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What reaction would such a scheme provoke? A very loud one, I would suggest. For a start, it would create a conflict of interest between the veteran (who wants an increase in pension) and the doctor (who wants his fees). The latter would also face the prospect (shock! horror!) of coming under peer review. Many would be hesitant to claim their patient had deteriorated. Conversely, even if a veteran did improve under alternate treatment, many would be reluctant to admit it. Ex-service organisations would resist the move, seeing it, not incorrectly, as an attempt to prevent TPI payments.</div>
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Yet, the policy would be easily defensible. Veterans are entitled to the best treatment available for their war-caused disabilities. If the initial treatment régime fails, it is incumbent on the Department to look for a more effective plan. Nobody should be written off in the first instance.</div>
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Indeed, if the Department dug in its heels, and refused to compromise, there is the possibility of a slow change in medical culture. Having realised that they cannot go on providing ineffective treatment indefinitely, psychiatrists might see that their best interest lay in modifying the treatment as soon as it became clear that it was not working, even seeking second opinions from those more experienced. Psychiatry would be seen as a collaborative affair in developing best practices.</div>
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Is this being overly optimistic? Probably. Still, the possibilities should at least be looked at before being rejected.</div>
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Mental pain can be one of the worse forms of suffering. After all, it is possible to be happy despite your physical infirmities, but if you are depressed or anxious then, by definition, you are not happy. Suppose it happened to you when you were in your early twenties, and you still had your whole life, including potentially forty years of productive work, ahead of you. Suppose, too, that you psychiatrist told you, in effect: You’ll never get better. I shall continue to treat you, of course – and take the government’s money – but you’ll never be well enough to work even eight hours a week. No, there is no point in seeking a second opinion, because I know more than all the other doctors about the matter. I’m also psychic, and I know that nobody will ever find an effective treatment for you over the next forty years. Resign yourself to being a psychiatric wreck for the rest of your life.</div>
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If your doctor said that to you, wouldn’t your immediate response be: “I want a second opinion!” ?</div>
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Well, it happened to one young soldier, who had a bad experience on his first assignment to East Timor. The Commission, and later the VRB, granted him a TTI (total and temporary incapacity) pension, on the optimistic hope that he might improve. But he didn’t go to another doctor; he went to the AAT, because his minders told him he should be on TPI, not TTI. At the hearing, his treating doctor testified that he was a lost cause. A second psychiatrist, commissioned by the Department, suggested it was too early for such a pessimistic assessment. With appropriate treatment, there was a fighting chance he could get back into the workforce, at least part time. The Tribunal agreed, and the following year, so did the Federal Court.</div>
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Will he ever improve? He still wants TPI. His advisers tell him he should be getting it. And he is still receiving treatment from the same tame psychiatrist who branded his plight intractable. So what do you think?</div>
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Nor was this an isolated case. In absolute terms, veterans of more recent wars and peacekeeping operations are not numerous, in comparison to earlier wars. But those who are traumatised are young. And already the same rogues’ gallery of tame psychiatrists and well-meaning but misguided advocates are writing off all their hopes for the future for the sake of a pension which they have been taught to regard as their ultimate economic goal.</div>
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What happens on the rare occasions when a veteran does successfully rehabilitate himself? One case which crossed my path concerned a man whose mental anguish had been (I suspect inappropriately) determined to be war-caused. However, because his treating psychiatrist suggested there was hope of an improvement, he was granted a TTI pension, with a review date a few years in the future. At that point, he took the road less travelled: he found God, and He worked His healing power. By the time his case came up for review, he was in a Baptist seminary, studying for holy orders. He still had the occasional bad day, he reported, but otherwise he was getting on more or less fine.</div>
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As anyone who had done tertiary studies knows, studying, preparing assignments, and taking exams are a lot more stressful than the average nine to five job – especially the less skilled occupations covered by section 24(1)(b). I had no choice but to cancel his pension.</div>
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That’ll teach him!</div>
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/9-war-widow-racket.html" target="_blank">Continue to Chapter 9</a></strong><br />
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<strong><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a></strong></div>
Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-45615334243986683292013-03-03T06:58:00.000+10:002014-10-24T18:52:31.639+10:0010. Through the Looking Glass<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font-size-adjust: none; font-stretch: normal; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
I remember a hearing at the Administrative Appeals Tribunal where the veteran’s barrister was putting on his best performance, attempting to explain how merely being on a base in a war zone could be a “severe stressor”, capable of mentally crippling a person for life. Certainly, he submitted, it would be a terrifying experience to be robbed at gunpoint. But what if an escaped convict entered the store, but did not pull out a gun? What if the shopkeeper merely watched him pass by the door? Wouldn’t that be frightening? What if he simply heard on the news that an escaped criminal was roaming the area? In fact, what if there were no specific criminal that he knew of, but he was forced to mind a store in a known high-crime area?</div>
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As he moved down the scale, trying to insinuate that the least was as bad as the first, a sense of complete unreality swept over me. I started to think: what if this load of nonsense were put to ordinary people on the street? When the turn came for my submission, I started off: “I feel like I have just walked through Alice’s looking glass, into a world where normal reality is inverted.”</div>
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A wry smile came from the Deputy President. “Welcome to the AAT!” he said. He knew it was all an expensive game.</div>
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Indeed, the whole of the veterans’ compensation system lies in a world of inverted reality. It is a danger faced by all cohesive organisations, whether political, religious, or social. By constantly discussing, back and forth, the same ideas, thought patterns, and fundamental assumptions, they end up with a world view which they mistake for reality. They forget that there is a world outside which does not think in the same way. Go back to<span class="Apple-converted-space"> </span><span style="color: black;">Chapter 7</span>, and the man who was traumatised by being tapped on the shoulder. Or<span class="Apple-converted-space"> </span><span style="color: black;">Chapter 10</span>, and the animal fat/prostate cancer story. Do those decisions sound like they were made by people with their feet firmly planted on<span class="Apple-converted-space"> </span><i>terra firma</i>?</div>
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Up to now you learned the background of how veterans’ law has been perverted. Let us now see how it is applied in practice, by following a claim from initiation to final resolution. Let us step through the looking glass.</div>
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<b>Step 1</b></div>
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The process of claims and appeals was originally intended for people who, rightly or wrongly, had a genuine reason for believing their medical problems, or their husband’s death, was due to service. In practice, this applies to only a small minority of claims. What has happened is that veterans have been taught to regard their medical conditions as sources of income. The trick is to find some mechanism by which it can be attributed to service. It may not be possible, but you have to be in it to win it.</div>
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It begins when a veteran hears on the grapevine that he may be eligible. (Everything in this chapter, of course, applies equally to widows, but I shall restrict myself to veterans.) Perhaps he hears that one of his friends has just got a similar disease accepted. Of else, he has heard for years about such things at the local R.S.L. or similar ex-service organisation, and when he himself falls sick, he inquires whether he may be eligible as well. Or perhaps another member of the ex-service organisation makes the suggestion to him.</div>
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In any case, when he obtains the claim form, the first thing he sees, before even the space for his own name, is the section labelled, “Representative details”. You see, the Department accepted the submissions of the ex-service organisations that every veteran should have a representative, and that the Department should encourage them to obtain one. Indeed, the Department even runs a special training program for representatives, known as TIP, for Training and Information Program. (As the page marked "Acronyms" at the top of this blog<span class="Apple-converted-space"> </span>reveals, DVA has a penchant for TLAs: three letter acronyms.) For many veterans’ advocates, TIP provides just the knowledge and skills they need to do their job. For many others, it provides the little knowledge which is proverbially a dangerous thing. For a handful, it teaches them how to manipulate the evidence to get what their client wants.</div>
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In any case, once the veteran approaches an ex-service representative for help in filling out the form, one thing is practically certain: the representative will persuade him to add several more conditions to the list. Once “Representative details” was placed at the top of the form, multiple claims became the norm, and single item claims shrank to virtual non-existence. One R.S.L. branch is notorious for including at least a dozen, sometimes two dozen – or more! – conditions on each form. Indeed, their pension officers are instructed – and I got this from the horse’s mouth – that, whenever a veteran comes to them to claim<span class="Apple-converted-space"> </span><i>anything</i>, they must give him a complete medical rundown, and claim everything. Does he feel anxious or depressed, or worry a lot? Probably due to the war. Do his legs ache? Perhaps it’s peripheral vascular disease due to smoking. Indigestion? Who knows, it could be due to cigarettes or alcohol. Put it down. At his age there is also a reasonably good chance he has a few sunspots on his skin, and can’t perform in bed. Add them to the list. In the end, Joe Veteran won’t have a clue what it is he putting his signature to.</div>
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To give them credit, this scattergun approach is highly effective. By the law of averages, a good proportion of these conditions will be accepted without the veteran or his representative doing anything more than filling out a few questionnaires and attending a couple of doctors. But what happens next raises serious ethical questions. When the decision is finally made, a copy goes to the veteran and a copy to the representative. The latter’s instructions are to then advise the veteran to appeal to the VRB – even if there is no obvious way the disease can be related to service, even if the doctor was unable to establish that the disease actually exists. By this time the veteran himself may well have difficulty following what is going on. Not to worry, the pension officer is under instructions to attend the VRB hearing and make out the best case he can. For conditions for which no case exists, he is simply to say they have no submission, but the appeal is<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>withdrawn. Instead, when the Board rejects it, he must immediately appeal to the AAT, and hand the case over to some hapless lawyer, who must use his valuable time to explain to the bemused veteran why his cause is hopeless.</div>
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Of course, not every ex-service organisation acts in such an outrageous fashion, but you get the message. Now, let us examine what happens when the claim lands on the desk of a Claims Assessor, the officer employed by the Department to both investigate and determine the claim in the first instance. And here, we had better state one principle at the outset:</div>
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<i>There are many opportunities for making mistakes in the veteran’s favour, and very few for correcting them. Mistakes in the opposite direction, however, will usually be corrected on appeal.</i></div>
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If you ever read a Delegate’s decision you will notice that the format is, to say the least, a little odd. That is because it is written by a computer. I am not kidding. When I was involved in the work, I longed to add the disclaimer: “The human being who made this decision is not responsible for the format of this letter.”</div>
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In 1994 the Computer Claims Processing System (CCPS) was introduced to streamline the decision making process. The Claims Assessor codes in the diagnosis, established or provisional, and the system produces the questionnaires to be sent to the doctor and veteran. A Departmental Medical Officer will provide specialist referral letters, and interpret any medical reports, if need be. When all the information is in, the Claims Assessor codes in the smoking history, weights lifted, injuries, dates of onset, and any other details that may be relevant, and the system says yea or nay. It is an extremely useful tool, without which the decision making process would be long and drawn out – as it was in the past. But the operative word is “tool”. Unfortunately, too many officers of the Department allow it to do their thinking for them. It is not even necessary for the Claims Assessor to be familiar with the relevant SoPs, or even read them.</div>
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At this point, it is necessary to understand the Department’s <a href="http://malcolmshumour.blogspot.com.au/2011/02/adventures-of-asoc-in-aps.html" target="_blank">career structure</a>. I originally joined as a clerk class 1, and within three months was permanently acting at the class 2 level, but it took several years to move up to the next level. The reasons had less to do with my abilities than the availability of jobs. When another officer gets sick, goes on holidays, acts on higher duties, or is seconded to a special project, someone at a lower level must step up to replace him or her. In this case, there were at least four class 2 positions for every class 1, resulting in regularly occurring vacancies where a class 1 clerk could do higher duties. However, the class 2 positions also outnumbered the class 3 positions four to one, so I had to wait in line while others filled the occasional vacancies at that level. You get the picture? There are other ways to be recruited for a position, but generally it is filled by people who have gained the experience by doing higher duties. The classification with the largest number of positions acts as a magnet, pulling up staff from a lower level, but as a bottleneck for those wishing to advance higher.</div>
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From this perspective, the Veterans’ Affairs’ compensation section offers the ideal career pathway. The largest number of positions is that of Claims Assessor, at the class 5 level. Lower levels are grossly underrepresented, so anybody prepared to take a CCPS training course is guaranteed to be find a slot doing higher duties as a Claims Assessor, a slot which will soon become permanent. However, operating a computer system is only one necessary skill. What is<span class="Apple-converted-space"> </span><i>really</i><span class="Apple-converted-space"> </span>needed is for the trainee to sit beside an experienced officer for several months, learning how to read files, understand the issues, and gain the level of animal cunning to ferret out information from odd corners. This is simply not done. The Department is short staffed; it does not have the facilities. Recently, I heard a top level manager state that it take 18 months to train a Claims Assessor, but fail to mention that no such training is provided. The result is, anybody who becomes an effective Claims Assessor does so by dint his own native ability and experience with hundreds of claims. A few never reach that level.</div>
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If you are lodging all but the most straightforward claim, pray that you get an inexperienced officer to handle your case. An experienced officer will read the relevant SoPs and check all the information on all the files before beginning investigations. An experienced officer will tailor the official questionnaires to the circumstances of the claimant, and will seek clarification of the inadequate answers that are commonly provided. An experienced officer will ask embarrassing questions like: how come your recent smoking statement conflicts with what you told a doctor five years ago? or: how could you injure your knee, back,<span class="Apple-converted-space"> </span><i>and </i>shoulder all in the one fall? An experienced officer will not try to interpret a complex specialist report, but will ask a Medical Officer what it means. An inexperienced officer will let this all sail by, and press the “yes” button. The result is that a lot of manifestly wrong decisions are made in the veteran’s favour.</div>
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Not only that, but they are under pressure. The computerised system makes it easy for management to monitor output, but more difficult to determine whether a decision was right or wrong. The result is that emphasis has always been on quantity at the expense of quality. Pre-CCPS, claims used to take months to determine. Management is now rightly concerned that the average time taken to process claims is kept to a minimum. To make matters worse, the Department of Defence is frequently slow in providing service medical documents, so the Claims Assessor often ends up determining the claim without knowing what medical treatment was received on service. Staff are also expected to complete a certain number of decisions per week. Currently, that means that they have only four and a half hours to investigate each claim. It used to be two and a half hours. That’s not much when a claim covers a dozen conditions.</div>
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Upper management is provided with a bucket of money for wages. Veterans’ pensions come from a separate, apparently bottomless, barrel for which no-one in upper management is responsible. Nevertheless, you, the taxpayer, who provides both the bucket and the barrel, may wish to do a bit of arithmetic. Suppose every Claims Assessor was able to spend an extra hour on a claim whenever uncertainties arose. That would incur an extra hour’s wages, plus all the accessories to wages: accrued leave, superannuation,<span class="Apple-converted-space"> </span><i>etc</i>. Since staff numbers would slightly expand, one must add a slight increase in rental of office space, telephones, and so forth. Even so, it is hard to see the extra hour costing more than $50. Added to this, the minor expense of extra phone calls or posting, and the big ticket item of another specialist opinion, may bring the total up to a couple of hundred extra dollars. Even so, compared to the lifetime of even an extra 10% to a disability pension, this is chicken feed. And let us not forget that a minor medical condition accepted in error can make all the difference to a later consideration of TPI.</div>
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In other words, the government is being penny wise and pound foolish – and it is your pound.</div>
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<b>Step 2</b></div>
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Copies of the primary decision will be forwarded to both the veteran and his representative. At this point, if events turned out the way the law envisaged, they would study the reasons closely and, if they reluctantly agreed that they were correct, accept it gracefully. If, however, they discover some error, they would appeal to the Veterans' Review Board (VRB) and give reasons. That’s not how it usually happens.</div>
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In the first case, the veteran knows little about the law, or the SoPs, and the computer-written decision reads like a species of double Dutch. Even if every condition has been accepted, his total ignorance of G.A.R.P. means that he has no way of knowing whether the pension assessment is correct. His representative should be better placed, especially if he has had TIP training, but the bottom line is: the veteran has not got the maximum benefits available, and appealing costs nothing. Therefore, the vast majority of decisions are appealed, regardless of merit.</div>
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Once the appeal reaches the VRB, the Board will send a letter asking which aspects of the decision are the subject of the appeal. This is in response to a perverse Federal Court decision that all parts of a decision must be assumed to be under appeal unless it is specifically stated otherwise. Even if the veteran never mentions a particular aspect of the decision, even at the VRB hearing itself, it is still under appeal. When the letter is received, the veteran will naturally tick all the squares.</div>
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The Department will then produce what is known as the “Section 137 report” (after the section of the Act which requires it), containing copies of all the documents relevant to the original decision, and send reports to the VRB, the veteran, and the representative. They are then supposed to examine the documents thoroughly, provide any extra ones they think are useful, and when the time comes for the hearing, they will all sit down together and discuss them.</div>
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The law permits the veteran to obtain medical reports in support of his appeal, and have the Department refund the cost to the tune of several hundred dollars each, regardless of whether the reports are of any use. The rationale is that it will facilitate the early resolution of the appeal. No doubt this made sense in the days before the SoPs. However, these days a specialist medical opinion cannot trump a SoP. It makes no sense, for instance, to have an orthopaedic specialist argue that his patient’s osteoarthrosis could have been due to a particular injury on service, when the SoP requires the injury to have been of a particular severity. Thus, these medical reports – which you, the taxpayer, pay for – tend to fall into two neat categories: those which are irrelevant, and those from tame psychiatrists, which are false.</div>
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The Commission still has some feedback into the appeal system. It can intervene under section 31 and accept the veteran’s claim if the Review Officer considers that new evidence warrants it. During the 1980s and ‘90s the Commission used to get concerned about the backlog of cases awaiting VRB hearings, and would send their agents out to accept as many cases under section 31 as humanly possible on the most meagre evidence. The result was that many pensions would granted incorrectly. These days, the Department offers a section 31 review service to any veteran’s representative who asks for it, and makes a submission.</div>
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However, the Commission normally undertakes little new investigation. If, for example, a psychiatric disorder has been rejected, it is ten to one the veteran will be sent to a tame psychiatrist for a new diagnosis, preferably of PTSD, and frequently with allegations of a new “stressor” not mentioned to the earlier doctor. If the review officer does not accept this, he will give his reasons, and send it off to the Board, but he will not initiate a new psychiatric consultation, or investigate the alleged stressor. The VRB may do that at a later date, but the Commission doesn’t. So, essentially, tainted evidence is left uncontested.</div>
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The law permits the Commission to be represented at the VRB hearing, but from the onset the powers that be decided never to invoke this right. Although the Board members are intelligent and well qualified, they are often presented with dubious evidence and submissions, for which the input of a Commission representative would not go astray. Frequently, the veteran and his representative arrive on the day of the hearing bearing documents which nobody in the Department has ever seen before, let alone had a chance to comment on.</div>
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One good point, however: the Board’s decisions are written by human beings, and they are usually very cogent – at least when an appeal is rejected.</div>
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<b>Step 3</b></div>
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Once the Board’s decision has been published, the normal response is for the veteran’s representative to send it to a law firm with instructions to lodge an appeal to the Administrative Appeals Tribunal (AAT). Often the veteran himself has only a faint idea of what is going on. (Remember the case of the late Mr B in Chapter 7C.) An appeal costs nothing, so generally it is done as a matter of course, nor do the lawyers vet them when they arrive to see if they have any merit.</div>
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I mention this to point out an anomaly. These cases have already had three opportunities to be accepted: by the original Delegate, by a Review Officer under section 31, and by the VRB. All the strong, straightforward cases have been culled out in the process, leaving only the weak ones to be further contested. You would expect, therefore, that only a small percentage would succeed at the AAT. In point of fact, it is just over 50%. Why this should be so, and what is says about the system in general is something you might wish to contemplate.</div>
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The actual decision under appeal is not that of the VRB, but that of the original Delegate of the Commission, and the Commission is required to defend it. In the first instance, a bundle of documents similar to that which went to the VRB will be sent to the Tribunal and to the veteran’s solicitor. The case will also be assigned to a departmental Advocate, one of a select group of about a dozen and a half throughout the country. Only a handful of them possess any legal qualifications, but do not be deceived: in the narrow area of law in which they operate, they are at least as good as any of the barristers arrayed against them. However, there is a difference. While the veteran’s lawyers are acting on his instructions, and are required to defend his case come what may, the role of the departmental Advocate is not specifically to defend the Commission’s decision, but to assist the Tribunal in reaching the correct or preferable decision. That may or may not mean persuading the Tribunal that the Commission got it right in the first case. As this was my position for last nine years of my career, I feel some degree of confidence when discussing it.</div>
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One thing working as an Advocate teaches you is to forget the popular myths about lawyers. True, I could cite one large firm which used to milk the legal aid cow for all it was worth while training its young recruits from law school in the sort of devious tricks which give lawyers a bad name. But when the rules for legal aid changed, like a great lumbering dinosaur, they could not cope with the changed circumstances, and withdrew from the field. I also have a list of law firms I would not, personally, want to handle my own affairs – not because they are unethical, but because they are incompetent. By and large, however, the lawyers I dealt with were just ordinary people, doing their work as professionally and as ethically as the rest of us. The barristers I regularly clashed with are owed a certain amount of respect, because they have to plead before courts and tribunals on a regular basis, and that is emotionally exhausting work.</div>
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So let us look at what happens from the time the appeal lands on the solicitor’s desk. The<span class="Apple-converted-space"> </span><i>AAT Act</i><span class="Apple-converted-space"> </span>requires that an appeal be in writing, and state the reasons for the application. At this point, you might think, the logical action would be for the solicitor to say to the veteran, in effect, “The Board has provided detailed reasons for its decision. What do you think is wrong with them? (And if you don’t know, what are you coming to me for?)” After all, the veteran was presumed to have made his original claim on the basis of what he considered were valid reasons, so this would be a logical question to ask. But it doesn’t work that way. In any case, the AAT considers the duty of stating reasons is discharged if the applicant merely says, “The Commission’s decision failed to give full consideration to the evidence in support of my claim,” or even simply, “The decision was wrong.”</div>
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What happens is that the solicitor has to read the VRB decision, and then the departmental documents, make some assessment of the case, and then talk to the applicant. It is not an enviable position to be in, for up to now he has not received any payment, and the case, by definition, will be fairly weak. Often it means explaining to the applicant why some parts of his claim have very few prospects. Then he must apply for legal aid, providing reasons why his client’s case has at least some chance of success. Legal aid payments are quite low. As a QC once explained to me, the only way to make money out of legal aid is to take a lot of it, and then do as little work as possible – otherwise, a small profit will be turned into a significant loss.</div>
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After that, conferences are arranged between the applicant’s solicitor and the Department’s Advocate, supervised by an employee of the AAT, at which the issues are thrashed out, points of differences and agreements are established, and future action discussed. These conferences are “without prejudice” ie nothing said in them can be used in any subsequent hearing. The Department’s Advocate normally has a fairly free rein, but the solicitor cannot bind himself to any position without taking instructions from his client. Strictly speaking, there should be only two conferences, but they often multiple to two or three times that number as further evidence is produced.</div>
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Evidence? Hadn’t it all been exhausted at the previous two decision making levels? I remember a speech by a Deputy President of the Tribunal, lamenting the anomaly. In nearly every other field covered by the AAT, he said, it is normally the original evidence which is tested. With Veterans’ Affairs, masses of new material are presented. Nevertheless, it is inevitable. You will remember that the Commission has not had a chance to investigate the material provided to the VRB; now is the time to do so. If, for example, a report from a tame psychiatrist had been presented to the VRB, the Commission’s Advocate will want the opinion of someone more reliable. The veteran’s solicitor may also feel that a specialist opinion is needed to clarify some issue, and request legal aid to obtain it. (The Department is not responsible for the applicant’s expenses in the appeal, but the taxpayer still picks up the tab.) It is not unusual to find that the only witnesses called at a hearing are doctors who had never seen the patient at the first two levels of decision making.</div>
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This interlocutory phase before the hearing allows the applicant’s party to fine tune its evidence, even, sometimes, to the extent of manufacturing it. Inevitably, the applicant will be required to make a detailed statement of his or her claim, covering such things as smoking history, work history, the details of an accident, or the stressors on service. Not unexpectedly, the story crystallises into something more or less what the law requires. Often, too, a canny lawyer realises that there are some other aspects of the case have a better chance of success than the ones relied upon at the VRB. This is the reason for the phenomenon recorded in Chapter 7, whereby claimants in psychiatric appeals come up with new “stressors” never mentioned to any previous doctor. The same Deputy President mentioned above also commented that Veterans’ Affairs is the only jurisdiction where a claimant can make one contention at the first level of decision making, another one at the second level, and yet another at the third.</div>
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In a third of cases, this process doesn’t work, and the solicitor convinces his client his cause is lost, and should be withdrawn. In a further forty percent of cases, it is the Commission which concedes most or all of what the applicant wants. Considering that these cases were not strong enough to succeed at either the primary level or the VRB, this is a very high percentage. What has happened? You must understand that the standard of proof heavily favours the applicant. Secondly, in a great many cases, the only relevant evidence is that provided by the applicant. After all, how can anyone dispute what he says about when he started smoking, or how many days he suffered pain, tenderness, or loss of mobility after an injury? While the Advocate, watching how the applicant’s story has developed over the years, might be satisfied that it is incorrect, the question remains: how can he convince the Tribunal? He looks back at earlier Tribunal decisions, and realised that the Tribunal tends to be extremely generous, even perverse, in its findings. (Refer back to the fourth paragraph of this chapter.) For the veteran, the bar is set very low. Is there any point at all in the Advocate continuing the fight? Rates of pension are particularly vulnerable to concession. The EDA rate requires an impairment rating of 70, and a lifestyle rating of 6. If the first is met, the tendency is always to fudge the second and give him what he wants.</div>
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It used to be worse in the past. In the 1980s and ‘90s, when the backlog of AAT appeals was heavy, the Commission would periodically reduce it by conceding every case with the slightest hint of possibility that it might be successful. The result was that a lot of pensions were incorrectly granted, at great expense to the taxpayer, even if the statistics looked good. And the message went out: if you fight the Department of Veterans’ Affairs long enough, they will give in.</div>
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What happens to the one fourth of appeals which go on to a hearing? The law firm must obtain legal aid for the hearing, and that means briefing counsel ie the barrister who will defend the case. In fact, this was almost a universal custom even before it was made a requirement for legal aid. It is also common to “obtain prospects”, that is to obtain an opinion from the barrister as to whether the claim has any chance of success, and if so, what are the cogent arguments. This inevitably raises the question I asked a QC at a training session: “If I, who have no legal qualifications, am able to determine the prospects of a case, and argue it before the Tribunal, why do they need to get a barrister’s opinion? Why can’t their own solicitor do it?”</div>
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“What you have to understand,” he replied, “is that, although they have a law degree, they are really just private enterprise bureaucrats, whose job it is to keep the paperwork moving, but when it comes to forming an opinion, they have to go to somebody more qualified. And, and often as not, counsel will say, ‘The case doesn’t look too good. Who’s on the other side? Smith? That bastard never concedes. Perhaps you might have better luck if you try such-and-such…’ The result is that much of their work is stalling, hoping something will turn up, or the Advocate will go on leave, and somebody else more pliable will take over.”</div>
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“Well,” said I, “that certainly makes sense of a lot that has happened in my job.”</div>
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Proceedings before the AAT are totally different to those before the VRB. At the VRB, no witnesses are called except the applicant himself, who just as often states his case by telephone. No evidence is challenged, though the Board members may ask for clarification of statements which appear dubious. Anybody attending an AAT hearing, however, would be forgiven for thinking he was in an informal court. Court dress, such as wigs, are not in use, but everything else is similar.</div>
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The applicant is represented by a barrister, assisted by a solicitor, who takes notes and prompts him if necessary. The Department’s Advocate acts alone. The law states that the Tribunal is not bound by the established rules of evidence but, in practice, they tend to follow them. The documents relied upon are tendered, and witness are put to an oath or affirmation. Evidence in chief is given when the witness is initially called and questioned by the person (barrister or Advocate) who called him. This is one of the hardest parts of the proceedings, because leading questions are not allowed, and if the witness doesn’t say everything you need him to say, you are stuck. After that, the other side cross-examines him. Then the first party re-examines the witness – but only on matters raised in cross-examination.</div>
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The Advocate might know from experience that the applicant’s doctor is a hired gun who will say whatever is required of him, but he cannot say that. He can only hope that the Tribunal has also had enough experience of him to form the same opinion. He may know that a particular doctor was once prosecuted for fraud, but was let off because of a nervous breakdown, and that another once provided evidence to save a wanted criminal from extradition - as was the case of two witnesses I have regularly clashed with. However, if he so much as raised the issue, the applicant’s barrister would immediately object, and the Tribunal would sustain the objection. If the applicant said anything to the VRB which would injure his case, the Advocate must bring the transcript of the VRB hearing and put his actual words to him. The VRB keeps tapes of its hearings for only two years, so if he said something at an earlier hearing – tough! It cannot be used as evidence.</div>
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As a general rule, documents for which the author is not called for cross-examination are assumed to be uncontested. Individual Tribunal members have different views about what needs to be proved, and what can be accepted as common knowledge. One member, for instance, was not prepared to accept without evidence that unemployed people over sixty have difficulty finding jobs.</div>
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Over the years, one recognises the quirks of individual Tribunal members. There was one who used to launch tirades against the parties. At one hearing it would be the Commission’s Advocate who bore the brunt of the abuse, at the next it would be the veteran’s barrister. A couple of members were astute most of the time, but at others they would take a sudden bias towards a veteran’s case, and nothing would shift them. One member is a very friendly, likeable person, but there are times when he is determined to find in favour of the applicant, no matter what. As mentioned in the last chapter, after one hearing, he instructed me to look for further information in support of the applicant. In another, he accepted the appeal by means of an hypothesis neither I nor the opposing barrister had even thought of. (Both these actions were of questionable legality.) Another tends to be more generous than other members, but is inconsistent. One day he will accept a claim, and a few months later reject a very similar one.</div>
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In other words, the Administrative Appeals Tribunal is a kangaroo court. As such, it leaves the citizen little optimism concerning the workings of other kangaroo courts (such as the various “anti-discrimination” and “human rights” bodies, which are intuitively biased towards the plaintiff.)</div>
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No, this is not sour grapes on my part. The cases which reach the Tribunal are, by definition, too weak to concede and too strong to be withdrawn. One would expect that roughly half of them will be successful, and this is not far wrong. But the fact is, representatives of both sides can tell prior to the hearing whether the appeal has a fighting chance. The problem is, many of the patently lost causes do unexpectedly succeed. Take, for example, the case of M, referred to<span class="Apple-converted-space"> </span><span style="font-family: Times New (W1), Times New Roman, serif;">in Chapter 7</span>. Here was a man claiming a lifetime of angst from the most trivial of events, and it came as no surprise when the appeal failed. Yet, when he came back before another Tribunal, he succeeded. “You thought we’d just roll over, didn’t you,” the Senior Member said to the flabbergasted Commission Advocate.</div>
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Every time some outrageous claim succeeds, it becomes a rallying point of everybody with a similar claim, and a precedent for any ex-service advocate or lawyer seeking to push the boundaries of the law. These days, it is relatively easy to access precedent case law, because the Australasian Legal Information Institute reports all the decisions on the internet. (Those of the Administrative Appeals Tribunal can be found<span class="Apple-converted-space"> </span><span style="font-family: Times New (W1), Times New Roman, serif;">on <a href="http://www.austlii.edu.au/au/cases/cth/aat" target="_blank">here</a>.) </span>However, a word of advice: the Tribunal’s reasons for decision commonly understate the strength of the Commission’s case. Time and again I have made a submission at a hearing, giving half a dozen or more good reasons why the appeal should fail. The Tribunal, I am sure, weighs all of them, but when the time comes to publish the decision, it will list only a couple of the most cogent ones, and definitely fail to mention any which might involve legal principles. The point, of course, is that appeals to the Federal Court can be made only on legal grounds, not the interpretation of facts.</div>
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On the other hand, if the Tribunal is determined to make a perverse decision in the applicant’s favour, it will not publish the Commission’s arguments in full, let alone refute them. At best, it will mention them briefly in passing, so that it cannot be said that it failed to consider them. This has happened so many times, it is impossible to accept it as accidental. Instead, I shall merely describe the most egregious example.</div>
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As you will recall from Chapter 8, section 24(1)(c) requires that the veteran be prevented from continuing to work due to his A/Ds alone. Therefore, when a self-employed deliveryman ceases work after injuring his foot in a workplace accident on 10 June (which, fortuitously, is close to the end of the financial year), you would assume he was out of the running for TPI. Not so, he insisted. True, he did state on several occasions that he had ceased on 10 June, but that was while his foot was still sore. It got better, and he returned to work. However, his war-caused PTSD was getting worse. He was being paid in cash, so that no records were kept for tax purposes. But his PTSD got so bad that his psychiatrist (who had moved, and was unavailable to give evidence) finally told him to close the business early in the following year.</div>
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And the Tribunal believed him. A reading of the Tribunal’s decision almost makes it sound plausible. What you will<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>read in the decision are the following facts:</div>
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He changed his story about the degree to which he relied on a casual employee. That, by itself, should have alerted the Tribunal that he was playing fast and loose with the truth.</div>
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He gave 10 June as the date he ceased work, not a few times, but twenty times, the last one two years after the event.</div>
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Although his foot did get better, there was evidence two years after the event that it was still bad.</div>
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His tax records for the following financial year revealed not only an absence of income, but hardly any expenses for fuel, indicating that he was no longer driving his van.</div>
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It was established, beyond a shadow of a doubt, that the psychiatrist who allegedly advised him to give up work did not see him until after the date when he himself claimed to have left the workforce.</div>
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As the Deputy President put it, “Welcome to the AAT!”</div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-91302125524163772612013-03-02T14:06:00.000+10:002013-03-08T12:44:19.307+10:009. The War Widow Racket<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<span style="font-family: Times New (W1), Times New Roman, serif;">If a man died at the age of 91½, you would hardly think that his death was due to the war. Neither would I, but I gave his widow a War Widow’s pension anyway. I was only following the law and the SoPs. Yes, this is an extreme case, but not as extreme as you might imagine. Deaths at the age of well over 80 are regularly accepted as war-caused. How, you may ask, does this happen?</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">The War Widow’s pension was originally intended for relatively young women, often with children in tow, who were bereft of the emotional and financial support of a husband, killed on service, or who died of his injuries or war-caught diseases soon after discharge. Those who fitted that archetype were plentiful in the immediate aftermath of the First and Second World Wars, and they had a hard row to hoe. But today the average War Widow is an old lady whose partner in life died at a ripe old age, and had not been supporting her for years, because they had both been on the Service Pension for ages. The War Widow’s pension is still predominantly a World War II phenomenon, because that conflict produced more veterans than all the later wars combined, and because most of the veterans of later wars are still alive.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Because the War Widow’s pension was originally conceived as a substitute for a civilian widow’s pension, it cannot be paid in addition to a Centrelink pension. It is only 5% more than a full single-rate old age pension. However, the addition of what is known as an Income Support Supplement, which is income- and assets-tested, plus the Domestic Allowance, raises it to approximately a third higher than the civilian widow’s pension. Also, it comes with a number of concessions, such as the coveted Gold Card, making it even more desirable. Furthermore, the basic pension is free of any income- or assets-test so, even without the abovementioned supplements, it is a boon to widows who do have significant income or assets, and to younger widows who are still working.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">A War Widow’s pension, which is now also payable to widowers, is granted if the spouse’s death was due to service, or to an A/D, or if, before he died, he had been a P.O.W., or was receiving a pension at the TPI, TTI or EDA rates, or one of the special pensions for amputees or blinded veterans. At the same time, the deceased will be entitled to a War Graves plaque, because Australia is one of the few countries which commemorates deaths occurring after a war ends.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">You may assume that the above mention of death due to an A/D is superfluous, being covered by the category of death due to service. But turn your mind back to the comment in Chapter 3, that the Department is not estopped by previous decisions, but must apply the current law. Frequently, one would find that a veteran had (say) heart disease accepted back in the old days, when decision making was rather sloppy. He and his wife had both assumed that if he died of that condition, his wife would receive a pension. Alas, when he did pass on, it was discovered that for decades he had been receiving a pension on dubious grounds; his heart disease could not stand up to the requirements of the SoP. This obviously upset the RSL and Legacy, for whom the benefits of widows was of prime concern, so that lobbied to have death due to an A/D made into an automatic acceptance of War Widow’s pension.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Originally, the War Widow’s pension was forfeited once the lady remarried. At the time when War Widows were young, and had children, and a husband’s wage was better than the pension, this made sense, but as time passed it lost its rationale, and various problems arose. The most obvious was that it discouraged remarriage. The custom arose in which the widow would simply live in sin with her new love, perhaps changing her name to his, and telling the neighbours that they were really married. As far as the law was concerned, this was not fraud. This all ended in 1984, when the legislation was changed to permit War Widows to keep the pension on remarriage.</span></div>
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<span style="font-family: Times New (W1), Times New Roman, serif;">Nevertheless, if you expect to be in that position, it is important to note that you must claim the pension</span><i><span class="Apple-converted-space"> </span>before</i><span class="Apple-converted-space"> </span>you tie the knot the second time, because once you remarry, you are no longer A’s widow, but turn into B’s wife.</div>
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If you are married, it is not necessary to have been living with your husband in order to be a War Widow. There have been cases where a pension has been granted where the couple have been living apart for ten or twenty years. (You’ll remember the case of Mrs Rose in Chaper 3.) I even recall one letter which read: “Can you please tell me if my husband is still alive, and if he isn’t, can I get a War Widow’s pension?” The irony is, she had a not insignificant chance of success.</div>
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On the other hand, it is not necessary for you to be married in order to obtain a War Widow’s pension – as long as you lived in a “marriage like relationship”. Why, you may ask, should this be the case? If people want the benefits of marriage, they can always marry. It is not as if marriage were difficult. Once upon a time people lived together because one was already legally married, and the aggrieved spouse refused to give him or her a divorce. But that ended with the advent of easy, no-fault divorce. One social evil has thus cured another.</div>
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It was introduced back in 1916, when it was realised that many potential servicemen were living in such irregular relationships, and would not be prepared to volunteer if they knew their de factos would not be cared for in the event of their deaths. But at first, they had to be living together at the time of his service. It was only in 1973 that liaisons entered into later were included. This marks another social phenomenon: for more than thirty years successive governments have had an animus against marriage. They want to make these uncommitted, and consequently unstable unions the equivalent of holy matrimony. In the case of Service Pensions, people are classified as being either a “partnered” or “not a member of a couple”, marriage being considered only one form of partnership or coupling.</div>
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Of course, the ultimate example of government's animus against marriage is the law passed in November 2008, which treats homosexual and lesbian liaisons as the equivalent of marriage.</div>
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That this is open to abuse need hardly be mentioned, because the whole point of living in sin is to obtain the benefits of marriage without the responsibilities. In practice, the relationship is announced only when it is to their advantage to do so. For example, because couples enjoy the economy of shared expenses, pensions are one fifth higher for single (sorry, “not a member of a couple”) persons than for those who are “partnered”. Suppose, for example, he was on a Service Pension and she was on a Centrelink pension. They are legally obliged to tell their respective departments about their living arrangements, in which case both pensions would be cut by a fifth. Therefore, some couples choose to ignore the law, and pocket the money, but when the man dies, the woman comes out and bleats, “I was his de facto!”</div>
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Veterans’ Affairs used to regularly reject such claims, until they discovered that the Veterans’ Review Board was regularly accepting them. However, there was a catch. The Department would then “dob her in” to Centrelink and, hopefully, she would be forced to pay back all the extra pension she had received. On safer ground is the woman who is herself still working while living with a Veterans’ Affairs pensioner. Once he is dead, she can safely claim a War Widow’s pension. After all,<span class="Apple-converted-space"> </span><i>he</i><span class="Apple-converted-space"> </span>was the one who had been guilty of fraud, not her.<span class="Apple-converted-space"> </span><i>She<span class="Apple-converted-space"> </span></i>was under no legal obligation to report her lover’s living arrangements, however morally obliged she might have been.</div>
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And one thing the average person will find particularly hard to accept is that, in this supposedly monogamous society, a man can leave behind two War Widows: his legal widow and his de facto. In one notorious case, he left three. Although not divorced from his wife, he was partway between two de factos when his time ran out, and both of them were able to make a case that they had been in a marriage-like relationship. No doubt we will now start seeing cases where the War Widows are of opposite sex: one the legal wife, the other the boyfriend he left her for.</div>
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Let us now look as the progress of a typical War Widow’s claim. Bear in mind that most elderly widows know little about the law. They assume that, just because their husbands were veterans, they would be eligible. Or else they assume that his death was due to service because, well, it must have been, mustn’t it? As one old lady said to me: “I’m sure that the average person would agree that all the hardships of the war must have shortened his life.” As politely as possible, I tried to explain that the average person probably does not consider 80 years to be a sign of a markedly shortened life.</div>
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Most claimants have a representative from the ex-service organisations, perhaps 30 or 40 per cent from Legacy. Legacy no doubt does sterling work in helping the dependents of ex-servicemen over difficult times, but its behaviour with respect to War Widow’s pensions leaves much to be desired. Every branch is different, of course, but by and large, Legacy believes that every widow deserves a pension and that, often enough, all is fair in seeking it. They encourage widows to lodge claims without enquiring about the merits. I have spoken to widows who had no idea why they were making the claim, except that Legacy told them to. One widow, indeed, did not even know a claim had been made. A Legacy representative had simply arrived at her house in the aftermath of her husband’s death and, in the process of assisting in the grieving process, and handling the normal paperwork surrounding death, got her to sign the requisite form.</div>
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They are no doubt acting on the principle that “you’ve got to be in it to win it”, and they feel justified in putting their client’s name into the draw. After all, on the law of averages, most claims can be accepted on very little evidence. But if the claim isn’t accepted, then Legacy, and most other ex-service organisations, will almost invariably appeal to the VRB on her behalf – even in cases they know are so weak that they did not make any submissions in the first instance. Strong ethical problems arise in such instances, because they are dragging these old ladies through the process, sometimes for years, with false hope, saying, in effect, “Don’t worry, dear. Just lodge the appeal. We’ll find a way to get you a pension.” And if they fail, they hand it over to a lawyer with the unenviable task of taking it to the AAT – all financed by the taxpayer through legal aid.</div>
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It doesn’t even stop there. At one point one major Legacy branch decided to go through all their old lost causes, and try again. Who knows? They may have overlooked something the first time, or the SoP might have changed, or perhaps the case might go to a less critical Claims Assessor. There was no need to vet them first; after all, it costs nothing to lodge a claim. Needless to say, the widows themselves had nothing to do with it; their job was merely to sign the forms.</div>
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Now the claim comes to a Claims Assessor. Usually, investigation is simple. In the vast majority of cases, death due to service means death due to smoking. The 1992 Auditor-General’s reported indicated that the average age of death in successful War Widow’s claims was 73 (it is now over 80), that 30% were automatic grants, because he had been on a TPI or EDA pension, and 90% of the rest were due to smoking. Living veterans can get pensions for hearing loss, solar skin damage, and orthopaedic conditions, but such conditions do not cause death. The biggest killers are respiratory diseases, heart diseases, and cancers, and if these cannot be related to service by way of smoking, normally no connection can be found.</div>
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In many cases, her husband had already signed a smoking questionnaire while still alive. If he didn’t, what then? As pointed out in chapter<span class="Apple-converted-space"> </span><span style="font-family: Times New (W1), Times New Roman, serif;">3</span>, the average veteran’s memory of his own smoking history is inaccurate. We can hardly expect his wife’s memory to be any better. Even if she knew him before the war, did she really take note of his habits? My own brother started smoking as a teenager; I lived with him at the time. But if you asked me to narrow it down to some specific circumstances, such as a particular job, I would be at a loss. Third parties do not normally pay that much attention. My own father smoked like a chimney, but if you asked me how much he smoked, my guesswork would be worthless. Likewise, if a widow remembered her husband smoking before he went to war, can she realistically say, decades after the event, whether or not his habit increased? He was the one who purchased the tobacco, not her.</div>
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In most cases, she did not meet him until after the war, and he was already smoking. She might be able to find brothers or sisters who could comment on his pre-enlistment habit. Otherwise – as is most commonly the case – she can say that he told her he commenced on service. Did he? I would have thought that the date a man started smoking would not have been a major topic of conversation in most households. In most cases, I suspect, she is basing it on some casual, half-remembered remarks made decades before, to which she never paid much attention until now. A memory is being created to meet the occasion – honestly, no doubt, but nevertheless artificially. The human brain, it must be again emphasized, is not a computer. Memories do not stay frozen immobile; they can be subconsciously manipulated.</div>
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Even clear recollections can be false. One lady recounted about how her airman husband had injured his hand on a moving propeller, and was given his first cigarette to calm him down as he was carried away on a stretcher. It was all very clear and convincing – except that it was wrong. The accident was specifically recorded on his service medical documents, but his pre-enlistment medical exam specifically listed him as a smoker. The anecdote was no doubt a favourite one in the family, and the cigarette on the stretcher had morphed in their minds – and probably the veteran’s as well – as his first smoke. But it wasn’t. If it had been, needless to say, it would hardly have calmed him down; it would have precipitated a coughing fit.</div>
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All these reservations weigh on the mind of the Delegate investigating the claim, but what is he to do? He has a very heavy workload. His job is to churn out decisions, with little time for investigation. Also, Legacy makes it harder by filtering the information coming to the Department. Long ago, they made the Department agree not to contact the widows directly, but to address all their questions to Legacy. The rationale was that the widow is too distressed by her recent bereavement, but that argument appears a bit contrived when the death has occurred several years before. In particular, the department is not allowed to send smoking or alcohol questionnaires to Legacy widows, but to allow Legacy to gather the information. The result is that the Delegate has to make do with the bare minimum of details supplied by Legacy, rather than the full story he would like. One Legacy branch even had its own smoking questionnaire, with a very leading question to the effect: If you do not know when your husband started smoking, provide whatever details you can eg he told me he started on service.</div>
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Just how much value can be placed on these statements was something I discovered during one short period when I had forgotten the “deal” made between Legacy and my office. Whenever a widow stated she had met her husband after the war, I telephoned and asked for clarification. With few exceptions, as soon as I said, “How do you know when he started smoking?” or “What exactly did he tell you about why he started smoking?”, her case collapsed. She really had no clear knowledge of the facts. The confident written statement to which she had appended her signature turned out to be a result of wishful thinking, suggestion, and Legacy pushing.</div>
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On another occasion, I accidentally turned over two pages of a file at once, and failed to see the Legacy cover sheet attached to the claim form. Great, I thought, here is an unrepresented widow. I immediately telephoned her and asked what she knew about her husband’s smoking habits. Despite being given every opportunity, she resolutely denied that she knew when he started to smoke. A few weeks later, however, in came a smoking history, submitted by Legacy, stating that he had told her he commenced on service. I immediately rejected the claim, and gave reasons. Would you believe? the Legacy officer had the hide to phone and complain that I had contacted the widow directly.</div>
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Once more the old problem emerges: not only must we rely on the honesty of the claimants, but also that of their representatives. Most, no doubt, are reasonably honest, but some are not. The most egregious case was a character who used to alter the claim forms. A war widow’s claim form includes a question as to whether a veteran ever smoked. If a widow ticked “no”, this fellow would white it out and tick “yes” – presumably in order to provide a false questionnaire later on. Only when the Department noticed a pattern, and presented the evidence to his organisation, did the practice stop.</div>
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This, then, is the highly tenuous evidence on which thousands of War Widow’s pensions are being granted every year. But increasingly, veterans are dying of non-smoking diseases – for the simple reason that most of the long time smokers are already dead. This calls for a little lateral thinking by the representative in manufacturing an hypothesis. No, I don’t think “manufacture” is too strong a word. The activity is not fraudulent, but it involves the reverse of the normal coronial process. Instead of looking at the data, and then determining whether the veteran’s death is due to service, the representative (the widow usually has nothing to do with it) starts with the assumption that the connection exists, and then cherry picks the data for whatever will help the case. Occasionally the organisation has a retired doctor on retainer to tease out the hypothesis. Not infrequently, this results in a highly artificial scheme involving three or four steps – all eminently challengeable – between war and death.</div>
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A simpler approach, if the veteran had been a smoker in the past, is to challenge the cause of death. It has the drawback, of course, that the cause of death is established on the balance of probabilities, but it is worth a try. These days, for example, we are seeing Alzheimer’s disease, the most common form of dementia, claiming the lives of more and more veterans. The contention will therefore be raised that the dementia was really caused by a smoking related cerebrovascular disease. And, of course, a person does not actually die directly from dementia. The most likely scenario is that the dementia causes prolonged immobility, leading to pneumonia. Then the suggestion will be made that a smoking related lung disease rendered him more susceptible to infection. Otherwise, it will be contended that some other, smoking related disease, known to be present, contributed to the death in some minor fashion. Seldom is the point raised that death is an all-or-nothing affair which admits to no degrees of severity. Therefore, to say that something “contributed” to death is to say that, in its absence, the patient would have recovered. Nor does anyone notice how far they have come from the original intention of the pension. Instead of a young woman bereft of a husband prematurely, we have an old lady merely missing out on a few weeks or days of her husband’s terminal illness.</div>
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If the veteran were not a smoker, then they have to revert to plan B. Perhaps the war led him to suffer from an undiagnosed anxiety or depressive disorder, which led to hypertension, and thence to heart disease or a stroke. Perhaps his heart disease was caused by an undiagnosed depressive disorder, or perhaps his accepted anxiety disorder was really panic disorder. (As you may have guessed, the SoPs provide different psychiatric risk factors for heart disease, stroke, and hypertension.) A veteran may not have been an alcoholic, but his alcohol consumption was still within the risk parameters for hypertension or stroke. So perhaps he drank because of an undiagnosed psychiatric disorder. Or perhaps he merely drank because he was introduced to the stuff on service, and learned to like it.</div>
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If all this fails, there is always plan C: perhaps his war-caused orthopaedic conditions prevented him from exercising, thus putting him at risk for hypertension, heart disease, and stroke.</div>
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At the primary level and the Veterans' Review Board, these artificial schemes are seldom supported with any real evidence, and so receive short shrift. It is normally only when the case is placed in the lap of some hapless lawyer for an appeal to the Administrative Appeals Tribunal that the hypothesis starts acquiring substance. At that level, they can get the taxpayer to fund them, via legal aid, to obtain a report from a compliant specialist, or to send the widow to a tame psychiatrist for a posthumous diagnosis. The department then has to spend more taxpayers’ money obtaining evidence from trustworthy specialists, and then spend more to have them give evidence at the Tribunal.</div>
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At that point, they have a major advantage: the Tribunal has a particular soft spot for widows. You will remember from Chapter 3 that, in 1983, 98% of War Widow’s claims succeeded at the RRT. The advent of the SoPs has made it a bit more difficult for the AAT, but their attitude is similar. Faced with an elderly, frail widow, members of the Tribunal will bend over backwards to give her a pension. Advocates know that they are pushing a stone uphill if they wish to defeat a claim for War Widow’s pension. The case has to be exceptionally weak or the lady exceptionally unlucky for her to fail. I remember one particularly generous Tribunal member who accepted a death claim on the basis of an hypothesis never raised at the hearing by either party. Another time, he sent me back to look for more evidence. (Alas, the extra evidence did not support the claim.)</div>
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I could give many examples of the tortuous hypotheses I have been forced to argue against, but two categories stand out as particularly egregious: the claims involving salt and fat consumption.</div>
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The first category involves hypertension or high blood pressure. This is a gateway disorder, because it is a risk factor for various cardiovascular diseases – in particular, ischaemic heart disease and cerebrovascular accident (stroke). Therefore, if the veteran’s smoking history is not good enough, plan B is to pursue hypertension. In most cases, the cause is unknown, but there are two major risk factors which are worth a try:</div>
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Alcohol – specifically 300 grams of alcohol per week (500 grams on the balance of probabilities). This is only four drinks a day – think about that next time you go to the pub. However, the veteran must have been incapable of reducing his consumption below 200 grams. This used to imply alcoholism – but go back to<span class="Apple-converted-space"> </span><span style="color: black;">Chapter 4</span>, and the tortuous logic of Justice Rares. However, if he wasn’t an alcoholic, there may be some problem in linking his drinking habits to service, but it is still worth a try. Or else, the next risk factor can be brought into play:</div>
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Salt. High blood pressure in endemic in the Western world, and the probably reason is our predilection for salt. (I really must try to reduce it.) The SoP requires 12 grams a day (15 grams on the balance of probabilities) for at least six months immediately before the onset of hypertension.</div>
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In World War II, and right up to the 1960s, servicemen posted to the tropics, especially the wet tropics, were required to take salt tablets in the mistaken belief that they were depleting their natural salt reserves through sweat. If, therefore, a serviceman came down with hypertension at the time, there would be no problem in accepting it. But, in the vast majority of cases, the onset was much later. Advocates and lawyers for the widow will therefore ask how much salt her husband ate and, if it sounds high enough, claim that he acquired the habit on service. (Living veterans hardly ever make such claims.)</div>
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How realistic is this? We do not have any good survey of pre-war salt consumption in Australian society, but it does appear to have been fairly high. Prison rations were half an ounce (14 grams) a day, so presumably the half ounce ration provided to troops, in both tropical and temperate climates, approximates what they would have been eating at home. The real issue is therefore the salt tablets, but the quantity consumed is almost impossible to ascertain. Sometimes it was just one or two grams, sometimes much more. But there is good evidence about what affects a person’s salt preference. Salt is not addictive. Rather, people fed increased quantities can develop a taste for it, just as they can get used to lower quantities. But it must be tasted – and too much is aversive ie it tastes terrible. The point it, salt tablets are normally sculled down with water, and therefore not tasted. If they are chewed or sucked, the taste will be too strong, and the victim will not acquire a taste for it. Salt tablets, in other words, will not affect a person’s long term habits. This has been repeatedly been put to the Tribunal, and they repeatedly ignore it – because, after all, they’re dealing with a widow, and they are looking for any excuse to give her a pension.</div>
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And the irony is, the bogus nature of the contention can be seen as soon as you examine the big picture. If salt tablets really led to a “salt habit”, there should be just as many servicemen from tropic areas consuming large amounts of salt as there are smoking cigarettes. In fact, there should be more, because salt tablets were compulsory, while tobacco was discretionary.</div>
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But by far the most outrageous raid on the public purse involves the claims for prostate cancer. As explained in Chapter 5, if a man lives long enough, he will develop prostate cancer. Indeed, it is the second most common cause of cancer deaths in men, after lung cancer. So it has been a source of much frustration for the ex-service organisations that there does not appear to be any way to blame it on the war. The Holy Grail, of course, has been to find a link with smoking. In fact, for a short time, on the basis of some tenuous findings, the Department was conceding a connection with 25 pack years of smoking, but then the RMA came along and put the kibosh on it.</div>
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Really, apart from the egregious invocation of Agent Orange, the only risk factors for prostate cancer are masculinity, age, and animal fat, of which most Australian eat far too much. In 1999 the RMA came up with the following risk factor:<span style="font-size: small;"></span></div>
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increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.</blockquote>
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Doesn’t look too hopeful, you might think. After all, none of our wars have lasted 20 years. But you don’t know the deviousness and ingenuity of widow’s lawyers, or the laxity of Tribunals. One team of Queensland lawyers came up with the idea: perhaps being fed fatty food during World War II caused the veteran to acquire a taste for animal fat in later life. The first such claims alleged, with the certainty of 50 year old hindsight, that the veteran came from a poor urban family who were virtually vegetarians - and, of course, the increased prosperity and food variety after the war had nothing to do with his change of diet. Later, it was extended to more mainstream cases, even when the widow had no knowledge of his pre-war diet. The irony was completely lost on them: here were widows, who had spent 40 or 50 years purchasing and preparing their husband’s food, asserting<span class="Apple-converted-space"> </span><i>via</i><span class="Apple-converted-space"> </span>their lawyers that his eating habits were all the result of the war. (Live veterans, as far as I know, have never made such a claim.)
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Unfortunately, once such a contention looks like going to the Tribunal, it can’t just be laughed off. Contrary to popular belief, diggers posted overseas did not subsist wholly on a diet of bully beef, nor is bully beef particularly fatty – though the gelatine in which it is preserved may give that impression. But that still left open the question of just how much animal fat was present in wartime rations, and what the average prewar diet was like.</div>
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So the first step for the Department was, at great expense to the taxpayer, to commission a nutrition consultant to uncover the evidence. It turns out that there had been a major survey of the eating habits of Australian households in the period 1936-8. It indicated, in no uncertain terms, that, at the time, we ate far too much animal fat. These days, the widespread use of vegetable oils in cooking and food processing means that it is not always easy to reach the required threshold. But before the war animal fat was<span class="Apple-converted-space"> </span><i>de rigueur</i>. The average Australian male consumed 126 grams per day.</div>
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Next came an examination of the military ration scales issued during the war. This was a time of general food shortages, as many able bodied men were taken off the land, so you should not be surprised that most of the rations were lower in animal fat than the pre-war average. The exception was the rations issued in New Guinea and the southwest Pacific region from 4 February 1944. It was 8% above the pre-war level.</div>
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The next step in the expensive process was to collect a number of experts to discuss, in front of the Tribunal, the various scientific studies into the factors affecting food preferences. The mechanism is extremely complex. Humans have a natural taste for fat, provided it is not too concentrated. It tends to add flavour to foods. However, the level of fat which a person finds tasty can be changed with exposure. This is why most Australians, used to the meat of fattened domesticated animals, find kangaroo meat not so succulent. And, of course, the exposure to new foods is on-going, especially in the period of rising prosperity after the war, and after marrying a good cook.</div>
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Then there was the task of examining the dietary survey forms completed by the widows. It was soon discovered, and accepted by the Tribunal, that they were largely unreliable. For a person to remember the types and amounts of food consumed decades ago is a tall order at best; taller still when the information has to come second hand from the spouse. Although the questionnaire was made as simple as possible, many widows were confused by it. As a check on their accuracy, dietitians were required to do energy flow calculations ie estimate the amount of energy intake the veteran received from his food, and the amount expended in work. Time and again it was established that a veteran could not possibly eat as much as his widow claimed without becoming the size of a house. To complicate it all, most widows did not know their husbands prior to enlistment.</div>
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Even so, the lawyers were not prepared to give up. Finally, a series of test cases were heard, in which it was agreed that the only issue was the consumption of animal fat. All of the veterans had served in the right area at the right time and, evidence to the contrary being absent, it was assumed that their pre-war animal fat consumption was the same as the national average. Considering the general inaccuracy of the information available, and the great number of variables affecting eating habits, the outcome should have been a no-brainer. Apart from anything else, even if the new rations in 1944/45 were wholly responsible for any change in the subject’s food preference, they would have increase his animal fat consumption only 8%, instead of the required 40%. (This was long before<span class="Apple-converted-space"> </span><i>Kattenberg</i><span class="Apple-converted-space"> </span>muddied the waters.) Besides, when all the rhetoric was removed, the contention came down to this: because of a few months’ exposure to slightly more fatty tinned meat, and the like, a veteran came home with a lifetime desire to put butter on his bread and milk on his breakfast cereal, and help himself to ice-cream and pie for dessert, plus whatever roast meat and homemade biscuits his wife put in front of him. How could anybody, whose feet were still attached to the ground, accept such a suggestion?</div>
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The Tribunal did. You forget, they were dealing with elderly widows. That would be sufficient to cloud the minds of most Tribunal members. They came down on the side of the applicants. The logic of the written decision was not terribly clear, but it seemed to be that, if the war contributed to a man’s post-war eating habits, even to a small extent, then his eating habits, and hence his prostate cancer, were attributable to the war.</div>
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Faced with this, the Commission developed its policy. Firstly, if – as was usually the case – it had no evidence concerning a veteran’s pre-enlistment eating habits, then the national pre-war average would apply. I will state here and now that this policy is contrary to law. Case law is quite clear that if a piece of evidence is lacking, then it is lacking, and it cannot be obtained by making assumptions.</div>
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Secondly, if the veteran served in New Guinea or the southwest Pacific from 4 February 1944 for at least six months, then they would concede that the war affected his eating habits. Later, after the lawyers presented more evidence, they reduced it to three months. It then becomes a matter of determining whether there had been an increase of 40%. Dietitians, who had originally been employed to provide dietary advice to veterans and widows, found themselves spending their time number crunching questionnaires provided by helpful ex-service organisations. One consolation is that, if they fail at the primary level, they will normally fail at the Board or the Tribunal, but that does not stop them from clogging up the system with appeals.</div>
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This particular racket may be approaching its use-by date. From September 2005 a new SoP came into force. It reduced the amount of animal fat required to 50 grams. Any Australian could probably meet that. However, the 40% increase has to have been “for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate”. That will be harder to satisfy than the original requirement of any 20 years between the end of the war and the onset of the disease.</div>
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Vietnam veterans can, of course, avail themselves of the Agent Orange concession. Veterans of other wars will just have to die of something else.</div>
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Finally, if all else fails, and even the Tribunal rejects a claim, there is one last resort: lodge a new claim and try again. Of course, it will get short shrift at the primary level and the Veterans' Review Board, but once it goes to the Administrative Appeals Tribunal, it still has a fighting chance. I have known cases which have come before a new, more generous Tribunal member, with no new evidence provided, and been accepted. In such cases, the Tribunal’s written reasons are invariably short and simple, and fail to mention the detailed logic of the earlier Tribunal which rejected the claim.</div>
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After the pension is paid, there is one last act to be performed. A War Graves plaque will be placed on the veteran’s headstone, and people passing by will place their hands on their breasts and say, “There lies a man who gave his life for his country!” If they look closer, they may marvel that he was 91½ years old at the time.<br />
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<b><a href="http://repatracket.blogspot.com.au/2013/03/10-through-looking-glass.html" target="_blank">Continue to next chapter</a></b><br />
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<b><a href="http://repatracket.blogspot.com.au/2013/03/index_1127.html" target="_blank">Return to Index</a></b></div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.comtag:blogger.com,1999:blog-4858884321626694656.post-61836841342795024932013-03-01T21:10:00.002+10:002015-08-31T21:30:13.372+10:0011. What Is To Be Done?<div class="western" lang="en-AU" style="-webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; color: black; direction: ltr; font: medium/16px 'Times New Roman', serif; letter-spacing: normal; margin-bottom: 0cm; orphans: 2; text-align: left; text-indent: 1cm; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
The road to hell, they say, is paved with good intentions. What more noble intention could there be than to compensate those who had been injured, crippled, maimed or deranged, or who lost husbands or fathers, in the defence of our country? But the road has been wending ever downwards, misaligned by further good intentions, in the form of an over generous standard of proof, and court decisions which bore little regard to reality. Today, people do not turn to the Department of Veterans’ Affairs predominantly for compensation. Rather, we have the bizarre spectacle of what should be venerable old warriors and elderly ladies hawking around their medical conditions, or their husbands' deaths, as sources of income, hoping they can be fitted into some artificial template which allows them to be called “war caused”.</div>
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Much of the expenditure of the Department duplicates other government benefits, and would have to be met by the taxpayer in any case. Veterans and war widows are entitled to more generous medical benefits than other pensioners, but a fair proportion would nevertheless have been covered by Medicare. The service pension duplicates the aged or invalid pension, even if it is available five years earlier. Three quarters of the war widow’s pension is duplicated by the civilian widow’s pension<span style="font-family: Times New (W1), Times New Roman, serif;">. Nevertheless, the disability pension is a completely separate pension. When you add this to the extra quarter provided to war widows, you get an aggregate of approximately<span class="Apple-converted-space"> </span></span><span style="font-family: Times New (W1), Times New Roman, serif;"><i>two billion dollars</i></span><span style="font-family: Times New (W1), Times New Roman, serif;"><span class="Apple-converted-space"> </span>a year. By any reasonable estimate, only about ten per cent of this represents diseases</span><span class="Apple-converted-space"> </span>or deaths realistically attributable to war.</div>
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What is to be done?</div>
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Perhaps nothing. After all, these people defended the country – or else their husbands did – which is more than can be said for me. Why shouldn’t they receive this largesse? What’s two billion dollars to a rich country like Australia?</div>
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I can appreciate that position. There are other benefits provided by the Department which are nothing more than a reward for serving the nation – such as the right to retire on a pension five years before anyone else, or to receive free treatment for cancer, and various psychiatric disorders. There is even a special allowance paid to Victoria Cross winners. No-one objects to that, so why not this artificial compensation scheme?</div>
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However, before we start down that path, it will have to be recognized that the scheme is inconsistent and arbitrary. Most cancers can become sources of income – if the right smoking history can be produced – but not most leukaemias, and those of the brain, lymph nodes, muscles, or prostate (unless the veteran went to Vietnam, or can come up with an imaginative tale about animal fat). Vascular dementia can be accepted, but not the more common Alzheimer’s disease. Bronchitis and emphysema are always worth a pension, but rarely asthma, and never pulmonary fibrosis. With regard to back problems, the common lumbar spondylosis is compensable, but not spondylolisthesis, which is even worse, because it incapacitates a person early in life. Those excluded had service no less meritorious than those included. Also we need to be reminded that, no matter how lucky or careful we might be, disease and death inevitably catch up with us all. I have heard many a widow complain that she has been discriminated against simply because her husband didn’t smoke.</div>
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It seems to me that we should either pay pensions for every type of illness and death, or else restrict it to those that really are due to war service. In that respect, it is worth pointing out that no country on earth has opted for the first measure. Not only would be exceedingly expensive but, as pointed out in Chapter 9, paying people to be sick is not good for their health. Besides, basing largesse on the extent of illness is a pretty silly way to reward active service.</div>
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Late in the day, the Government decided to do something about it. It has always known that the situation had got out of hand, but the political rule is that it is too dangerous to take something off people. You can, however, stop new people from getting hold of it.</div>
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Thus, the first move was to accept that, these days, people know the dangers of smoking, and do it up at their own risk. Therefore, sub-section 9(7) was added to the<span class="Apple-converted-space"> </span><i>Veterans’ Entitlements Act</i><span class="Apple-converted-space"> </span>(VEA): any smoking habit which starts, or increases, after 31 December 1997 will not be considered service related. This should put the kibosh on two thirds of any potential new claims, or 90% of potential war widow’s claims.</div>
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Secondly, you will remember from Chapter 2 that war service is covered by the VEA (the major subject of this book), while peace time service is covered by the<span class="Apple-converted-space"> </span><i>Safety, Rehabilitation and Compensation Act</i><span class="Apple-converted-space"> </span>(SRCA), and certain periods of service are covered by both. Now, from 1<sup>st</sup><span class="Apple-converted-space"> </span>July 2004, all service, in both peace and war, is covered by a new law, the<span class="Apple-converted-space"> </span><i>Military Rehabilitation and Compensation Act</i>, or MRCA (pronounced “merca”), which incorporated what were considered the best features of both acts. From the VEA were imported the two standards of proof, and Statements of Principles – but only the most recent SoP is valid. In other words, the effect of<span class="Apple-converted-space"> </span><i>Keeley</i><span class="Apple-converted-space"> </span>has been ruled out. So, too, has smoking as a risk factor.</div>
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From the SRCA was imported an emphasis on rehabilitation. This was the big weakness of the VEA. MRCA does allow payments for the non-economic consequences of permanent impairment, but the main thrust of the Act is rehabilitation. The rehabilitation authority must do its utmost to heal or retrain the sick or injured veteran, and assist him in finding employment, either full- or part-time. In the meantime, as in worker’s compensation cases, he will be paid 100% of his former wages, reducing to 75% after 45 weeks. If he does manage to obtain employment, his wages will be topped up to the old rate.</div>
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Needless to say, for many people, 75% of one’s former income will be an attractive proposition in the absence of work. Therefore, compensation can be suspended if the veteran fails to comply with a reasonable rehabilitation program. What is reasonable, of course, may be seen differently by the parties involved, and the system does allow for appeals. Psychiatric disorders are likely to be a major problem, because rehabilitation will be dependent on the patient’s (conscious or unconscious) attitude. However, I have been advised that they cannot simply insist on seeing the same old tame psychiatrist who rules their condition intractable as a matter of course. It is too early to decide how this will all play out.</div>
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So, reforms have been made, but there is a lot of life in the old dog yet. The majority of veterans are still covered by the VEA, and even the MRCA suffers from the defects inherent in the SoPs and the standard of proof. So what is to be done?</div>
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2,600 years ago the people of Athens asked the philosopher, Solon to rewrite their laws, with the understanding that they would not be altered for fifty years. Were the people of Australia sensible enough to give me the same commission, there would be a lot of changes made (and not just in veterans’ law!). Realistically, however, we have to accept that reforms will never be more than small and piecemeal as long as there is no public pressure to match the political pressure of the ex-service organisations. This will never happen as long as people are unaware of what is going on. If this book rectifies that problem to some small extent, it will not have been written in vain.</div>
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However, in the unlikely event that some government will be prepared to bite the bullet, and the public is prepared to support them, here are a few modest proposals. We shall commence with a few administrative reforms, which will require no change to the law, though they might require some degree of political courage.</div>
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First, staff should be thoroughly trained in the investigation of claims before they are allowed to make decisions worth thousands of dollars. The emphasis should be on getting it right the first time, not pushing them through like sausages in a machine. Skimping on training and staffing is false economy.</div>
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Legacy should not be allowed to filter the information coming into the Department. Irrespective of what promises were made to Legacy a couple of decades ago, Claims Assessors should be allowed to contact widows directly.</div>
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Likewise, ex-service organisations should not be allowed to control the investigation of psychiatric claims by directing veterans to tame psychiatrists. The Department should insist on using psychiatrists it trusts and, as a general rule, information will not be sought from the treating psychiatrist. Some doctors should be definitely blacklisted.</div>
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If an appellant arrives at a VRB hearing with brand new evidence, the hearing should be adjourned until a representative of the Commission has had a chance to see the evidence and, if necessary, comment on it. This, after all, is what happens at the AAT.</div>
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The Commission should give serious consideration to sending representatives to VRB hearings to present their point of view. This need not happen in every case, but only those flagged as being of special concern.</div>
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The following administrative reforms would require some change in legislation.</div>
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We should put an end of the process by which claims can go through the system again and again, without any new evidence or merit. Once the initial appeal process has been completed ie when the AAT makes its decision, a case should only be able to be reopened if substantially new evidence (not the old evidence in a new garb) is produced, or the claimant wishes to rely on a new factor in a new SoP.</div>
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At present, it costs nothing to initiate a claim or appeal. Instead, a nominal charge could be made – say $10 for every condition claimed, or appealed, to be reimbursed if the claim or appeal is ultimately successful. This would be of only minor inconvenience for those making genuine claims, but it may cause people to seriously think twice about claiming ten or twenty separate conditions on the advice of some R.S.L. advocate.</div>
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The automatic reimbursement of medical reports in VRB appeals should cease. Instead, we should revert to the earlier system, whereby reimbursement would be made if (a) the appeal was ultimately successful, and (b) the report actually made a difference to the decision. (This, in fact, is still the case for primary claims, but it is one of the best kept secrets of the Department.)</div>
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At present we have the bizarre situation whereby the Department provides policy directives to its staff, but the VRB and AAT are under no obligation to follow them, or even consider them. Ultimately, the Department is forced to adjust its policy to fit what these unregulated bodies decide. To correct this, policy should be binding on all decision making levels. This would not make appeals a waste of time. There will still be plenty of scope for reasonable people to differ on the facts of a case eg whether a certain event occurred as described, whether the onset of a disease was within a certain time frame, <i>etc</i>.</div>
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Likewise, the courts have too long taken the view that they know better than the elected representatives what the elected representatives intended. The law already permits recourse to parliamentary debates in determining the intention of legislation. It should also require that administrative policy be given the benefit of the doubt if it is a reasonable interpretation of the law. Of course, there will be considerable passive resistance from the judges, who jealously guard their power as sole arbiters of the law, but it ought be at least tried. And no, it would not make appeals to the Federal Court a waste of time. It is quite possible for a Tribunal to inadvertently misread the law, and occasionally (not very often) the government decides to ignore a law it does not like.</div>
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Let us now consider possible reforms to the War Widow’s pension. This, I agree, is a sensitive issue among veterans, who seek to guard their widow’s entitlements above all else. But, when all is said and done, it wasn’t they who did the fighting. Also, let us to be realistic, and accept that most recipients of the war widow’s pension are elderly women, who have had the benefit of their husband’s presence for decades after the war. Furthermore, none of the suggestions listed below will penalise anybody whose husband is killed in action in future wars.</div>
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First of all, let us get rid of the anomaly whereby, in a supposedly monogamous society, a veteran can leave two War Widows. If a veteran were married at the date of his death, only his legal wife should be able to claim a pension.</div>
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Secondly, we should abolish the dishonest practice by which a man can be receiving a pension at the single rate while he is alive, and after he dies, his de facto can receive a War Widow’s pension. If a man was being paid at the single rate prior to death, this should be taken as proof positive that he was not involved in a “marriage-like relationship”.</div>
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A more sensible approach would be to simply abolish benefits for de factos. This would cause a storm in certain circles but, in fact, there can be no logical defence of the system. If “marriage-like relationships” really are equivalent to marriage, then it will be small inconvenience for them to get the piece of paper which establishes their relationship beyond all doubt. In point of fact, of course, they are not equivalent to marriage, and everyone knows it.</div>
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The recent decision to treat homosexual and lesbian unions as the equivalent of marriage is a blot on any society, and should be repealed.</div>
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Getting to the actual determination of War Widow’s claims, it would be a good idea to return to the forty year rule in the original 1985 reform: that if death occurred forty years or more after the end of eligible service, the claim will be determined on the balance of probabilities rather than “beyond reasonable doubt”. Perhaps an even better solution would be to legislate for a cut-off age of 75. Any death at a later age will be deemed to have happened despite, rather than because of, eligible service.</div>
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Finally, may I suggest that we follow the example of every other country, and provided war graves benefits only to those who actually died on service. No doubt this would mean some minor unfairness to a few who died in the immediate aftermath of war, but let us be realistic: in a host of foreign sites are buried thousands of very young Australians, who really did make the supreme sacrifice. We are devaluing their sacrifice when we dilute it with hundreds of thousands more who survived an extra forty or fifty years. Admittedly, many older women misunderstand the purpose of a war grave, and look upon it as a recognition of their husband as a veteran. There is no reason why every veteran should not receive a grave plaque stating that he<span class="Apple-converted-space"> </span><i>served</i><span class="Apple-converted-space"> </span>in a particular war, but with no suggestion that his death was caused by the war.</div>
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Finally, let us look specifically at the determination of veterans’ claim. Here are a few suggestions to consider.</div>
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The law should be rewritten to remove the anomaly of<span class="Apple-converted-space"> </span><i>Kattenberg</i>.</div>
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Similarly, the VEA should also be amended to remove the effects of<span class="Apple-converted-space"> </span><i>Keeley</i>. Only the current SoP should be valid.</div>
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The RMA should amend the SoPs that attribute certain cancers to merely being present in Vietnam for thirty days. The rare case of a person actually spraying, mixing, or otherwise handling Agent Orange may be at risk, but not merely being in Vietnam.</div>
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Currently, a disease can be determined to be service-related if service contributed to the slightest degree. The<span class="Apple-converted-space"> </span><i>Baume</i><span class="Apple-converted-space"> </span>report recommended that, when the contribution of service was less than fifty percent, the pension assessment be discounted by a half. This is eminently logical.</div>
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I would also recommend that only a single SoP be valid for each disease: that of the balance of probabilities. This would<span class="Apple-converted-space"> </span><i>not</i><span class="Apple-converted-space"> </span>mean that the “beyond reasonable doubt” standard of proof would go by the board. It would simply establish the most likely causes of a disease, and cut back on the marginal possibilities involved in the amount of smoking, drinking, lifting<span class="Apple-converted-space"> </span><i>etc</i><span class="Apple-converted-space"> </span>necessary to be a risk factor. The veteran would still have the benefit of doubt on a whole range of matters, such as to whether a particular event occurred, the date of onset of a disease, what weights he lifted, how severe was his injury, and when he stopped smoking. (Remember, smoking is still a risk factor if it commenced before 1<sup>st</sup><span class="Apple-converted-space"> </span>January 1998.) In short, he would have the benefit of the doubt concerning his own service, not the disease in general.</div>
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Alternatively, we could return to the forty year rule originally proposed in 1985 ie that any disease which commences forty years or more after the end of operational service should attract the “balance of probabilities” standard of proof. However, I would suggest that a more reasonable cut-off date would be twenty five years. The reason for this is that this is the date at which, on the balance of probabilities, injuries and heavy lifting are no longer risk factors for osteoarthrosis and spondylosis. It would eliminate the current practice of awarding large pensions for the normal effects of old age on the joints and spine.</div>
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At one point, severe pre-election pressure from the ex-service organisations stymied a proposal to have expert panels rule on difficult cases. What this meant was legally sidelining tame psychiatrists for more reliable ones when very weak “stressors” were alleged. It is an idea whose time has now come.</div>
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Likewise, we should cease paying psychiatrists whose treatment is manifestly ineffectual.</div>
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Currently, we have the bizarre situation whereby people are gaining pensions on the basis of eating salt or animal fat, or of consuming alcohol in quantities well below the level of alcoholism. The law should be amended to remove from the equation the consumption after the end of service of anything other than medication, or the results of addiction to legal substances.</div>
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Finally, Parliament might care to bite the bullet and remove smoking from the equation completely – not just from 1998 onwards, but for all previous conflicts. I have already explained in chapter 3 why such claims, no matter how sincerely made, are essentially bogus. Nor will they be breaking faith with the veteran community. When they originally enlisted they were promised that, if anything untoward happened to them, they or their dependents would be taken care of. They were not promised that merely adopting the common habit of the time would become a royal road to government gratuities – despite what the last thirty years may have led them to presume. If that bullet is still too big to bite, at least the increase in smoking should be disqualified, - or the commencement of smoking where the standard of proof is “balance of probabilities”.</div>
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Will any of these reforms be introduced? Not very likely. At least, not many of them – and then only if there is public support, based on public knowledge of what is going on. It is more likely that future governments will simply follow their preferred course of slow attrition, while not rocking the boat.</div>
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Despite all the headlines streaming from Iraq, there is much less conflict in the world today than there was a generation ago, and for obvious reasons: the good guys won the Cold War. The future, of course, is never certain (after all, who predicted the War on Terror?), but the most realistic outlook is for low level wars such as we are experiencing now to continue indefinitely. In the foreseeable future, it is highly unlikely that Australian forces will need to be committed even to the same degree as in Vietnam which, we should remember, was thirty years ago.</div>
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The Second World War generation is now dying out. The government is banking on the Korea, Malaya, and Vietnam generation slowly declining over the next twenty or thirty years. In that period an awful lot of money is going to be spent unnecessarily, but still within current bounds. It’s been a big, glorious binge, and there is still food left in the trough, but the end is in sight.</div>
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Besides, what’s two billion dollars a year to us taxpayers?</div>
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Malcolm Smithhttp://www.blogger.com/profile/00672612354161787023noreply@blogger.com