Aitken and Repatriation Commission

[2006] AATA 688

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 688

ADMINISTRATIVE APPEALS TRIBUNAL          № V2004/661

№ V2004/942

VETERANS’ APPEAL  DIVISION

Re:           ROBERT AITKEN

Applicant

And:           REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:9 August 2006

Place:Melbourne

Decision:The Tribunal varies the decision under review as follows:

1.The applicant’s peripheral neuropathy being diabetic in origin is war-caused with effect from 19 July 1999;

2.The applicant suffers from a generalised anxiety disorder.  This disorder is war-caused within the meaning of the Act with the date of onset being late 1969 or early 1970;

3.The applicant is qualified for the disability pension at 100 per cent of the general rate with effect from 19 July 1999; and

4.The applicant does not qualify for special or intermediate rate of pension.

(sgd) E.A. Shanahan

Member

VETERANS’ AFFAIRS – nature of psychiatric illness if any – date of onset – alcohol dependence – relationship to operational service – relevant statements of principles – events causing anxiety and stress – severe psycho‑social stress – diabetic peripheral neuropathy war-caused – intermediate rate – special rate

Veterans’ Entitlement Act 1986

Statement of Principle Instrument № 48 of 1994

Statement of Principle Instrument № 76 of 1998

Statement of Principle Instrument № 1 of 2000

Repatriation Commission v Deledio (1998) 49 ALD 193

Browne v Dunn (1894) 6R67

Banovich v Repatriation Commission 63 ALR 395

Cavell v Repatriation Commission 9 AAR 524

Woodward v Repatriation Commission 200 ALR 332

Meehan v Repatriation Commission [2003] FCA 1371

Lees v Repatriation Commission (2002) FCAFC 398

White v Repatriation Commission (2004) 633

Stoddard v Repatriation Commission 197 ALR 283

Repatriation Commission v Gosewinckel  59 ALV 690

Repatriation Commission v Keeley 98 FCR 108

O’Neil v Repatriation Commission (2001) FCA 1492

Magill v Repatriation Commission [2002] FCA 744

Repatriation Commission v Cooke 52 ALD 1

Bropho v State of Western Australia [2006] FCA 272 (21 March 2006)

REASONS FOR DECISION

9 August 2006  Miss E.A. Shanahan, Member

1.      Mr Aitken applied to the Administrative Appeals Tribunal on the 17 June 2004 for review of two decisions of the respondent.  The first, dated 28 August 2003, and affirmed by Veterans’ Review Board (VRB) on 6 May 2004, revoked an earlier determination that Mr Aitken’s post traumatic stress disorder (PTSD) with alcohol dependence was war-caused.  The second decision, which was affirmed by the VRB on 19 July 2004, rejected an application for special rate of pension.

2.      Initially, Mr Aitken’s application also sought review of the rejection of his peripheral neuropathy as being diabetic in origin and therefore war-caused.  Having obtained further expert medical opinion the respondent has conceded this condition as being war‑caused with effect from 19 July 1999.

3. The applicant was represented by Mr N. Dawson and the respondent by Ms J. MacDonnell, both of Counsel. The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents, Exhibit R1).  The parties tendered the following documents:

·Statement of Mr Aitken, dated 20 November 2004 – Exhibit A1

·Section 37 T‑documents tendered by the respondent – Exhibit R1

·Copy of the applicant’s service record – Exhibit R2

·Navy Psychological Report – Exhibit R3

·Clinical notes of Mr T. Weaver – Exhibit R4

·Clinical notes of Dr R. Buras – Exhibit R5

·Clinical notes of Dr P. Jenkings – Exhibit R6

·Latrobe Community Health Reports – Exhibit R7

·Medical Records from the Concorde Repatriation Hospital – Exhibit R8

·Supplementary Report from WriteWay Research, dated 30 May 2005 – Exhibit R9

·Commodore Mulcare’s Curriculum Vitae – Exhibit R10

·Dr G. Burke’s Clinical Notes, dated 10 March 1998 – Exhibit R11

·Report of Dr N. Strauss, dated 8 June 2005 – Exhibit R12

·Report of Associate Professor B. Chambers, dated 28 June 2005 – Exhibit R13

·Bundle of documents from Dr C. Daly, dated 16 January 2003 – Exhibit 14

·Statement by Mr Gaul – Exhibit R15

·Supplementary Research document from WriteWay Research, dated 4 December 2005 – Exhibit R16

·Bundle of Royal Australian Navy Medical Service Records – Exhibit R17

·Service Medical Records from 17 October 1966 to 31 October 1966 – Exhibit R18

·Supplementary Report from Write Way Research – Commodore P. Mulcare, dated 1 December 2005 – Exhibit R19

Mr Aitken, Dr Harvey-Sutton, Commodore Mulcare and Dr Strauss gave evidence.

ISSUES BEFORE THE TRIBUNAL

4.      As Mr Aitken’s previously diagnosed psychiatric condition of PTSD with alcohol dependence was subsequently rejected on 26 August 2003 by a delegate of the respondent on the basis that the severe psycho-social stressors upon which Mr Aitken  relied did not occur, or those that did occur did so during a period of non‑operational service, the issues before the Tribunal are:

·What, if any, is Mr Aitken’s psychiatric condition?

·If he suffers from a generalised anxiety disorder, what is the date of onset of these symptoms and which Statement of Principle (SoP) is attracted?

·Does Mr Aitken qualify for a special or intermediate rate of pension?

BACKGROUND TO THE APPLICATION

5. On 6 January 2000 the respondent accepted that Mr Aitken’s condition of PTSD with alcohol dependence was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) and attracted a disability pension of 90 per cent of the general rate.  The respondent revoked this decision on 26 August 2003 when it obtained evidence which contradicted Mr Aitken’s evidence that he had experienced severe psycho-social stressors during his operational service.  Mr Aitken’s disability pension was reduced to 60 per cent of the general rate.  On 6 May 2004 the VRB affirmed this decision.

6.      On 19 July 2004 the VRB increased the applicant’s disability pension to 100 per cent of the general rate with effect from 12 January 2004 but rejected his claim for pension at special rate on the basis that his non war-caused psychiatric condition was a major factor preventing him from remunerative work.  The increase in his assessment of rate payable was attracted primarily on the medical opinion that Mr Aitken’s cardiorespiratory incapacity attracted 55 impairment points (T3, page 15, V2004/942).

7.      Mr Aitken joined the Royal Australian Navy (the Navy) on 4 April 1964 at the age of 15, and had operational service from 27 May 1965 to 26 June 1965, 25 May 1966 to 11 June 1966 and from 15 September 1969 until 11 April 1970.  Mr Aitken was discharged from the Navy on 3 April 1976 (T4, V2004/942).  His operational service was in the waters of Vietnam.

8.      Mr Aitken claimed that during his periods of operational service he experienced several events that exposed him to a severe psycho-social stress; and therefore that he met the relevant requirements of the Statement of Principles regarding PTSD.  The respondent investigated these stressful incidents further and found that they were not supported by medical records in four instances, occurred outside the period of operational service in one instance and was too geographically remote to be a severe psycho‑social stressor in one instance.  In its decision of 6 May 2004, the VRB determined that Mr Atkins had acquired a very heavy drinking habit … well in advance of any stressors he allegedly experienced while serving on HMAS Vendetta (T‑documents xiii, V2004/942).

9.      Mr Aitken has chronic bronchitis, secondary hypertension, impotence, pleural plaques, diabetes mellitus, gastro‑oesophageal reflux disease, localised osteoarthrosis of the left knee, gout, chronic rhinitis and sleep apnoea.  The respondent has accepted these conditions are war-caused.   Mr. Aitken also has PTSD with alcohol dependence, peripheral neuropathy, bilateral symmetrical polyarthritis, localised osteoarthritis of the feet and ankles, localised osteoarthritis of the right knee, hypercholesteremia and lumbar spondylosis. The respondent has not accepted these conditions are war-caused. As previously stated, Mr Aitken’s peripheral neuropathy has now been designated as being diabetic in origin and accepted as war‑caused.

EVIDENCE BEFORE THE TRIBUNAL

10.     In his evidence before the Tribunal Mr Aitken’s confirmed that he had joined the Navy at the age of 15 and, after 12 months training at HMAS Cerberus, was posted to HMAS Sydney, where he initially performed domestic duties.  He stated that once it was confirmed that HMAS Sydney was to transport troops to Vietnam he became terrified and remained so throughout this deployment of 30 days.  Upon his return to Australia, Mr Aitken undertook a 3 month mechanical engineer’s course at Cerberus before being posted to HMAS Vendetta.

11.     Prior to HMAS Sydney sailing to Vietnam, Mr Aitken was required to perform sentry duty while the ship was in dock in Sydney.  Despite his age (then 17) he was issued with a watchkeeper’s card which allowed him to access beer issued on board the ship and also provided extended leave conditions.  It was at this time that he commenced drinking heavily.  (Transcript p.41)  This habit continued when serving on the Cerberus in late 1965 and after he joined the Vendetta.  He states that alcohol was easily smuggled on board (transcript p.43).

12.     The service medical records contain several reports of Mr Aitken’s intoxication attracting penalties (5 July 1965, 6 July 1966, 12 August 1966, 15 August 1966, 16 August 1966, 12 September 1996, 1 July 1967 and 27 August 1968).  In two of these episodes of intoxication he was injured.  On 29 and 30 November 1965 he was assaulted and injured the angle of his right mandible (Transcript 8.1, V2004/942) and on 13 July 1971 he fell while drunk (T‑document 8.3, V2004/942).  An excessive alcohol intake was maintained throughout his naval career and following his discharge from service.

13.     Mr Aitken estimated that his current alcohol intake was 12 to 16 litres of red wine per week.

14.     Mr Aitken identified four stressful incidents in his oral evidence.  The first of these has been termed “the Sydney Vendetta incident”, when Mr Aitken perceived that the HMAS Sydney was going to collide with the Vendetta.  To the best of his recollection this event occurred when he was posted to the Vendetta and it was escorting the Sydney to Vietnam. 

15.     The second incident also occurred on the Vendetta when Mr Aitken was working in the boiler-room as a Water Tender. A high pressure hydraulic hose blew out covering him in a fine mist of oil.  He was not burnt but was fearful the mist would ignite.  He says he was terrified and screamed but as he was not hurt he changed his overalls, resumed work and did not report the incident.

16.     The third incident is referred to as the hydrogen fire incident.  Mr Aitken feared that a fire in the economiser tube could have progressed to a hydrogen fire (Transcript p.48) but it did not.  The economiser tubes were subsequently replaced in Hong Kong (Transcript p.48).  This event is said to have occurred in early 1970, while the Vendetta was in Vietnam waters.

17.     The fourth incident is said to have occurred while the Vendetta was anchored in harbour in Vietnam, presumably in 1969 or 1970, as Mr Aitken could not recall a date.  Mr Aitken was told by other seamen the Vendetta had been fired upon he but had no direct experience of it was told about it by other seamen.

18.     Thereafter, Mr Aitken served on the HMAS Albatross, the HMAS Penguin and the HMAS Swan in non operational service.  He said he remained fearful of the boiler‑room because of his past experiences.

19.     Following his discharge from the Navy, Mr Aitken became an oyster farmer, followed by two years as a fisheries inspector; he then worked as a ship security officer with Australian Iron and Steel and then as Transport Manager for Tycan Australia.  He purchased a security business which he operated with his wife and finally a take‑away food store.  He ceased work in 1994 and subsequently relocated to country Victoria.  Mr Aitken claimed that he has been depressed, aggressive, excessively vigilant and not able to cope with dealing with people since his discharge from the Navy in 1976.  He claims he did not experience uninterrupted sleep from 1965 until he was provided with a CPAP machine for his chronic severe sleep apnoea in 1998.  He had noted poor concentration since approximately 1996. 

20.     Mr Aitken admitted to having several non-accepted conditions and in particular back pain and osteoarthritis of both feet and ankles but denied that these conditions affected his daily activities (Transcript p.53).

21.     Under cross-examination Mr Aitken agreed with Ms MacDonnell that the Sydney had probably only been in the Vung Tau harbour for about 75 hours on his first trip to Vietnam and that during this time he did not go ashore.  On the way to and from Vietnam, but not while in harbour, he stated he drank a daily beer issue of one 26 oz can.  On his return from this first tour to Vietnam Mr Aitkens confirmed that he spent his first three days drinking at a Sydney hotel.

22.     Ms MacDonnel informed Mr Aitken that the movements between the Sydney and Vendetta took place on the 28 June 1966 and that his period of operational service had concluded on the 11 June 1966.  Mr Aitken was unable to recall these exact dates.  He did not however dispute that the distance between the Vendetta and Sydney, as recorded in the naval records, was 800 metres.  All he recollected was that the Vendetta had gone to full ahead power mode and this he perceived as being an absolute emergency (Transcript p.98).

23.     Ms MacDonnell addressed the four major incidents but Mr Aitken could not elucidate further on these.  With respect to the incidents he had described to Dr Jenkings - the machine-gunning and sinking of a junk and the bombarding of a leper colony - Mr Aitken stated he had not seen the junk sinking but had been told about it the day after. He had been able to see the shelling of the coastal village which he had been told was a leper colony. The village was illuminated by the fired shells.  Mr Aitken agreed with Ms MacDonnell that the distance between the village and the Vendetta could have been of the order of five nautical miles.  Mr Aitken confirmed that he had never been ashore while in Vung Tau harbour nor had he seen any dead bodies.

24.      Mr Aitken said he had not realized the symptoms he was experiencing as being indicative of anxiety. When he consulted the Regular Defence Force Welfare Association, they were of the opinion that he had anxiety problems (Transcript p.138) and they had recommended referral to the Department of Veterans’ Affairs psychiatrist, Dr Jenkings.  Mr Aitken saw himself as a worrier, worrying about a vast number of matters including the knowledge that his radiologically demonstrated pleural plaques might in the future become malignant.

25.     The Tribunal clarified the point that Mr Aitken’s alcohol intake varied while in the Navy, depending on his ship’s activities.  While at sea he might have 3 to 4 days at a time without a beer issue, in contrast to when ashore, when he drank to excess on 13 out of 14 days (Transcript p.141).  Mr Aitken confirmed that his day time somnolence had improved with the treatment of his sleep apnoea, but he would still occasionally fall asleep during the day.

DR PHILLIPA HARVEY-SUTTON (by telephone)

26.     Dr Harvey-Sutton saw Mr Aitken on 23 April 2001 and provided a report dated 3 May 2001 (T‑documents 26, p.304).  She assessed Mr Aitken as being unable to work particularly as a result of his peripheral neuropathy and results in poor balance and gave a cardio respiratory assessment of 1 to 2 METS.  In her oral evidence Dr Harvey-Sutton explained that a METS rating of 1 to 2 was indicative of breathlessness on minimal exertion, rendering a person to be very much housebound and confined to a chair.  Dr Harvey-Sutton had assessed Mr Aitken’s osteoarthritis of the ankles, feet and right knee and his back pain as being minor.

27.     Under cross-examination, Dr Harvey-Sutton acknowledged that she had found Mr Aitken unable to work for more than 8 hours per week primarily because of his PTSD, alcohol dependence and peripheral neuropathy. Dr Harvey‑Sutton had assigned 36 impairment points out of a total of 66 under the Guide to Assessment of Repatriation Pensions (GARP) to PTSD and alcohol dependence and agreed that given that these two conditions were not accepted as war-caused this would reduce Mr Aitken’s total impairment points from war-caused conditions to 30.  However, she believed his cardio-respiratory METS rating of 1 to 2 was of major significance and sufficient to preclude him from working.

28.     The Tribunal asked Dr Harvey-Sutton if she had performed a METS assessment herself or relied on the assessment of Dr Morgan (Transcript p.80); and whether she was aware of the results of Mr Aitken’s  lung function testings, all of which were normal.  Dr Harvey‑Sutton said she had relied on the medical assessment of Dr Morgan and was unaware of the lung function test results or the results of an echocardiogram performed on 25 July 2002.  Dr Harvey-Sutton had also relied on the previous assessments with respect to chronic bronchitis, secondary hypertension and impotence.  She had assessed Mr Aitken’s PTSD with alcohol dependence, diabetes, peripheral neuropathy and gastro‑oesophageal reflux disease herself.  Of the past occupations undertaken by Mr Aitken, and in light of his peripheral neuropathy, Dr Harvey-Sutton stated that Mr Aitken would only be capable of console type work, like “looking after video surveillance cameras”  (Transcript p.85).

COMMODORE MULCARE

29.     At the commencement of the hearing Mr Dawson objected strongly to some of the content of Commodore Mulcare’s report of 30 May 2005 (Exhibit R9) on the basis that opinions expressed were a guess rather than evidence.  The Tribunal upheld these objections.  Objections were also made to the tendering of Commodore Mulcare’s Supplementary Report of 4 December 2005 (Exhibit R16).  The Tribunal determined to hear the Commodore’s evidence before ruling on the objections.  This objection was ultimately withdrawn.

30.     Commodore Mulcare provided three reports and his curriculum vitae.  In the first report, dated 7 December 2001 (T‑documents 15, p.116, V2004/661), Commodore Mulcare confirmed Mr Aitken’s naval service, the nature of an ordinary seaman’s duty, addressed the claimed stressors and the official rules regarding seamen’s access to alcohol during service.

31.     With respect to the episode wherein Mr Aitken perceived a near collision between the Vendetta and the Sydney, research indicated that the Sydney had “turned the wrong way” (T‑documents p.15) toward the Vendetta.  This was regarded by Vice Admiral Lynch as a potentially serious incident that was averted.  The incident occurred on the 28 June 1966. 

32.     Commodore Mulcare stated that hose blow outs did occur but such incidents would not be reported unless a seaman was injured.

33.     Commodore Mulcare’s stated that his enquiries had revealed that there were no incidents of a hydrogen fire on board the Vendetta at any time.  Likewise, there was no official report of the Vendetta being fired upon in harbour in Vietnam.  Research had revealed that on 1 January 1970 the Vendetta had destroyed a fishing boat unloading on the beach some 10,000 yards from the Vendetta.  This vessel or junk was considered to undoubtedly be a North Vietnamese boat.

34.     With respect to the incident termed Gurkhas calling fire on themselves, Commodore Mulcare said no Gurkhas had served in Vietnam but there had been an incident where United States marines appeared to be calling for fire on their own position on 14 November 1969.  The Vendetta did not fire on this position and in fact cancelled its exercises for that day.

35.     Commodore Mulcare outlined the Navy’s Regulations regarding alcohol issues to seamen but agreed that these were difficult to police.  Persons under the age of 18 had no alcohol issue and there were no beer issues while a ship was in Vung Tau harbour, although there were daily issues on the way to and from this harbour.

36.     The Tribunal was provided with the Vendetta’s Reports of Proceedings from September 1969 to March 1970.  These reports confirm that the Vendetta fired upon a Vietcong village on 12 October 1969 completely destroying or damaging the village.  A second village was fired upon on 14 October 1969 but the firing ceased when a friendly patrol was spotted in the area.  Reports confirm that on 1 January 1970 a fishing vessel landing stores was fired upon and destroyed.

37.     According to the Reports of Proceedings, on 14 January 1970, with speeds varying from 12 to 20 knots as dictated by rough weather, the Vendetta sailed from Vung Tau Habour heading for Hong Kong.  On 21 January 1970 inspection of the B boiler revealed that a further fire had occurred in the economiser tube.  This entry stated that the first fire in the economiser tube had been reported separately.  The first report has not been made available to the Tribunal.  Almost complete re‑tubing of the economisers and repair of several generator tubes was required and this resulted in the Vendetta spending an extra two weeks in harbour in Hong Kong.

38.     Throughout this period in Vung Tau  Harbour harassment firings occurred on a regular basis from a distance of up to five miles from the coast.  Regular reports were received from army forces regarding the accuracy of the bombardments and the number of persons killed in action.  This included a large herd of Vietcong-owned cattle.

39.     In his oral evidence Commodore Mulcare confirmed that he had served in  similar class ships to the Sydney and Vendetta, namely the Melbourne and the Yarra.  He affirmed his written reports.  Mr Dawson asked Commodore Mulcare why he had not sought to obtain reports from sailors serving at Mr Aitken’s level.   The Tribunal pointed out that Mr Aitken had not availed himself of such evidence.

40.     On completion of Commodore Mulcare’s evidence Mr Dawson withdrew his objections to the admission of the statements of Admiral Leach, Mr Vagg and Mr Gaul, all of which had been incorporated in Commodore Mulcare’s reports.

DR NIGEL STRAUSS – PSYCHIATRIST

41.     Dr Strauss had, at the respondent’s request, seen Mr Aitken on 8 June 2005 and 24 June 2005 and provided a report dated 8 June 2005 (Exhibit R12).  Mr Aitken told Dr Strauss he had started drinking alcohol at age 16 when assigned to service on the Sydney.  Despite his age he had obtained a watchkeeper’s card that enabled him to obtain regular beer issues.  Mr Aitken told Dr Strauss that regular excessive alcohol intake continued thereafter and was a major factor in the failure of his first marriage.  In 2005 Mr Aitken said he was drinking one to two litres of red wine per day.  In 1974 Mr Aitken was diagnosed with diabetes, which he declared was under good control.  Other reported existing medical conditions were chronic bronchitis, hypertension, rhinitis, impotence, pleural plaques formation, sleep apnoea, back pain, general arthritis and peripheral neuropathy.  Mr Aitkin said that he had recently been diagnosed with angina which was being treated with oral medication and a lingual spray.

42.     Mr Aitken indicated he had ceased working in 1994 because he “was sick, tired, drinking too much, suffering from sleep apnoea and had recently been diagnosed with diabetes”.  Mr Aitken restricted his activities to a little gardening, watching television and using a computer.  He attended the RSL once per week to drink with a friend.  There was a history of frequent falls resulting on one occasion in a fracture of the right shoulder.  Mr Aitken attributed his falls to “problems with balance” (Exhibit R12).

43.     Mr Aitken reported insomnia, frequent dreams some of which related to his operational service, namely the bombing of a leper colony and a problem with the boiler.  Since 1998 he had been prescribed anti‑depressants but had found treatment by a psychologist unhelpful.  Mr Aitken had experienced suicidal ideation when suffering untreated sleep apnoea, but all suicidal thoughts had now resolved. 

44.     Dr Strauss identified the alleged stressors as:

A)Having watched a film of the Korean War in 1965 before the departure of the Sydney to Vietnam;

B)Performing sentry duty on the Sydney prior to departure for Vietnam;

C)During his second trip to Vietnam, a near collision between the Vendetta and Sydney.  This had been a very frightening experience;

D)During the third Vietnam trip he had been told that the Vendetta had been fired upon but he had not seen such fire;

E)On the same trip, a fire had occurred in the economiser tube; temperatures were remarkably elevated but eventually controlled.  He had feared a hydrogen fire but this did not occur;

F)A high pressure hose blow out, dousing him in an oil mist.  He was not injured and did not report the incident but said that it had been a very frightening experience; and

G)The episode where the junk was blown out of the water.  Mr Aitken said he had overheard a description of this event via the radio communication system. 

45.     Mr Aitken had admitted he had never seen a dead body but claimed he had witnessed napalm drops in Vietnam.  He was also fearful that his asbestos related pleural plaques would advance to malignancy. 

46.     Dr Strauss diagnosed alcohol abuse, or more correctly alcohol dependence, and generalised anxiety disorder.  He refuted the earlier diagnosis of PTSD.  In Dr Strauss’ opinion the generalised anxiety disorder had been contributed to by events during operational service and had its onset prior to the third Vietnam trip, in late 1969.  Dr Strauss assessed the applicant’s impairment at 23 points in accordance with the GARP. 

47.     In his evidence before the Tribunal, Dr Strauss identified Mr Aitken’s symptoms as being tenseness, anxiety, excessive worrying with an inability to control his anxiety or worrying and sleep problems separate from his sleep apnoea. These symptoms had been present for many years.  Ms MacDonnell questioned Dr Strauss regarding the criteria for diagnosis outlined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for generalised anxiety disorder.  Dr Strauss stated that, of the criteria laid down in SoP Instrument № 1 of 2000 regarding generalised anxiety disorder, Mr Aitken satisfied 8C 1, 3, 4 and 6 and that Criterion 8E was met but was difficult to assess as the applicant’s alcohol abuse also contributed to his social, occupational and other areas of functioning.  While diagnosing alcohol abuse Dr Strauss regarded it as co‑existing with his generalised anxiety disorder and not to be the cause of his GAD (Criterion F of the 2000 SoP).  When informed of Mr Aitken’s current alcohol consumption, Dr Strauss agreed with Ms MacDonnell that Mr Aitken was alcohol dependant and this dated from 1965 whereas the generalised anxiety disorder was evident just prior to the third period of operational service in Vietnam commencing in 1969.  Dr Strauss did not believe that there was any incident equating to a stressor prior to 1965 or any episode or experience equating to a psycho‑social stressor prior to the onset to a generalised anxiety disorder.  He regarded the reported incidents as having a cumulative effect.

48.     The questioned posed to this time had related to SoP 1 of 2000 regarding generalised anxiety disorder.  Mr Dawson contended that Instrument № 48 of 1994 regarding generalised anxiety disorder was the relevant SoP.  Dr Strauss stated that the 1994 definition of a stressful event was met by the incidents Mr Aitken claimed to have occurred.  All incidents could be regarded as stressful events sufficient to give rise to a mild generalised anxiety disorder.  Dr Strauss did not agree with Ms MacDonnell’s contention that the alcohol dependence was a precipitating factor in Mr Aitken’s development of generalised anxiety disorder given that the usual psychiatric effect of alcohol dependence was depression (Transcript, p.217).  Dr Strauss regarded Mr Aitken as a vulnerable individual prone to anxiety when exposed to lessor stressors. 

49.     Mr Dawson did not cross‑examine Dr Strauss and chose to rely on his opinion.

DOCUMENTARY EVIDENCE

50.     While the Tribunal has examined all the documentary evidence contained in the T‑documents and Exhibits, only those relevant to the issues before the Tribunal have been included in this decision.  These are Mr Aitken’s psychiatric illness, if any, and Mr Aitken’s alcohol abuse/dependence.  Reports relating to some of Mr Aitken’s conditions rejected as war‑caused are also included. 

DR PETER JENKINGS

51.     Dr Jenkings is a psychiatrist who saw the applicant on 29 November 1999 and again on 6 December 1999 and reported to the Department of Veteran’s Affairs.  At the first consultation Mr Aitken outlined stressful experiences he had suffered while in the Navy and these included the episode where the Vendetta was almost rammed by the Sydney; the stress he suffered being on sentry duty; a fall onto a propeller shaft injuring his leg in 1968 or 1969; the episode of the hose blow out and being sprayed with hot liquid; a hydrogen fire occurring in the boiler room in 1970 in Vietnam; and being fired at in Vietnam in the Da Nang area. 

52.     At the second consultation Mr Aitken described two further stressful incidents previously reported as the blowing of a junk out of the water and an episode wherein Gurkhas called fire from the ship onto themselves and the North Vietnamese.  Mr Aitken described symptoms which Dr Jenkings believed were depressive outbursts, agitation, anxiety and emotional dis‑regulation. Dr Jenkings obtained a history relating to alcohol usage which started on the first trip to Vietnam, Mr Aitken stating that he could obtain as much alcohol as he wanted.  By 1966, Mr Aitken said there was not a day that went by without him drinking six 26 ounces bottles of beer.  When in harbour he would drink continuously in 12 hour stretches.  Mr Aitken said he had tried on several occasions to cease drinking but had failed.  When he left the Navy he continued to drink 30 to 40 cans of beer per day but when seen Dr Jenkings in 1999 he was drinking four to six litres of cask red wine per week.  Having been diagnosed with diabetes in 1994, Mr Aitken had been advised to stop smoking and cease drinking.  He managed to stop smoking over a period of 12 to 24 months but continued to drink to excess. 

53.     Following the first consultation, Dr Jenkings was of the opinion that Mr Aitken suffered from a major anxiety disorder.  However, at the second consultation, some seven days later, Mr Aitken gave a history of nightmares, suicidal ideation, general pessimism regarding the future and guilt.  The nightmares were related to his naval experiences but some concerned his son and were not directly related to the Vietnam experiences.  Dr Jenkings obtained an employment history (as set out above) following Mr Aitken’s discharge from the Navy in 1976.  As a result of his mental state examination, Dr Jenkings reported mild anxiety, emotional dis‑regulation, hyper arousal and being on edge with feelings of depression and past history of suicidal ruminations.  He regarded Mr Aitken’s alcohol use as self‑medication for his major distress. Dr Jenkings expressed the opinion that the first consultation may have activated dormant symptoms of PTSD (Exhibit R6).

54.     Dr Jenkings diagnosed chronic PTSD with a service related alcohol dependence of a severe degree.  He recommended psychiatric treatment and found Mr Aitken unfit to return to the workforce.  He anticipated ongoing invalidity from both the psychiatric and physical problems.  Dr Jenkings referred Mr Aitken to Mr Weaver, a psychologist.  Dr Jenkings provided his clinical notes (Exhibit R6). 

MR TONY WEAVER - PSYCHOLOGIST

55.      Mr Weaver’s clinical notes were provided to the Tribunal (Exhibit R4).  Mr Weaver agreed with Dr Jenkings’ diagnosis and recommended psychological therapy.  However, Mr Aitken cancelled his follow-up appointment and was not seen again after June 2000. 

DR F. ROLDAN – CLINICAL PSYCHOLOGIST

56.     Dr Roldan saw Mr Aitken at the request of the Department of Veterans’ Affairs.  He was provided with the report of Dr Jenkings.  Having taken an exhaustive history and performed psycho‑metric testing, Dr Roldan diagnosed chronic PTSD and symptoms consistent with the diagnosis of an adjustment disorder with mixed anxiety and depression, attributable to his physical disabilities.  Dr Roldan did not believe that Mr Aitken suffered from alcohol dependence as, at the time of the interview in early 2001, Mr Aitken had informed him that he was drinking four litres of red wine per week and never more than this amount; which equated to approximately 4.76 standard drinks per night. This was just above the safe or responsible drinking level suggested by the National Health and Medical Research Council.  Mr Aitken had provided the history that he commenced drinking in 1965 when assigned to the HMAS Sydney and that he drank six large cans of full strength beer every night.  These cans contained 750 millilitres.  While ashore, he was quoted as saying he drank as much as I could get.

57.     In addition to the stressors that Mr Aitken had spoken about to Dr Jenkings, he informed Dr Roldan of two further stressors: namely being awoken at night by the sound of scare charges being dropped while in harbour in Vietnam and having seen American planes bombarding suspected enemy positions with napalm.

DR JAMES BODEL – ORTHOPAEDIC SURGEON

58.     Dr Bodel had provided the Department of Veterans’ Affairs with an opinion regarding Mr Aitken’s claimed back pain, knee, ankle and foot pain.  Mr Aitken told him that he had suffered from back ache since the age of 15 but there had not been any specific injury to his back during his service.  He had injured his left knee playing rugby in 1964 and his right knee in a fall in 1965 and again injured his left knee in September 1971.  Following a thorough physical examination and review of all the current X‑rays and CT scans, Dr Bodel diagnosed congenital spondylo‑listhesis, spondylosis of the lumbar spine and osteoarthritis of the peripheral joints; none of which were related to Mr Aitken’s operational service.  He concluded that Mr Aitken was capable of working 8 to 20 hours per week. 

DR JULIUSZ BURAS – CLINICAL NOTES

59.     Dr Buras has been Mr Aitken’s treating general practitioner from the 23 July 2001 and his notes from that date until 16 May 2005 were provided to the Tribunal (Exhibits R5).  Dr Buras’ notes concerned mainly the control of Mr Aitken’s hypertension, diabetes (which was poorly controlled), treatment of a choric bronchitic cough and nasal and facial infections associated with the use of a CPAP mask.  Dr Buras completed a medical impairment assessment form on 30 January 2004 (T‑documents, p.332, V2004/661).  This assessment was used as the basis for the Departmental assessment by Dr F. Morgan dated 30 January 2004 (T‑documents,  p.329, V2004/661).  Dr Morgan assessed Mr Aitken’s disability at 77 impairment points of which 55 were attributed to cardiorespiratory disability, in particular a METS rating of 1-2.  Dr Buras’ notes record a telephone conversation he had with Dr Morgan on 28 May 2004 (Exhibit R5) wherein he confirmed Mr Aitken’s assessment at METS 1‑2.  The Tribunal notes that the clinical notes include the results of lung function testing performed on the 29 January 2004 (Exhibit R5) which were normal and results of an echocardiogram on 25 July 2002 which showed moderate left ventricular hypotrophy and impaired left ventricular diastolic relaxation.  A further echocardiogram performed on 19 January 2005 also showed moderate left ventricular hypotrophy but no evidence of diastolic output obstruction and no impaired left ventricular diastolic relaxation.

60.     On 20 April 2005 Mr Aitken reported to Dr Buras that he was experiencing occasional chest pain coupled with acute shortness of breath on exertion.  This led to the performance of a thallium scan which showed reversible ischemia in the right coronary artery territory (Exhibit R5).  Dr Buras referred Mr Aitken to a cardiologist for angiography and he was to been seen on 20 May 2005.  There are no further entries regarding this condition and the applicant did not refer to it in his evidence before the Tribunal.

RELEVANT LEGISLATION

61.     As the applicant had rendered operational service, ss 120(1) and (3) of the Veterans’ Entitlement Act 1986 (the Act) are applicable and as Mr Aitken’s application was lodged after 1 June 1994, s 120A is also attracted.  The parties did not agree on the relevant SoPs.  The applicant argued that, as he now relied on Dr Strauss’ diagnosis of generalised anxiety disorder and that his claim for disability pension and medical treatment was lodged on 19 October 1999, Instrument № 48 of 1994 concerning generalised anxiety disorder and with respect to his alcohol abuse/dependence and Instrument № 76 of 1998 regarding alcohol abuse or dependence, were the relevant SoPs.  The respondent accepted that Instrument № 76 of 1998 regarding alcohol abuse or dependence was the appropriate SoP but argued that the Tribunal should base its decision on Instrument № 1 of 2000 regarding generalised anxiety disorder. 

THE RELEVANT SUB‑SECTIONS OF THE ACT

62.     Sub‑sections 120(1) and (3) provide:

120 Standard of proof

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

(2)       . . .

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c)that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

Section 120A provides:

120A   Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1)This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

(b)a claim under Part IV that relates to:

(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).

(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)the kind of injury suffered by the person; or

(b)the kind of disease contracted by the person; or

(c)the kind of death met by the person;

as the case may be.

63.     Mr Aitken has applied for special or intermediate rate.  The Act provides, with respect to special rate the following:

24       Special rate of pension

(1)       This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a)either:

(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

(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

(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

(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; and

(d)section 25 does not apply to the veteran.

(2)       For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.

And with respect to the intermediate rate, the Act provides:

23       Intermediate rate of pension

(1)      This section applies to a veteran if:

(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab)the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(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

(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

(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and

(c)the veteran is, by reason of incapacity from 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 from that incapacity; and

(d)section 24 or 25 does not apply to the veteran.

(2)Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:

(a)if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or

(b)in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.

(3)For the purpose of paragraph (1)(c):

(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:

(I) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both;

(ii)if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or

(iii)if the veteran has been engaged in remunerative work on a part-time basis or intermittently for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; and

(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.

64.     The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio  (1998) 49 ALD 193 at 97, relating to the reasonable hypothesis standard of proof. The steps are as follows:

1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

65.     The Applicant has relied on (1)(b) and (c) of Instrument № 48 of 1994 concerning generalised anxiety disorder.  Section 1 of item 1(b) and (c) state:

. . .

(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or

(c)experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder; . . .

The instrument defines a stressful event as an occurrence which provokes feelings of anxiety or stress.

66.     The respondent relies on Instrument № 1 of 2000 concerning generalised anxiety disorder and anxiety disorder due to a general medical condition and in particular the definition of a severe psycho‑social stressor.

67.     In both the SoPs the definition or criteria for generalised anxiety disorder are those described in DSM­‑IV, and in practical terms are identical. 

68.     The parties are agreed that Instrument № 76 of 1998 concerning psychoactive substance abuse or dependence and particularly alcohol dependence or alcohol abuse, is the relevant SoP.  The applicant relied on, or so it appeared to the Tribunal, Factors 5(b), (c) and (d), which state:

. . .

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; . . .

Factors 5(c) and (d) apply only to material contribution to or aggravation of, alcohol dependence or alcohol abuser where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.

SUBMISSIONS

THE APPLICANT

69.     Mr Dawson relied solely on the report of Dr Strauss and his diagnosis of generalised anxiety disorder and alcohol abuse.  Dr Strauss totally rejected the diagnosis of PTSD (Exhibit R12).  Dr Strauss had dated the onset of alcohol abuse from Mr Aitken’s service on the Sydney in 1965.  Dr Strauss had attributed Mr Aitken’s generalised anxiety disorder to his service experiences and opined that Mr Aitken met all the criteria for the diagnosis of generalised anxiety disorder.  In his report of 8 June 2005 Dr Strauss stated that it was difficult to determine the date of onset of Mr Aitken’s generalised anxiety disorder but that in his opinion the condition was present at the time that he went to Vietnam on his third trip.  He confirmed this in his oral evidence. Dr Strauss believed that the stressful incidents outlined by Mr Aitken had had a cumulative effect on the development of his generalised anxiety disorder, regardless of whether they had occurred during operational or non‑operational service. 

70.     Mr Dawson noted that the respondent had not challenged Dr Strauss’ evidence and had not sought to have Dr Strauss declared a hostile witness on the basis that Dr Strauss had seen Mr Aitken and had provided a report at the request of the Department of Veterans’ Affairs.  Mr Dawson raised the rule in Browne and Dunn and some debate ensued between the parties relating to this rule.  Though it was acknowledged that the Tribunal was not bound by the rules of evidence, Mr Dawson argued that the basis of rule in Browne and Dunn was one of procedural fairness? 

71.     Mr Dawson submitted that the reports of Dr Jenkings and Mr Weaver had described the same symptoms as those reported by Dr Strauss although they had concluded that Mr Aitken was suffering from PTSD In 1999. 

72.     The applicant accepted the stressful incidents as outlined by Dr Strauss (Transcript, p.207) as being a viewing of a film regarding the Korean War; being in service in Vietnam waters; the near collision with HMAS Melbourne; being confined to work in the boiler room; loss of confidence in senior naval officers; the fire in the boiler; hearing that the ship had been fired upon; the incident of the high pressure hose blow out and hearing that a junk had been blown of the water.    Mr Dawson submitted that Mr Aitken’s alcohol abuse had commenced at the time he was assigned to the Sydney.  He had not drunk alcohol before joining the Navy.  While Commodore Mulcare’s evidence was to the effect that a seaman aged 16 would have no access to alcohol, Mr Aitken’s evidence was to the contrary.  In fact, Mr Aitken has maintained in both his written statement and his oral evidence that he drank excessively from early 1965, commencing while in port in Sydney prior to his operational service and that his drinking habit had continued at essentially the same level throughout his naval service and following his discharge from service.

73.     Mr Dawson contended that Commodore Mulcare’s evidence had confirmed that the Vendetta and the Melbourne had been on a collision course and came within 800 metres of each other before action was taken to avert a collision (T‑documents, p.117).  Mr Dawson also noted that Commodore Mulcare’s report (T-documents, p.117) stated that boiler room hoses and incorrectly fitted hoses were liable to burst and that such an event would not be recorded unless a seaman suffered an injury.  Commodore Mulcare’s report also addressed the question of hydrogen fires occurring in the boiler room. The records showed that such an event had never occurred (Transcript, p.47) but he did acknowledge that a boiler fire could lead to a hydrogen fire.  Mr Dawson further noted that Commodore Mulcare confirmed that the incident described as a junk being blown out of the water did in fact occur in January 1970.   Mr Aitken had given evidence that he had not seen the junk blown up but had been made aware of it by his colleagues. 

74.     Mr Aitken relied on Instrument № 48 of 1994 concerning generalised anxiety disorder and Instrument № 76 of 1998 regarding alcohol abuse/dependence.  Mr Dawson stated that Dr Strauss had been made aware of Instrument № 48 of 1994 concerning generalised anxiety disorder and was of the opinion that Mr Aitken met the requirements of this SoP (Transcript, p.207).

75.     Mr Dawson submitted that the Tribunal must take into account the objective record of events and the subjective responses to each so‑called stressor (Woodward, Stoddard).  Mr Aitken had been terrified by most of these events (Transcript, p.40, 46). He contended that the distance between the Vendetta and the Melbourne in the claimed near collision does not affect the subjective response of the applicant nor does the evidence that he merely heard of the junk being blown out of the water and the Vendetta being fired upon.

76.     Mr Dawson contended that Mr Aitken qualified for a special rate of pension based on the evidence of Dr Strauss, Dr Roldan and Dr Jenkings.  Dr Harvey‑Sutton had stated that Mr Aitken could not work but had included in her assessment that physical factors contributed as well as the accepted war‑caused conditions.   

THE RESPONDENT

77.     Ms MacDonnell provided a 49‑page written submission in addition to her oral submissions.  The submissions mirrored those of the respondent’s statement of facts and contentions that the claimed stressors either occurred during non‑operational service or did not occur at all.

78.     Ms MacDonnell submitted that Commodore Mulcare’s statements in his report of 30 May 2005 regarding “what the probability is of what things might have been” should not have been excluded by the Tribunal as the Commodore’s opinions were based on his 35 years of service of the Royal Australian Navy (Broupho v State of Western Australia (2006) FCA 272 a decision handed down after the hearing of this matter).

79.     Ms MacDonnell listed all the claimed stressors under each of the conditions i.e PTSD, generalised anxiety disorder and alcohol dependence/abuse as well as Mr Aitken’s varying reports of these events to the doctors who had provided oral and documentary evidence.

80.      Ms MacDonnell submitted that the incident termed HMAS Vendetta allegedly being almost rammed by Sydney did not amount to a stressor and occurred outside operational service. 

81.     Ms MacDonnell submitted that the claimed hydrogen fire did not occur but a boiler soot fire was detected outside the period of operational service; and that the blowing of a junk out of the water and the bombardment of a leper colony were not events equating to a severe stressor. 

82.     Ms MacDonnell further submitted that the event termed the ship being fired upon in Da Nang area did not occur nor was the applicant ever involved in a landing party.  No scare charges were dropped by the boats of the Sydney in 1965.  She submitted that Dr Strauss’ diagnosis of generalised anxiety disorder did not refer to the necessary clinical symptoms as described in DSM‑IV and incorporated in the relevant SoP.  Dr Strauss had nominated, under Criterion (C), sleep difficulties, being keyed up and on edge, difficulty with memory and concentration and a “reasonable amount of anxiety most of the time” (Transcript, p.200).  Ms MacDonnell quoted Gosewinckel and Bropho v State of Western Australia (2006) FCA 272 with respect to diagnosis and Lees and Repatriation Commission (2002) FCAFC 398 as to the onset of the claimed psychiatric condition within two years of experiencing the psycho‑social stressor.

83.     The respondent relied on the evidence of Dr Roldan, who in 2001 diagnosed alcohol dependence in remission, as opposed to Dr Strauss’ diagnosis in 2006 of alcohol dependence.  Ms MacDonnell drew the Tribunal’s attention to the documented evidence of Mr Aitken’s varying alcohol intake and the lack of evidence of current alcohol related legal problems.  While she stated that Dr Strauss had not considered diagnosis of alcohol abuse, the Tribunal notes this to be incorrect (Exhibit R12).  In addition, Ms MacDonnell submitted that all the evidence, and in particular the evidence of Mr Aitken, pointed to the onset of alcohol excess/abuse/dependence commencing in 1965 prior to operational service.  There was no evidence before the Tribunal of a psychiatric illness in 1965.  Dr Strauss has stated that “this man may have been vulnerable to alcoholism (Transcript, p.218).   Ms MacDonnell contended that Factor 5(a) of Instrument № 76 of 1998 concerning alcohol dependence/abuse relied upon by the applicant, was not satisfied.  It was said that Dr Strauss considered Mr Aitken to have a drinking problem from 1965, preceding Dr Strauss’ diagnosis that Mr Aitken’s generalised anxiety disorder became clinically evident just prior to the applicant’s third trip to Vietnam on 14 September 1969.  Ms MacDonnell contended that the material before the Tribunal did not support the clinical diagnosis of generalised anxiety disorder as described in Instrument № 1 of 2000; but if such a diagnosis was accepted, there was no evidence to support Dr Strauss’ opinion that the date of onset was before the third trip to Vietnam.  Similar submissions were made with respect to SoP Instrument № 48 of 1994.   The incidents of seeing the film on the Korean conflict and being assigned for sentry duty referred to by Dr Strauss occurred in May 1965 before Mr Aitken’s first period of operational service. 

84.     On the question of Mr Aitken’s eligibility for special or intermediate rate, Ms MacDonnell submitted that Mr Aitken did not meet the “alone” test of s 24(1)(c) or s 23(1)(c), because of his non‑accepted conditions; nor could he meet the requirements of s 24(2)(b) as he had not been genuinely seeking to engage in remunerative work since 1994.  It had been Mr Aitken’s evidence that he had sought work between 1994 and 1998 and ceased his efforts in 1998 because of his ill-heath. 

85.     In reply, Mr Dawson refuted the respondent’s arguments, submitted that the respondent had been selective in its presentation of the evidence to the Tribunal and had failed to declare Dr Strauss, called by the respondent, as a hostile witness. 

TRIBUNAL’S DELIBERATIONS

86.     The respondent’s decision to revoke the decision of the 6 January 2000 with respect to Mr Aitken’s diagnosis of PTSD and alcohol dependence was a valid exercise of the power under s 31 of the Act. 

87.     The respondent has conceded that Mr Aitken’s peripheral neuropathy is of diabetic origin and therefore war‑caused with effect on the 19 July 1999 and as a result disability support pension was payable from that date at 100 per cent of the general rate.  The respondent’s concession followed the receipt of the report of Professor B. Chambers (Exhibit R13).

88.     The Tribunal finds that Mr Aitken’s suffers from the psychiatric condition of generalised anxiety disorder (Repatriation Commission v Cooke 31 ALD 475) based on the evidence, albeit qualified, of Dr Strauss.  The date of onset of the condition was just before or by Mr Aitken’s third period of operational service, commencing on 15 September 1969.  Dr Jenkings, after his first consultation with Mr Aitkens, diagnosed an anxiety disorder (Exhibit R6) but changed this diagnosis to PTSD following a second consultation.  Mr Aitken, on the second occasion, related symptoms indicative of this disorder.  Dr Jenkings had opined that the first consultation had aroused dormant symptoms of PTSD.  Mr Weaver and Dr Roldan were provided with Dr Jenkings report prior to them seeing Mr Aitken and as clinical psychologists would have given considerable weight to the psychiatrist’s diagnosis. 

89.     While not using the exact words of the clinical criteria for generalised anxiety disorder as used in the SoP, Dr Strauss reported tension, anxiety and that Mr Aitken worried a lot; had difficulty controlling his anxiety; difficulty with sleep apart from his sleep aponia and difficulty in concentrating.  All of these symptoms had been present on more days than not, for many years (Transcript, p.199).  In his evidence Mr Aitken had described excessive chronic fatigue that did not improve after treatment for his diabetes was instituted.  Dr Strauss did not consider that any of the stressor incidents by themselves constituted a severe psycho‑social stressor as defined in Instrument  № 1 of 2000. However, he thought the incidents had a cumulative effect resulting in the development of a mild generalised anxiety disorder. 

90.     The applicant has raised two hypotheses.  First, that Mr Aitken’s exposure to stressful incidents (stressors) during his operational service caused him to develop a generalised anxiety disorder; and secondly, that the same stressors led to excessive alcohol intake and alcohol dependence.  Having considered all the material before it the Tribunal is satisfied that this material points to a hypotheses connecting these medical conditions with the circumstances of Mr Aitken’s service.

91.     The second step enunciated in the Deledio decision requires the Tribunal to ascertain whether there is in force a relevant SoP As Mr Aitken lodged his claim for disability pension on 19 October 1999 the Tribunal finds that the relevant SoP’s are Instrument № 48 of 1994 as amended by Instrument № 275 of 1995 concerning general anxiety disorder and Instrument № 76 of 1998 concerning alcohol dependence or alcohol abuse. 

92.     The Tribunal has considered the claim conditions under the relevant SoP. 

GENERALISED ANXIETY DISORDER

93.     Statement of Principle Instrument № 48 of 1994 states that:

. . . factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting generalised anxiety disorder or death from generalised anxiety disorder, with the circumstances of that service, are:

(a). . .

(b)experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder; or

(c)experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder; . . .

. . .

94.     Clause 3 of SoP Instrument № 48 of 1994 states that:

3.The factors set out in paragraphs 1(c) . . . apply only where:

(a)the person’s generalised anxiety disorder was suffered prior to a period, or part of a period, of service to which the factor is related; and

(b)the relationship suggested between the generalised anxiety disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5)(A)(d) of the Act.

95.     The SoP defines a stressful event as an occurrence which evokes feelings of anxiety or stress.

96.     The Tribunal finds that the hypothesis argued by the Applicant fits the template of Instrument № 48 of 1994 (the amendment of 1975 being of no relevance to this consideration). In accordance with Step 3 of Deledio, therefore, the hypothesis raised is reasonable. 

97.     Section 120(1) requires the Tribunal to be satisfied beyond reasonable doubt that the incapacity of the Veteran did not arise from a war‑caused injury.  The Tribunal is not so satisfied.  Mr Aitken had exhibited increased anxiety from early‑May 1965, prior to his operational service, which he attributed to viewing a film on the Korean War and performing sentry duty while in harbour in Sydney.  At the time he was 16 years old.  His anxiety was exacerbated by the near collision between the Vendetta and Melbourne on the 28 June 1966, an event occurring outside his periods of operational service.  The events described as Gurkhas fired upon, the hydrogen fire in the Vendetta boiler (occurring mid‑December 1969) and a junk being blown up (this occurred on the 1 January 1970), while incorrectly described by Mr Aitken, closely resemble events that did occur.  The Gurkhas being fired upon appears to the Tribunal to be the episode described by Commodore Mulcare as the calling off of fire on a Vietnam village because of the presence of allied soldiers (presumably American) in the line of fire.  The Tribunal is aware that the there were South Korean forces in this area at the time and that their ethnicity was unclear to Australian service personnel.

98.     Mr Aitken’s evidence regarding the hydrogen fire was that he feared the possibility of a hydrogen fire, rather than that such a fire occurred.  While the record states that evidence of a ball of fire was detected in January 1970, an earlier report of a fire was referred in the January 1970 Report of Proceedings and the Tribunal can only conclude that the initial fire occurred in December 1969.  Commodore Mulcare did not pursue this earlier report.

99.     The incident of a junk being blown up did occur, on Commodore Mulcare’s evidence, on the 1January 1970; albeit at a range of 10,000 yards.  Mr Aitken acknowledged that he did not see this bombardment but heard of it and was deterred by the rumour that the village bombarded was not an enemy village.

100.   Mr Aitken’s evidence substantiates this essentially subjective test of a stressful event and the Tribunal finds that there is objective evidence that such events occurred (Stoddart).

101. The Tribunal is satisfied that Mr Aitken’s mild generalised anxiety disorder is war‑caused within the meaning of s 9 of the Act as his anxiety state, commencing in 1969 and outside operational service periods, was worsened by events occurring particularly in late‑1969 and early‑1970 during his operational service.

ALCOHOL ABUSE OR DEPENDANCE

102.   Dr Strauss diagnosed alcohol abuse in his written report (Exhibit R12) and alcohol dependence in his oral evidence before the Tribunal.  Dr Jenkings diagnosed alcohol dependence.  These diagnoses were not challenged.

103.   Statement of Principle № 76 of 1998 defined alcohol dependence as:

. . . the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:

A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1)tolerance, as defined by either of the following:

(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b)markedly diminished effect with continued use of the same amount of alcohol

(2)withdrawal, as manifested by either of the following:

(a)the characteristic withdrawal syndrome for alcohol

(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3)alcohol is often taken in larger amounts or over a longer period than was intended

(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6)important social, occupational or recreational activities are given up or reduced because of alcohol use

(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol; . . .

104.   Alcohol abuse is defined as:

. . . the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.  The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows

A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12‑month period:

(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home

(2)recurrent alcohol use in situations in which it is physically hazardous

(3)recurrent alcohol -related legal problems

(4)continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol

. . .

105.   The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse within the circumstances of a person’s relevant service are:

5.. . .

(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; 

. . .

106.    Instrument № 76 of 1998 defines experience of a severe stress as meaning:

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

107.   The Tribunal finds, based on the material before it, albeit with reservation, that the hypothesis raised by the applicant fits the template of the SoP.

108.   Step 4 of Deledio requires the Tribunal to find that the Veteran’s incapacity is war‑caused unless it is satisfied beyond reasonable doubt that such is not the case.  It is at this stage that the Tribunal is required to find facts from the material before it.

109.   Commodore Mulcare’s evidence indicated that in 1965 and 1966 Mr Aitken’s access to alcohol, in service, should have been intermittent and in the Tribunal’s opinion limited to binge drinking while ashore.  However, Mr Aitken has maintained in the histories given to reporting medical practitioners and in his evidence before the Tribunal, that his drinking, which was at all times excessive, commenced in 1965, before he engaged in operational service and continued thereafter.  Dr Roldan in 2001 diagnosed alcohol abuse in remission based on the history given by Mr Aitken.  At that time Mr Aitken’s alcohol intake nearly equated to the NMRC “normal” alcohol daily intake.  It is acknowledged by all, including the Tribunal, that Mr Aitken’s current alcohol intake is excessive, being of the order of more than two litres of wine per day.  Despite these levels of alcohol intake there was no evidence led that this had impacted on his ability to work prior to his retirement in 1994; despite there being charges resulting in the loss of his licence and Mr Aitken’s claimed 20 drunk and disorderly charges (as reported to Dr Jenkings but not supported by any police evidence).

110.   Dr Jenkings’ report based on his interview with Mr Aitken dated 29 November 1999 certainly meets the requirements of the relevant SoP with respect to alcohol dependence.  Mr Aitken gave a history of drinking to excess from 1965 onwards, suffering frequent blackouts, the shakes and visual hallucinations.  Mr Aitken admitted to some effect on his working ability due to his alcohol intake but stated that he was able to cover‑up these occurrences; although he did miss several days at work.  He also claimed to have 20 drunk and disorderly charges and one episode wherein he had lost his licence for drunk driving.  These details were not provided to Dr Strauss, who in his written report (Exhibit R12) diagnosed alcohol abuse.  However, in his evidence before the Tribunal Dr Strauss said that Mr Aitken was alcohol dependent.  Dr Strauss did not delineate the symptomotology underlying this diagnosis.

111.   The Tribunal cannot be certain of the exact diagnosis regarding Mr Aitken’s alcohol intake, i.e. whether it is alcohol abuse or dependence.  It is noted that Mr Aitken reduced his intake on medical advice in 2001.  He had no ongoing desire for further attempts to cut down or control his alcohol abuse.  Nor did he spend any time accessing alcohol and told the Tribunal he never started drinking before 5:00 pm and continued to drink unabated until he fell asleep.

112.   Whether the diagnosis is of alcohol abuse or alcohol dependence, Mr Aitken’s excessive alcohol intake precedes any operational service and was not, on his evidence, worsened by these stressful events during his operational service.  Mr Aitken’s evidence was to the effect that he drank six 750 ml bottles of beer per day in 1965 (totalling to 4500 ml) and now drinks two litres of wine per day. 

113.   Based primarily on Mr Aitken’s evidence, the Tribunal finds that his excessive alcohol intake commenced in 1965 and continued unabated with a short period of reduction in 2001.  As the alcohol abuse commenced in 1965, it is not related to operational service and does not meet the requirements of Instrument № 76 of 1998.  Additionally, Dr Strauss in his oral evidence said that the so‑called stressors to which Mr Aitken was exposed in 1965 did not meet the definition of a severe stressor.

114.   The second reviewable decision relates to the respondent’s decision that Mr Aitken was not eligible for special or intermediate rate pension. 

115.   Mr Aitken has not worked since 1994, is now aged 57 and has not sought remunerative employment since qualifying for the disability support pension (Centrelink) in 1998.  The Tribunal accepts the evidence of Dr Harvey‑Sutton that Mr Aitken’s non war‑caused arthritis in the lower limbs would not prevent him from performing sedentary work. 

116.   Sections 23(1)(b) and 24(1)(b) impose what is known as the Alone Test.  Section 24(1)(b) states:

24       Special rate of pension

(1)This section applies to a veteran if:

. . .

(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; . . .

. . .

117.   The Tribunal finds that Mr Aitken fails to meet the requirements of s 24(1)(b) or s 23(1)(b), as his non war-caused alcohol abuse/dependant is a major factor contributing to his incapacity to work and also impacts adversely on his accepted conditions of diabetes, sleep apnoea (obesity) and generalised anxiety disorder.

118.   The Tribunal notes that in early 2005 Mr Aitken developed angina and it appears that he has undergone coronary angiography to delineate the status of his coronary artery anatomy (Exhibit R5).  No other evidence regarding this condition was provided to the Tribunal nor did counsel refer to it.  It may well be that this condition relates ethologically to the accepted conditions of hypertension and diabetes and may impact on any capacity for work and eligibility for special or intermediate rate.

DECISION

119.   The Tribunal varies the decision under review as follows:

1.The applicant’s peripheral neuropathy being diabetic in origin is war‑caused with effect from 19 July 1999;

2.The applicant suffers from a generalised anxiety disorder.  This disorder is war-caused within the meaning of the Act with the date of onset being late 1969 or early 1970;

3.The applicant is qualified for the disability pension at 100 per cent of the general rate with effect from 19 July 1999; and

4.The applicant does not qualify for special or intermediate rate of pension.

I certify that the one hundred and nineteen (119) preceding paragraphs are a true copy of the reasons for the decision of:  

Miss E.A. Shanahan, Member

(sgd)       Catherine Lake

Clerk

Date of Hearing:  6-7 December 2005 and 3 April 2006

Date of Decision:  9 August 2006
Counsel for the applicant:            Mr N. Dawson
Solicitor for the applicant:            Mr P. Jones, Legal Aid Commission of NSW
Counsel for the respondent:        Ms J. Macdonnell
Solicitor for the respondent:        Ms S. Law, Australian Government Solicitors