Bain and Repatriation Commission
[2008] AATA 314
•17 April 2008
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: N 200600865
General Administrative Division
Re: Allan Bain
Applicant
And: Repatriation Commission
Respondent
DIRECTION [2008] AATA 314
TRIBUNAL: Ms Robin Hunt, Senior Member
Dr Ion Alexander, MemberDATE: 30 April 2008
PLACE: Sydney
Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the tribunal directs the Registrar to alter the text of the decision in this application as follows:
- Reference to “HMAS Melbourne” and “Melbourne” in paragraphs 1 and 38 respectively, should be read as “HMAS Sydney”.
- Reference to “depth charges” in paragraph 45 should be read as “scare charges”.
.................[Sgd]....................
Ms Robin Hunt
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 314
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/865
VETERANS' APPEALS DIVISION ) Re ALLAN JOHN BAIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member
Dr Ion Alexander, MemberDate17 April 2008
PlaceSydney
Decision We set aside the decision under review, in part, finding the applicant does suffer war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease and gastro-oesophageal reflux disease. We affirm the decision that the applicant does not suffer war-caused alcohol abuse and/or alcohol dependence.
.…….……[Sgd]….............
Ms Robin Hunt
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy – rendered operational service in 1972 – applicant suffers from several conditions – Statements of Principles (SoPs) – material before Tribunal raises hypothesis that several conditions connected with operational service – decision under review affirmed in part.
Veterans’ Entitlements Act 1986 (Cth) ss 5D(1), 7(1), 9(1), 120, 120A and 196B(2)
Statement of Principles concerning post traumatic stress disorder, Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999 and Instrument No. 5 of 2008
Statement of Principles concerning ischaemic heart disease, Instrument No. 53 of 2003, as amended by Instrument No. 9 of 2004 and Instrument No. 89 of 2007
Statement of Principles concerning psoriasis, Instrument No. 56 of 2002
Statement of Principles concerning gastro-oesophageal reflux disease, Instrument No. 11 of 2005
Statement of Principles concerning alcohol dependence and alcohol abuse, Instrument No. 17 of 2008
Fogarty v Repatriation Commission (2003) 37 AAR 363
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart and Repatriation Commission [2002] AATA 791
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
17 April 2008 Ms Robin Hunt, Senior Member
Dr Ion Alexander, MemberIntroduction
1. The applicant, Allan John Bain, served in the Royal Australian Navy from 11 March 1967 to 13 November 1974. Part of his navy service was “operational service”, within the meaning of the Veterans’ Entitlements Act 1986 (the Act). Operational service occurred on board HMAS Melbourne during 1 November 1972 to 30 November 1972.
2. The applicant suffers from multiple health problems. On 20 May 2005, he lodged an application for an increase in his service pension. He claimed further entitlements for war-caused post traumatic stress disorder (PTSD), alcohol abuse or alcohol dependence, gastro-oesophageal reflux disease (GORD), peptic ulcer, psoriasis and ischaemic heart disease (IHD).
The Tribunal’s Determination
3. For the reasons which follow, we have determined that the applicant suffers war-caused PTSD, psoriasis, IHD and GORD but not war-caused alcohol abuse and/or alcohol dependence.
further background
4. On 31 October 2005, a delegate of the Commission refused Mr Bain’s claim for additional pension in respect of these conditions. Mr Bain’s disability pension continued at 30% of the general rate. On 4 May 2006, the Veterans’ Review Board affirmed the delegate’s decision, including the making of a deemed decision as to the rate of pension. The applicant then applied to this tribunal, seeking a determination that the abovementioned conditions are war-caused.
5. Mr Bain does not seek review of the assessment of his rate of pension and pointed out that the pension assessment was not mentioned in his application to the Veterans’ Review Board. If we find that one or more of the claimed conditions should be included for calculation of the pension, the parties agree that the rate of pension question should be remitted to the Commission for determination.
6. Mr Bain’s claim arises from events during his operational service in 1972 although he served in the navy for several years, from March 1967 to November 1974. Mr Bain performed eligible operational service between 1 November 1972 and 30 November 1972. There is no disagreement that Mr Bain’s service record includes the following events:
3 June 1969serving on HMAS Melbourne at time of collision with USS Frank E Evans
15 July 1970 transfer to HMAS Albatross
May 1971 transfer to HMAS Tarangau
12 June 1972 transfer to HMAS Sydney
November 1972 serving on HMAS Sydney when it went to Vietnam, where he worked in the boiler room
12 August 1973 transfer to HMAS Cereberus
1 October 1973 went AWOL
4 November 1974 surrendered to the navy
13 November 1974 dismissed from the navy
7. For the review, Mr Bain indicated he no longer claimed he suffered war-caused peptic ulcer disease but he maintained his claim that other conditions are war-caused. We note that, in Dr N Talley’s view, Mr Bain does not suffer from peptic ulcer disease and that Mr Bain now accepts the decision to refuse his claim in respect of that condition.
Earliest date of effect
8. The parties agree that the earliest possible date of effect of the tribunal’s decision is 20 February 2005, being a date not earlier than 3 months before the date on which the claim for pension based on additional war-caused conditions was lodged.
The applicant’s evidence
9. In a signed statement, dated 18 June 2007, Mr Bain said he started smoking in 1969. After the Melbourne/Evans collision, he wrote that he was shaken up and became a heavy smoker, using 20 to 40 per day. When he was sent to Vietnam in 1972, he was nervous and became more so when he was rostered to the boiler room instead of the laundry. He was very afraid down there and his smoking increased to 80 or 100 per day. After Vietnam, Mr Bain said he continued to smoke 100 cigarettes per day until the 1990s when he cut back because of heart attacks. He said he increased smoking again until he reached “80 to 100 per week” (sic) until he “cut back to between 40 & 50 per day in 2005”. At the time of making the statement on 18 June 2007, he said he was smoking 40 cigarettes a day and had been unable to quit.
10. Mrs Bain also made a signed statement in which she tried to put into words ‘what it is like to live with someone who “drinks, (is) anti social, abusive and so angry”. She wrote that she met Mr Bain in 1970 when he was happy, outgoing and popular and first noticed changes in him after he returned from his tour of duty in Vietnam.
The applicant’s service medical records
11. The applicant’s service medical records include the following information:
·20 February 1967 – a psychological examination record which notes Mr Bain was ‘extremely cheerful and mature personality and is well motivated towards RAN and should make a very good adjustment in R.A.N’.
·18 April 1973 – a psychologist strongly recommended that Mr Bain be transferred to ‘CK (i.e. cooking) where he should be a real asset … and will be a total loss if he stays MTP.’
·5 November 1974 – a psychologist described him as being disillusioned with service life when he deserted and being convinced that he cannot re-adjust to service requirements at this stage.
·8 November 1974 – a navy memorandum notes Mr Bain had no previous warrant punishments and refers to the Commanding Officer’s observing that Mr Bain had nothing to say in mitigation except that he is now convinced that he could no longer endure naval life.
Analysis and Findings
12. We have first examined whether the applicant suffers from the conditions claimed. We have before us a number of post-service medical reports as well as some brief references in navy records to Mr Bain’s health during service.
Does Mr Bain Suffer PTSD?
13. There is no doubt in our minds that Mr Bain suffers from PTSD as the condition has been diagnosed by no less than four psychiatrists, Drs L Darcy, A Dinnen, L Schmidtman and J Roberts. We accordingly find that Mr Bain does suffer PTSD.
14. The further question is whether this is a war-caused condition and we shall examine this later in our reasons. In so doing, we have followed this course recommended by the Full Court of the Federal Court in Fogarty v Repatriation Commission (2003) 37 AAR 363 noting it is ‘only after a decision-maker determines that a veteran is suffering from a particular injury or disease (or this fact is agreed or conceded) that the question arises as to whether the particular injury or disease is war-caused’.
Alcohol abuse and alcohol dependence
15. A diagnosis of alcohol abuse or alcohol dependence is disputed. Medical opinions before us differ. Some medical opinion before us is that any excessive alcohol use by Mr Bain may be part of the anxiety condition, PTSD. As the alcohol related diagnosis is an issue, we have followed the course recommended in Repatriation Commission v Cooke (1998) 90 FCR 307 where the Full Court of the Federal Court held that ‘the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease’ and that ‘the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission’.
16. In Mr Bain’s case, there is evidence of his having intermittent problems with excessive use of alcohol. Mr Bain gave oral evidence to this effect and some of the medical reports before us express opinions about his alcohol problems. On the other hand, Dr Roberts gave oral evidence that he was not convinced Mr Bain suffered from either alcohol abuse or alcohol dependence.
17. Dr Dinnen, in his written evidence, noted Mr Bain’s history of excessive alcohol use but considered this was co-morbid with his chronic PTSD. In oral evidence, Dr Dinnen emphasised that he considered Mr Bain’s excessive use of alcohol was sufficient to meet some of the criteria for abuse and/or dependence but it was neither, in his opinion. Rather, Mr Bain’s alcohol problems were part of his PTSD. Dr Dinnen was not prepared to make a separate diagnosis of alcohol abuse or dependence.
18. Dr Darcy reached a similar conclusion to that of Dr Dinnen. In the tribunal documents furnished by the respondent there are copies of several letters written by Dr Darcy, Mr Bain’s treating psychiatrist over several years, in which the diagnosis of PTSD is confirmed with an acknowledgment of excessive alcohol use but no separate diagnosis of alcohol abuse or alcohol dependence.
19. On balance, we are satisfied medical evidence points to a conclusion that Mr Bain uses and did use alcohol to excess as part of his PTSD but he does not have a separate condition of alcohol abuse or alcohol dependence. Therefore, we have not considered Mr Bain’s use of alcohol gives rise to a separate head of claim.
Does Mr Bain suffer psoriasis?
20. On 8 December 2004, Dr P Miles filled out a Veterans’ Affairs information sheet in which he referred to Mr Bain’s having recurring groin dermatitis since 1972 and having seen a dermatologist. Dr Darcy, on 9 December 2004, provided a diagnosis of psoriasis. The applicant also furnished to us a copy of a dermatologist’s report from Dr J P Relic, a dermatologist. Dr Relic described ‘troublesome groin rash’ which Mr Bain reported suffering on and off for 30 years. Dr Relic’s letter to Dr S Kelly on 5 August 2002 gave some further details of the rash and proposed investigation of a secondary infection and treatment.
21. Dr Relic provided a brief diagnostic report advising the Department of Veterans’ Affairs, on a departmental form dated 5 August 2002, of Mr Bain’s diagnosed psoriasis of the groin. The doctor ticked the box that indicated he confirmed the diagnosis on clinical grounds and/or by relevant investigation. To the question about clinical onset, Dr Relic answered ‘late 1967’. He added ‘during war service years’ and ‘weeping eruption groin & peri anal region’. To the question about treatment he answered ‘multiple topical therapies over the years’. He added that predisposing factors were ‘irritant contact durations during war service triggered by working in excessive heat and contact with diesel fuel’. He commented that the psoriasis of the groin was present 75% of the time.
22. Dr Relic made another reference to the rash having been present since 1967 or 1969. Dr Kelly’s referral letter also mentioned it had troubled Mr Bain for 30 years. We have taken these histories as sourced from Mr Bain rather than contemporaneous examination and note that, in an information sheet Mr Bain provided to Veterans’ Affairs in 2005, with his claim, there was reference to evidence of onset having occurred in 1974. After the hearing and in response to the applicant’s further submissions regarding the psoriasis claim, the respondent agreed that the clinical onset of the condition was in 1974.
23. On balance, we are satisfied that Mr Bain does suffer psoriasis and that the onset was in 1974. We shall examine whether the condition is war-caused later in these reasons.
Does Mr Bain suffer IHD?
24. The diagnosis of IHD is not disputed. Nor is the date of clinical onset. We are satisfied the clinical onset was in 1999 when he was admitted to hospital. On 18 June 2004, Dr Miles wrote that Mr Bain’s IHD had been monitored following a myocardial infarction in 1999. In addition, on 6 March 2007, Dr Talley referred to Mr Bain suffering an attack of chest pains in 1999 and having a stent put into a coronary artery as he had IHD. We have no doubt that Mr Bain suffers IHD and that its onset occurred in 1999.
Does Mr Bain suffer GORD?
25. Diagnosis of GORD was confirmed on 28 May 1996, following gastroscopy that showed ulcerative oesophagitis. An operation report noted a history of epigastric pain with retro-sternal burning and treatment with Pepcidine for 12 months. It follows that we are reasonably satisfied that Mr Bain has this condition. As with the other conditions found, we shall examine below whether it was war-caused.
Is each of the applicant’s conditions a war-caused disease, within the meaning of section 9 of the Act?
26. The question whether a disease is war-caused, in accordance with sub-section 120(1) of the Act, must be determined on the “reverse criminal” standard of proof. That is, we must determine that the relevant disease is a war-caused disease unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
27. Pursuant to sub-section 120(3) of the Act, we shall be so satisfied if, after consideration of the whole of the material before us, we are of the opinion that the material does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the applicant’s operational service. If a Statement of Principle (SoP) determined under sub-section 196B(2) of the Act is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if the hypothesis fulfils the tests or factors the SoP requires: see sub-section 120A(3) of the Act.
28. All of Mr Bain’s diagnosed conditions are the subject of SoPs. SoPs concerning the conditions diagnosed, and which we have found Mr Bain does suffer, were as set out below at the time of his application:
·Statement of Principles concerning post traumatic stress disorder, Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999;
·Statement of Principles concerning ischaemic heart disease, Instrument No. 53 of 2003, as amended by Instrument No. 9 of 2004;
·Statement of Principles concerning psoriasis, Instrument No. 56 of 2002;
·Statement of Principles concerning gastro-oesophageal reflux disease, Instrument No. 11 of 2005;
29. Instrument No. 89 of 2007 replaced Instrument No. 53 of 2003, as amended, for IHD, taking effect on 5 September 2007, before the tribunal hearing took place. At the date of our decision, in regard to PTSD, Instrument No. 5 of 2008 had replaced Instrument number 3 of 1999, as amended, with effect from 20 December 2007. As well, Instrument No. 17 of 2008 took effect in respect to alcohol abuse and alcohol dependence before the date of our decision. The applicant indicated on 26 March 2008 that he relied on the SoPs at the time of the commission’s decision.
The hypothesis for PTSD
30. As we have mentioned above, we must decide whether a condition is war-caused within the template of the relevant SoP. For PTSD, there was a SoP at the time of the reviewable decision, being Instrument No. 3 of 1999, as amended by Instrument No. 54 of 1999.
31. The hypothesis put to us regarding Mr Bain’s PTSD is that it is war-caused due to his experience in the boiler room or engine room while his ship was in Vung Tau harbour. Mr Bain says he experienced a severe stressor during his time in Vung Tau harbour on operational service and that this lead to his PTSD.
32. The material before us therefore raises a hypothesis that his PTSD is connected with operational service in this manner. Next, we must decide whether the raised hypothesis is a reasonable hypothesis. This involves examination of whether the material before us pointing to the hypothesis satisfies the requirements of the relevant SoP.
Is Mr Bain’s PTSD war-caused?
33. At the date of our decision, in regard to PTSD, Instrument No. 5 of 2008 required the experiencing of a category 1A or category 1B stressor. Such a stressor, for category 1A, can mean experiencing a life-threatening event. A category 1B stressor concerns very specific events, none of which Mr Bain claims to have experienced during operational service. We did not hear submissions directed to this instrument from either party and were asked to make our findings based on the SoP that applied at the date of the making of the reviewable decision.
34. We have not examined whether Mr Bain comes within the new instrument further but have formed the view that consideration under the instruments applying at the date of his application and at the time of the reviewable decision are more likely to assist his claim as the definition of experiencing a severe stressor is less specific than the stressors recited in the new instrument.
35. For Mr Bain to satisfy the relevant 1999 SoPs and thus meet the test of a reasonable hypothesis, he must relate his PTSD to his operational service in accordance with factors 4 and 5 of the instrument. Factors set out in paragraph 5, which could apply to Mr Bain, in accordance with SoP Instrument No. 3 of 1999, are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or
36. The second of these factors applies only to “material contribution to” or “aggravation of” post traumatic stress disorder, where the disorder was contracted before or during the relevant service but not arising out of the relevant service.
37. The definition of “Experiencing a severe stressor” in Instrument No. 3 of 1999 was substituted by Instrument No. 54 of 1999 and reads:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
38. Clause 1, paragraph A, goes on to say that in the setting of the defence forces, events that qualify as a severe stressor include threat of serious injury or death. Mr Bain contends that he experienced such a severe stressor during his operational service in the form of his experience in the boiler room or engine room on the days that the Melbourne was anchored in Vung Tau harbour. He argues that during that time he perceived that he was confronted with the threat of death or serious injury. We have been asked to note that Mr Bain’s going AWOL in 1973 is consistent with his claim that he found his trip to Vietnam very stressful and that he could not face serving at sea again.
39. The difficulty for us is that there was no event that one could consider an actual threat. Mr Bain was an experienced mechanical engineer and the duties in Vung Tau harbour amounted to routine normal duties. The only difference is that duties were performed in an operational setting. The ship did not come under fire or anything of this sort but it was in a war zone. In one sense, just being present in a war zone implicitly exposes a person to “threat of serious injury or death”. However, to find that this possible exposure is sufficient stressor would mean that all defence personnel serving in a war zone might meet this requirement of the instrument and make nonsense of the instrument.
40. Firstly, we have dealt with the threat to Mr Bain. His counsel submitted that the perception of a threat was sufficient to be a severe stressor when one considered Mr Bain’s previous experience with the Melbourne/Evans incident. A similar argument was accepted by the Full Court of the Federal Court in Repatriation Commission v Stoddart (2003) 134 FCR 392 (‘Stoddart’). In Stoddart, the veteran contended that during his operational service, like Mr Bain, he experienced "severe stressors", while working in the engine rooms of vessels. The tribunal in Stoddart and Repatriation Commission [2002] AATA 791, at [12], summarised Mr Stoddart’s claims about his fears as:
a) Occasions when he was required to check the tunnels and temperature gauges deep down at the bottom of the vessel. He undertook this task alone, without any radio or other contact with the ship, and had no way of communicating if he was in trouble. He had to lock doors behind him to ensure the area was completely sealed and watertight. He recalled being terrified when undertaking this task, and perceived his life to be under threat, particularly when the vessel was called to action stations, as there would have been little, if any, chance of him getting out alive.
(b) Occasions when the vessel was called to action stations whilst he was in the engine room below the waterline, sealed and watertight. He was fearful that if the vessel was hit by enemy fire there would be little, if any, chance of him getting out alive. He was intensely frightened during his time off Malaya, as he did not know whether the call to action stations was an exercise, or the real thing.
(c) The applicant saw an incident where a fellow seaman was very badly burnt by a "flashback" burn that occurred when the seaman was changing oil sprayers on the boilers. He felt very lucky and frightened because it could have been him who was injured
(d) Whilst the applicant was aboard the Melbourne in April 1957, the vessel was involved in a South East Asian Treaty Organisation (SEATO) training exercise, in the course of which HMAS Tobruk (the Tobruk) was hit by a star shell, which resulted in the death of Able Seaman Spooner. He was buried at sea the following day, and this event brought home to the applicant the dangerous position he was in, and that at any time he could be injured and killed.
41. At [13], the tribunal noted the case turned on the applicant’s assertion these were major stressors, and as a result he consumed large amounts of alcohol to deal with the incidents and his fear. The tribunal did not find in Mr Stoddart’s favour, finding Factor 5(a) of the 1999 PTSD SoP was not satisfied.
42. On appeal, in Stoddart, the Full Court of the Federal Court upheld the judgment of the court at first instance that found Mr Stoddart’s fears, judged objectively, from the point of view of a reasonable person and with the knowledge of the person experiencing those events, were capable of and did convey the risk of death or serious injury. The Full Court also noted that his Honour accepted that the meaning conveyed by "threat" in its SoP context was "an indication of probable evil to come; something that gives indication of causing evil". The Full Court agreed at [36] with this description of “threat”, which was a dictionary definition and appropriate in the context of the SoP.
43. At [31], the Full Court also noted that, subsequent to his Honour’s decision, the Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473 (‘Woodward’), at [137ff], adopted and followed his explanation of the meaning of "threat" as used in the SoP definitions. The definitions did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances. The court allowed a partially subjective connotation and adopted the paraphrase of his Honour’s words in Woodward, at [139]:
the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
44. The tribunal in Stoddart had fallen into error by finding there was no threat to Mr Stoddart for the purposes of the SoP because there was no call to action stations when he was on board. In the similar situation with which we are faced, we have to decide whether Mr Bain’s fears of imminent death, despite the absence of any actual threat, were compounded by his previous experiences when the Melbourne collided with the Evans and his realisation that he would be unable to escape quickly from the engine room or boiler room in the event of an attack, to the extent that he experienced a severe stressor. For this exercise, we have borne in mind the comment of the Full Court in Stoddart that this process is proper and appropriate to the setting of the SoPs and at [41], that it is “tantamount to an attack on the reasonableness of the respondent’s perception”. We are required to look at not just whether there was an actual threat but whether Mr Bain’s perception of imminent harm was reasonable.
45. Mr Bain’s evidence was that he had not wanted to work below decks in the boiler room and he had thought he would be involved in catering. He was fearful working in the enclosed and uncomfortable environment of the boiler room and engine room. His fears were exacerbated when he heard depth charges exploding and he was not sure that they were not bombs. His fear was already seasoned by his experiences when the Melbourne collided and he saw bodies and people injured. He told us he thought he was more likely to suffer serious injury because he was below decks and may be unable to escape in the event of an attack.
46. In turning our minds to the reasonableness of his perception we consider there was no indication of probable evil to come when Mr Bain was in Vung Tau harbour. If we accept Mr Bain’s evidence, however, he did hold a genuine perception that he was under imminent threat of his life. The scare charges and closed conditions below decks in the hot engine room environment while in a war zone coupled with his experiences after the Melbourne collision did cause him to perceive he was “confronted with an event or events that involved actual or threat of death or serious injury”. On balance, we have come to the conclusion that Mr Bain’s perception was a reasonable one given his background experiences, which had left him vulnerable to fears of being trapped and harmed. To this degree his perception is more reasonable than in a person without his exposure to the Melbourne incident. We have taken into account Mr Bain’s particular reaction, notwithstanding that events were objectively neutral in character and noting that the events, nonetheless, reasonably gave rise to a perceived threat because of what they conveyed to him given his position at the time. See the Full Court in Stoddart at [38]. It follows that we find Mr Bain did experience a severe stressor in accordance with instruments No. 3 of 1999 and No. 54 of 1999.
Date of clinical onset of PTSD
47. The next finding we must make to establish a relationship to operational service is the date of clinical onset. The parties agree that Mr Bain suffered a severe stressor in 1969 when he was serving on the HMAS Melbourne and it collided with the USS Frank E Evans. What is required for Mr Bain to satisfy the factors set out in Instrument No. 3 of 1999, as amended, is for us to find not only material that points to a hypothesis that Mr Bain, in particular, suffered a severe stressor during his operational service in Vietnam in 1972, but that this was before the clinical onset of his PTSD. Alternatively, we may find that there is material that points to a material contribution to his PTSD or his pre-existing PTSD being aggravated by a severe stressor experienced in 1972 in Vietnam. Such determinations depend on the time of clinical onset of his diagnosed condition.
48. The time of clinical onset is disputed. SoP Instrument No. 3 of 1999 lists a number of symptoms that must be present in order to make a diagnosis of PTSD in accordance with the instrument and therefore to determine the time of clinical onset. In order for the hypothesis to be reasonable, the clinical onset must occur within the time frame specified in the SoP covering this condition. That time frame as is set out in factor 5 is that of experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder or prior to the PTSD worsening. It is not necessary to establish that onset occurred in close proximity to the experiencing of the stressor. Factor 3 provides that the experience must be related to service and that this relationship is indicated by sound medical-scientific evidence.
49. In Lees v Repatriation Commission (2002) 125 FCR 331, the Full Court endorsed the approach to the determination of clinical onset as “when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present”. Furthermore, in addressing the significance of the definition of ‘disease’ in a SOP, the Full Court observed the purpose of the definition is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from the disease.
50. The difficulty with the medical evidence before us is that none of the psychiatrists have approached the question of clinical onset in the manner which we are required to observe. For the purpose of identifying clinical onset under the relevant SoP, we are concerned with the definition of the disorder set out in factor 2 (b), which reads that it “means a psychiatric condition meeting the following description (derived from DSM-IV)”… The description that follows refers to exposure to a traumatic event in paragraph (A)(i), the person’s response involving intense fear etc in paragraph (A)(ii), persistent re-experiencing of the event through recollections and a number of other tests.
51. In this situation, we have extracted from the medical opinions before us the material most relevant to the diagnostic criteria set out in factor 2. PTSD was first diagnosed by Dr Darcy in July 1999. This is the first occasion that Mr Bain saw a psychiatrist and arguably this could be seen as the time of clinical onset of his PTSD.
52. The respondent argued that the clinical onset of PTSD occurred prior to 1972 as a result of the Melbourne/Evans incident and relied on the opinion of Dr Roberts. However, neither in his report or his oral evidence was Dr Roberts able to identify the constellation of symptoms required to make the diagnosis of PTSD prior to 1972. He merely presumed the clinical onset on the basis that the Melbourne/Evans incident was the only possible severe stressor sufficient for the diagnosis of PTSD.
53. Dr Dinnen did not address this issue specifically in his written report but in oral evidence did point to a number of symptoms described by Mr Bain following the stressor experienced in 1972 that would be consistent with a diagnosis of PTSD. In our view, this evidence points to a conclusion that the clinical onset of PTSD occurred sometime during or shortly after Mr Bain’s operational service.
54. Dr Dinnen is a psychiatrist of considerable experience in assessing veterans and holds the opinion that the clinical onset of PTSD occurred sometime during or shortly after Mr Bain’s operational service. Other medical opinion before us is less clear. Dr Roberts has not identified a date of clinical onset although he identified another stressor as the more likely cause of the condition. Dr Darcy also did not deal with clinical onset but recounted Mr Bain’s history as told to him. He recorded that Mr Bain spoke of the extremely traumatic experience when he was on the Melbourne and the terrible panic he felt in certain situations. He noted that Mr Bain tried to avoid being put back into ships and felt anxious in the engine room. Further, he went absent without leave after having to go down into the engine room again. Dr Darcy observed he apparently managed his condition until he had an upsurge of his old anxieties when a refinery in which he was working blew up. Dr Darcy concluded that Mr Bain had quite serious PTSD which arose at least partly from his war experiences.
55. As well, we have taken into account Mr Bain’s symptoms of an anxiety disorder such as heavy alcohol consumption and heavy smoking which has not been offset by any evidence to the contrary of Mr Bain’s statement. We also take note that Mr Bain did give evidence that he left the service because he could not cope with being in ships after Vietnam.
56. In light of all this material we find that the clinical onset of Mr Bain’s PTSD was either during service in 1972 or no later than 1974, when he went AWOL. This means the condition was related to his relevant service. He therefore meets the minimum requirements of the SoP. This leads to a conclusion that Mr Bain’s hypothesis as to the causation of his PTSD is reasonable.
Is there no sufficient ground for determining PTSD is war-caused?
57. Next, in accordance with sub-section 120(1), we must decide if we are satisfied beyond reasonable doubt that no sufficient ground exists for determining the applicant’s conditions are war-caused before we can reject Mr Bain’s claim. In view of the medical opinion we have considered above and particularly our finding that Mr Bain’s psychiatric condition had its onset in 1972 to 1974, we are satisfied beyond reasonable doubt that no sufficient ground does exist for determining that the condition was not war-caused. It follows that we find that Mr Bain’s PTSD was war-caused.
Is Mr Bain’s psoriasis war-caused?
58. We are dependent again on the medical opinion before us in deciding if Mr Bain’s psoriasis was war-caused.
Hypothesis-
59. The hypothesis put to us as to the cause of the psoriasis was that Mr Bain was suffering from war-caused alcohol dependence or abuse or from a clinically significant anxiety disorder at the time of the clinical onset of psoriasis and that this lead to the condition, making it war-caused.
60. Firstly, we have found that there is material pointing to Mr Bain’s hypothesis. On 8 December 2004, Dr Miles referred to recurring groin dermatitis since 1972. We also have medical evidence of the condition dating from 2002 when Dr Relic answered a question about clinical onset, that it was ‘late 1967’. Dr Relic also reported that the rash had been present since 1967 or 1969. He added that the condition developed ‘during war service years’ and that predisposing factors were ‘irritant contact durations during war service triggered by working in excessive heat and contact with diesel fuel’. When Dr Kelly referred Mr Bain to Dr Relic on 3 July 2002 he reported Mr Bain had suffered on and off for 30 years. Mr Bain said onset occurred in 1974 in an information sheet he provided to Veterans’ Affairs in 2005. After the hearing and in response to the applicant’s submissions regarding the psoriasis claim, the respondent agreed that the clinical onset of the condition was in 1974. On 21 October 2004, Mr Bain stated in a veterans’ information sheet for the purposes of his claim that he first noted skin rashes in 1973 and attributed it to stress, drinking and poor living conditions. As well, on 16 May 2005, Mr Bain stated in an additional information sheet that he first noted the skin eruptions in about 1974 and attributed it to his drinking habit. All this material points to Mr Bain’s hypothesis.
61. For the hypothesis to be reasonable, we must consider the relevant SoP. The governing SoP at the time of the application and reviewable decision was Instrument No. 56 of 2002 for psoriasis. On that basis, and in order to establish that his hypothesis is reasonable, Mr Bain relies on the following SoP factors –
d)suffering from alcohol dependence or alcohol abuse involving regular consumption of at least an average of 420 grams per week of alcohol at the time of the clinical onset of psoriasis; or
e) clinically significant psychiatric disorder.
62. The applicant raises the medical evidence pointing to clinical onset in 1974, the respondent’s acceptance of that evidence and his satisfying one or both of the factors set out. We have already found that the onset of Mr Bain’s PTSD occurred in 1972 to 1974. This is a “clinically significant psychiatric disorder” coming within the definition of that term under clause 8 of the SoP. The definition says the term means any depressive disorder attracting diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist. We are satisfied that Mr Bain’s condition has been so managed since 1999, when he first saw Dr Darcy. It follows that we find Mr Bain’s hypothesis concerning psoriasis is reasonable.
63. In terms of sub-section 120(1), there is no evidence attacking the diagnosis and date of onset. Accordingly, we find that we are satisfied beyond reasonable doubt that no sufficient ground does exist for determining that the applicant’s condition was not war-caused. It follows that we find it was war-caused.
Is Mr Bain’s IHD war-caused?
64. The diagnosis of IHD is agreed as is the date of clinical onset, being 1999, when Mr Bain was admitted to hospital. The hypothesis for IHD is that the condition is war-caused because Mr Bain smoked at least five cigarettes a day prior to the clinical onset of the IHD and that the smoking, which is related to his war service, caused his IHD.
65. We have material before us from Mr Bain, from Mr J P Hadler, who served with him and from various doctors’ reports that Mr Bain gave them a history that he was a heavy smoker. Smoking is one of the causes of heart disease identified in the SoP relevant to the onset of IHD so we find that there is material that points to the hypothesis that Mr Bain suffers IHD as a result of his smoking which was related to his operational service.
66. As to whether the hypothesis of war-caused smoking related heart disease is reasonable, we must again analyse the hypothesis in terms of the relevant SoP. Instrument No. 89 of 2007 replaced Instrument No. 53 of 2003 for IHD, taking effect on 5 September 2007, before the tribunal hearing took place. For the current SoP, Instrument No. 89 of 2007, Mr Bain relies on the following factor:
(h) where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; …
67. There is no evidence contradicting Mr Bain’s assertion he was smoking well in excess of the amount required to satisfy factor 5(h). Mr Bain reports a higher level. The real issue is whether his smoking habit was contributed to by his Vietnam service.
68. On 14 January 2007, Mr Hadler, who made a written statement for the review, said that Mr Bain was smoking 1 or 1½ packets of cigarettes a day when he joined the Sydney but that when they went up to Vietnam he started to smoke more heavily and refers to him smoking 4 or 5 packets a day.
69. On 24 June 1999, Mr Bain completed a smoking questionnaire. He stated that he started smoking 40 cigarettes a day when the Melbourne and Evans collided, to help calm his nerves and control his stress, and he has smoked ever since and could not give it up. He states that in 1978 he changed his smoking habit and started to smoke 100 a day because of stress, to help him forget what he had witnessed and to help when he could not sleep. On 22 July 2002, Dr Darcy noted that Mr Bain was smoking heavily and that his increase in smoking had been caused by his acute stress reaction and the enduring PTSD.
70. On 16 May 2005, Mr Bain completed another smoking questionnaire. He said he commenced smoking after the Melbourne/Evans incident and smoked about 20 a day. This increased to 40 plus a day in Christmas 1972 due to the terror of his experience in Vietnam where he fell apart. On 10 December 2006, Dr Roberts reported that Mr Bain gave him a history of smoking 25 cigarettes a day since the age of 22 -23.
71. The medical evidence includes a report by Dr Talley, a consultant physician and gastroenterologist. On 6 March 2007, Dr Talley, who saw Mr Bain at the request of Veterans’ Affairs, noted that, between 1973 and 1966, Mr Bain stated he smoked 40 to 60 cigarettes a day. On 18 June 2007, Mr Bain stated that he first started smoking in June 1969 after the Melbourne/Evans collision and then smoked 20 to 40 cigarettes a day. When he went to Vietnam he was frightened and nervous and his consumption rose to 80 to 100 a day. He found it hard to sleep and just smoked. He continued to smoke 100 a day, except when he had his heart attack in the late 1990s, until he cut back to 40 to 50 a day in 2005.
72. Mr Bain testified in oral evidence that he started smoking at the time of the Melbourne/Evans collision and then smoked about 20 a day. He said that around his time in Vietnam he was not sleeping when off his watch and he drank and smoked a lot and his smoking escalated up to 100 cigarettes a day over a reasonably short period and he continued smoking at that rate until he had his heart attack in 1999. He then reduced his smoking to 40 or 50 a day and since going to St John of God had cut back to 30 or 40 a day. Mr Bain had difficulty reconciling this account with some of his earlier statements about his smoking.
73. Overall, Mr Bain has consistently claimed increased smoking due to his experience in Vietnam and that his smoking increased either from about 20 to 40 a day or from 40 to about 100 a day as a result of his experience in Vietnam. That the increase in smoking was due to Vietnam is supported by the evidence of Mr Hadler, who states he served with him on HMAS Sydney.
74. The material before us points to a significant increase in Mr Bain’s smoking as a result of his operational service. The statements of Mr Bain, Mr Hadler and doctors who took a history from Mr Bain suggest he was smoking an average of at least five cigarettes per day for at least one year before the clinical onset of IHD. In view of the lack of evidence to offset Mr Bain’s claims and the supporting statement of Mr Hadler, which was not tested in cross-examination by the respondent, we cannot be satisfied beyond reasonable doubt, that the material before us does not raise a reasonable hypothesis that Mr Bain smoked at least the amount of tobacco products indicated in the relevant SoP and that this smoking habit was related to service. Accordingly, we find that Mr Bain’s hypothesis for the heart condition is reasonable.
75. We are next required to consider, pursuant to sub-section 120(1) whether we are satisfied that the condition is war-caused according to the test set out. Based on the evidence before us of Mr Bain’s smoking increasing as a result of his operational service and the accepted link between the claimed level of smoking and IHD in the relevant SoP, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that his condition is not war-caused. Accordingly, we find that Mr Bain’s IHD is a war-caused disease.
Gastro-oesophageal reflux disease (GORD)
76. Diagnosis of GORD was confirmed on 28 May 1996 and later evidence detailed in our discussion of diagnosis above supports the accuracy of the diagnosis.
Hypothesis –
77. The hypothesis raised is that Mr Bain’s GORD is war-caused because he smoked at least 10 cigarettes per day for a period of 6 months prior to the clinical onset and that his smoking is related to war service. An alternative hypothesis is that Mr Bain consumed an average of at least 300 grams of alcohol per week for at least 12 months prior to the clinical onset of the disease and that his alcohol consumption is due to his PTSD which is due to his war service.
78. We accept and find that there is material before us which points to the hypothesis. This includes Mr Bain’s statements about his smoking and references in several medical reports to his excessive use of alcohol, although not all doctors who have seen Mr Bain agree that he did drink to the extent he claims for the hypothesis.
79. We must next consider if the hypothesis is reasonable and, as there is an SoP covering the condition, we have turned to its minimum factors. The only relevant SoP for this condition is Instrument No. 11 of 2005 for GORD. Mr Bain relies on the following SoP factors arising under clause 5 of the SoP:
(c)smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastro-oesophageal reflux disease; or
(d) consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; or
80. If onset is found to have occurred before Mr Bain went to Vietnam then the equivalent factors in paragraphs (n) and (o) relating to aggravation would apply. However, we can find no material pointing to onset before Mr Bain’s operational service in 1972.
81. On 21 October 2004, Mr Bain stated that he first noted symptoms of reflux in 1973, according to details furnished to Veterans’ Affairs on a form designed to notify new disabilities claimed for acceptance. On 16 May 2005, Mr Bain stated that he was aware of the problem by 1975 and attributed his GORD to war related alcohol and smoking habits, according to a further claim form “for disabilities not yet been accepted”. On 6 March 2007, Dr Talley noted that Mr Bain claimed his symptoms started between 1970 and 1971 but he could not give an exact date and that he complained of heart burn from the time of his discharge from the Navy in 1974.
82. Dr Talley diagnosed gastrointestinal reflux disease caused by morbid obesity, excessive smoking and drinking and a small hiatus hernia, with onset in the early 1970s when Mr Bain started to take antacids. In his opinion, if operational service made Mr Bain terribly frightened this may have contributed to his anxiety and in turn may have contributed to his smoking and drinking and this would have aggravated his reflux disease, which was quite severe by 1996.
83. Mr Bain’s oral evidence was that he started taking antacids in about 1971 and would take one every now and then but by Christmas 1972 or 1973 he was “eating” them. His evidence, taken with the medical reports, suggests Mr Bain first became aware of a problem in 1971 and that it worsened by Christmas 1972 or 1973. Alternatively, he may first have become aware of a problem in 1973, 1974 or 1975. The only basis for finding early onset of GORD related to service are the claims made by Mr Bain to Veterans’ Affairs and to the doctors who took a history from him.
84. The time of clinical onset is problematic but the best assessment in our view is that onset occurred 12 months prior to his gastroscopy in mid-1995 as per the operation record. In reaching this conclusion, we have borne in mind the written report by Dr Talley, gastroenterologist, who noted the smoking history of 40 to 60 cigarettes per day. Aside from Dr Talley’s opinion, there is no sound medical-scientific evidence that points to clinical onset before 1995 or any other evidence apart from Mr Bain’s claims as to early onset which he made in 2004 and 2005. Accordingly, we find on balance that clinical onset occurred in 1995.
85. If we accept that Mr Bain was a heavy smoker and drinker due to his operational service, the tests set out in the SoP do not end there. For the smoking based hypothesis to be reasonable, Mr Bain must demonstrate that he was smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset and that this was related to service.
86. For the drinking based hypothesis to be reasonable, Mr Bain must demonstrate he was consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of GORD and that his drinking was related to relevant service. Mr Bain has not established that he drank to this extent let alone that his drinking was related to service. As well, the clinical onset of his condition occurred almost twenty years after his operational service. As we have found clinical onset was in 1995 and are not satisfied Mr Bain drank the requisite amount nor that his drinking was related to service, Mr Bain has not met the tests making a necessary link to establish a reasonable hypothesis.
87. However, we cannot say the same about the possible link to smoking. As we have already set out in respect to IHD, the material before us points to a significant increase in Mr Bain’s smoking as a result of his operational service. Further material such as the references in Dr Talley’s report indicate Mr Bain was still smoking heavily in the 6 months before clinical onset of GORD. In view of the lack of evidence to offset Mr Bain’s claims and supporting witness statement, we cannot be satisfied beyond reasonable doubt, that the material before us does not raise a reasonable hypothesis that Mr Bain smoked at least the amount of tobacco products indicated in the relevant SoP and that this smoking habit was related to service. Accordingly, we find that Mr Bain’s hypothesis for the gastric condition is reasonable.
88. We are next required to consider, pursuant to sub-section 120(1) whether we are satisfied that the condition is war-caused according to the test set out. Based on the evidence before us of Mr Bain’s smoking increasing as a result of his operational service and the accepted link between the claimed level of smoking and GORD in the relevant SoP, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that his condition is not war-caused. Accordingly, we find that Mr Bain’s GORD is a war-caused disease.
Summary
89. For the above reasons, we set aside the decision under review in respect to the conditions of PTSD, psoriasis, IHD and GORD but affirm the decision under review as to alcohol abuse and alcohol dependence.
Decision
90. We set aside the decision under review, in part, finding the applicant does suffer war-caused post traumatic stress disorder, psoriasis, ischaemic heart disease and gastro-oesophageal reflux disease. We affirm the decision that the applicant does not suffer war-caused alcohol abuse and/or alcohol dependence.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member and Dr Ion Alexander, Member
Signed: ........................[Sgd].........................
Jennifer Wong, AssociateDate/s of Hearing: 6 and 7 November 2007
Date of Decision: 17 April 2008
Counsel for the Applicant: Mr C ColborneSolicitor for the Applicant: Ms J Buss, Legal Aid Commission
Advocate for the Respondent: Mr T O’Reilly, Department of Veterans’ Affairs
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