Boyd and Repatriation Commission - [2008] AATA 379

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 379

ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1366

VETERAN’S APPEALS DIVISION )

Re: ARTHUR BOYD
Applicant

And: REPATRIATION COMMISSION
Respondent
DECISION

Tribunal

Rear Admiral A R Horton AO, Member
Dr I S Alexander, Member

Date12 May 2008
PlaceSydney

Decision

The Tribunal decides that:

1. The decision under review is affirmed in respect of claimed conditions of posttraumatic stress disorder, alcohol abuse and depressive disorder.

2. The decision under review is set aside to the extent that the condition of hypertension is war-caused.

...................[sgd]...........................
Rear Admiral A R Horton AO
Member

VETERANS’ AFFAIRS – claim for disabilities arising out of operational service – incident of aircraft landing onboard HMAS Melbourne – arrestor wire broke – aircraft crashed in sea – one crew member killed – applicant claimed he observed accident - claim not accepted by Respondent – applicant’s evidence to Tribunal that accident not observed but stressor experienced - original decision set aside to the extent that hypertension accepted as war caused – the decisions in respect of the claimed conditions of PTSD, alcohol abuse and depressive disorder are affirmed

Veterans Entitlements Act 1986 - Sections 13, 120(1), 120(3), 120(4), 120(6), 120A, 196B

Repatriation Commission v Deledio (1998) 83 FCR 82

Robertson and Repatriation Commission (1998) 50 ALD 668

Lees v Repatriation Commission (2002) 125 FCR 331

Hill and Repatriation Commission [2003] AATA 1151

Bolton and Repatriation Commission [2001] AATA 584

REASONS FOR DECISION

12 May 2008 Rear Admiral A R Horton AO, Member

Dr I S Alexander, Member

Arthur Boyd, the Applicant, claims that he suffers from post traumatic stress disorder (PTSD), alcohol abuse, depressive disorder and hypertension, and that these conditions are war-caused diseases within the meaning of that term in section 9 of the Veterans’ Entitlements Act 1986 (the Act), because they:

(a)Resulted from an occurrence that happened whilst he was rendering operational service; or
(b)Arose out of, or were attributable to his eligible war service; or
(c)Were contributed to in a material degree by, or were aggravated by, his eligible war service after he suffered or contracted the conditions.

On 20 May 2003, Mr Boyd claimed a pension under section 13 of the Act in respect of the above conditions. This claim was rejected by the Repatriation Commission (the Respondent in this matter) on 27 January 2004 and by the Veterans’ Review Board (VRB) on 21 March 2007.
At a hearing before us on 19 February 2008, Mr Boyd was represented by Mr Brian Winship, solicitor of Winship Legal. Mr Tim O’Reilly appeared for the Respondent. The section 37 (T documents) were taken into evidence as were the Statements of Facts and Contentions of both parties (Exhibits A1 and R1), a medical report from Dr Anthony Hordern, Consultant Psychiatrist, dated 12 June 2007 (Exhibit A2), and two medical reports from Dr John Roberts, Consultant Psychiatrist, dated 2 October 2007 (Exhibit R2) and 16 October 2007 (exhibit R3). Mr Boyd and by Dr Roberts gave oral evidence.
Mr Boyd had three short periods of operational service in 1966 whilst serving onboard HMAS Melbourne, from 24 March 1966 to 24 April 1966, 25 April 1966 to 6 May 1966 and 25 May 1966 to 9 June 1966. At the outset, Mr Winship submitted that the loss of a Sea Venom aircraft over the port side of the carrier on 28 April 1966, in which the observer lost his life, was a stressor to the extent that Mr Boyd developed post traumatic stress disorder, alcohol abuse and depressive disorder. He further submitted that the development of a condition of hypertension in a similar time frame would be established in evidence by the Applicant. Mr Winship also submitted that two other incidents that occurred during Mr Boyd’s naval service, albeit outside operational service periods, had a bearing on the circumstances of Mr Boyd and hence would be drawn in evidence.

ISSUES

The issues in this matter are:

(a)What are the correct diagnoses – in the view of the Tribunal – for the claimed conditions;
(b)Which, if any, of the conditions are accepted as being present;
(c)Is there an extant Statement of Principle vide section 196B of the Act in respect of an accepted diagnosis; and if so
(d)If the conditions of PTSD, alcohol abuse, depressive disorder and/or hypertension are accepted, do they meet the conditions in section 9 of the Act in respect of arising from or being attributable to operational and hence eligible war service.
BACKGROUND

Mr Boyd was 22 years of age when he joined the Royal Australian Navy in September 1965. After his initial 3 months training at HMAS Cerberus, followed by a short period of leave, he was posted to HMAS Albatross Naval Air Station on 10 January 1966. He then joined HMAS Melbourne as an ordinary seaman (naval airman) on 14 January 1966. Mr Boyd remained onboard until 10 July 1966, during which period he had three short periods of operational service. The Sea Venom incident in which the observer, Lieutenant E G Kennell, was killed, and which forms the basis for Mr Boyd’s claim, occurred on 28 April 1966, during one of those operational service periods. Mr Boyd was posted back to HMAS Albatross, where he commenced his trade training in the air weapons category. In mid 1967, Mr Boyd became absent without leave, was classified as a deserter, and after giving himself up some 5 months later, served 42 days detention before being discharged from the Navy on 23 October 1967 as “Below Naval Physical Standards”.

LEGISLATION

The standard of proof to be applied by the Tribunal is defined in section 120 of the Act. The authority given the “Commission” equally applies to this Tribunal. Subsection (4) applies to the determination, in this case, of the nature or diagnosis of the claimed disease(s) or injury, and relevantly states:
Except in making a determination in which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations...decide the matter to its reasonable satisfaction.
This subsection is affected by section 120B
Subsections 120(1) and (3) refer to the standard of proof in matters relating to operational service, and relevantly state, (both subsections being affected by section 120A):
(1)       Where a claim under part 11 for a pension in respect of the incapacity from...disease of a veteran...relates to the operational service rendered by the veteran, the Commission shall determine...that the disease was a war caused disease…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3)       In applying subsection (1)…in respect of the incapacity of a person from…disease...related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
..
(b)       that the disease was a war-caused disease…
…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 …disease…with the circumstances of the particular service rendered by the person
Subsection 120(6) further requires that in considering the matters before us, nothing in that Act “shall be taken to impose” on an applicant or the Commonwealth or other person in relation to a claim, “any onus of proving any matter that is, or might be, relevant to the determination of the claim…”.
Given that the basis of the claim before us is related to operational service, section 120B is not relevant. Section 120A does apply, as the claim was lodged after 1 June 1994 (section 120A(1)(a) refers). Section 120A(3) relevantly provides that for the purposes of section 120(3), a hypothesis connecting the disease contracted by a veteran with the circumstances of his particular service is reasonable only if there is in force a Statement of Principles determined under subsections 196B(2) or (11), that upholds the hypothesis.
Statements of Principles (SoP) are made by the Repatriation Medical Authority (RMA) under the provisions of section 196B of the Act in respect of particular kinds of injury, disease or death. Where a SoP, in force at the time a claim was lodged, has been amended or re-issued as a revised SoP prior to the finalisation of the matter, the Tribunal must first consider the latter, and should the Applicant not succeed against this current SoP, his claim must be considered against the SoP in force at the time the application was lodged.
The RMA has determined a SoP under subsection 196B(2) with respect to each of the conditions relevant in this matter. PTSD is dealt with in Instrument 5/2008 (which revoked 3/1999 as amended by 54/1999), and relevantly states at paragraph 3 (as derived from DSM-IV, the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders):
(A) the person has been exposed to a traumatic event in which:
(i)   the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i)   recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)   efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g. unable to have loving feelings);
(vii) sense of a foreshortened future (e.g. does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)   difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
Paragraph 5 of that SoP (‘Factors that must be related to service’) requires that at least one of the factors set out in clause 6 must be related to any relevant service rendered by the person. Clause 6 relevantly provides:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service is:
(a) experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder; or.
(b) experiencing a category 1B stressor before the clinical onset of post traumatic stress disorder…

Subparagraph (d) refers to “experiencing the traumatic death of a significant other within the two years before the clinical onset of posttraumatic stress disorder” and subparagraphs (e),(f) and (h) refer to these stressors in the context of clinical worsening of PTSD.

Paragraph 9 of Instrument 5/2008 relevantly defines category 1A and 1B stressors thus:
“a category 1A stressor” means one or more of the following severe traumatic events:
(a) experiencing a life threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) ….
“a category 1B stressor” means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) …
“A significant other” means a person who has a close family bond or a close personal relationship and is important or influential in one’s life.
Alcohol Dependence is dealt with by Instrument No 76 of 1998. Paragraph 2(b) provides that , for the purposes of the SoP:
‘‘alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of 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.
Clause 5 of this SoP provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(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; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

This SoP defines ‘experiencing a severe stressor’ in the same terms as in the previously extant SoP relating to PTSD (3/1999 as amended by 54/1999), except that the ‘event or events’ referred to are also described as those which ‘might evoke intense fear, helplessness or horror’.

Depressive Disorder is dealt with in Instrument 27 of 2008, the relevant psychiatric conditions, as derived from DSM-IV, being defined in paragraph 3. Again, one of the factors enumerated in paragraph 6 must be related to the relevant service rendered by the person; the factors that may be relevant to the matter under consideration being:
(a)(i) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
(ii)experiencing a category 1B stressor …;
(v)experiencing the death of a significant other within the two years before the clinical onset ….;
(vi)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.

As with PTSD, similar criteria relates to clinical worsening of the psychiatric condition.

Category 2 stressors refer to negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry.
Hypertension is dealt with in Instrument 35 of 2003, as amended by Instruments 3 of 2004 and 11 of 2008, the possible relevant factors being considered later in this decision.
A reference to DSM-IV discloses that the criteria listed in each of the SoPs in question reflect those identified in DSM-IV as necessary to a diagnosis, albeit in a summary form. In the introduction to DSM-IV (at xxxii) reference is made to the ‘Use of Clinical Judgment’:
DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe. On the other hand, lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication.

EVIDENCE

In his claim for an anxiety condition on 20 May 2003, Mr Boyd stated that it was caused by “fear of losing life during incident of plane crash on the flight deck”. In respect of his claim for alcohol abuse and hypertension, Mr Boyd stated that his service led to him starting to drink “due to peer pressure…and cheap grog” but he continued to do so to forget his naval experiences.
In his oral evidence, Mr Boyd stated that he left school at the Intermediate level at the age of 15. He had no problems and particularly enjoyed metalwork. He was then employed in the retail/wholesale business as a manager, with no trade qualifications, and “put a lot of thought into it” before joining the Navy. He initially stated that when he first joined Albatross he was trained in cannon maintenance. He described “working a full day…all the servicing of the aircraft, including the guns…we finished our work early one day” when he met Lieutenant Kennell and was offered a “joy flight”, which in the event resulted in him participating in a helicopter winching exercise. In the light of his posting history which recorded but three days at that establishment, Mr Boyd later agreed that his “trade” training did not commence until he was posted back to Albatross in July 1966. He further agreed that the winching exercise was the only occasion in which he met Lieutenant Kennell during that initial four day period at Albatross. At some point later, Lieutenant Kennell lent Mr Boyd a lanyard, and in the event, they became friends; “I don’t know, I think mainly it was because he would talk to me on an equal basis and I sort of had respect”.

Onboard Melbourne, Mr Boyd, as an Ordinary Seaman Naval Airman, undertook duties as required including helmsman, lifebuoy sentry and guns crew. In a written statement of 12 June 2003 (T p65) Mr Boyd said:
Whilst serving in HMAS Melbourne in Vietnam waters on 28 April 1966, I was at action stations at my position on the aft starboard bofors. I was surrounded by live ammunition. A De Havilland Sea Venom crashed on the deck then went over the side resulting in the loss of life of the observer. When the plane crashed, for a moment I thought that the plane would end up in my position. I was in great fear of my life. I still have images of this event to this very day.
In oral evidence, Mr Boyd placed a quite different perspective on this incident, and suggested this statement – as far as the sentence in respect of “…the plane would end up in my position” is concerned, was “someone’s interpretation of what I may or may not have said”. He confirmed he was part of a Bofors gun crew in a starboard sponson during flying stations. He could not see onto the flight deck from his usual position at the gun. He thought he heard a noise which he believes may have been the arrestor cable snapping, followed by the flight deck officer giving orders and commotion on the flight deck. When he went onto the flight deck he was told that an aircraft had gone over the side. He subsequently heard that the observer had been killed and had a premonition that it was Lieutenant Kennell. Later that day he was so informed, and was “shattered” and cried in an area where no-one could see him, because “he lost a respected friend”. He did not witness the aircraft landing, nor see it at any time.
The loss of the Sea Venom, and the death of Lieutenant Kennell on 28 April 1966 are well recorded elsewhere, (Re Hill and Repatriation Commission [2003] AATA1151 and related Federal Court decisions; Re Bolton and Repatriation Commission [2001] AATA 584), and do not bear repeating in this decision, other than to observe that following a normal landing and arrest, the knuckle of the arrestor wire broke, and the aircraft continued over the port side (forward) of the ship. Power and air speed was insufficient to enable the pilot (Lieutenant J Da Costa) to maintain flight and the aircraft crashed into the sea. The observer, Lieutenant Kennell, was killed.
Mr Boyd subsequently had thoughts of danger, and believed that had the aircraft gone to starboard, rather than port, he could have been hit. He attested that his problems started at that time “poor sleep – recurring nightmares later – visions of myself being burnt….visions of myself running across the flight deck with skin falling off me”. He stated that whilst such thoughts changed, they had never gone away. He opined that after giving evidence before the Tribunal, the following two weeks would be difficult.
In oral evidence, Mr Boyd stated that he started to drink alcohol on a regular basis, moderately, on joining the navy; “peer pressure made it obvious that if I didn’t drink I would not be accepted”. He was able to do so as a recruit because he was somewhat older than most other new entry sailors. In an alcohol questionnaire of 20 May 2003 (T p29), Mr Boyd records that from January 1966 he drank 6 middies (assumed to be each day) and occasionally a scotch. Onboard Melbourne he was issued with a 26 oz can each day that an issue took place, and also drank his mate’s issue. In oral evidence he stated that he could not drink onboard during operational service; yet he stated that on occasions at sea he could also buy a half bottle of scotch from a senior sailor, and did so on the evening after the Sea Venom incident. On shore leave, his consumption increased to up to 30 cans of beer a day, with similar consumption being recorded until 2003 when the questionnaire was completed. In oral evidence he stated that he did not necessarily agree with the alcohol consumption recorded on the questionnaire; yet he confirmed that on occasions at sea he could buy a half bottle of scotch from a senior sailor. He further stated that his current daily consumption is “moderately high”, being in the order of 6 cans of beer and a shot of scotch.
Whilst we note that in cross-examination Mr Boyd said he was harassed prior to and after his Melbourne service, he described two incidents in the shower at Nowra, which he stated took place after his return to that establishment in July 1966. He was twice approached by a sailor with an erection. He “fought for his life” and subsequently reported the matter to his divisional officer who thought the matter “was funny”. A request to the Captain for discharge was not approved, the Captain stating he was “too good a sailor”. In the light of his worries over harassment by homosexuals he went absent without leave, but during that absence, he had “lots of things on my mind…the incident with the aircraft on the Melbourne…”.
He returned on the advice of his father, and was sentenced to 42 days detention for desertion at the Military Corrective Establishment, Holsworthy (1 MCE). His first three days were in solitary confinement; he was confused, believed he was suffering discrimination, felt quite unstable and at one point considered suicide but was prevented from causing any serious injury to himself by a guard.
The T documents include various references to his detention, and his subsequent discharge from the RAN. Dr J McGeorge saw him at Holsworthy – although Mr Boyd does not recall that particular visit – and notes in a brief report of 29 August 1967 (T p3g), that Mr Boyd was “really rather depressed but not deeply so”, and he could not think properly. Dr McGeorge considered that whilst his punishment for desertion should continue, discharge on completion was advisable. Dr McGeorge opined that the suicide attempt at Holsworthy was more of a display than a genuine attempt. Mr Winship accepted that Dr McGeorge had not made a psychiatric diagnosis. The Final Medical Board recommended discharge, noting a personality defect and an anxiety state whilst at Holsworthy. Mr Winship had reservations as to the medical validity of such observations.
After his naval service, Mr Boyd worked for 11 years in a “dangerous job” on the chlorine platform at ICI. He then worked for 14 years as a storeman/chemical plant operator with Taubmans/Barlow World until he ceased work in 2002. He considered himself to be a good employee, occasionally had some time off, but never turned up for work affected by alcohol. Dr Roberts notes in his report that Mr Boyd enjoyed his work at Taubmans where he was computer-graded for work efficiency in the top 1% of employees. Dr Roberts records that Mr Boyd indicated that his performance deteriorated in the last three years at Taubmans; and Mr Boyd confirmed in oral evidence that he could not concentrate and do the job properly.
Mr Boyd told us that he is depressed, has constant nightmares, and sleeps poorly. He takes medication for gout, depression, cholesterol, diabetes, blood pressure and heart problems. Occasionally, when he has taken too much medication, this results in tenseness and hitting himself in the head. About a year ago he tried, without success, and without reference to his doctor, to take Luvox, only on a needs basis. He stated he has been on medication for hypertension since 1975, as prescribed by a Dr Calvas, but neither Dr Hordern nor Dr Roberts were advised of this. Mr Boyd stated that he avoids speaking with other veterans, albeit he acknowledged, and it is shown on his claim form, that he was represented by a veterans’ association. He moved to Young in 2002 or 2003 (his claim of 20 May 2003 originated from his address in Young); he stated he has been seeing a psychologist at Wagga Wagga every 4 to 6 weeks; but no details are before us.

MEDICAL EVIDENCE

Mr Boyd became a patient of Dr V Khuu in November 2002 (as stated in the claim lodged 20 May 2003). That form showed diagnoses of osteoarthritis, high blood pressure (under control with medication) and a major depressive illness (it is unclear whether the latter diagnosis was entered by Dr Khuu or Dr Howard Smyth). Dr Khuu had referred Mr Boyd to St John of God Health Services for psychiatric assessment (Mr Boyd having heard of this facility through other veterans). The initial report, dated 13 March 2003, by Drs Smyth and Dr Schmidtman, refers to an assessment of Mr Boyd undertaken on 19 November 2002. As reported, Mr Boyd expressed concern at being part of a gun crew (confirmed in oral evidence as onboard HMAS Melbourne) wherein he felt untrained, being upset at the news of the Melbourne – Voyager collision “which occurred after his discharge” – and here we accept this referred to the later Melbourne – USS Evans collision in 1969 – and an experience at Nowra Naval Air Station where he was “persecuted and harassed by some homosexuals”.
Dr Schmidtman observed that the main intrusive thoughts and disturbances described by Mr Boyd are “related to memories of being persecuted by homosexuals”. Mr Boyd was diagnosed with Axis 1 major depressive illness, but not PTSD in the absence of a significant stressor, and prescribed Luvox. The report notes that Mr Boyd had “no nightmares”, a statement Mr Boyd could not recall making. The report makes no reference to the Sea Venom loss, nor any incident “involving combat or other significant trauma…”. By way of explanation, in evidence Mr Boyd stated that he “does not tell psychiatrists everything”.
A further assessment, requested by the Respondent, was carried out by Dr Schmidtman on 1 July 2003, (her letter of 24 July 2003 refers). This report raises the matter of the Sea Venom loss on 28 April 1966, and records:
…whilst serving on HMAS Melbourne on trips to Vietnam, he witnessed a plane crash on the flight deck whilst attempting to land. Mr Boyd was part of the gun crew located on the starboard side, the plane went down towards the port side of the ship. The observer on the plane was killed. Emergency crews attended the accident, Mr Boyd was not part of these. He described being very scared, feeling “lucky” that the plane went to the opposite side, not towards his position as it could have caught fire on impact.
The memory of this incident is not on his mind all the time but it often gets triggered in response to reminders e.g. TV news of plane crashes, people being burnt. This memory causes him distress, takes dome time to settle and he tends to ruminate on the incident and his lucky escape from injury.
Dr Schmidtman also observed that Mr Boyd felt worried that planes were coming too low when he was stationed on the stern of the ship as lifebuoy sentry. Mr Boyd put no evidence in this regard before us. Dr Schmidtman records that when stationed at Nowra, two homosexual sailors harassed Mr Boyd in the shower, and his subsequent report to his superiors was discounted. Another stressful occurrence was when he was over the side and painting the ship whilst supported by a net; again no evidence in this regard was placed before us, and in any event, we assume that such an incident would have occurred in harbour outside operational service. We observe that only the Sea Venom incident took place in an operational period, although the lifebuoy sentry issues may also have occurred in those periods.
Dr Schmidtman records intrusive memories, restless and poor sleep, agitation, high arousal levels sown by tenseness, short temper, anger outbursts, poor concentration and forgetfulness. She records Mr Boyd as being “socially withdrawn - not having many friends - avoiding other people – of dysphoric mood - loss of interest – decreased motivation – cessation of participation in previous hobbies”. Dr Schmidtman refers to current alcohol intake as being between 4-5 and 12 beer cans per day as well as scotch, and notes two Driving Under the Influence charges. She observes that Mr Boyd last worked in August 2002 when he resigned because of hip pain, and worsening performance due to poor concentration, forgetfulness and irritability.
Dr Schmidtman diagnosed Mr Boyd with chronic PTSD with associated comorbid mixed depression and anxiety symptom, as she considered “witnessing a fatal plane crash” constituted a stressor vide criterion A of the DSM-IV and psychological symptoms met criterions B, C and D. She accepted alcohol abuse but could not relate this to any stressful incident. We note that Dr Schmidtman records that Mr Boyd has “no nightmares remembered as such”, which Mr Boyd does not recall saying and which contradicts his oral evidence.
Under cross-examination, Mr Boyd indicated that he had later appointments with Dr Schmidtman at St John of God, but found them to be of no value as they merely sought advice as to what the psychologist was doing for him. There is no confirmatory evidence before us as to these later appointments. Indeed, the evidence before us is contradictory: Mr Boyd moved to Young some five years ago, yet he informed us that he saw Dr Schmidtman about every three or four months “right up until about 12 months ago. Right when I was living in Sydney…” This also is at odds with the notation by Dr Roberts in his report that Mr Boyd did not see Dr Schmidtman after he moved to Young.
Dr M Mullany, general practitioner at Young, completed a Medical Impairment – Psychiatric Condition questionnaire and a Workability Report on 3 September 2003 at the request of the Respondent. He assessed Mr Boyd’s subjective distress as being moderate, with very frequent symptoms showing distress over trivial problems, agitation, depression, frustration and poor social interaction, these being based on his own assessment. He noted that none of these characteristics had been reported to him by others. He ascribed these symptoms as resulting in marked interference with functions, minimal family life and minimal recreational activities. He considered Mr Boyd could no longer work, albeit he had been “one of the best” workers.
Dr Anthony Hordern, psychiatrist, saw Mr Boyd on 29 May 2007 and provided a medico-legal report dated 12 June 2007 (Exhibit A2). He refers to “an unembellished account of his symptoms and their background, tending if anything to minimize the former”, with “distress becoming apparent“ when alluding to the Sea Venom crash and harassment by homosexual sailors.
In respect of the former, Dr Hordern records that Mr Boyd felt extremely scared when he “heard that the Sea Venom had crashed into the ship’s port side”. He records that Mr Boyd later became deeply distressed when informed that Lieutenant Kennell had been killed, this producing feelings of fear and helplessness which affected him profoundly and which led to memories being triggered by relevant television news and the like. Dr Hordern records that Mr Boyd later deserted because he could not otherwise escape sexual harassment. Dr Hordern makes no mention that the Sea Venom incident might have had any bearing on this decision.
Dr Hordern notes that Mr Boyd’s drinking started in 1966 as a result of peer pressure. Mr Boyd described the circumstances in respect of his six siblings; we find the detail a little surprising given that whilst he lives at Young with his 48 year old brother, he has no contact with his five sisters. Dr Hordern concluded that “Mr Boyd has been suffering from PTSD since serving in HMAS Melbourne in 1966. He has also since that time been suffering from alcohol abuse”. Dr Hordern suggests that the later incidents of harassment and harsh punishment at Holsworthy aggravated the conditions.
The Medical Impairment Worksheet completed by Dr Hordern gives a final rating of 33 under the Department of Veterans’ Affair’s Guide to the Assessment of Rates of Veterans' Pensions (GARP) and may be summarised as follows:
Subjective Distress - flashbacks and nightmares, severe irritability, social withdrawal, excessive consumption of alcohol
Manifest Distress - distress though quite well concealed is intermittently apparent
Functional Effects - moderate interference with function in some everyday situations
Domestics situation - minimal effect on family life as he is single and lives with brother
Social Interaction - general social withdrawal
Leisure activities - virtually all abandoned
Current therapy - has been seen by a psychologist, receiving medication and support from GP
Dr Hordern also observes under “Occupation” that Mr Boyd retired early in August 2002, “due to inability to work as a result of chronic PTSD”.
As an overview, we have some difficulty in agreeing with Dr Hordern that the symptoms described of Mr Boyd adequately meet the criteria in DSM –IV for PTSD. We particularly have concerns, notably from the descriptions given of his impairment and behavioural criteria that even if a condition of PTSD is accepted, it cannot be classified as chronic.
An alternate opinion as to the psychiatric condition of Mr Boyd has been provided by Dr John Roberts, psychiatrist. His medico-legal report of 2 October 2007 (Exhibit R2), prepared after an examination on 12 September 2007, concludes thus:
In regard to diagnosis I am unable to satisfy myself that Mr Boyd is suffering from the conditions claimed, namely I do not consider there is evidence of Posttraumatic stress disorder, major depression and the history of excessive alcohol ingestion is open to considerable doubt.
Mr Boyd’s history of repetitive dreams is inconsistent with a genuine condition. The absence of heightened anxiety symptoms precludes Posttraumatic stress disorder.
The assertion of a condition arising as a result of the conditions of service and of having been present since that time is rendered untenable by Mr Boyd’s statement that he was not aware of any difficulty until approximately five years ago…
…
Any diagnosis that postulates chronic alcoholism, major depression or incapacitating PTSD would need to explain how Mr Boyd’s employment record could have been as was described.
The only condition of a psychiatric nature which in my view would be open to consideration would be that suggested by Dr McGeorge – whilst such terminology was not used, the implication is clearly of a constitutional personality disorder…
In support of his conclusions, Dr Roberts notes that Mr Boyd referred to distress disorder, which he described as equating to being unable to be in a crowded environment or mix with people. As to his comment on repetitive dreams and flashbacks, Dr Roberts drew on the views of Philip Resnick, Professor of Psychiatry at Case Western University, in respect of malingering, to support his conclusions. Dr Roberts further expressed the view that the 1% grading of Mr Boyd by Taubmans precluded him as suffering “from any significant psychiatric condition or significant alcohol ingestion - such a level of efficiency would be inconsistent …”.
Dr Roberts notes in respect of the initial assessment at St John of God Hospital that Mr Boyd stated that at that time he did not have any problems. We are of the opinion that such a statement, if it were made, would seem to ignore the fact that his referral for psychiatric assessment came from the treating GP, Dr Khuu. We note that the only comments before us from Dr Khuu are those incorporated in the claim form lodged on 20 May 2003, this form seemingly being completed by Dr Smyth. Dr Khuu notes that he first saw Mr Boyd and diagnosed a major depressive illness on 19 November 2002 (T p21), some three months after Mr Boyd ceased work.
In respect of alcohol consumption, Dr Roberts records the view of Mr Boyd that alcohol consumption had never been a problem, but further questioning led to the view by Mr Boyd that alcohol use had led to a reduction in his concentration during his last three years with Taubmans. Dr Roberts opined in his report that there was no evidence – in terms of clinical presentation - of any cognitive impairment; there was no symptomatology reflecting anxiety (which Dr Roberts postulated rendered the diagnosis of PTSD untenable vide DSM-IV), nor fluctuation in weight or appetite which might be associated with depression. Nor was there evidence of diurnal mood variation.

In short, on the history given him by Mr Boyd, Dr Roberts was unable to agree with the views of Dr Hordern that Mr Boyd was suffering from PTSD or alcohol abuse.
Dr Roberts also gave oral evidence. He opined that Mr Boyd did not meet the category 1A or 1B stressor definitions in Instrument 5/2008, he having told Dr Roberts that he did not witness the landing or the subsequent loss of the aircraft over the side. Dr Roberts said that Mr Boyd told him he was not aware of his psychiatric problems until so advised at St John of God. Dr Roberts confirmed his written opinion that in the absence of relevant symptoms, there was no evidence of any significant anxiety state. He re-affirmed his view that there was no evidence of PTSD.
Under cross-examination, Dr Roberts conceded that the death of Lieutenant Kennell may well have been a stressor, but in the circumstances wherein Mr Boyd was not a witness, irrespective of how well he believed he knew him, it could not be considered a severe stressor. That is, he may well have shown regret but that was a normal human emotion. On the basis of the information given him, Dr Roberts stated that he did not believe Lieutenant Kennell was anything more than an acquaintance.
As to alcohol consumption, Dr Roberts opined under cross-examination that the account of very substantial alcohol consumption as given him by Mr Boyd was not compatible with Mr Boyd’s work history. When put to him that Mr Boyd had periodically taken “sickies”, Dr Roberts stated that this was not told to him by Mr Boyd. Dr Roberts considered that on the responses given him, as implied in his report, Mr Boyd went absent without leave because of the sexual harassment incident or incidents. We note this view is shared by Dr Hordern, where again there is no mention that the Sea Venom accident played any part in the decision to absent himself without leave.
As to the report by Dr Schmidtman of 24 July 2003, Dr Roberts opined that the worksheet responses did not accord with the symptomatology, or lack thereof, as recorded by him. Further, Dr Schmidtman based her assessment as to whether or not a severe stressor occurred on the later history given her by Mr Boyd that he had witnessed a plane crash on deck.

DIAGNOSTIC CONSIDERATION

As we have earlier noted, diagnoses of medical conditions have to be made to the reasonable satisfaction of the Tribunal in accordance with the provisions of subsection 120(4) of the Act.
In respect of the claimed condition of PTSD, we note the following:
•          Mr Boyd did not seek psychiatric assessment until November 2002. There is no evidence to suggest that such a condition was present prior to that date, other than the noting of an anxiety state in documents presented to the Final Medical Board, and the observation by the Board that Mr Boyd had a personality defect.
•          the initial diagnosis by Dr Schmidtman was that Mr Boyd did not have PTSD “due to a lack of a significant stressor”.   Her subsequent report of 24 July 2003 diagnosed PTSD based on the understanding that Mr Boyd had “witnessed a fatal plane crash” which would constitute a stressor.
•          The evidence of Mr Boyd is that he did not witness the accident, but was informed that an aircraft had been lost and later, that the observer had been killed.
•           There is seemingly no treating psychiatrist. Mr Boyd claimed that he saw Dr Schmidtman periodically from 2002 until recently, albeit he has been living in Young for five years. The most recent report before us from Dr Schmidtman is dated July 2003. We also note that Mr Boyd advised Dr Roberts that he had not seen Dr Schmidtman since moving to Young in 2003.
•          Mr Boyd advised Dr Hordern that he “had been seeing a psychologist at Wagga Wagga”. Dr Roberts records “Mr Boyd referred to having seen a psychologist Roger Blake in Wagga 4 to 6 weekly for 12 months”. In oral evidence Mr Boyd confirmed he was seeing a psychologist. There are no reports from this psychologist before us.
•          Since moving to Young, Mr Boyd sees only his general practitioner, Dr Mullany, his only report before us being that of September 2003, prepared shortly after Mr Boyd became his patient.
•          Dr Hordern has diagnosed PTSD, based on the detail provided him by Mr Boyd.
•          An alternative opinion is offered by Dr Roberts, based primarily on his observations of symptomatology, or lack of symptomatology, and the fact that Mr Boyd had, by his evidence, worked efficiently in private enterprise after leaving the Navy in 1967 until some three years before retirement in 2002.
Considering all of the above circumstances, and in particular that Mr Boyd has not sought psychiatric treatment since 2003, albeit he has apparently been prescribed Luvox, which from his evidence he has not always taken, we prefer, to our reasonable satisfaction, the opinion of Dr Roberts that there is no evidence of PTSD or major depression. We can place no weight on the comment that Mr Boyd had an anxiety state in 1967 whilst undergoing detention. That might well be the case given the views of Mr Boyd that he was angered at the discrimination he suffered at that establishment; we observe this period was neither in operational or eligible service.
In reaching this decision, we take due account of the inconsistencies in the historical evidence of Mr Boyd as detailed in the medical reports before us, and in his statement of 12 June 2003, wherein he speaks of the plane crashing on deck and “and for a moment I thought the plane would end up in my position”. The evidence given us by Mr Boyd clearly indicates he was not aware of the incident, nor the outcome, until after the event. Further, there is no external evidence before us to indicate that Mr Boyd suffered any related anxiety or depressive conditions thereafter, and certainly not before he was referred to St John of God Health Services in 2002, some 36 years later.
We also have reservations that the friendship with Lieutenant Kennell was of the intensity suggested. Assuming Mr Boyd met Lieutenant Kennell when he joined HMAS Albatross in January 1966, and accepting his evidence that he met him on one occasion when he was offered a helicopter flight, the fact that he was only at that establishment for 3 days suggests only a passing relationship at best. Once onboard the Melbourne, their individual responsibilities and duty requirements were such that the development of a significant friendship must be doubted.
Given that we do not accept the claimed condition of PTSD or depressive disorder, it is not necessary to consider the relevant SoP for those conditions nor to undertake the evaluation process in terms of whether such conditions, should they have been accepted, resulted from operational service.
Observing that Mr Boyd was able to more than adequately perform his workplace duties, as was evident in the assessment of his performance at Taubmans, and his verbal confirmation of that assessment, it follows that we are similarly of the opinion, to our reasonable satisfaction, that a diagnosis of alcohol abuse cannot be sustained. The claim cannot be upheld as the evidence does not meet the criteria in SoP Instrument 76 of 1998, nor can any factor in Clause 5 of this SoP be met; Mr Boyd does not suffer from a psychiatric disorder, nor did he experience a severe stressor.
It remains to consider the claimed condition of hypertension, Instrument 35 of 2003 as amended by 3 of 2004 being relevant. Service medical records show that the blood pressure readings of Mr Boyd on entry were 140/75, but thereafter and as recorded on discharge, they were in the order of 120/80. Nor is there any evidence that he was being administered antihypertensive therapy during his naval service, thus vide clause 2(b), hypertension was not present at that time.
Mr Boyd gave evidence that he was prescribed medication for hypertension in 1975 by a Dr Calvas, but no blood pressure recordings at that time are available. Dr Khuu records elevated blood pressure in November 2002 and prescribed appropriate medication. Dr Mullany similarly records elevated blood pressure in July 2003, again noting prescribed medication. Thus in the absence of confirmatory evidence in respect of the 1975 diagnosis, clinical onset might be established as no later than 2002. Suffice that to our reasonable satisfaction, and given there is no evidence before us to refute the above medical opinions, we find that Mr Boyd suffers from the medical condition of hypertension.
The Respondent submitted that unless the Tribunal accepted PTSD as a war-caused disease – and then the relevant date of clinical onset might be an issue – hypertension would not be accepted. The process for establishing – beyond reasonable doubt – that there is no sufficient ground for determining that hypertension was a war-caused disease vide subsections 120(1) and 120(3) of the Act, has been defined by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
Deledio (supra) Step one requires us to consider all the material before us to determine whether that material points to a hypothesis connecting the disease with the circumstances of Mr Boyd’s naval service. We believe that step one is so satisfied, in that material before us in respect of alcohol consumption and elevated blood pressure point to such a hypothesis.
Both parties accept that SoP Instrument 35 of 2003 as amended by Instrument 3 of 2004 and instrument 11 of 2008 is in force and hence Step two of Deledio (supra) is met.
Step three of Deledio (supra) requires the Tribunal to form an opinion as to whether the hypothesis raised is a reasonable one. As the Full Court stated, “it will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP”. It must contain one or more of the factors at paragraph 5 of the SoP (as amended) and be related to service. Mr Winship relied on paragraph 5(b) in that Mr Boyd consumed the necessary amount of alcohol from 1966, this being, in accordance with instrument 11 of 2008, “at least 300 grams of alcohol per week for a continuous period of at least six months before the clinical onset of hypertension”. Whilst not specifically argued by Mr Winship, we must consider that should Mr Boyd not meet this criteria, then his circumstances can be considered against the “lesser” criteria in Instruments in force from the date of his claim. That is, Instruments 35 of 2003 as amended by 3 of 2004.
Mr Winship also submitted that on his own evidence, Mr Boyd was on hypertension medication from 1975, and medical evidence shows he was on appropriate medication since 2000. Thus at worst, and following Re Robertson and Repatriation Commission (1998) 50 ALD 668 as followed by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331, from the viewpoint of Mr Boyd, clinical onset occurred in 2000 at worst, or at best, in 1975. The hypothesis does contain the relevant factors and thus Step three is upheld.
Step four requires us to consider, under subsection 120(1), whether we are satisfied beyond reasonable doubt that the disease of hypertension was not war-caused. The evidence of Mr Boyd as to his alcohol intake is somewhat contradictory, but the thrust of his responses at the questionnaire of 20 March 2003 in respect of his drinking pattern, is not strongly at odds with his responses to Drs Hordern and Roberts, nor to this Tribunal. In effect, his consumption of alcohol has occurred on a daily basis, with the proviso that whilst at sea it was limited. We note the evidence of Mr Boyd that whilst onboard HMAS Melbourne he was on occasions able to purchase spirits, but we are unable to quantify with precision any consumption resulting from that option. We also note his evidence that during operational service periods, alcohol was not available. We do not accept this “broad” conclusion, as historically, beer issues were carried out except where flight operations or ship manoeuvres precluded such issues.
Suffice that from Mr Boyd’s evidence, and making due allowance for the passage of time and memory, we are not so satisfied, beyond reasonable doubt, that the disease of hypertension was not war-caused, and hence the claim must succeed. We find that Mr Boyd commenced to consume alcohol in excess of 200 grams per week during his operational service, a consumption that continued throughout his naval service and, with variations, to the present. Thus we find that hypertension can be related to the relevant operational service of Mr Boyd.

CONCLUSION

The Tribunal finds:
1.That the condition of hypertension is war-caused and hence the decision under review is set aside to that extent; and
2.The decision under review in respect of claimed conditions of posttraumatic stress disorder, alcohol abuse and depressive disorder is affirmed.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO, MEMBER and of DR I S ALEXANDER, MEMBER.

Signed: [sgd]
Associate

Date of Hearing   19 February 2008
Date of Decision   12 May 2008
Solicitor for the Applicant               Mr Brian Winship
Solicitor for the Respondent           Mr Tim O’Reilly