BRIGGS and REPATRIATION COMMISSION

[2011] AATA 516

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2010/2765

VETERANS' APPEALS DIVISION		)
Re		IAN WILLIAM BRIGGS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date26 July 2011

PlacePerth

Decision

The Tribunal:

·     varies the decision under review by:

-    varying the diagnosis of the applicant’s anxiety condition from “anxiety disorder” to “generalised anxiety disorder”; and

-    determining that the applicant has suffered alcohol abuse but that that condition is not a defence-caused injury or a defence-caused disease for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth); and

·     in all other respects, affirms the decision under review.

.............Sgd S D Hotop...........

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Navy (RAN) from 1969 to 1989 – applicant claimed “neck and shoulder pain” and “severe anxiety” related to RAN service – applicant has suffered cervical spondylosis, generalised anxiety disorder, and alcohol abuse – Statements of Principles (SoPs) – SoPs do not uphold contention that applicant’s ailments connected with defence service – applicant’s ailments not defence-caused – decision under review varied

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)

Statement of Principles concerning cervical spondylosis No 34 of 2005, as amended by Statement of Principles concerning cervical spondylosis No 77 of 2008

Statement of Principles concerning anxiety disorder No 102 of 2007, as amended by Statement of Principles concerning anxiety disorder No 43 of 2010 and by Statement of Principles concerning anxiety disorder No 16 of 2011

Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009

REASONS FOR DECISION

26 July 2011 Deputy President S D Hotop

Introduction

1.Ian William Briggs (“the applicant”) served in the Royal Australian Navy (“RAN”) from 5 July 1969 to 5 July 1989.  He rendered “defence service”, for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 7 December 1972 to 5 July 1989.

2.On 16 January 2008 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for a disability pension under Part IV of the VE Act in respect of incapacity from various disabilities, including “neck and shoulder pain” which he claimed had been “caused by working in tight and confined spaces” in the course of his defence service.

3.On 28 April 2008 a delegate of the Repatriation Commission (“the respondent”) decided (inter alia) that “right shoulder subacromial bursitis” is defence-caused but that “osteoarthrosis affecting both shoulders” and “cervical spondylosis” are not defence-caused.

4.On 16 July 2008 the applicant lodged with the DVA a further claim for disability pension in respect of other disabilities which he claimed were defence-caused, including “severe anxiety”.

5.On 13 October 2008 a delegate of the respondent decided (inter alia) that “anxiety disorder” is not defence-caused.

6.On 15 March 2010 the Veterans’ Review Board (“VRB”) affirmed the abovementioned decisions of the delegates dated 28 April 2008 and 13 October 2008.

7.On 5 July 2010 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 15 March 2010 in respect of “anxiety disorder” and “cervical spondylosis”.

The Evidence

8.The evidence before the Tribunal comprised:

· the “T Documents” (T1–T20, pp 1–XXV, 1–143) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·     bundle of documents tendered by the applicant (Exhibit A1);

·     bundle of supplementary documents tendered by the respondent (Exhibit R1);

·     report of Dr Barrie Slinger, dated 21 October 2010 (Exhibit R2);

·     report of Dr Jonathon Spear, dated 14 April 2011; and

·     the oral evidence of the applicant.

The applicant’s evidence

9.The applicant has provided to the DVA the following written statements in support of his claim in respect of cervical spondylosis and anxiety disorder.

10.The applicant’s statement, dated 18 April 2008, relevantly states:

“ ·   Trauma to the neck

I suffer constant pain in my neck and shoulders.  I believe this problem was the result of banging my head on hatch comings (sic) and overhead fittings in the ships I served on and from spending extended periods working on equipment that was mounted above shoulder height.

As a result I find that I cannot work on things above shoulder height or which involve looking upward for any length of time.  This problem was identified during my RAN service and is highlighted in my final medical prior to discharge.  This problem limits the type of activities that I can perform and the amount of time that I can spend on my hobbies / work around the house etc.

The design and layout of the overhead fittings / structure on the Destroyer escort that I served on during the seventies (HMAS DERWENT) was not very user friendly and whilst we all tried to avoid hitting our heads, it was sometimes unavoidable, especially during bad weather at sea.

One particular event that I can recall, that probably caused some damage to my neck, occurred during the mid seventies when I was duty PO Electrician whilst on a weekend duty alongside.  The ship had lost shore power and in my hast (sic) to get to the forward diesel space (to bring a diesel generator on line and restore power) I ran into the combing (sic) of the watertight door on the way and knocked myself unconscious.  I woke up in the middle of the passage way flat on my back with a large groove in my forehead.  After restoring order I went looking for an SBA but there were none on board on the day.  I vaguely remember telling the medical staff about the incident later, but after about a week my head and neck stopped hurting and I got on with other things that were considered far more important at the time.

This sort of mishap wasn’t uncommon and unless you couldn’t work as a result of an accident the SBAs apparently didn’t record any details on your medical records

…”  (T14, p 95)

11.The applicant’s statement, dated 15 July 2008, relevantly states:

“ ·Severe Anxiety

During my 20 years service in the RAN I spent many years at sea and was exposed to numerous extended periods of highly stressful operations.  This included numerous overseas deployments and many training work-ups off the Australian coast.  My sea time included two deployments for which we were later awarded Australian Service Medals, 1975 off the coast of Cambodia (HMAS DERWENT) and 1982 on deployment to the Arabian Gulf (HMAS ADELAIDE).

During my service career I was subject to a number of significant personally stressful events.  These included the sudden death of my next older brother in 1969.  Lesley James Briggs (R63704) was a returned Vietnam veteran still serving in the RAN at the time, and the death of my father (ex RAAF) in 1976 whilst I was on deployment to South East Asia on HMAS DERWENT.  I was also present during a number of violent attacks on a friend of mine during a series of ‘bastardisation’ events whilst we were still apprentices at HMAS NIRIMBA.  At the time I was living in the same cabin as Alan Garry Benton, who was the prime target of these attacks and on a couple of occasions I ended up on the short end of the stick whilst trying to prevent the attacks.

During my service career I have also been involved in sea searches for the remains of crashed RAN aircraft (and their crew), numerous near collisions at sea, steaming through horrendously bad weather that resulted in significant damage to the ships (cracking of the forecastle deck plating on DERWENT and cracking of the superstructure on ADELAIDE) and have seen numerous dead bodies in the rivers and on roadsides in SE ASIA.  During our 1975 deployment on DERWENT, whilst operating off the Cambodian coast we were buzzed by two unidentified F5E fighter planes.  We were later told that these planes were being flown by unfriendly individuals, whose organisation had previously ‘repatriated’ the aircraft from the hastily retreating Americans.  During that same deployment we berthed in Singapore (Sembawang basin) near an American operated freighter that had been attacked and severely damaged (as was obvious from all the bullet holes in the superstructure) whilst operating in the same area off Cambodia.

During the 1975 deployment on DERWENT we visited the Indonesian port of Surabaya.  A popular entertainment area in Surabaya was known as the ‘Jungle Bars’ and whilst travelling back to the ship from there via trishaw (pedal powered version of a Tuk Tuk) in the early hours a friend and I were held up by an Indonesian solder armed with an M16 rifle.  Following a brief exchange of pleasantries and a handful of Rupia we were allowed to pass.  As it turned out the Indonesian ‘army’ were known to control these areas and were quite happy to shoot first and discuss money later.

During my first posting to DERWENT (5 years 8 months total) we visited Subic Bay in the Philippines on many occasions.  During these visits I was lucky enough to be selected for Petty Officer in charge of Shore Patrol on six separate occasions.  This task involved taking charge of the Australian contingent which was attached to a large American Marine group, whose job it was to control the bar region in Subic Bay and to help remove everyone from their chosen entertainment spots and get them back onto the Naval Base before the midnight curfew, which had been put in place to stop people being kidnapped and killed by the ‘Morrow’ separatist terrorists who operated in that area at the time.  Whilst the threat from the terrorists was very real, it turned out that the most apparent danger to all was from the Americans.  I unfortunately witnessed, and could not do anything to prevent, several vicious and brutal attacks by the Americans on their own people during these night patrols.  Most of these beatings were triggered by relatively innocent arguments between a drunken American individual and bar girls.  The 1970s were very eventful years in the Philippines and knifings and shootings were fairly common in places like Subic Bay, Manila and Cebu, all of which we visited on various occasions.  Fortunately the Australians were much more adept at avoiding serious injury than our American compatriots.  Every day we would quite happily discuss our exploits and near misses from the night before, and whilst we treated this fairly light heartedly, many of these incidents were potentially far worse than we thought at the time.

During my years as an electronics systems maintainer I suffered electrical shocks on various occasions, whilst working on live equipment.  This may have had an adverse effect on my nervous system and contributed to my anxiety problems.

These stressful periods of service started to have the most pronounced effect during my last two sea postings when (HMAS STUART / HMAS DERWENT), as the Chief Petty Officer in charge of above water weapons, I was responsible for the maintenance of the ship’s primary weapons and sensors.  I first noticed a reduction in my ability to cope with stressful situations on DERWENT 1987/88 during Damage Control exercises.  I have since noticed a steady reduction in my ability to cope with stress.

I now have ongoing problems with coping with unexpected stressful situations, any change of circumstances, changes at work etc.  I tend to get worked up over minor issues.  I can’t forget about things that have upset me.  I sometimes have stress attacks if I am confronted with an unusual situation or question at work that is outside my normal realm of day to day activity, even though it may relate to my work.  When I have these stress moments my pulse rate increases, I go very red in the face and sometimes I find that I have difficulty explaining things that would normally be quite straightforward.  There have been occasions when I have had to distance myself from the other people involved before I could calm down.  I don’t like loud noise and go out of my way to avoid being in situations were (sic) I think things may upset me.  I avoid being in shopping centres for any longer than is absolutely necessary and only socialise with people that I know and am comfortable with, for limited periods.

I suffered a minor stroke/TIA Jan 1997?  At the time my heart specialist indicated that this was most probably brought on by a combination of stress & cholesterol and he recommended that I avoid stressful situations.

I have had to take time of work on numerous occasions due to stress.  Most of these incidents were written off as just a ‘sick day’.  I have expressed my concern about not being able to cope with stress to my GP on a number of occasions.  There have been several occasions when I have lost control of my emotions and acted irresponsibly with fellow workers and management.  One particular incident was reported to Dr Price in 1999/2000, and was diagnosed as ‘Severe Anxiety’.

My inability to handle stress and my wish to minimise my exposure to stressful situations has limited my career prospects.  Over the years there have been numerous positions advertised within my Company that I could have applied for, but have not, because I do not want to expose myself to any new or additional stress.  In order to help relieve my stress problems I consume alcohol on a regular basis.

I believe that my inability to cope with stress and suffering from random anxiety attacks is a direct result of having served for twenty years under the highly stressful circumstances as briefly described above.

…”  (part of Exhibit R1)

12.The applicant tendered in evidence a further statement, dated 7 May 2010, as follows:

“ ·   Anxiety Disorder

The Appeal Review Board have indicated that they are not prepared to accept my claim, based largely on the fact that I had not reported any symptoms of Stress or Anxiety problems to medical staff at or around the time I recall first noticing significant effects on my ability to cope with day to day activities.  My focus, up to now, has been on trying to remember what I had done via the RAN medical system to record or identify such problems.

Recently it occurred to me that my wife Marilee had actually made a representation, on my behalf, to the RAN support organisation (PSO) at Rockingham during the last few months of my sea posting to DERWENT.  This happened late 1987, early 1988.  At the time Marilee was very concerned about my ability to cope with staying at sea on DERWENT and with my erratic behaviour resulting from the stress I was undergoing.  Marilee approached the head of PSO (Bob Cowper) and advised them that she was fed up with the situation, as it was, and that she was considering leaving me and taking our children back to Sydney.  She asked them to find a shore posting for me, which would provide a less stress-full (sic) environment for the remaining 18 months of my twenty years service.  At about that time, or shortly before, I had approached my Divisional Officers (WEEO & DWEEO) and made it clear to them that I wished to be posted ashore.  I can’t remember the actual content of these discussions, but the general response (from the WEEO) was that there were no replacement CPOETS available for sea time in the West and that I could expect to remain at sea until my discharge in July 1989.  The welfare people that Marilee contacted regarding this were Bob Cowper, Sue Collier and Cara ????.  I am currently in contact with the new ‘DSO’ organisation to attempt to find any records of these matters.

I was posted ashore to HMAS CERBERUS in Feb 1988, possibly as a result of the requests from Marilee.  On arrival at CERBERUS I immediately applied for my long service leave.  As a result of all the outstanding leave that I had not been able to take while at sea, when my long service leave was finally and begrudgingly granted, I immediately posted out of CERBERUS in October 1988, on leave prior to discharge in July 1989.

·Cervical Spondylosis

Similarly, the Appeal Review Board have indicated that they are not prepared to accept my claim, based largely on the fact that my medical records do not contain reports of neck injuries, prior to complaining of neck pain at CERBERUS and at my final discharge medical review.  The review board’s focus was on an incident on DERWENT where I could have injured my neck by hitting my head on a hatch combing (sic) in the 70s.

Searching what little remains of my memory, I have identified two other incidents which could have contributed to my neck problem.  Both of these involve falling off my pushbike on the way home from work.  The first occurred in Sydney early 1981 when riding home from Garden Island NSW to Clovelly;  I fell off and landed on my shoulders.  My wife remembers this incident because she patched up all the cuts and abrasions across the tops of my shoulders and the back of my neck.  At the time Marilee was a nurse at Sydney hospital.  The second occurred when riding home from Garden Island WA to Hillman.  On this case (sic) I clipped the back wheel of the pushbike I was following across the causeway and similarly landed flat on my shoulders and the back of my neck.  The rider I was following (CPOETS Anderton L J) remembers this incident well and still laughs about it.  There is a possibility that I reported this to the STIRLING sickbay, but there doesn’t appear to be any record.

Also, my claim for Subacromal Bursitis in my right shoulder was granted as a result of the fact that I did a lot of shooting during my service.  I suggest that the repeated shock from this activity not only damaged my right shoulder, but also contributed to the damaged joints in my neck.”  (part of Exhibit A1)

13.In his oral evidence the applicant reiterated the circumstances of the abovementioned incident on board HMAS Derwent in the mid 1970s and the circumstances of the two abovementioned bicycle accidents.  As regards the latter, he added that he already had pain in the neck and shoulders and that those bicycle accidents aggravated that pain.  He said that after the first bicycle accident in 1981 he had pain “on and off”.  He said that at the time of the second accident in 1985 he was wearing a helmet, which probably saved him from sustaining a fractured skull, and that he had continuous neck pain for about one month after that accident and neck pain “on and off” thereafter.

14.The applicant also gave evidence about his consumption of alcohol.  He said that during his first posting on HMAS Derwent from the mid to late 1970s, he was probably drinking more than he should have been drinking.  He said that he was unable to recall the precise quantity of his alcohol consumption at that time but that he was not drinking to the extent that he would pass out.  He said that he started to misuse alcohol, by way of self-medicating his “nervous problem” in the mid to late 1980s.  He added that he had a “significant nervous problem” in late 1987/early 1988 and he “significantly increased” his drinking at that time.  He said that he was “drinking heavily” at that time and that this “would have been noticeable to others”.  He referred to an experience on board HMAS Derwent in late 1987 when he “froze” on hearing scare charges exploding even though he was aware that such an explosion was about to occur.  He said that he then realised that “something was wrong with [his] nerves”.  He added that his wife then sought help for him from the RAN support organisation (as referred to in his statement of 7 May 2010 set out in paragraph 12 above).

15.Finally, the applicant said that his alcohol consumption is now much reduced.  He said that he now drinks “a couple of light beers and a couple of glasses of red wine each night”.

Medical material in the T Documents

16.The T Documents include the following relevant medical material:

·     the applicant’s RAN enlistment Medical Examination Record, dated 24 March 1969, which indicates that (inter alia) his “spine” and “emotional stability” were found to be “normal” (T3, p 13);

·     a RAN Medical Examination Record, dated 9 November 1976, regarding the applicant’s suitability for submarine service, which indicates that (inter alia) his “spine” and “emotional stability” were found to be “normal” and that his recommended category was  “ONE (Provisionally Fit Submarines)” (T3, pp 27–28);

·     a RAN Medical examination Record, dated 7 March 1980, for the purpose of the applicant’s re-engagement, which indicates that (inter alia) his “spine” was found to be “normal”, his “emotional stability” was not examined, and that his recommended category was “CAT 1” (T3, p 35);

·     a RAN Medical Examination Record, dated 18 April 1989, for the purpose of the applicant’s discharge, in which it is noted (inter alia):

“  Neck discomfort – for Physio”

and it is indicated that his psychiatric condition was not examined and that the proposed category is “ONE” (T3, p 37);

·     a RAN Discharge Health Statement, dated 18 April 1989, in which the applicant indicated that he suffered from:

“  Persistent Neck & Right Shoulder Ache – cause unknown”

and the Medical Officer commented:

“  Injuries noted – Investigations ordered”  (T3, p 10);

·     an x-ray report, dated 4 July 1989, regarding the applicant which states:

“CERVICAL SPINE:  Normal alignment.  No bony abnormality is seen.  Disc spaces are maintained.  Intervertebral foramina are patent.  No cervical rib is seen.”   (T3, p 38);

·     an x-ray report, dated 28 October 2004, regarding the applicant, which  relevantly states:

“  CERVICAL SPINE

There is significant narrowing of the C5/6 intervertebral disc space.  Associated features of cervical spondylosis are noted at this level including encroachment on the neural foramina by uncovertebral osteophytes.  Some annular calcification is noted anteriorly at C6/7.  No instability noted.  No facet arthropathy noted.  No bony cervical ribs are seen.

Comment:   Cervical spondylosis, as described above and most marked at C5/6.

…”  (T10, p 91);

·     a DVA Medical Impairment Assessment form, dated 8 February 2008, in which Dr B J Price (the applicant’s treating general practitioner) indicated that “most” of the applicant’s neck pain symptoms were “due to degeneration” of his cervical spine.  (T9, p 76)

Specialist medical reports

Dr Barrie Slinger

17.A report of Dr Slinger, Consultant Orthopaedic Surgeon, to the DVA, dated 21 October 2010, regarding his examination of the applicant on 22 September 2010, states as follows:

“ …

HISTORY:

Background:

I confirm this man served in the Royal Australian Navy from 1969 to 1989 and his eligible service for repatriation purposes was 7 December 1972 to 5 July 1989.

Since that time his employment record has been noted as a supervisor quality controller with Tenex from 1989 to 1992 and as a self-employed technician/database co-ordinator from 1992 to 1996 and then with Tenex from 1996 to 2002 as a quality assurance co-ordinator/facility security office and then from 2002 to present as a database co-ordinator.

I confirm that he enlisted in the Royal Australian Navy at the age of 16 years where he completed his Navy education including training as an electrical technician with a diploma in electrical engineering and electronic systems.

Mechanism of Alleged Injury/Sequence of Events:

The injuries he sustained include the following:  In the mid 1970s whilst walking through a door he struck the coaming with his head and was unconscious for a brief period, waking landing (sic) flat on his back with a large bruise on his forehead.  At that time he recalls that he had pain in the head and neck which persisted for a week and then resolved.

In addition he had accidents on a bicycle on two occasions in about 1989 at which time he landed flat on his back complaining of pain about the neck and shoulder and at that time he obtained gratifying relief with massage from his wife, which has continued.

In addition he recalls an incident in 1988 when he was deployed at HMAS Cerberus with three other sailors.  He was using a wooden beam and rope to lift and move a cabinet of some weight and assisting to support the wooden beam when he experienced pain in the area of the left shoulder and was said to have difficulty in moving his head and shoulders because of the associated pain.

In addition he states that during his service he regularly struck his head and shoulders on ship fittings and mountings occasioned by the unsteady surface when the ship was at sea.

Treatment Received:

The only treatment he can recall is physiotherapy which he received in 1989 following the bicycle incident.  Mr Briggs also recalls attending for medical advice in 1988 at Cerberus however I was not able to identify any of those medical records other than to note that radiology had been taken of the cervical spine and right shoulder in 2003/2004 and of the cervical spine and shoulder in 2008.

Current Status:

In the neck he experiences cracking and crunching, particularly if he is extending his neck looking upwards which is associated with discomfort or when looking down as when working at a computer or when working on or under cars in an odd position or when painting as when looking up.  In general when looking behind when reversing he has to turn his whole body because of stiffness in the neck on occasions or prefers to use mirrors and avoids any quick or sudden movements.

At the right shoulder pain is constant of variable severity, aggravated by activities which involve repetitive movements such as polishing or cleaning a car, working under or on a vehicle in odd positions and in particular working with the arm elevated above shoulder height or stretching to the side or to the front.

I confirm that he is right-handed but prefers to use his left upper limb where he has similar symptoms at the shoulder but are less severe.  His major problem at present were the symptoms about the neck and right shoulder which affect his ability to sit or work at a computer and he has to change position regularly.

Present Activities:

He lives with his wife.  Recent painting and renovating was performed by his wife when that required overhead activity using a stepladder.  He is not able to ride a bicycle, avoids any heavy activities but is able to assist his wife with some of the lighter activities.

Gardening is limited, restricted to digging, mainly in the care of pot plants and he has to kneel when weeding in the garden.  Mowing the lawn is undertaken by his wife.

Interests with fishing using his boat have been restricted.  He has not been able to work on cars which has been a particular interest and is limited in his work rebuilding a 1957 MGA.

Personal/Social History:

He does not smoke, drinks mild alcohol.

Past History:

He has type II diabetes which is controlled by diet.  In the past he has had a fracture of the left femur, various superficial cysts removed, repair of an inguinal hernia, colonoscopy investigations and his present medication is Lipitor and Progout.

PHYSICAL EXAMINATION:

He was a pleasant fellow who provided a clear history, attending with his wife.  I confirmed that he was of weight 87 kg, 180 cm in height.

Head/Neck:

In the cervical spine there was no tenderness.  Movements were restricted to some three-quarters of expected range with discomfort at those extremes.

Upper Limbs/Shoulder Girdles:

At the left shoulder there was no wasting, no tenderness.  Movements with flexion 130°, abduction 130°, extension 50°, adduction 30°, external rotation 80°, internal rotation 80°.

At the right shoulder flexion 130°, abduction 110°, extension 50°, adduction 30°, external rotation 80°, internal rotation 80°.

INVESTIGATIONS:

November 2003 right shoulder confirmed a small bone island in the humeral head.

Right shoulder ultrasound showed thickening of the subacromial bursa.

October 2004 cervical spine showed narrowing at C5/6, calcification at C6/7.

Left and right shoulders April 2008 confirms degenerative changes involving the right AC joint and minimal degenerative changes involving the left AC joint.

The only clinical notes I could view in the progress notes were those of 2003/2004 which referred to a bursitis of the right shoulder and cervical spondylosis and I could not identify any notes or records of injuries to either the shoulder or neck.

Right shoulder and ultrasound July 2010 confirmed thickening of the bursa and bursal on abduction consistent with subacromial bursitis.

SUMMARY AND ASSESSMENT:

In summary this man has chronic symptomatology in the neck and shoulders which he dates to the mid 1980s (sic) and to the injuries as detailed in the preceding.

To answer your specific question:

I will be most grateful if you will examine him, take a history, go through the documents I have provided and tell me if, in your opinion, the disability now suffered in his cervical spine and shoulders is in keeping with what you would expect to see following a single significant injury.

I cannot relate his present symptomatology and disability to what I would expect to see following a single significant injury.

…”  (Exhibit R2)

Dr James Fellows-Smith

18.A report of Dr Fellows-Smith, Psychiatrist, to the DVA, dated 24 September 2008, regarding the applicant, states as follows:

“ I saw the abovenamed on the 12.09.2008 accompanied by his wife Merrily (sic), 17.09.2008 and again today for the purpose of this report.  He is a fifty five year old married data controller for British Aerospace Engineering who presented with his wife Merrily (sic) whom he met in 1979.  The couple has three grown up children.  Mr Briggs presents with anxiety symptoms directly related to his military service serving as a petty officer electronics manager HMAS Derwent 1973-1979.

Mr Briggs presented at interview as a somewhat difficult historian and I note that in 1998 he had a cerebro vascular event diagnosed by a specialist in Fremantle during which time he had transient left hemiplegia and more persistent left homonymous hemianopia.  Collateral history from his wife Merrily (sic) confirmed that there was a change to his psychological functioning.  She noticed that he became more rigid and restricted in his conversation and affect.  She also noticed that he became more anxious which she attributed to an increased anxiety regarding his own mortality.  I note that Mr Briggs presented with several incidents during his naval service when he was confronted with threats to his own integrity and trauma or demise of others.  Significantly he stated that on most occasions he was able to dismiss thoughts regarding the significance of these events however following the CVA in 1998 he became more aware and preoccupied with these traumas.  From this I concluded that the cerebro vascular event had had an adverse effect on him psychologically.  It is likely that he has some mild cognitive impairment due to the stroke that has organic origin.  Furthermore this may have affected his ability to emotionally process and brush aside troubling thoughts regarding his traumatic experiences.  This has coincided with an exacerbation of an anxious tendency and a tendency to anxiety attacks triggered by relatively trivial incidents.  These incidents have effected (sic) his capacity to work with others as he is prone to become distressed and decompensate when confronted by work colleagues.

The time of onset of his anxiety symptoms however predates his CVA which I understand was attributed to high cholesterol and his stress condition.  I note that he now takes Lipitor one tablet per day prescribed by his general practitioner Dr Price of Rockingham and also Progout since a high incidental uric acid finding at the time.

Due to difficulties with obtaining a clear history particularly for details due to mild cognitive impairment effecting (sic) his concentration and memory at interview it is difficult to tease out the organic cerebral origin of his anxiety disorder and characterise his anxiety in terms of a Post Traumatic Stress Disorder or Generalised Anxiety Disorder.  Furthermore as he met his wife in 1979 I am unable with collateral history to ascertain the time of onset of his condition within a two year period of his initial traumatisation in 1975 whilst operation (sic) service on HMAS Derwent during his first posting to the South China Sea.  In order to probe these issues I inquired about re-experiencing dreams.  Mr Briggs stated that his most common re-experiencing dream is of being on board HMAS Derwent in the electrical equipment spaces amid-ship fearing for his life that the ship was sinking.  He stated that there was an incident on (sic) or around 1975 when the electrical equipment failed to detect aircraft which could be heard flying over the ship causing him acute anxiety particularly as he was closed up at action stations at the time.  He was also aware of a destroyer that was been (sic) hit by friendly fire from the Americans on the gun line.  I note that both his brothers served in Vietnam some years prior to him going on this deployment.

In contrast his wife Merrily (sic) whom I note is a trained nurse noticed from 1979 that he had disturbed sleep.  She stated that he would often call out in his sleep and thrash around.  On several occasions he would wake up startled and shape up as if to attack her.  This is relevant to a history he gave of being confronted particularly by Negro American soldiers in Olongapo on shore leave while he was in charge of shore patrol.  He stated that he had been involved in scuffles with the American sailors and had learnt to call out in a broad Australian accent to avoid the common racial tension that was occurring amongst the US Navy personnel at the time.  In addition there are more serious psychosocial stressors which occurred during this first deployment in 1975.  Mr Briggs stated that whilst on shore leave in Surabia (sic) he was confronted by an Indonesian solder in the early hours whilst he and Robbie Anderson were returning from the bar area.  He stated that the man waved an M16 at them.  His response to this event involved intense fear, helplessness and horror.  In his own words ‘We were shit scared.  We thought we were going to be killed by the man.’  Mr Briggs stated that he handed over money and the man left.  He also encountered first hand dead bodies the first being on the street in Penang whilst he was on shore leave in Penang.  He also regularly encountered dead bodies in Olongapo River.  He stated that he took a blasé attitude to these events however as noted above he dwells more on these events in the context of considering his own mortality following the CVA.

Mr Briggs stated that whilst serving in Jervoise Bay he was involved in the recovery of the remains of a pilot killed in a Skyhawk accident after the aircraft went over the side during exercises off HMAS Melbourne.  His reaction to seeing the garments in the water and wreckage was feelings of understandable grief.  In his own words ‘We were aware of the risks involved and felt sorry for the deceased pilot.’

In contrast to Mr Briggs’ expressed reaction to these events are observations by his wife who characterised her husband as being a sensitive man perhaps unsuited to the traumas of military life.  It is significant to note that Mr Briggs describes an increase in his alcohol consumption from 2-3 drinks per night prior to his deployment in 1975 equivalent to 21 units of alcohol per week to 6 full strength beers per night equivalent to 63 units per week.  From this I concluded that the time of onset of anxiety disorder was on (sic) or around the time of his traumatisation in 1975.  There was evidence of alcohol related problems.  In 1989 after he finished his final deployment and he was paid off he experienced marital difficulties related to his alcohol intoxication and his wife left for a period of trial separation.  He was successful in reducing his alcohol consumption and currently consumes 3 full strength beers per night equivalent to 13 (sic) units per week.

On systemic inquiry regarding symptoms of anxiety as mentioned above he stated that he has difficulty brushing aside troubling thoughts and the associated feelings of these traumas.  It is difficult to ascertain whether these represent flashback episodes as there appears to have been a change in the quality of his affect attached to these experiences.  There is however evidence of disturbed sleep and collateral history supporting re-experiencing events particularly if triggered by confrontations.

Most marked is an avoidant tendency and I note that he has avoided talking about these traumas even to his wife who had not been aware of the events particularly during shore patrols in Olongapo in 1975.  Merrily (sic) stated that her husband was withdrawn and avoided social contact.  She noticed a restriction to his affect and a reluctance to talk about his issues.  Significantly he avoids television programs that involve people arguing or confrontation.

Changes to his arousal level are episodic and take the form of anxiety attacks.  He also describes marked sleep disturbance averaging 4-5 hours sleep per night.  He also describes being keyed up and on edge and prone to angry outbursts.

Mr Briggs was born in Victoria with normal birth and development.  He describes his childhood as basically happy.  He mixed well at school and participated in sports.  There is no family history or past history of psychiatric disorder.  Associated medical conditions include hearing difficulties, skin rashes and right shoulder injury.  On mental state examination Mr Briggs was cooperative and personable at interview.  He wore a tenex windcheater and was smartly dressed.  He had a somewhat ruddy complexion.  His gaze was downcast during the interview.  He appeared mildly agitated occasionally wringing his hands.  His responses at interview demonstrated circumstantiality and vagueness with avoidance initially of talking about his traumatic events.  He appeared to have only partial insight into the link between these traumatic events and the development of his anxiety disturbance.  His mood was euthymic.  His affect was markedly restricted.  There was no evidence of any psychotic phenomena.  He demonstrated some nominal aphasia and struggled to recall dates of events.  Otherwise he was grossly unimpaired for orientation, attention and short term memory on formal testing.

On systemic inquiry he stated that he had a reduced ability to learn or recall information and was prone to being easily distracted since his stroke.  He confided that he tends to write things down as an aid memoir (sic).  His GGT was raised 76 (˂51).

In answer to your specific questions:

1.      His diagnosis according to DSMIV TR:

Axis I      Generalised Anxiety Disorder 300.02

Mild neuro-cognitive disorder 294.9

Axis II     Nil

Axis IIICerebro Vascular Event, gout, diabetes mellitus type II, cervical spondylosis, right subacromial bursitis.

Axis IVStress of his employment

Axis VGAF = 50.  There are serious symptoms with an organic cerebral syndrome effecting (sic) his cognitive processing and exacerbating his anxiety disorder leading to impairment in social, occupational and cognitive functioning.

2.(a)  The most likely cause of his condition is traumatisation during his military service in 1975 which may have been a risk factor for his cerebro-vascular disorder.

(b)His diabetes mellitus may have contributed to cerebro-vascular disease and the exacerbation of his anxiety disorder.

(c)The time of onset of general anxiety (sic) is on (sic) or around 1975 based on his subjective account.

(d)   His anxiety disorder is moderately severe.

(e)   His condition is chronic and likely to persist.

(f)He would benefit from out-patient specialist support and pharmacotherapy for his condition.

…”  (part of Exhibit R1)

Dr Jonathon Spear

19.A report of Dr Spear, Consultant Psychiatrist, to the DVA, dated 14 April 2011, regarding his examination of the applicant on 7 April 2011, states as follows:

“ …

HISTORY:

Presenting Complaints:

Mr Briggs reported a number of stressors during his employment with the Royal Australian Navy.  He described being on a number of overseas deployments.  Between 1969 and 1972, he reported, his cabin mate experienced violent assaults on approximately 12 occasions, which he witnessed.  He also witnessed a number of dead bodies in south east Asia.  In 1975, he was held up by an Indonesian soldier at gunpoint and witnessed similar assaults by American servicemen on other American servicemen.

Personal stressors included the death of his brother in 1969 and death of his father in 1976.

He reported that between 1987 and 1988 he was having difficulty coping with his work role.  He felt anxious and lost confidence.  He thought that he was going crazy.

In 1997, he had a transient ischaemic attack with a left hemiplegia and left homonymous hemianopia.  He was advised to avoid stress and subsequently his anxiety symptoms increased markedly.

There is an inconsistency in the date of onset of his mental health symptoms.  He reported to Dr Fellows-Smith that his symptoms started in 1975, although today he reported that symptoms stated (sic) in 1987.

In 2008, he was diagnosed with generalised anxiety disorder by Dr James Fellows-Smith, Consultant Psychiatrist.

Work Status:

Mr Briggs was employed by the Royal Australian Navy between 1969 and 1989.  He achieved the rank of chief petty officer.  His role was as an electronic systems maintainer which involved maintaining the ship’s primary weapons system and sensors.

In civilian life, he works as a database coordinator for a civilian contractor maintaining ANZAC frigates. He occasionally takes days off for stress.  He took two weeks off in August 2010 and he ceased work because of stress on 6 April 2011.

His main reason for working for the Royal Australian Navy was to do his bit for the country and to gain a trade.

Currently, he reports he can do okay for months, but then he has a bad day and cannot handle it.

Current Problems:

Mr Briggs reports difficulty coping with stress.  He avoids confrontations.  He finds it difficult to learn new processes.  If he experiences anxiety, he has an increased pulse rate, he feels flushed and has difficulty expressing himself.  These are usually set off with worry about workload or changing of processes or roles.  He then becomes angry and has difficulty thinking.  These symptoms persist for up to two or three days.  He thinks ‘It (sic) time to get in the car and go home’.  He wakes up at two in the morning a few times a month worrying about work.

He also avoids loud noises.  He finds it stressful going into shops and he is avoidant of applying for a promotion because of anxiety.

Twelve months ago he reported smashing a neighbour’s alarm with a sledgehammer when it went off.  He is upset by the noise of motorbikes and with door-to-door or phone salespeople.

Lifestyle:

Mr Briggs typically gets up at 6:00 am to watch the ABC news and then have breakfast before going to work.  He sleeps in a little longer at weekends.  He assists around the house doing what he can.  He maintains household tasks and enjoys working on the car.  He does not fish as much as normal, but still enjoys caravanning and going into his shed to work on carpentry projects.  He walks most evenings with his wife for about 2 km.

He has some longstanding friends.  He is able to socialise with a neighbour weekly.

He typically drinks three cups of tea and three cups of coffee a day.

He continues to drink alcohol despite it leading to marital problems including periods of separation.  Previously, he was drinking up to six full strength beers a night (63 units per week). When he saw Dr Fellows-Smith in 2008, he reported drinking three full strength beers a night (32 units per week).  He currently has two beers and two glasses of wine a night, together with a binge once a week where he drinks a bottle of red together with six stubbies (48 standard drinks per week).

Current Medication/Treatment:

Mr Briggs sees Dr Price, his general practitioner, approximately once every six months.

He has seen Dr James Fellows-Smith, Consultant Psychiatrist, on six occasions for supportive psychotherapy and to discuss the option of medications to assist with his problems.

His current medications include:

·Lipitor 80mg daily;

·Allopurinol 100mg daily;

·Aspirin 100mg daily.

He has not seen a psychologist or a drug and alcohol counsellor, although he has received advice on reducing his alcohol intake from his general practitioner.

Past Medical/Psychiatric History:

Mr Briggs’ medical problems include hypercholesterolaemia, diabetes, TIA in 1997, a suspected TIA in 2009 which was diagnosed as a migraine with visual aura.  Haemorrhoids, a hernia, irritable bowel syndrome, low white cell count, hearing impairment, solar keratosis, osteoarthritis of right shoulder and gout.

In 1987, he saw a counsellor as his wife was worried about him.  He denied any past psychiatric history prior to his service experiences including seeing a psychologist or psychiatrist, being admitted to a mental health facility or having episodes of deliberate self-harm.

Family History:

Mr Briggs’ mother took treatment for stress, but he is unclear about the details of this.

Personal/Social History:

Mr Briggs was born in Victoria, brought up in a farming community.  His brothers, father and grandfather all served in the defence force.  He has a good relationship with both parents.  He denied any childhood trauma.  He made friends at school and got on well with most teachers.  He left school at the age of 16 to join the Royal Australian Navy.  He met his wife in 1979 and they married in 1980.  They have three adult children.  There are no family issues or stresses evident.

MENTAL STATE EXAMINATION:

Mr Briggs presented with a trimmed beard.  He was well groomed.  He wore glasses and was balding.  He was wearing an ironed shirt and shorts.  He had no signs of anxiety, depression or stress at interview.  He did, however, have a coarse tremor of his left hand.  There was no nominal aphasia.  His speech was normal in rate, tone and volume.  He tended to be a concrete thinker, but he had no formal thought disorder.  He did not perseverate.  He described his mood as ‘not happy … it’s difficult to talk … I’m still recovering from yesterday’.  He appeared to have a normal range of affect and was able to laugh and joke.  He described recurrent intrusive obsessional thoughts.  He is preoccupied with physical health symptoms (hypochondriasis), there are no delusions and no hallucinations.  He appeared of normal intelligence.  He was fully orientated.  His memory was intact.  His concentration was slightly impaired.  His verbal fluency was 15 and there were no repeats.  There was no evidence of cognitive impairment.

Mr Briggs stated ‘I guess it is an illness … if it helps calm me down, then alcohol is okay’.  He has considered reducing his alcohol intake and has some guilt about it.  He can get angry when people ask him to reduce his alcohol intake.  He prefers not to take antidepressant medications unless he has to.

Adaptation:

Mr Briggs appreciates support from his wife.  He copes by using displacement.  He uses alcohol which he believes reduces stress.  He is denial (sic) about the harmful effects of alcohol.  He finds taking leave and going away in the caravan helpful of (sic) managing stress.  He tends to avoid confrontation.  He avoids shopping centres and using public transport unless he has to.

Attitude to Problem:

Mr Briggs stated ‘I don’t trust DVA … They have an agenda to reduce claims … It’s not surprising … Life in the navy is difficult … We put up with a lot of crap … I spent a hell of a lot of time at sea … plus the money helped … I’m not surprised I’ve got psychological issues … All I want is for DVA to recognise so I can get help’.

Personality:

Mr Briggs sees himself as someone who stresses about lots of things; ‘I like routine … You do what you’re told … People laugh about me and look at me a bit different’.  He reported being suspicious of other people and not making friends easily.

The document provided indicates that following the TIA in 1997, his wife indicated he had restricted conversation and mood.  Also, it appears that his symptoms of anxiety have worsened since the TIA and he has a fear of mortality.

SUMMARY AND ASSESSMENT:

In answer to your specific questions:

1.What is the diagnosis of any psychiatric condition from which he suffers?

Diagnosis according to DSM-IV TR is as follows:

Axis l:Alcohol Abuse

Axis ll:Some avoidant and dependent traits, but no personality disorder.

Axis lll:TIA.

Axis lV:Relationship issues.

Axis V:GAF 55, moderate symptoms.

Mr Briggs reports having an occasional panic attack and some avoidance.  In my opinion, these are secondary to alcohol abuse.  He reports some difficulty coping with change in his workplace.  In addition, his anxiety symptoms may be aggravated by excessive use of caffeine.  There is no evidence of significant cognitive impairment at interview and a diagnosis of organic personality disorder is unlikely.

2.When was its clinical onset?  (That is, when did he meet all the diagnostic criteria for the condition?)

Mr Briggs reported he increased his alcohol use to hazardous level from 1973.  Although he has reduced his alcohol intake, he continues to drink excessively – please see ‘Lifestyle’.

3.What do you see has having been causal in the development of the condition?

Mr Briggs has used alcohol as a way of coping with life stresses.  He has a belief that alcohol reduces stress and appears unaware of factors leading to difficulties with relationships and in his workplace.  He uses alcohol as an inappropriate and ineffective method to cope with stress.

…”(Exhibit R3)

Additional material

20.The applicant also tendered in evidence (part of Exhibit A1) the following material.

21.A letter from Gary Benton addressed “To whom it may concern”, dated 28 July 2010, states as follows:

“ Ian Briggs and I joined the RAN on July 6^th 1969 at HMAS Nirimba and I have had a strong friendship with him since then.  After completing our apprenticeships our paths have crossed on several postings with both of us ending up posting to Western Australian bases and home ported ships towards the end of our time in the navy.  During the last five years of service we had a lot to do with each other both in our service life and at home.  We had both purchased a home in Hillman with a recreation park separating us.  Although there was a small age gap in our children our wives became close friends and offered each other support whilst either of us were at sea.  It was this close relationship that enabled us to be aware of the stress issues Ian was dealing with after he was posted back to a sea going billet on HMAS Derwent, stress on families as a result of sea postings is well known and become (sic) a particularly difficult time when young children are part of the mix.

Towards the end of 1987 I was aware that Ian was not at all happy and I suspected time away at sea was probably the cause, I did not bring the subject up as many of us had to deal with these types of issues and as I would have been offended if someone thought I was not coping, I presumed Ian would have felt the same.  It came as a bit of a surprise when Ian told me he was posting to HMAS Cerberus as it would have been the last place either of us would have chosen.  In hindsight I now realise how difficult life must have been for Ian to take a posting back east as the only option to get off Derwent and be home with his family.  Adding to the mental anguish is the knowledge that your peers often refer to these types of posting arrangements as ‘welfare cases’ and ‘skidding out on mates’ so while the family crisis is settled to a certain degree, the stress is only just pushed out of sight and as my own experience tells me it will come back and the older you get the harder it is to deal with.

I am unable to remember actual dates but I am sure of the general period involved.”

22.A letter from Kath Hunter addressed “To whom it may concern”, dated 1 August 2010, states as follows:

“ I am writing this letter on behalf of Mr Ian Briggs (CPOETS retired).  I have known Mr Briggs since 1982 and have always found him to be a person of outstanding character, integrity and held in high esteem.

In the years in compassing (sic) 1986 through 1991 I was involved extensively with Defence Community Organisation (formerly known as Command Personnel Service Organisation) in the Rockingham and Western Australia areas having served as the WA Delegate of the National Consultative Group of Service Spouses, Family Liaison Officer, Navy Rockingham; President and co-founder of Octopus Garden Association, Co-ordinator Marilla House.

During the time of 1987/88 I was aware of Mr Briggs experiencing extreme anxiety and stress whilst serving on HMAS Derwent.  At that time Mr Briggs received counselling from Mr Bob Cowper, Senior Social Worker at CPSO in Rockingham.  Subsequently Mr Briggs was removed from HMAS Derwent and transferred to a shore posting at HMAS Cerberus to continue counselling from Social Workers at CPSO.”

23.A letter from Carolyn Middleton addressed “To whom it may concern”, dated 19 July 2010, states as follows:

“ I first met Marilee & Ian Briggs 27 years ago here in Rockingham when they first posted to the West with Royal Australian Navy.

I was in contact with CPSO and knew Bob Cowper and Sue Collier through my involvement with being President of Navy Wives Assoc also both Marilee and I were instrumental in setting up a centre for Navy families to go to for support when they arrived over in the West away from family support with the help and support of both Bob & Sue.

I was aware that Marilee was concerned with Ian’s wellbeing late 1987 early 1988 as it was apparent something was amiss with him although I didn’t ask, was there to support where I could.  Ian definitely seemed stressed as his patience was just about non existent and this was not normal.

I was aware that Marilee contacted Bob Cowper from CPSO and that he did visit Marilee & Ian at their home at this time. The next we knew they were on posting to HMAS Cerberus.

…”

24.A letter from Leslie Anderton addressed to the DVA, dated 19 July 2010, states as follows:

“ This letter is to confirm I was contacted by Mr Briggs and asked to bear witness to two separate incidents where Mr Briggs had accidents on his way home from work.

The first accident occurred in the early part of 1981, both Mr Briggs and I were both CPOETSs and serving at HMAS Kuttabul or we may have been attached to HMAS Stalwart (either way we were assigned to FIMA, making ready for the first IMAV of HMAS Adelaide when it arrived from the US).  At that time Mr Briggs lived at Clovelly and I lived at South Coogee, we both rode our push bikes to work, so it was common for us to ride into work and home from work together.  I remember Mr Briggs slipping on a large sheet of steel that was covering up some road works, can’t place the exact location – though I believe it was around the junction of Anzac Parade and Allison Rd, or Anzac Parade and Lang Rd.  I believe that is where Mr Briggs used to separate from me.  Anyhow his bike slipped out from under him and he came down heavily on his shoulder/back, sustaining lots of scraps (sic), cuts, and bruising.  He complained of a sore neck for quite a wile (sic) afterward.  In fact, we both went on to serve on HMAS Adelaide together, living in the same Mess, and he complained after this fall that he had aggravated an old injury sustained to his neck whilst serving on HMAS Derwent.

The second accident occurred early 1985, when we were once again serving together (this time at HMAS Stirling).  We were still avid cyclists and used to ride to and from our homes, in Hillman and Rockingham, across the causeway to and from the Naval Base.  In this incident Mr Briggs was behind me coming over the causeway on the way home from work; there is nearly always a stiff head breeze in the afternoon that we had to push into, so you keep you (sic) head down as much as possible.  Mr Briggs clipped my rear wheel almost dislodging me from my bicycle, and dislodged him from his.  I think this time he actually went over his handle bars, did a half flip and landed very heavily on the back of his head, at the time I was very concerned that he had broken his neck.  Apart from the scraps (sic), cuts, and bruises this once again aggravated his previous damage to his neck.

…”

25.A letter from Marilee Briggs addressed to the DVA, dated 22 September 2010, states as follows:

“ Regarding Mr Ian W Briggs neck and shoulder pain.

I have on several occasions had to tend to Ian after he has aggravated his neck injury as listed below:

1981

Bicycle injury.  Ian came home from work with bruising and abrasions that were sustained after falling from his bicycle on his way home from work.  At the time I got told ‘Marilee, do not make a fuss just patch me up.’  I was nursing at Sydney Hospital at the time and wanted to take him to outpatients.  I attended to his injuries and it took several weeks for his neck and shoulder to recover.

Ian had an abcess under his molar and attended HMAS Watson for treatment, the Dentist that he saw at that time decided to do a root canal filling:  Ian came home after the treatment and duly collapsed whilst on the toilet hitting his head and passing out on the floor for several minutes.  I did not ring an ambulance as I knew he would be sent to HMAS Penguin so called my Father to assist me getting Ian to Prince of Wales Hospital where he was attended to in emergency and was placed under observation for 4 hours; he was given a penicillin injection and advised to have the tooth removed.  Again I was told by Ian ‘not to make a fuss’ the following day the tooth was extracted (on board HMAS Stalwart and Ian was expected to ride home after treatment (typical of Navy care!!).

1985

Ian came home with bruising and abrasions to his neck and shoulders after falling from his bicycle on HMAS Stirling Causeway.  I wanted to take him to see our local GP and was again told not to fuss just patch me up.

1988

Ian was given time off work from HMAS Cerberus due his (sic) neck ‘locking/freezing’ on him.  He was unable to drive or carry out any duties.  I add here that this incident is also missing from his medical records.  I cannot recall any medical treatment being done at that time.

Upon final discharge medical Ian was referred to a Physiotherapist for treatment to his neck and shoulders.

I am still massaging Ian’s neck and shoulders and applying liniments and heat treatment to ease the pain.”

The Relevant Legislation

The VE Act

26. Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:

“ …

(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or

…”

The terms “disease” and “injury” are defined in s 5D(1) as follows:

“ disease means

(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

(b)the recurrence of such an ailment, disorder, defect or morbid condition;

but does not include:

(c)the aggravation of such an ailment, disorder, defect or morbid condition; or

(d)a temporary departure from:

(i)the normal physiological state; or

(ii)the accepted ranges of physiological or biochemical measures;

that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”

“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

(a)     a disease; or

(b)     the aggravation of a physical or mental injury.”

27. Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:

“ …

(4)Except in making a determination to 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, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:    This subsection is affected by section 120B.

…”

Section 120B relevantly provides:

“ …

(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)       there is in force:

(i)a Statement of Principles determined under subsection 196B(3) or (12); or

(ii)       a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

…”

28. Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:

“(3)     If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

(a)eligible war service (other than operational service) rendered by veterans; or

(b)defence service (other than hazardous service) rendered by members of the Forces; or

(ba)peacetime service rendered by members;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(c)the factors that must exist; and

(d)which of those factors must be related to service rendered by a person;

before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.

…

Note 3:For factor related to service see subsection (14).”

Section 196B(14) relevantly provides:

“(14)    A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

…

(b)it arose out of, or was attributable to, that service; or

…

(d)it was contributed to in a material degree by, or was aggravated by, that service; or

…

(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:

(i)but for the rendering of that service by the person; or

(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or

…”

The Statements of Principles

29.Pursuant to s 196B(3) of the VE Act, the Authority has determined the following relevant Statements of Principles (“SoPs”) which are presently in force:

·     Statement of Principles concerning cervical spondylosis No 34 of 2005, as amended by Statement of Principles concerning cervical spondylosis No 77 of 2008;

·     Statement of Principles concerning anxiety disorder No 102 of 2007, as amended by Statement of Principles concerning anxiety disorder No 43 of 2010 and by Statement of Principles concerning anxiety disorder No 16 of 2011;

·     Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009.

The relevant provisions of those SoPs are set out below (see paragraphs 33, 45, and 61).

The Issues

30.It is common ground, and the Tribunal accepts, that the applicant has suffered cervical spondylosis.  The issues for the Tribunal’s determination are therefore:

· whether the applicant’s cervical spondylosis is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act;

·     whether the applicant has suffered a mental disease or a mental injury; and, if so,

· whether the applicant’s mental disease or mental injury is defence-caused, for the purposes of Part IV of the VE Act.

Analysis

Is the applicant’s cervical spondylosis a defence-caused injury or a defence-caused disease?

31.Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s cervical spondylosis is a defence-caused injury or a defence-caused disease only if:

·     the material before it raises a connection between that injury or disease and the applicant’s defence service; and

·     the relevant SoP upholds the contention that that injury or disease is, on the balance of probabilities, connected with that service.

32.The Tribunal accepts that the material before it raises a connection between the applicant’s cervical spondylosis and his RAN service.  That material includes the applicant’s statement regarding an incident on board HMAS Derwent in the mid 1970s when he hit his head on the coaming of a passageway door (see paragraph 10 above) and the applicant’s statement and evidence regarding two bicycle accidents (in 1981 and 1985) in which he fell off his bicycle onto the road (see paragraphs 12–13 above). The Tribunal notes that the respondent does not dispute that any of the abovementioned incidents occurred, and that each of the abovementioned bicycle accidents occurred while the applicant was travelling on a journey from his RAN base to his place of residence after ceasing to perform duty on the relevant day (see s 70(5)(b) of the VE Act).

33.The crucial question is, therefore, whether the relevant SoP upholds the contention that the applicant’s cervical spondylosis is, on the balance of probabilities, connected with his RAN service.  That SoP relevantly states:

“ …

Basis for determining the factors

4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans or members of the Forces under the VEA, …

Factors that must be related to service

5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.The factor that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service is:

…

(f)having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis; or

…

Other definitions

9.For the purposes of this Statement of Principles:

…

‘trauma to the cervical spine’ means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine.  These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:

(a)immobilisation of the cervical spine by splinting, or similar external agent; or

(b)injection of corticosteroids or local anaesthetics into the cervical spine; or

(c)surgery to the cervical spine.

…”

34.The Tribunal notes the applicant’s evidence that he had continuous neck pain for about one month after his 1985 bicycle accident.  However, for the purposes of the factor in para (f) of clause 6 of the SoP, a “trauma to the cervical spine”, as defined in clause 9 of the SoP, requires, fundamentally, the suffering of a “discrete injury” to the cervical spine.  There is no medical evidence before the Tribunal which supports the proposition that the applicant suffered a “discrete injury” to his cervical spine in or about 1985 or, indeed, at any time during his RAN service.  There is, on the other hand, medical evidence before the Tribunal which is apparently inconsistent with that proposition, namely:

·     the x-ray report of 4 July 1989 (the day before the applicant’s discharge from the RAN), regarding his cervical spine, which states that the “alignment” is “normal” and that “no bony abnormality is seen” and “disc spaces are maintained”  (T3, p 38);

·     Dr Slinger’s report of 21 October 2010 (Exhibit R2), which includes a reference to the applicant’s history of incidents involving his neck during his RAN service (including the two bicycle accidents), and which concludes:

“ I cannot relate his present symptomatology and disability to what I would expect to see following a single significant injury.”

Furthermore, there is no reference, in the applicant’s RAN medical records which are in evidence, to his having complained of neck pain until April 1989 (shortly before his discharge) – see paragraph 16 above. 

35.Having regard, in particular, to the medical evidence before it, the Tribunal is not reasonably satisfied that the applicant suffered a discrete injury to his cervical spine in or about 1985 or at any time during his RAN service.  Accordingly, the Tribunal is not reasonably satisfied that the applicant had a “trauma to the cervical spine”, within the meaning of para (f) of clause 6 of the SoP, at any time during his RAN service.  The Tribunal is, therefore, satisfied that the factor in para (f) of clause 6 of the SoP does not exist in this case.

36.The applicant did not contend that any other factor in clause 6 of the SoP exists in this case, and the Tribunal is satisfied that none of those other factors exists in this case.

37.The Tribunal concludes, therefore, that clause 5 of the SoP – which requires that “at least one of the factors set out in clause 6” be “related to the relevant service” – is not satisfied in the applicant’s case.

38.It follows that the SoP does not uphold the contention that the applicant’s cervical spondylosis is, on the balance of probabilities, connected with his defence service. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s cervical spondylosis is a defence-caused injury or a defence-caused disease.

39.Accordingly, the Tribunal determines that the applicant’s cervical spondylosis is not a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act.

Has the applicant suffered a mental disease or a mental injury?

40.There are two mental ailments about which there is specialist medical evidence before the Tribunal, namely, generalised anxiety disorder, and alcohol abuse.  That medical evidence is as follows:

·     the report of Dr Fellows-Smith, dated 24 September 2008, in which the opinion is expressed that the applicant suffers generalised anxiety disorder (part of Exhibit R1);

·     the report of Dr Jonathon Spear, dated 14 April 2011, in which the opinion is expressed that the applicant suffers alcohol abuse (Exhibit R3).

41.The Tribunal notes that there is a substantial period of time (approximately 2½ years) between the dates of those two reports and it may be that each report accurately represents the applicant’s psychiatric presentation at the time of the clinical examination on which the relevant report was based.  The Tribunal also notes that neither of those reports expressly excludes the diagnosis made in the other report and, indeed, that each report also includes reference to a history of symptoms associated with the diagnosis made in the other report.

42.On the basis of the abovementioned reports, the Tribunal is reasonably satisfied, and finds, that the applicant has suffered generalised anxiety disorder, and alcohol abuse. The Tribunal also finds that each of those psychiatric disorders is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.

Is the applicant’s generalised anxiety disorder a defence-caused disease?

43.Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s generalised anxiety disorder is a defence-caused disease only if:

·     the material before it raises a connection between that disease and the applicant’s defence service; and

·     the relevant SoP upholds the contention that that disease is, on the balance of probabilities, connected with that service.

44.The Tribunal accepts that the material before it raises a connection between the applicant’s generalised anxiety disorder and his RAN service.  That material incudes the applicant’s statements set out in paragraphs 11 and 12 above and Dr Fellows-Smith’s report set out in paragraph 18 above.

45.The critical question is, therefore, whether the relevant SoP upholds the contention that the applicant’s generalised anxiety disorder is, on the balance of probabilities, connected with his RAN service.  That SoP relevantly states:

“ …

Kind of injury, disease or death

3.(a)     This Statement of Principles is about anxiety disorder and death from anxiety disorder.

(b)For the purposes of this Statement of Principles, ‘anxiety disorder’ means generalised anxiety disorder; anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and

…

Basis for determining the factors

4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans or members of the Forces under the VEA, …

Factors that must be related to service

5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.The factor that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service is:

(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:

(i)experiencing a category 1A stressor within the two years before the clinical onset of anxiety disorder; or

(ii)experiencing a category 1B stressor within the two years before the clinical onset of anxiety disorder; or

…

(iv)experiencing a category 2 stressor within the six months before the clinical onset of anxiety disorder; or

…

(viii)having chronic pain of at least six months duration at the time of the clinical onset of anxiety disorder; or

…

Other definitions

9.For the purposes of this Statement of Principles:

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

(a)     experiencing a life-threatening event;

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

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

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

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

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

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

(d)     killing or maiming a person; or

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

‘a category 2 stressor’ means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:

(a)being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;

(b)experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;

(c)having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;

(d)experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;

(e)having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;

(f)having a family member or significant other experience a major deterioration in their health; or

(g)being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;

…

‘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;

‘an eyewitness’ means a person who observes an incident first hand and can give direct evidence of it.  This excludes a person exposed only to media coverage of the incident;

‘chronic pain’ means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;

…”

46.The applicant’s Statement of Facts, Issues and Contentions, which was filed in this proceeding on 25 May 2011, relevantly states:

“5.3     The Applicant contends that in the case of anxiety disorder, the relevant criterion (sic) are 6 (a)(iv) and (viii), which relate to a category 2 stressor, plus the constant pain which he suffered for a long period, and within six months before the onset of the anxiety disorder which he believed was 1987, as was reported by Dr Spear.”

The Tribunal does not accept that contention for the following reasons.

47.As regards the factor in subpara (a)(iv) of clause 6 of the relevant SoP, the Tribunal notes that Dr Fellows-Smith’s report of 24 September 2008 (which contains a diagnosis of generalised anxiety disorder) does not refer to a history of any life event which would constitute “a category 2 stressor” (as defined in clause 9 of the SoP) but instead refers in detail to a history of various traumatic events said to have been experienced by the applicant during his first posting on HMAS Derwent in or around 1975.  Having regard to the evidence before it, the Tribunal is not reasonably satisfied that the applicant experienced a “category 2 stressor”, within the meaning of subpara (a)(iv) of clause 6 of the relevant SoP, at any time before the clinical onset of his generalised anxiety disorder.  Accordingly, the Tribunal is satisfied that the factor in subpara (a)(iv) of clause 6 of the relevant SoP does not exist in this case.

48.As regards the factor in subpara (a)(viii) of clause 6 of the relevant SoP, the Tribunal also notes that Dr Fellows-Smith’s report of 24 September 2008 does not refer to a history of chronic pain.  The applicant’s own evidence was that he had experienced neck and shoulder pain prior to his 1981 bicycle accident and that, following that accident, he experienced such pain “on and off”, and, following his 1985 bicycle accident, he experienced continuous neck pain for about one month and “on and off” thereafter (see paragraph 13 above).  Having regard to that evidence, the Tribunal is not reasonably satisfied that the applicant had “chronic pain” (as defined in clause 9 of the relevant SoP) “of at least six months duration at the time of the clinical onset” of his generalised anxiety disorder (which the Tribunal finds to be not earlier than late 1987 – see paragraph 52 below).  Accordingly, the Tribunal is satisfied that the factor in subpara (a)(viii) of clause 6 of the relevant SoP does not exist in this case.

49.That leaves for consideration the factors in subparas (a)(i) and (a)(ii) of clause 6 of the relevant SoP (on which the applicant had solely relied in his application to the VRB).  The applicant’s submission was that one or more of the events, which he said that he had experienced in or around 1975 during his first posting on HMAS Derwent (see his statement of 15 July 2008 set out in paragraph 11 above) and a history of which is set out in Dr Fellows-Smith’s report of 24 September 2008 (see paragraph 18 above), constituted a “category 1A stressor” or a “category 1B stressor” within the meaning of, respectively, subpara (a)(i) or subpara (a)(ii) of clause 6 of the relevant SoP.

50.The factors in subparas (a)(i) and (a)(ii) of clause 6 of the relevant SoP, however, also require that the relevant “category 1A stressor” or “category 1B stressor” have been experienced “within the two years before the clinical onset of anxiety disorder”.  Accordingly, the question arises as to the time of “clinical onset” of the applicant’s generalised anxiety disorder.

51.In his report of 24 September 2008 (set out in paragraph 18 above) Dr Fellows-Smith noted that the applicant had described

“ an increase in his alcohol consumption from 2–3 drinks per night prior to his deployment in 1975 equivalent to 21 units of alcohol per week to 6 full strength beers per night equivalent to 63 units per week”

and added:

“ From this I concluded that the time of onset of anxiety disorder was on (sic) or around the time of his traumatisation in 1975.”

Dr Spear, however, in his report of 14 April 2011 (set out in paragraph 19 above) notes:

“ There is an inconsistency in the date of onset of his mental health symptoms.  He reported to Dr Fellows-Smith that his symptoms started in 1975, although today he reported that symptoms started in 1987.”

The applicant’s own evidence (see his statements of 15 July 2008 and 7 May 2010, set out in paragraphs 11 and 12 above) indicates that, notwithstanding his experiencing various traumatic events in or around 1975, he did not suffer significant anxiety symptoms at that time, and that he first experienced significant anxiety symptoms in late 1987.

52.Having regard to the whole of the evidence before it, the Tribunal is satisfied that the time of the “clinical onset” (within the meaning of subparas (a)(i) and (a)(ii) of clause 6 of the relevant SoP) of the applicant’s generalised anxiety disorder was not earlier than late 1987.  Accordingly, even if one or more of the abovementioned events which the applicant said that he experienced in or around 1975 during his first posting on HMAS Derwent constituted a “category 1A stressor” or a “category 1B stressor”, within the meaning of subparas (a)(i) and (a)(ii) of clause 6 of the relevant SoP — a matter about which the Tribunal makes no finding — neither of the factors in those subparagraphs could exist in this case because none of those events was experienced “within the two years before the clinical onset of anxiety disorder” as required by each of those factors.

53.The Tribunal is also satisfied that none of the other factors in clause 6 of the relevant SoP exists in this case.

54.The Tribunal concludes, therefore, that clause 5 of the relevant SoP (which requires that “at least one of the factors set out in clause 6” be “related to the relevant service”) is not satisfied in the applicant’s case.

55.It follows that the relevant SoP does not uphold the contention that the applicant’s generalised anxiety disorder is, on the balance of probabilities, connected with his defence service. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s generalised anxiety disorder is a defence-caused disease.

56.Accordingly, the Tribunal determines that the applicant’s generalised anxiety disorder is not a defence-caused disease or a defence-caused injury, for the purposes of Part IV of the VE Act.

Is the applicant’s alcohol abuse a defence-caused disease?

57.Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s alcohol abuse is a defence-caused disease only if:

·     the material before it raises a connection between that disease and the applicant’s defence service; and

·     the relevant SoP upholds the contention that that disease is, on the balance of probabilities, connected with that service.

58.The Tribunal is prepared to accept that the material before it raises a connection between the applicant’s alcohol abuse and his RAN service.  That material includes the applicant’s evidence regarding his alcohol consumption during the period of his RAN service (see paragraph 14 above) and the report of Dr Jonathon Spear, dated 14 April 2011 (see paragraph 19 above).

59.The critical question is, therefore, whether the relevant SoP upholds the contention that the applicant’s alcohol abuse is, on the balance of probabilities, connected with his RAN service.

60.The SoP which was in force at the time of the respondent’s decision, dated 13 October 2008, is Statement of Principles concerning alcohol dependence and alcohol abuse No 18 of 2008.  That SoP was revoked by Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009 which is presently in force.  As regards the circumstances of the present case, however, there is no material distinction between the provisions of those SoPs.

61.The current SoP relevantly states:

“ …

Basis for determining the factors

4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans or members of the Forces under the VEA, …

Factors that must be related to service

5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6.The factor that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected with the circumstances of a person’s relevant service is:

(a)   having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or

(b)   experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or

(c)   experiencing a category 1B stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or

…

Other definitions

9.For the purposes of this Statement of Principles:

‘a clinically significant psychiatric condition’ means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;

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

(a)   experiencing a life-threatening event;

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

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

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

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

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

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

(d)   killing or maiming a person; or

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

…

‘an eyewitness’ means a person who observes an incident first hand and can give direct evidence of it.  This excludes a person exposed only to media coverage of the incident;

…

‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.  Washington, DC, American Psychiatric Association, 2000;

…”

62.As regards “the time of the clinical onset” of the applicant’s alcohol abuse, for the purposes of paras (a), (b) and (c) of clause 6 of the relevant SoP, the Tribunal notes that Dr Spear’s report of 14 April 2011 purports to address that matter as follows:

“2.      When was its clinical onset?  (That is, when did he meet all the diagnostic criteria for the condition?)

Mr Briggs reported he increased his alcohol use to hazardous level from 1973.  Although he has reduced his alcohol intake, he continues to drink excessively – please see ‘Lifestyle’.”

Under the heading “Lifestyle”, the report relevantly states:

“ He continues to drink alcohol despite it leading to marital problems including periods of separation.  Previously, he was drinking up to six full strength beers a night (63 units per week).  When he saw Dr Fellows-Smith in 2008, he reported drinking three full strength beers a night (32 units per week).  He currently has two beers and two glasses of wine a night, together with a binge once a week where he drinks a bottle of red together with six stubbies (48 standard drinks per week).”

The Tribunal does not regard Dr Spear’s report as expressing a clear and unequivocal opinion regarding the time of the clinical onset of the applicant’s alcohol abuse.  In the Tribunal’s opinion, the applicant’s oral evidence at the hearing provides a clearer indication of the time of the clinical onset of his alcohol abuse.  According to his own evidence (see paragraph 14 above), he started to misuse alcohol by way of self-medicating a “significant nervous problem” which he developed in late 1987/early 1988 and that he was then “drinking heavily” and that this “would have been noticeable to others”.  The Tribunal also notes the following extract from Dr Spear’s report of 14 April 2011:

“3.      What do you see as having been causal in the development of the condition?

Mr Briggs has used alcohol as a way of coping with life stresses.  He has a belief that alcohol reduces stress and appears unaware of factors leading to difficulties with relationships in his workplace.  He uses alcohol as an inappropriate and ineffective method to cope with stress.”

63.On the basis of the applicant’s evidence, the Tribunal finds that the time of the clinical onset of the applicant’s alcohol abuse is in or about late 1987/early 1988.

64.As regards the factor in para (a) of clause 6 of the relevant SoP, the Tribunal is prepared to accept that the applicant had “a clinically significant psychiatric condition” (as defined in clause 9 of the SoP), namely, generalised anxiety disorder, “at the time of the clinical onset of … alcohol abuse”.  The Tribunal, however, has determined that that psychiatric condition is not defence-caused.  Thus, that factor is not “related to the relevant service rendered by the [applicant]”, as required by clause 5 of the SoP, and, accordingly, clause 5 is not satisfied in respect of that factor.

65.As regards the factors in paras (b) and (c) of clause 6 of the relevant SoP, the only events relied on by the applicant for the purpose of satisfying the requirement of his experiencing a “category 1A stressor” or a “category 1B stressor” (as the case may be) were the abovementioned events which he said that he experienced in or around 1975 during his first posting on HMAS Derwent.  Given the Tribunal’s abovementioned finding that the time of the clinical onset of the applicant’s alcohol abuse is in or about late 1987/early 1988, it necessarily follows that, even if one or more of those events constituted a “category 1A stressor” or a “category 1B stressor”, neither the factor in para (b) nor the factor in para (c) could exist in this case because each of those factors requires that the relevant stressor be experienced “within the two years before the clinical onset of … alcohol abuse”.  The Tribunal is, accordingly, satisfied that neither the factor in para (b), nor the factor in para (c), of clause 6 of the relevant SoP exists in this case.

66.The Tribunal is also satisfied that none of the other factors in clause 6 of the relevant SoP exists in this case.

67.The Tribunal concludes, therefore, that clause 5 of the relevant SoP (which requires that “at least one of the factors set out in clause 6” be "related to the relevant service”) is not satisfied in the applicant’s case.

68.Given that the relevant provisions of Statement of Principles concerning alcohol dependence and alcohol abuse No 18 of 2008 are not materially different from the abovementioned provisions of the current SoP, the Tribunal’s conclusion, on the application of the former SoP, is the same as that reached on the application of the current SoP.

69.It follows that the relevant SoP does not uphold the contention that the applicant’s alcohol abuse is, on the balance of probabilities, connected with his defence service. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s alcohol abuse is a defence-caused disease.

70.Accordingly, the Tribunal determines that the applicant’s alcohol abuse is not a defence-caused disease or a defence-caused injury, for the purposes of Part IV of the VE Act.

Conclusion

71.The Tribunal concludes as follows:

·     the applicant has suffered cervical spondylosis;

·     the applicant has suffered generalised anxiety disorder;

·     the applicant has suffered alcohol abuse;

· the applicant’s cervical spondylosis, generalised anxiety disorder, and alcohol abuse are each not a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act.

Decision

72.For the above reasons, the Tribunal:

·     varies the decision under review by:

-varying the diagnosis of the applicant’s anxiety condition from “anxiety disorder” to “generalised anxiety disorder”; and

-determining that the applicant has suffered alcohol abuse but that that condition is not a defence-caused injury or a defence-caused disease for the purposes of Part IV of the VE Act; and

·     in all other respects, affirms the decision under review.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:   Sgd E Jordan            .....................................................................................

Associate

Date of Hearing  5 July 2011
Date of Decision  26 July 2011
Representative of the Applicant                Mr T Robbins

Representative of the Respondent           Mr C Ponnuthurai
  Compensation and Review Branch
  Department of Veterans' Affairs