Caldwell and Repatriation Commission
[2007] AATA 1640
•6 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1640
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0077
VETERANS' APPEALS DIVISION ) Re JOHN CALDWELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Mr I R Way, MemberDate6 August 2007
PlaceSydney
Decision For the reasons given below the Tribunal sets aside the decision under review and;
(a) In place of that decision determines:
i. That the applicant’s conditions of depressive disorder, hypertension and erectile dysfunction are defence-caused with effect from 1 January 2004;
ii. That the applicant’s condition of rupture of the left Achilles tendon is defence-caused with effect from 1 January 2004;
iii. That the applicant does not suffer from post traumatic stress disorder; and
iv. That the applicant’s claimed conditions of alcohol abuse or alcohol dependence, gout, benign positional vertigo and recurrent seborrhoeic dermatitis are not service related.
(b) Remits the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance with these reasons for decision.
................[sgd]..............................
Dr J D Campbell
Member
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – claim for disability pension – peacekeeping and defence service – claimed disabilities – post traumatic stress disorder – major depression – hypertension – benign positional vertigo – gout – rupture of left Achilles tendon – recurrent seborrhoeic dermatitis – impotence – alcohol abuse – clinical worsening – stressors – decision under review set aside – conditions of depressive disorder, hypertension, erectile dysfunction and rupture of left Achilles tendon accepted as defence-caused – applicant does not suffer post traumatic stress disorder – other conditions not defence-caused – matter remitted to respondent for reassessment of applicant’s pension
Veterans’ Entitlements Act 1986 – sections 20, 70, 120, 120A, 120B, 196A, 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Gerzina v Repatriation Commission [2004] FCAFC 96
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re A’Bell and Repatriation (1999) 58 ALD 721
Repatriation Commission v Milenz (2006) 93 ALD 107
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
6 August 2007 Dr J D Campbell, Member
Mr I R Way, MemberDECISION UNDER REVIEW
1. John Caldwell was 18 years of age when he joined the Royal Australian Air Force (RAAF) on 2 September 1965. He served until 2 September 1985, taking his discharge in the rank of Squadron Leader, at his own request, after 20 years of service. He had one period of service from 19 July 1976 to 21 January 1977 with the United Nations Military Observer Group in India and Pakistan (“UNMOGIP”). This period of service constitutes “peacekeeping service” as defined in Part IV of the Veterans’ Entitlement Act 1986 (“the Act”). He also rendered “defence service” as defined in Part IV of the Act from 7 December 1972 to 2 September 1985 (excluding the period of his peacekeeping service).
2. On 1 April 2004 the applicant lodged a claim for a pension in respect of a number of disabilities. The Repatriation Commission (“the Commission”) recorded appropriate diagnoses for the claimed disabilities as post traumatic stress disorder (PTSD), major depression, hypertension, benign positional vertigo, gout, rupture of left Achilles tendon, recurrent seborrhoeic dermatitis, impotence and alcohol abuse. On 26 October 2004 the Commission accepted the applicant’s claim for rupture of left Achilles tendon but rejected all the other conditions. Disability pension was assessed at 30% of the general rate.
3. On 4 November 2004 the applicant applied to the Veterans Review Board (“the Board”) seeking a review of the Commission’s decision. On 1 November 2005 the Board affirmed the Commission’s decision and on 19 January 2006 the applicant applied to this Tribunal for review of the decision of the Commission, as affirmed by the Board.
4. At the hearing of this matter before the Tribunal the applicant withdrew that part of his application for review in respect of the benign positional vertigo and recurrent seborrhoeic dermatitis.
5. The applicant’s principle contention is that the disabilities he suffers have a causal relationship with the stressors he suffered during his service.
ISSUES BEFORE THE TRIBUNAL
6. The relevant issues in this matter are:
(a)What are the correct diagnoses of the applicant’s conditions;
(b)When was the clinical onset of each of the applicant’s diagnosed conditions;
(c)What Statements of Principles (“SoPs”) are relevant to the applicant’s diagnosed conditions;
(d)Which of the applicant’s diagnosed conditions (if any) meet the requirements of the relevant SoP such that the condition can be accepted as defence-caused; and
(e)What are the applicant’s diagnosed conditions, if any, that are not defence-caused.
7. It is common ground that if the applicant is successful in this claim the earliest date of effect, pursuant to section 20 of the Act, would be 1 January 2004.
8. Both parties have submitted, and the Tribunal agrees, that if the Tribunal accepts any of the rejected disabilities, the matter of assessment should be remitted to the Commission.
LEGISLATIVE FRAMEWORK
Peacekeeping Service
9. Section 70 of the Act provides that the Commonwealth is liable to pay pension to a veteran who has become incapacitated from defence-caused injury or disease. The circumstances in which a disease is taken to be defence-caused are set out in section 70:
70 Eligibility for pension under this Part
(1) Where:
…
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(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
(c) the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence‑caused injury or defence‑caused disease, as the case may be;
Note:The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence‑caused, the death is to be taken to have been defence‑caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
10. Subsections 120(2) and (3) of the Act provide that the standard of proof in respect of the incapacity from injury or disease of a member of a Peacekeeping Force is that of “reasonable hypothesis” connecting the injury, disease or death with particulars of the relevant service.
11. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis connecting an applicant’s injury or disease with his peacekeeping service is to be assessed by reference to that SoP.
12. Section 196A of the Act provides for the establishment of the RMA. Subsection 196B(2) of the Act provides, in effect, that if the RMA is of the view that there is sound medical scientific evidence that indicates that a particular kind of injury, disease or death can be related to peacekeeping service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death, setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
13. The reference in subsection 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in subsection 196B(14):
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(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; …
14. There is no dispute between the parties and we accept that the following SoPs are relevant in this matter:
(a)post traumatic stress disorder, Instrument No. 3 of 1999 as amended by Instrument No. 54 of 1999;
(b)alcohol dependence or alcohol abuse, Instrument No. 76 of 1998;
(c)depressive disorder, Instrument No. 58 of 1998;
(d)gout, Instrument No. 11 of 2000 as amended by Instrument No. 43 of 2003;
(e)impotence, Instrument No. 97 of 1996 as amended by Instrument No. 16 of 2002 (the Instruments in force at the time of the original decision) and Instrument No. 17 of 2005 (the current Instrument);
(f)hypertension, Instrument No. 35 of 2003 as amended by Instrument No. 3 of 2004.
Defence Service
15. Section 70 of the Act relevantly provides that the Commonwealth is liable to pay pension to a veteran who has become incapacitated from defence-caused injury or disease. The circumstances in which a disease is taken to be defence-caused are set out in section 70 (as above).
16. Under section 120B and subsection 120(4) of the Act, in cases of applications lodged after 1 June 1994, where the RMA has made a SoP in respect of a particular kind of injury or disease, we must be reasonably satisfied that an injury suffered by or a disease contracted by an applicant was defence-caused only if the material before us raises a connection between the injury or disease of the applicant and some particular service rendered by the applicant and the relevant SoP upholds the contention that the injury or disease of the person is, on the balance of probabilities, connected with his service.
17. The relationship to service must be one of the relationships prescribed in section 196B (as above).
18. In coming to a decision, the Tribunal must form an opinion whether the contentions raised by the applicant fits within or is consistent with the factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
19. There is no dispute between the parties, and we accept that the relevant SoPs in this matter are:
(a)post traumatic stress disorder, Instrument No. 4 of 1999 as amended by Instrument No. 55 of 1999;
(b)alcohol dependence of alcohol abuse, Instrument No. 77 of 1998;
(c)depressive disorder, Instrument No. 59 of 1998;
(d)gout, Instrument No. 12 of 2000 as amended by Instrument No. 44 of 2003;
(e)impotence, Instrument No. 98 of 1996 as amended by Instrument No. 17 of 2002 (the Instruments in force at the time of the original decision) and Instrument No. 18 of 2005 (the current Instrument); and
(f)hypertension, Instrument No. 36 of 2003 as amended by No. 4 of 2004.
BACKGROUND MATERIAL
20. The applicant’s initial training in the RAAF qualified him in December 1966 as a general duties pilot and he then had various postings and attachments in Australia, the United States of America, Papua New Guinea and India/Pakistan flying a variety of aircraft including Neptunes, Orions and Caribou. He last flew in October 1980 when he was transferred to a ground job with the VIP Squadron at Williamtown. On discharge in 1985, he continued for some years with the RAAF Reserve Forces.
21. The applicant asserts that he suffered a number of stressful events during his service. On the evidence before us it appears that the applicant relies on the following events.
The Caribou Crash
22. While based with 38 Squadron Richmond, the applicant was detached for two months in 1972 to PNG, flying Caribou missions. On 28 August 1972, a RAAF Caribou aircraft from 38 Squadron crashed in the Kudjerus Gap, 19 miles south of Wau resulting in the loss of three RAAF and two army personnel as well as 20 PNG cadets. Four PNG cadets survived the accident, which occurred in mountainous terrain, where three days elapsed after the crash before the survivors and the wreckage of the plane were located. The applicant told the Tribunal that he never saw the crashed aircraft or the survivors, he did not go to the funeral of any of the crash victims and he took no part in the subsequent inquiry into the crash. However, he said that his aircraft had been tasked to search for the missing plane, which he did unsuccessfully. In his affidavit (Exhibit A2) the applicant said that he “experienced a traumatic event with the crash of a Caribou aircraft and the deaths of aircrew close friends and Army associates”, and that “this event and the subsequent investigation was to have a very significant affect [sic] on my life and flying career in the RAAF”.
23. In his oral evidence the applicant highlighted the fact that he blamed himself for not briefing the newly arrived crew about the flying and weather conditions of which he was totally aware (having carried out the same task six times in the three days prior to the crash); and, if he had done so, the crew would have taken a different route (the high route rather than the low route) and not have crashed. The applicant said that he was not aware of what briefings the crew actually had and he agreed that it was not his responsibility to brief the crew, nevertheless he felt some responsibility for their deaths and the RAAF had never provided him with any counselling in this regard.
24. In his affidavit (Exhibit A2), the applicant states at paragraphs 8 to 22:
8.As a senior pilot and Flight Leader I became personally aware that I commenced to evade certain responsibilities which involved flying risk.
9.While it became evident to me that my capability as a pilot was being affected I made every effort to mask this problem from my peers and superiors.
10.Although I did harbour some responsibility for the deaths of RAAF crew in the New Guinea crash there was never any counselling provided to me or any RAAF personnel in New Guinea at the time.
11. It was simply expected that you ‘got on with the job’ to the best of your ability.
12.In an attempt to control my growing anxiety I took a period of 10 weeks leave in May 1973 to try and ease my situation.
13.Rather than approach the RAAF doctors I sought advice from a General Practitioner in Darwin.
14.I was of the belief that if I spoke to RAAF doctors they would ‘ground me’ from flying.
15.I was also afraid that my peers, subordinates and superiors would then know of my ‘fear of flying’ and I would be ridiculed and demeaned as a ‘wimp’ and ‘gutless’ pilot (to me there was nothing more severe than to lose the respect of your flying peers).
16.Nothing of any substance came from my attendance with the Darwin GP who just prescribed me some pills to alleviate my problem (I cannot remember the name of this GP, nor the pills he prescribed to me).
17.I commenced to drink alcohol at an excessive rate in order to try to come to grips with my mounting nervousness and apprehension caused by flying.
18.The RAAF seemed to support this approach as you were expected by the Squadron Commander to attend the ‘back bar’ at the RAAF Richmond Officer’s Mess at the conclusion of every days flying duties.
19.Comradarie [sic] through drinking and the illusory ‘Battle of Britain’ mateship that went with these drinking sessions gave me the false impression that I could handle the increasing fear that was mounting within me.
20.It was also very apparent to me at this time that I needed to show my peers and subordinates that I was in full control of my faculties and flying capabilities.
21.Despite this I continued to have nightmares and severe sleeping difficulties over the ‘New Guinea Crash’.
22.Although it was not apparent to me at the time I now realise that my home life and my relationship with my wife and children was under stress and tension.
25. The applicant told the Tribunal that subsequent to his two month deployment to PNG in 1972, he had a number of short flying missions in PNG. He also said that after his return from leave in England (in May 1973), he felt pretty good about flying and that his fear of flying did not return until his posting to the UNMOGIP in 1976.
Flying in India/Pakistan (UNMOGIP)
26. In his affidavit (Exhibit A2) the applicant states at paragraphs 24 to 27 that:
24.It was my belief at the time that I needed to try and retrieve some domestic bliss with my wife and family and a posting to UNMOGIP would also allow me to control my increasing ‘dread of flying’ so that I could return to some normalcy with the RAAF on my return home to Australia.
25.Unfortunately, rather than ease my fears the flying duties in UNMOGIP were even more rigorous and demanding than I had ever experienced elsewhere in Australia and South-East Asia. See Appendix 1 and 2 to Annex C.
26.During my period of ‘operational service’ in UNMOGIP I believed that I was operating the Caribou aircraft totally outside its performance limits which was not recognised by the RAAF.
27.This flying exacerbated my fears by putting me into situations in which I was flying an aircraft at the ‘top of the World’ where a myriad of tasks required me to place my life and that of my fellow crew/passengers in jeopardy. See Appendix 2 to Annex C.
27. In annexure C to his affidavit, the applicant describes the nature of his flying duties in India/Pakistan and his feelings about these duties (he was one of three pilots at the time). In essence, he claims to have been terrified by his flying experiences, the flying being some of the most extreme in the world because of high altitude, narrow and restricted flight routes and mountainous country and difficult weather conditions. The applicant told the Tribunal that the Caribou aircraft that he flew, was in his opinion, often required to perform flights “on the cusp” of operating conditions, where if one of the engines failed the aircraft would crash or have to make a forced landing, either of which would probably result in death of crew and passengers. He said that the probability of mishap was extremely high, that he felt totally deflated and worried as to his future and that his anxiety was heightened by recollections of the PNG crash. The applicant agreed that there had been no RAAF aircraft crashes in India/Pakistan. He said that he started having nightmares about going backwards down a mountain and still has nightmares, a couple of times a week. The applicant said he had never had feelings like these before going to India.
28. The applicant told the Tribunal that on return from India/Pakistan he returned to 35 Squadron Townsville where flying conditions were good and he enjoyed flying but the nightmares did not stop. Also he was in a position to avoid trips that he did not want to undertake and there were periods of being afraid of flying.
Other Stressors
29. In his affidavit (at Annex D) the applicant sets out a dozen or so incidents involving crashes and fatalities of colleagues and others that he knew about during his service and, which he claims, served “as an example of the traumatic service that he underwent during his career”.
30. The only incident in which the applicant was directly involved occurred during his six month tour in 1968 to Moffat Field, California USA, when an Orion P3B aircraft lost its left undercarriage on landing and burst into flames. He said that the crew escaped unharmed but the aircraft was totally destroyed before his eyes. He said that the adjutant at the base brought out a bottle of whiskey to comfort the crew and others, including himself, who watched the plane burn to the ground. He described his time in the USA as a six month party, with 300 or so “Aussies going wild”.
Alcohol Consumption
31. Much of the evidence the applicant gave was directed towards his consumption of alcohol during his service.
32. In the alcohol questionnaire completed by the applicant in February 2004, the applicant stated that he began to consume alcohol on a regular basis in 1966 when he first joined the RAAF because he “had to”; that at that time he drank every day, eight schooners of beer plus wine and whiskey; and that his consumption had not changed significantly since 1966 (T4 pp. 43-44).
33. In his oral evidence the applicant, in essence, confirmed what he had stated in his alcohol questionnaire, although there were times when he drank more or drank less. He agreed he told Dr Robinson that as trainee pilots they would drink 20 schooners a day (possibly more) on leave in Melbourne and on Wednesday and Friday nights at Point Cook and that at this time he had once run off the road while drunk but was not hurt. He said that he then went to West Australia as part of his training and drank more there. He said that most of the pilots drank heavily and often this meant 20 or more beers a day. He said that everything in the RAAF revolved around the bar. The only time that he would not drink was when he was flying, but drinking always started once the engines were shut down. He described drinking heavily until 4 am, and then flying at 8 am, after “getting on the oxygen”. He said that he did not worry about the rule of not drinking for 12 hours before flying. He told the Tribunal that after an incident (such as the crash in PNG or when aircrews flew in from Vietnam) and on mess nights his consumption of alcohol would be more than usual. He said that the same applies to his service in UNMOGIP where alcohol was extremely cheap, flying ceased every day at midday and drinking was part of the relief of being back on the ground and being able to forget where you had been.
34. The applicant said that the only time he cut back on his alcohol consumption was when he was on leave in England for 10 weeks in 1973, at which time he would have four to five pints of Guinness a day (or six or seven as reported to Dr Robinson) with his father-in-law over a one and a half hour period. However, his heavy drinking pattern resumed on returning to Australia. He said that the only time he stopped drinking was for two and a half months in 1998 while he was in Canada.
35. When referred to paragraph 17 of his affidavit (see paragraph 23 above), the applicant had difficulty in explaining what he meant. Eventually, he agreed he meant that his excessive drinking helped him cope with his increasing fear of flying.
Other matters
36. In his affidavit the applicant stated at paragraphs 33 – 36 that:
33.Lastly, the anxiety and depression that I suffered as a GD Pilot in the RAAF caused me to terminate my flying career with the RAAF. As an example of the traumatic service that I underwent during my career, a summary of the friends, peers and fellow aircrew that were involved in air crashes and the subsequent loss of life is included at Annex D.
34.I am aware that my ambition to fulfil a full and complete flying career (which may have included service in a commercial airline as a pilot) did not occur.
35.I now live with the fact that many of my peers did accept fulfilling flying careers in commercial airlines and are now in very senior positions within the airline industry.
36.I feel that this adds to my extreme lack of self-confidence and self-worth and my continued feeling of disenchantment and estrangement from my RAAF peers.
37. The applicant said that he thought that his personality changed after his time in India/Pakistan. He said that he became withdrawn and news of aircraft crashes could trigger him to freeze up, feel awful and helpless. He said he had service-related friends but apart from seeing them regularly, he did not like going out and preferred to stay at home. He said that he had enjoyed working with his brother and son to set up a successful theme park when he left the RAAF but now only worked there for a few hours a week, the park being managed by others. He said he could not stand his own employees.
38. The applicant said he was still on the committee of management of Fighter World (“FW”), an organisation at Williamtown akin to a museum of aircraft that also put on displays including flying. He said he only attended meetings twice a year where he sat in to advise, mainly in respect of generating tourist activity because of his experience in this industry. He agreed he had been involved in FW from “the word go”.
CONSIDERATION
39. The initial task before us is to determine the correct diagnoses of the applicant’s claimed conditions and the date of clinical onset of each diagnosed condition.
40. In Benjamin v Repatriation Commission (2001) 70 ALD 622, the Full Court of the Federal Court determined that the existence of any diseased state is to be determined on the balance of probabilities and that the SoP regime has no bearing on any such determination.
41. The Full Court of the Federal Court, in Gerzina v Repatriation Commission [2004] FCAFC 96 at paragraphs 12 and 13 stated:
[12] In para 11 of its reasons, when the Tribunal said that it “must” consider the evidence using the criterion in DSM-IV, we do not think the Tribunal transposed what was a factual criterion into some legal norm. Immediately prior to para 11 the Tribunal had referred to the decision in Benjamin v Repatriation Commission [2001] FCA 1879 in which the Full Court explained that although the Statements of Principle (“SoPs”) must be used in determining whether or not a disease is war-caused, they are not relevant to the issue of diagnosis of a claimed condition.
[13] In Benjamin the Full Court pointed out (at [41]) that although the relevant SoP condition was in the same terms as DSM-IV it was nevertheless impermissible to use the SoP to determine the question of diagnosis. However, because of the similarity of the definitions in the SoP on the one hand and DSM-IV on the other, the error was of no practical consequence. In that context, therefore, when the Tribunal said that it “must” use DSM-IV it was simply following the Full Court and looking at DSM-IV rather than the SoP.
42. The meaning of “clinical onset” was considered by the Full Court in Lees v Repatriation Commission (2002) 125 FCR 331, where the Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, which concluded (at 670) that “there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present at that time”.
43. That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
44. “Clinical worsening” is not defined in any of the relevant SoPs, however the meaning of that term was addressed by Deputy President McMahon in Re A’Bell and Repatriation (1999) 58 ALD 721. DP McMahon, after consideration of various authorities, made the point that in all cases, “distinctions have been drawn between temporary worsening of symptoms and aggravation as a compensable concept”. Aggravation is not necessarily indicated by a temporary worsening of symptoms with consequential temporary incapacity. The question to be determined is whether the pre-existing condition itself has been worsened. Further, in Repatriation Commission v Milenz (2006) 93 ALD 107 Finn J defines the term “clinical worsening” as the presence of signs and symptoms which would permit a clinician to conclude that the signs and symptoms of the primary condition, as prescribed by the SoP, have been made worse.
Psychiatric condition
45. Turning then to each of the applicant’s claimed conditions, the first question for us is what, if any, is or are the applicant’s psychiatric conditions.
46. The applicant contends that the correct diagnosis for his claimed psychiatric condition is PTSD with associated depressive features and alcohol abuse or dependence. The applicant relies principally on the psychiatric opinion of Dr Dinnen, Consultant Psychiatrist, and on the psychiatric report of Dr Lambeth dated 31 May 2004 (T8). The respondent contends that the applicant suffers from depressive disorder and alcohol dependence; and does not accept that the applicant suffers from PTSD. The respondent relies on the opinion of Dr Robinson, Consultant Psychiatrist.
47. Dr Dinnen saw the applicant on 3 July 2006 and provided a written report dated 18 July 2006 (Exhibit A4). Dr Dinnen also gave oral evidence.
48. Dr Lambeth saw the applicant on three occasions in late 2003 and mid 2004. He opines that the applicant “suffers from a chronic Post Traumatic Stress Disorder, which arose as a result of and during his service” in PNG in 1972. Dr Lambeth states that “a diagnosis of Major Depression can also be made, which very possibly arose originally along with his Post Traumatic Stress Disorder in New Guinea, but was then very definitely exacerbated (as was his Post Traumatic Stress Disorder)” as a result of his service in India and Pakistan. Dr Lambeth refers only to the Caribou crash in PNG and flying in India and Pakistan in his report. He also states that the applicant would qualify for a diagnosis of alcohol abuse (secondary to his anxiety and depression) based on the applicant’s use of in excess of 90 grams of alcohol per day. Dr Lambeth does not record any history he may have taken in respect of the applicant’s alcohol consumption. Dr Lambeth was not available for examination in respect of his report. Dr Dinnen, in his written report, states that his findings are entirely in accord with Dr Lambeth and that the appropriate diagnosis is chronic PTSD associated with depressive features and alcohol abuse.
49. In respect of stressors Dr Dinnen states at page 7:
It passes my understanding that a layman is expected to determine the nature of a severe stressor, when the whole concept and definition is embedded in the psychiatric definition and description of post traumatic stress disorder in particular. From my experience over many years, I find it difficult to understand how the events described by this patient can be discounted in such a fashion, particularly in the context of the development of a long history of psychiatric disorder as described consistently and credibly by this patient. It is very worth noting that his exposure to at least ten incidents where colleagues lost their lives, as described in this report, would by any stretch of the imagination be considered as severe stressors. One only has to look at the definition in the Statement of Principles to see that denial of this reality is not reasonable.
50. In his oral evidence, Dr Dinnen highlighted the difficulty in arriving at a view about clinical onset of the applicant’s psychiatric condition, but finally expressed the opinion that the clinical onset of the applicant’s PTSD was around the time the applicant saw a GP in Darwin and that his PTSD could be extrapolated back to the time of the Caribou crash.
51. In respect of alcohol consumption, he said that while the applicant was a long term habitual drinker, he did not think his depression arose from his drinking habit. He said that when the applicant developed PTSD, he considered that, at that time the applicant had a component of pathologically driven drinking, his heavy drinking being a clinical sign consistent with the presence of an underlying anxiety-type disorder. Dr Dinnen linked the applicant’s alcohol abuse to his PTSD rather than being an aspect of dependence from the time he joined the RAAF and, in so doing, referred to the applicant saying “I started to drink more heavily, when I started to get nervy, and I’ve kept on that amount ever since”.
52. Dr Robinson saw the applicant on three occasions in April-June 2006 and provided a written report dated 6 July 2006. He also gave evidence by telephone.
53. In his written report, Dr Robinson diagnosed the applicant as suffering from “depression not otherwise specified” and alcohol dependence. Dr Robinson did not make a diagnosis of PTSD on the basis that the applicant’s response to the Caribou crash did “not involve intense fear, helplessness, or horror”. Dr Robinson considered this incident to be the most significant stressor described by the applicant although he took a history of the other incidents (as set out above). Dr Robinson said he agreed with Dr Lambeth’s assessment that the applicant suffers from major depression, but unlike Dr Lambeth, he considered that the alcohol dependence is likely a major factor in the depressive disorder. Dr Robinson noted that the applicant’s excessive drinking commenced prior to the stressful events he describes.
54. In respect of clinical onset of the applicant’s diagnosed conditions Dr Robinson stated that the applicant’s depressive condition appears to have become “clinically significant” only in recent years and that his alcohol dependence developed prior to the Caribou crash in 1972. In answer to questions about clinical worsening, Dr Robinson also highlighted the complexity of answering such questions. In his written report, Dr Robinson noted that the applicant’s psychological symptoms and alcohol consumption have waxed and waned over the years, with particular worsening over the last three years to the point where the applicant sought compensation and medical treatment for his conditions. Dr Robinson was however unclear as to whether the applicant’s worsening conditions were permanent or temporary.
55. In his oral evidence, Dr Robinson affirmed his opinion that the applicant had not experienced traumatic stress, but he met the criteria for alcohol abuse very early in his career with the RAAF, that he now suffers from alcohol dependence and has done so for a very long time. Dr Robinson agreed the applicant had developed a fear of flying but was firmly of the view his depressive disorder arose from his alcohol abuse/dependence.
56. In answer to questions from the Tribunal about stressors, Dr Robinson said he thought the plane crash at Moffat Field and the Caribou crash would meet the definition of “severe psychosocial stressor”, however in respect of flying in India/Pakistan, he said that in his opinion these activities were not severe psychosocial stressors and said “it gets close to it but I don’t think I’d pass that one”.
57. In respect of PTSD, diagnostic criteria are contained in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”). Criterion A states:
A. The person has been exposed to a traumatic event in which both of the following were present:
1. The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to physical integrity of self or others.
2. The person’s response involved intense fear, helplessness or horror.
58. The Tribunal notes that the description in the relevant SoP for PTSD essentially quotes this criterion in describing the condition. The Tribunal also is mindful that the SoP, when it comes to setting out factors that must be related to service, calls for a person to “experience a severe stressor” and in defining that term, essentially uses the same language as criterion A(1) of DSM-IV (the Tribunal notes that the reference to intense fear, helplessness or horror was deleted from the SoP as it stood in 1994, by the relevant SoP referred to above). The meaning of the language of “experiencing a severe stressor” has been addressed at length by the Full Court and hence, given the consistent wording, the Full Court’s views should be taken into account in our assessment of criterion A, as it might apply to the applicant’s claimed stressors.
59. The Full Court’s views on the meaning “experiencing a severe stressor” have been conveniently set out in the respondent’s Statement of Facts and Contentions, as follows:
16. In Stoddart v Repatriation Commission [2003] FCA 334, Mansfield J said that the phrase, ‘that involved actual or threat of death or serious injury’, explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. But, he said, it does not follow that the ‘threat’ must involve events, which judged objectively and with full information, involve an actual threat of death or serious injury. Mansfield J said:
It is consistent with these provisions that the SoPs should be read as meaning that a claimant experiences ‘a severe stressor’ if that person experiences or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person’s knowledge and in that person’s experience, could reasonably be so perceived.
17. He noted that Macquarie Concise Dictionary defined ‘threat’ as ‘an indication of probable evil to come; something that gives indication of causing evil or harm.’ And said that this ‘accommodates … a state of affairs which could reasonably be understood by a normal person in the position of the applicant as exposing that person (or others) to a detriment.’ He concluded:
[55] … the language of the definition of ‘experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity.
18. The test provided for in Stoddart is therefore in two parts:
1. would a reasonable person in the position and with the knowledge of the veteran objectively perceive the event relied upon as a threat of death or serious injury or to physical integrity to self or other?
2. if so, did the threat convey that perception to the veteran in the sense that the veteran subjectively experienced that threat?
19. In Woodward v Repatriation Commission [2003] FCAC 160, the Full Federal Court endorsed Manfield J’s analysis of the ‘experiencing a severe stressor’ factor, saying, ‘the reasoning of Mansfield J in Stoddart is persuasive and that it should be followed.’ The Court restated the test by saying that the factor would be met if the evidence points to:
… a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, ‘experiencing’ should be construed as having at least this partially subjective connotation.
20. On appeal in the Full Court in Repatriation Commission v Stoddart [2003] FCAFC 300, the Repatriation Commission did not challenge the interpretation given by the Court in Woodward, but argued that Marsfield J’s use of the word ‘risk’ watered down the type of threat required by the SoP especially in light of the examples the SoP mentions. The Full Court rejected that interpretation of Mansfield J’s use of the word ‘risk’, and said:
Given the context in which the word ‘risk’ was used – i.e. in a protracted discussion of what constitutes a ‘severe stressor’ – it is apparent that his Honour intended no dilution of what the term ‘threat’ conveyed in the definition of each SoP and the gravity of the perceived risk was to be understood accordingly. To suggest that he did otherwise is to divorce the language used from its context.
21. Thus the Full Court rejected the view that the type of risk involved merely exposing a person to ‘detriment’. It requires exposing the person to what that person perceived as a threat of death or serious injury.
60. We have considered all of the stressors claimed by the applicant.
61. There is no evidence before us that the applicant’s response to the Caribou crash involved intense fear, helplessness or horror. Likewise his response to the various crashes and fatalities that he knew about did not cause him intense fear, helplessness or horror. We are satisfied that these stressors do not meet criterion A(2) of DSM-IV-PTSD.
62. In respect of the applicant’s hazardous flying missions in India and Pakistan, we accept that the missions he described in his affidavit constitute “an event”, and that he claims to have been terrified when carrying out the missions. His evidence on this point was not challenged or tested and we accept that his subjective response to these “events” satisfies criterion A(2) of DSM-IV.
63. This then leaves us with the question as to whether the “events” involved actual or threatened death or serious injury, or a threat to the physical integrity of self and others. In considering this question, we are mindful that the “events”, were part and parcel of the routine duties expected of RAAF pilots at UNMOGIP; where at the time the applicant was flying in India/Pakistan there were three pilots undertaking those duties; that UNMOGIP activities such as those described by the applicant had been conducted for sometime and there was no record of any crashes or fatalities as a result of such operations.
64. We accept that the “events”, were hazardous and that routine events may reasonably give rise to a perceived threat, however, taking into account all of the material before us and the submissions of both parties, and applying the Federal Court’s determinations as set out above, on balance, we are not reasonably satisfied that any of the “events” described by the applicant meet the requirements of DSM-IV A(1).
65. That being so we prefer the opinion of Dr Robinson that the applicant does not suffer from PTSD.
66. In respect of depressive disorder, clearly all the specialist medical reports before us support such a diagnosis and we are reasonably satisfied that the applicant suffers from this condition. Determining clinical onset of this condition poses some difficulties. Dr Lambeth opines that it very possibly arose originally (along with PTSD) in PNG in 1972. Dr Dinnen also associates his depressive features with the onset of PTSD which, in his oral evidence he dates from about 1972. Dr Robinson, on the other hand, dates the clinical onset of this condition to recent years, although he has noted that the applicant’s condition has waxed and waned over the years.
67. On balance, we prefer the opinions of Dr Lambeth and Dr Dinnen and accept that the applicant’s depressive disorder had a clinical onset in 1972. Further, we observe that there is material pointing to a clinical worsening of this condition during his service in India and Pakistan as evidenced by his increased fear of flying, the occurrence of nightmares of “going backwards down a mountain”, feeling terrified and becoming withdrawn, as well as being worried about his future. We also note the opinion of Dr Dinnen given in his oral evidence in this regard.
Alcohol abuse or alcohol dependence
68. Turning then to the applicant’s consumption of alcohol, Dr Lambeth diagnoses alcohol abuse (secondary to his PTSD and depression). However, Dr Lambeth does not explain how he arrived at this opinion nor does he record any history of the applicant’s alcohol consumption in his report. We are of the view that Dr Lambeth’s opinion should be given little weight in the consideration of this issue.
69. We have carefully considered the applicant’s evidence about his alcohol consumption and the opinions of Dr Dinnen and Dr Robinson. Dr Dinnen has diagnosed alcohol abuse and linked the applicant’s drinking to his PTSD and drinking more heavily when “I started to get nervy”. Dr Robinson has diagnosed alcohol dependence, based on the history he has taken of the applicant’s consumption of alcohol. We are of the view that Dr Robinson’s assessment of the applicant’s alcohol abuse and/or dependence is more consistent with the evidence the applicant gave to the Tribunal than is the assessment of Dr Dinnen. We prefer Dr Robinson’s opinion that the applicant has suffered from alcohol dependence from the late 1960s and that this condition, while temporarily waxing and waning, has essentially remained the same ever since. We are satisfied the applicant’s alcohol dependence has not clinically worsened since clinical onset in the late 1960s.
Gout
70. The applicant said he thought his gout-like symptoms started in the late 1970s with a recurrence of symptoms a few times a year from then on, more so in the last four to five years. Professor Sambrook, Professor of Rheumatology, confirms a diagnosis of gout with a clinical onset in September 1972 (Exhibit R2). In respect of clinical worsening, Professor Sambrook noted that the applicant’s GP, Dr Kuchta commenced medication for the applicant’s gout in 2004 on the basis of more frequent attacks and Professor Sambrook accepted that this constituted clinical worsening of the applicant’s gout.
71. We accept the opinion of Professor Sambrook and are satisfied that the applicant suffers from gout, with a clinical onset of September 1972 and a clinical worsening of this condition in 2004.
Hypertension
72. The medical opinions before the Tribunal are that the applicant suffers from hypertension (Exhibits A3 and R5 and T4 p. 33), with a clinical onset of 1986, and there being no dispute between the parties about these opinions, the Tribunal so finds.
Erectile Dysfunction
73. The applicant’s GP is of the view that the applicant suffers from impotence with a clinical onset in 1996 (T6 p. 74 and 84). Dr Butler, consultant physician, records the applicant’s erectile dysfunction has become a problem since about 1994 however he does not give a clinical onset date. The respondent accepts the applicant has a clinical onset of erectile dysfunction in 1996. The applicant contends that the clinical onset was some time before 1998, about 1995 to 1998. On the material before us we are satisfied that the applicant suffers from erectile dysfunction with a clinical onset in 1996.
Are the conditions Suffered by the applicant defence-caused?
74. We must now determine whether the applicant’s diagnosed conditions are defence-caused.
75. In respect of the applicant’s peacekeeping service, the method in which subsection 120(2), 120(3) and 120A(3) are to be applied was explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82, as follows (pages 97-98):
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
76. In respect to the applicant’s service, other than peacekeeping service, we must form an opinion whether a contention raised by the applicant fits within, or is consistent with, the factors set out in the SOP. If the contention fails to fit within the template, the claim will fail.
Psychiatric Condition
77. We have determined that the applicant does not suffer from PTSD and therefore any contention or hypothesis in respect to this condition being service-related is not tenable.
78. We have determined that the applicant suffers from depressive disorder.
79. The applicant’s contention/hypothesis is that the applicant’s depressive disorder is causally related to one or more stressors suffered during his service.
80. The applicant relies on satisfying the relevant SoP because he suffered a “severe psychosocial stressor or stressors”.
81. The definition of “severe psychosocial stressor” is the same in both of the relevant SoPs, namely, “severe psychosocial stressor” means “an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
82. The respondent contends that none of the stressors claimed by the applicant satisfies the definition of “severe psychosocial stressor”, and in any event, apart from the India/Pakistan missions the other stressors did not occur during the applicant’s defence service.
83. In respect of the definition of “severe psychosocial stressor” the respondent has submitted:
22.In White v Repatriation Commission [2004] FCA 633 the Court considered the definition of ‘severe psychological stressor’ in the anxiety disorder SoP and said:
[30] In my judgment, the definition of severe psychological [sic] stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.
23.In White’s case, the AAT had found that the events relied upon, namely, the veteran becoming embarrassed over his failure to clear a jammed door of a landing craft and feeling vibrations against the hull of his landing craft, which he learnt later were from a scare charge, did not meet the objective requirements of an identifiable occurrence of the requisite nature. On appeal, the Court rejected an argument that any event that, in fact, evokes feelings of substantial distress in a person satisfies the definition of ‘severe psychosocial stressor’. The Court said that such a submission would mean that the examples given in the SoP would ‘not only be irrelevant and devoid of utility, but positively misleading’. Thus it is the task of the Tribunal to determine, based on its view of the evidence and the examples given in the SoP, whether the event relied upon was objectively, in the view of a reasonable person with the veteran’s understanding, of the required severity.
84. In respect of the applicant’s eligible defence service the applicant relies on factor 5(a) in the relevant SoP, namely:
5. The factors that must exist before it can be said that, on the balance of
probabilities, depressive disorder or death from depressive disorder
is connected with the circumstances of a person’s relevant service are:
(a) experiencing a severe psychosocial stressor or stressors within the
one year immediately before the clinical onset of depressive
disorder;…
85. In respect of the applicant’s peacekeeping service the applicant relies on factor 5(b)of the relevant SoP, namely,
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting depressive disorder or
death from depressive disorder with the circumstances of a person’s
relevant service are:
…
(b) experiencing a severe psychosocial stressor or stressors within the
two years immediately before the clinical onset of depressive
disorder; …
We have determined that the applicant’s depressive disorder had a clinical onset in 1972. Clearly the onset of the applicant’s condition is not connected with his peacekeeping service.
86. In respect of eligible defence service we are satisfied that the applicant’s condition does not fit within the template of the relevant SoP.
87. In respect of the applicant’s peacekeeping service, after considering all of the material before us, we are of the view that the material does not point to a hypothesis connecting the clinical onset of the applicant’s depressive disorder with the circumstances of his service.
88. This then leaves open the question whether the applicant, having contracted depressive disorder before his relevant service, suffered a clinical worsening of his condition during his relevant service because of a material contribution or aggravation caused by a severe psychosocial stressor or stressors before the clinical worsening. The only claimed stressors during the relevant period were the missions he flew in India and Pakistan.
89. We have already nominated material that points to the applicant suffering a clinical worsening of his depressive disorder during his peacekeeping service, with such symptomology continuing thereafter, albeit in varying degrees of severity over time.
90. We note that we must apply section 120A(3) of the Act as explained in Deledio (supra).
91. On all the material before us we are satisfied that the material points to a hypothesis connecting the applicant’s clinical worsening of depressive disorder with his particular service, namely, that the applicant experienced a severe psychosocial stressor within the two years immediately before the clinical worsening of his condition.
92. We note that the latest SoP for depressive disorder is Instrument No. 17 of 2007 and the SoP in force at the time of the original decision of the Commission is Instrument No. 58 of 1998. We accept both parties’ submissions that the 1998 SoP is more beneficial to the applicant and should be applied in this case. In so doing, while mindful that initial assessment against the current SoP is correct procedure, the preferred option was adopted in the face of almost all of the written psychiatric opinion having addressed the earlier SoP.
93. We now turn to the third step as enunciated in Deledio. We must determine whether the relevant hypothesis complies with factor 5(f) of Instrument No. 58 of 1998, namely, the applicant experienced “a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder”. We are required to consider all of the material before us but without making findings of fact at this stage of the process.
94. We have already addressed the meaning of “severe psychosocial stressor”.
95. The opinions of Dr Lambeth and Dr Dinnen clearly point to the applicant suffering a stressor during his India/Pakistan service. We have already noted that there is material pointing to the applicant suffering a clinical worsening of his depressive disorder during his period of peacekeeping service. We therefore consider the hypothesis raised by the material before us is consistent with factor 5(f) of the SoP and so by virtue of subsection 120A(3) of the Act, the hypothesis connecting the applicant’s depressive disorder with the circumstances of his peacekeeping service is reasonable.
96. We now turn to the fourth stage of the process set out in Deledio. We are required to make findings of fact from the material before us, in accordance with the provisions of subsection 120(2) of the Act, to the effect that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s depressive disorder was defence-caused. We note that there is no onus of proof (section 120(6) of the Act) and following Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
97. We have no doubt that the flying conditions in India and Pakistan, which the applicant faced on a regular basis could at times be extremely hazardous and stressful and this was supported by Dr Dinnen in his oral evidence. There is no objective evidence before the Tribunal that the nature of the flying missions in India/Pakistan, at times when flying was extremely hazardous, were other than of the required severity to be considered capable of evoking feelings of substantial distress. Clearly the applicant’s uncontroverted evidence is that he was terrified.
98. We find that the applicant’s evidence about his flying missions in India/Pakistan and his resulting feelings of substantial distress have not been disproved beyond reasonable doubt and, we also find that there are no other facts which are inconsistent with the hypothesis, which have been proved beyond reasonable doubt.
99. For the above reasons, we are not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition of depressive disorder was defence-caused. We must accordingly determine by virtue of subsection 120(2) of the Act that the applicant suffers from defence-caused depressive disorder.
Alcohol abuse or alcohol dependence
100. Turning then to the applicant’s claim for alcohol abuse or dependence.
101. We have already determined that the applicant suffers from alcohol dependence and has done so since the 1960s.
102. The applicant’s contention is that he suffers from alcohol dependence because of a severe stressor suffered during his relevant service.
103. In respect of the applicant’s eligible defence service the applicant relies on factor 5(b) of the relevant SoP, namely, “experiencing a severe stressor within one year immediately before the clinical onset of alcohol dependence”.
104. We have already determined that the applicant’s condition has a clinical onset of the late 1960s. As such, the onset of the applicant’s condition is not connected with his eligible defence service (or, for that matter, his peacekeeping service) where the severe stressor must be experienced within two years immediately before clinical onset.
105. We are satisfied that the applicant’s contention does not fit within the template of the relevant SoP for eligible defence service. Further, we are satisfied that the material before us does not point to a hypothesis connecting the clinical onset of the applicant’s alcohol dependence with the circumstances of his service.
106. The question of clinical worsening arose during proceedings of this matter, however, having considered all the material in this matter, and in particular the evidence of the applicant, we note that there is no material pointing to a clinical worsening of the applicant’s alcohol dependence and therefore any contention or hypothesis that relies on clinical worsening is not tenable.
107. We have considered the other factors listed in the relevant SoPs and are satisfied that there are no other factors which would be of assistance to the applicant.
108. We are satisfied that the applicant does not suffer from service-related alcohol abuse or alcohol dependence.
Hypertension
109. In respect of hypertension the applicant contends that there is a causal relationship between the applicant’s hypertension and his alcohol consumption.
110. In respect of eligible defence service the applicant relies on factor 5(b) of Instrument No. 36 of 2003, namely, “consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week, at the time of the clinical onset of hypertension”.
111. In respect of peacekeeping service the applicant relies on factor 5(b) of Instrument No. 35 of 2003 which is of the same construction as the above factor, except the quantity is 200 grams per week.
112. For either of these factors to apply the applicant’s drinking must be service-related. We have already determined that the applicant’s alcohol dependence is not service-related and, hence, any contention or hypothesis connecting his hypertension through alcohol consumption is not tenable.
113. In the alternative the applicant contends that he meets factor 5(o) of Instrument No. 35 of 2003, namely, “suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension”.
114. We have determined that the clinical onset of the applicant’s hypertension was in 1986 and at that time he was suffering from defence-caused depressive disorder.
115. It follows from this that the hypothesis connecting the applicant’s hypertension with his peacekeeping service is reasonable and there being no disproof beyond reasonable doubt of the necessary facts; or truth of a fact inconsistent with the hypothesis, we are not satisfied beyond reasonable doubt that there is no sufficient ground for determining the applicant’s hypertension is defence-caused.
Gout
116. The applicant’s contention was that he suffered a clinical worsening of gout in 2004 and that the applicant’s consumption of alcohol materially contributed to, or aggravated, his pre-existing gout.
117. We have already determined the applicant’s gout had a clinical onset prior to eligible defence service. The applicant relies on factor 5(n), namely, “drinking at least 150kg [or 220kg for eligible defence service] of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical worsening of gout”.
118. We have found that the applicant does not suffer from defence-caused alcohol dependence or abuse and we are satisfied on all of the material before us that his alcohol consumption is not service-related and that any contention or hypothesis connecting the applicant’s gout with defence service-caused alcohol consumption is not tenable.
119. We have considered all of the factors of the relevant SoPs and are satisfied that none of these factors have any application.
120. We are satisfied the applicant does not suffer from defence-caused gout.
Erectile Dysfunction
121. It is common ground between the parties that if the applicant satisfies the Tribunal that he suffers from defence-caused hypertension he meets factor 5(c) of the current relevant SoP and his erectile dysfunction must be taken to be defence-caused.
122. Factor 5(c) states: “the presence of hypertension at the time of the clinical onset of erectile dysfunction”.
123. The Tribunal has determined that the applicant suffers from defence-caused hypertension and on all of the material before us we are not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition of erectile dysfunction is defence-caused.
DECISION
124. For the reasons given above the Tribunal sets aside the decision under review and;
(c)In place of that decision determines:
i.That the applicant’s conditions of depressive disorder, hypertension and erectile dysfunction are defence-caused with effect from 1 January 2004;
ii.That the applicant’s condition of rupture of the left Achilles tendon is defence-caused with effect from 1 January 2004;
iii.That the applicant does not suffer from post traumatic stress disorder; and
iv.That the applicant’s claimed conditions of alcohol abuse or alcohol dependence, gout, benign positional vertigo and recurrent seborrhoeic dermatitis are not service related.
(d)Remits the matter to the Repatriation Commission for reassessment of the applicant’s entitlement to pension in accordance with these reasons for decision.
I certify that the 124 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member and Mr I R Way, Member
Signed: .................[sgd]...............................................................
AssociateDates of Hearing 14 and 15 June 2007
Date of Decision 6 August 2007
Counsel for the Applicant Ms E Wood
Solicitor for the Applicant Ms A Toliopoulos, Veterans’ Advocacy
Service, Legal Aid
Solicitor for the Respondent Mr N Bunn, Department of Veterans’ Affairs
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