Carroll and Repatriation Commission

[2001] AATA 439

DECISION AND REASONS FOR DECISION [2001] AATA 439

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q98/741

VETERANS' APPEALS  DIVISION       )       
           Re      WILLIAM LESLIE CARROLL     
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member Dr KP Kennedy, Member  

Date23 May 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision of the Repatriation Commission dated 9 December 1997 insofar as it relates to bilateral sensori-neural hearing loss and chronic airway obstruction and in substitution therefor determines that these conditions are war-caused.  The question of assessment is remitted to the respondent.  In all other respects the decision under review is affirmed. 

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
VETERANS' AFFAIRS – whether psychoactive substance abuse and post traumatic stress disorder were war-caused – whether the applicant experienced a sufficient stressor.
Veterans' Entitlements Act 1986

REASONS FOR DECISION

23 May 2001 Deputy President DP Breen, Presidential Member Brigadier IRW Brumfield, Member Dr KP Kennedy, Member              

1. This was a review of a decision of the Repatriation Commission dated 9 December 1997 which determined that the conditions of post traumatic stress disorder, psychoactive substance abuse or dependence, bilateral sensori-neural hearing loss and chronic airway obstruction and generalised anxiety disorder were not war-caused.  That decision was affirmed by the Veterans' Review Board on 12 June 1998.

2. The matter was heard by the Tribunal as constituted above in Brisbane on 2 February 2001.  The applicant, William Leslie Carroll, was represented by Mr A Harding of Counsel, instructed by Messrs Gilshenan and Luton, and the respondent Commission was represented by Mr B Williams, Departmental Advocate.

3. At the commencement of the hearing, the respondent conceded the conditions of bilateral sensori-neural hearing loss and chronic airway obstruction.  The Tribunal proceeded to consider the remaining conditions.

4. Oral evidence was received from the applicant, William Leslie Carroll, Margaret Wilcox Carroll, the applicant's wife, and Doctors Jonathan Hargreaves and William Kingswell.

5. The following documents were also taken into evidence.

• Exhibit 1            "T" Documents

• Exhibit A2          Statement of William Leslie Carroll dated 12.2.99

• Exhibit A3          Statement of William Leslie Carroll dated 7.7.99

• Exhibit A4          Statement of William Leslie Carroll dated 13.11.00

• Exhibit R5         Report of Dr W Kingswell dated 28.3.00

• Exhibit R6         Department of Defence Report dated 27.4.99 and attachments

1. Written submissions were received from the applicant on 28 February 2001 and from the respondent on 7 March 2001.

2. Mr Carroll served in the Royal Australian Navy from 21 October 1960 to 20 October 1969.  He has the following periods of operational service:

• 15 March 1966 to 30 April 1966         -          Far East Strategic Reserve

• 10 June 1966 to 13 June 1966           -          Far East Strategic Reserve

• 1 July 1966 to 26 July 1967                -          Far East Strategic Reserve

• 27 January 1963 to 6 February 1963 -          Vietnam

• 5 June 1966 to 10 June 1966             -          Vietnam

1. The applicant gave evidence that he began drinking in Recruiting School and continued whilst in the Navy.  He said that his alcohol intake while in the Navy was 8 to 10 schooners of beer a day, four to five days a week.  His current alcohol intake is 10 to 12 schooners of mid-strength beer a day.

2. The applicant also related a number of stressful events which occurred during his service.  He said that on one occasion in Vietnam he had been sent ashore after dark to find a sailor who had not returned from day leave.  He said that he was terrified walking around trying to find the sailor as the Vietcong were known to be around that area during the night.

3. The applicant recalled an incident in early 1963 when a bar was blown up in Saigon.  He said this made him and other sailors wary of going on shore for leave when in that port.

4. In 1966 the applicant was involved in patrolling the waters off Borneo for a month.  He said he was required to check boats for communists and this created a great deal of apprehension as he never knew whether he was approaching a boat full of communists who would fire at him.

5. The Tribunal accepts the applicant as a reliable and honest witness.  While some of the incidents remembered by the applicant were not recorded in the ship's log, this is not sufficient evidence to prove that the events did not occur.

6. The applicant gave evidence that he currently suffers from bad dreams relating to his war experiences and finds it difficult to sleep.  He also gets very irritable and has a short temper.  The applicant also has some memory loss which Dr Thompson considered was related to his alcohol abuse.  When working, the applicant found it difficult to concentrate, would have run-ins with other staff and felt very anxious about his ability to cope with the work.

7. For a disease to be considered service-related, it must satisfy the relevant Statement of Principles (SOP).  In this case the relevant SOP for post traumatic stress disorder is No. 15 of 1994 as amended by No. 225 of 1995, the SOP for psychoactive substance abuse or dependence is No. 5 of 1994 and the SOP for generalised anxiety disorder is No. 48 of 1994.

8. To satisfy the SOP with respect to psychoactive substance abuse or dependence, the applicant must show that he experienced a "stressful event" prior to the onset of his alcohol abuse.  A "stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress and where there were subjective symptoms of increased stress.

9. To satisfy the SOP with respect to post traumatic stress disorder, the applicant must show that he experienced a stressor prior to the onset of post traumatic stress disorder.  A person will have "experienced a stressor" if:

(a)the person experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat to the person's or other people's physical integrity; and

(b)the person's response to that event involved intense fear, helplessness or horror.

1. To satisfy the SOP for generalised anxiety disorder, the applicant must have experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder.

2. No diagnosis of generalised anxiety disorder has been made by any of the doctors and this illness was not pursued by the applicant in written submissions.  The Tribunal is of the view that the applicant does not suffer from this condition.

3. With respect to psychoactive substance abuse or dependence, Dr Hargreaves, Dr Thompson and Dr Kingswell all accept that the applicant does suffer from this illness.  Dr Kingswell, however, doubts that there is a sufficient stressor to link the alcohol abuse to the applicant's service.

4. In 1997 Dr Hargreaves made a diagnosis of post traumatic stress disorder and was of the view that this condition was service-related.  Dr Hargreaves set out in the report the symptoms reported by the applicant and his wife, many of which fit the criteria for post traumatic stress disorder.

5. Dr Kingswell reviewed the applicant on 15 March 2000.  He recorded that Mr Carroll is active at his local RSL and plays lawn bowls there.  He has recently begun marching in ANZAC Day parades and took an interest in Australia's involvement in East Timor.  For the most part, Mr Carroll reported fairly good family interactions.  The descriptions of significant events during service provided by Mr Carroll merely detailed reasonable apprehension or fear for short periods of time whilst on operational service.  Dr Kingswell was of the view that the applicant did not suffer from post traumatic stress disorder as he had not experienced a significant stressor.

6. Dr Kingswell was of the opinion that the applicant had not suffered a severe stressor and therefore did not suffer from post traumatic stress disorder.

7. It is the Tribunal's finding that none of the events described by Mr Carroll, either to the Tribunal or to the psychiatrists constitute severe stressors for the purpose of the relevant SOPs.  In all cases Mr Carroll described symptoms of increased apprehension which is normal for persons living in a war zone.

8. The SOPs require something more than the general level of apprehension felt by soldiers who are in a war zone and events other than the day-to-day occurrences.  Mr  Carroll did not describe an event of any particular significance which directly imperilled his life or the lives of those near him.  Nor did he describe feeling any intense fear or significant stress from the events.  His evidence that he was "terrified" for 15 minutes while looking for a fellow soldier, but that nothing actually happened to him during that time, is an event insufficient to create a life-long psychological disorder.

9. Therefore, it is the Tribunal's view that the SOPs are not satisfied and that psychoactive substance abuse and post traumatic stress disorder (if the applicant does actually suffer from this) are not war-caused conditions.

10. The Tribunal gives effect to the agreement between the parties by setting aside the decision under review insofar as it relates to bilateral sensori-neural hearing loss and chronic airway obstruction and in substitution therefor determines that those conditions are war-caused.  The question of assessment is remitted to the respondent.  The Tribunal affirms the decision under review in all other respects.

    I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member, Brigadier IRW Brumfield, Member and Dr KP Kennedy, Member

    Signed:         Emma Oettinger
      Associate

    Date/s of Hearing  2.2.01
    Date of Decision  23.5.01
    Counsel for the Applicant        Mr A Harding
    Solicitor for the Applicant         Messrs Gilshenan and Luton
    Solicitor for the Respondent    Mr B Williams, Departmental Advocate