Cavanagh and Repatriation Commission
[2013] AATA 876
•9 December 2013
[2013] AATA 876
Division VETERANS' APPEALS DIVISION File Number
2013/1746
Re
Jeanette Cavanagh
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 9 December 2013 Place Brisbane The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Royal Australian Navy – Kind of death – Death from ischaemic heart disease – Statements of Principles concerning posttraumatic stress disorder, hypertension and ischaemic heart disease – Clinical onset – Reasonable hypotheses of relationship to service raised – Evidence of facts inconsistent with the hypotheses – Satisfied beyond reasonable doubt that death not war-caused – Defence service with Royal Australian Navy – Kind of death – Death from ischaemic heart disease – Statements of Principles concerning posttraumatic stress disorder, hypertension and ischaemic heart disease – Clinical onset – Reasonably satisfied that death not related to defence service – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 68, 69, 70, 120, 120A, 120B
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
O’Dowd v Repatriation Commission [2013] FCA 991
Re Hughes and Repatriation Commission [2013] AATA 238
Re Onorato and Repatriation Commission [2012] AATA 759
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Smith (1987) 15 FLR 327Repatriation Commission v Warren (2007) 95 ALD 606
SECONDARY MATERIALS
Statements of Principles concerning posttraumatic stress disorder No. 5 of 2008, No. 6 of 2008
Statements of Principles concerning hypertension No. 35 of 2003, No. 3 of 2004, No. 11 of 2008, No. 63 of 2013, No. 36 of 2003, No. 4 of 2004, No. 12 of 2008 and No. 64 of 2013
Statements of Principles concerning ischaemic heart disease No. 89 of 2007, No. 43 of 2009, No. 96 of 2010, No. 125 of 2011, No. 90 of 2007, No. 44 of 2009, No. 97 of 2010, No. 126 of 2011
The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000
REASONS FOR DECISION
Mr R G Kenny, Senior Member
9 December 2013
BACKGROUND
Monte Cavanagh (“the veteran”) died on 20 September 2011 at the age of 61 years. Jeanette Cavanagh (“the applicant”) is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 23 November 2011, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act or defence-caused in accordance with s 70 of the Act. Her claim was rejected by the Repatriation Commission on 12 April 2012 and by the Veterans’ Review Board on
5 March 2013.
SERVICE
The veteran served in the Royal Australian Navy (“the RAN”) from 5 January 1966 until 4 January 1986. He rendered eligible war service in the form of operational service in accordance with s 6C and s 7 of the Act on HMAS Sydney (“the Sydney”) from
24 November 1971 until 17 December 1971, from 14 February 1972 until 9 March 1972 and from 1 November 1972 until 30 November 1972. He also rendered eligible service in the form of defence service, in accordance with s 68 and s 69 of the Act, from
7 December 1972 until his discharge.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(1) Subject to this section… for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
In order for the death of a veteran to be accepted as being defence-caused, one of the requirements in s 70 of the Act must be met. Relevant in this matter is s 70(5)(a) of the Act which reads:
(5) For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence‑caused … if:
(a) the death … arose out of, or was attributable to, any defence service, … of the member;
In respect of operational service, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 (3) In applying subsection (1) or (2) in respect of … the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) …
(b) …
(c) that the death was war-caused …;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person ...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
For defence service, the standard of proof applicable to the determination is set out in
s 120(4) of the Act which reads:
(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.
That provision imports the civil standard of proof so that matters must be determined on the balance of probabilities.[1] The application of that provision is affected by the terms of s 120B(3) of the Act which reads:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that …. the death of a person was … defence‑caused only if:
(a) the material before the Commission raises a connection between the … 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 … death of the person is, on the balance of probabilities, connected with that service.
[1] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
KIND OF DEATH
Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the decision-maker’s reasonable satisfaction.[2] The veteran’s death certificate was completed by his treating doctor, Dr Charles Chin. He certified the cause of death and the duration of relevant illnesses to be:[3]
1(a) sudden death
(b) ischaemic heart disease (11 years)
(c) hypertension (11 years)
(d) renal impairment (3years)
2 hypercholesterolaemia (3years)
[2] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 per Moore, Emmett and Allsop JJ; and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
[3] Exhibit 1, T-Document 4, p. 39.
Dr Chin completed a report on 18 November 2013, advising that the veteran’s death was not a “sudden unexplained death” but, rather, one associated with coronary artery disease and hypertension. I am satisfied that the kind of death in this matter was that associated with ischaemic heart disease. Mr Bruce Williams, for the respondent, and Mr Bob Richards, for the applicant, agreed with that conclusion.
SUBMISSIONS AND ISSUE
In relation to war-caused death, Mr Richards submitted that there were five hypotheses for consideration. These are set out below.[4] They relate to the veteran’s smoking and alcohol consumption as well as a stressful event which resulted in posttraumatic stress disorder, leading to hypertension then to death from ischaemic heart disease.
Mr Richards referred to the Tribunal decision in Re Onorato and Repatriation Commission[5] and Re Hughes and Repatriation Commission.[6] In relation to defence-caused death, Mr Richards submitted that this was from ischaemic heart disease which was attributable to posttraumatic stress disorder caused by an event on defence service; or to service-related smoking; or to hypertension which was caused by service-related alcohol consumption.
[4] See Para 55 (below).
[5] [2012] AATA 759.
[6] [2013] AATA 238.
Mr Richards submitted that the first of the events was the veteran’s involvement, while on the Sydney en route to Vietnam in 1972, in the rescue of a crew member, Mr Palmer, from the ship’s boiler room after Mr Palmer had been burnt by steam (“the Palmer event”). The second event occurred following the suicide of another sailor who was well known to the veteran, Mr Linnane. The veteran was involved in removing furniture from Mr Linnane’s house in which he died. When shifting cushions in a lounge chair, he came into contact with human tissue from Mr Linnane’s body (“the Linnane event”).
Mr Richards submitted that, on the basis of the Palmer event, the veteran’s death was war-caused. Alternatively, he submitted that, on the basis of the Linnane event, the veteran’s death was defence-caused. He submitted that the decision under review should be set aside and that the date of effect was 21 September 2011, the day after the veteran’s death.
Mr Williams submitted that the events did not satisfy the requirements of causation to link the veteran’s posttraumatic stress disorder with service as would be required in three of the hypotheses advanced by Mr Richards. He also submitted that there was no evidence to support a relationship between the veteran’s service and his alcohol consumption or his smoking. Accordingly, he submitted that the decision under review ought be affirmed.
The issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service or defence service rendered by him.
EVIDENCE
The two events
The veteran completed an 11 page document which he entitled “Monte Cavanaughs Naval Career”.[7] It is of assistance in understanding aspects of his life and RAN service. Therein, he detailed many aspects of his service including his early training years and his various postings, some of long duration such as a tour for nine months in 1975.
He described purchasing a packet of cigarettes immediately on joining the RAN and being involved in “over the fence grog runs for a dozen cans of beer for twelve blokes” while in training. He recalled an “open beer issue” associated with the work he was doing at age 17 and described as “fun” the driving of an RAN truck through Sydney in peak hour traffic after many hours in a hotel, noting that there were “no RBTs”[8] at that time. He described an injury when he was “cut to pieces” after walking into a glass window in Brisbane where he was involved in recruitment. He referred to the dangers of working with steam boilers, noting a “couple of incidents that play on the mind occasionally” and a “steam line blow out, caused by old age, causing injuries to stokers that were on watch at the time”. He also mentioned the suicide of a fellow sailor which “was not a pleasant time” in his life. No specific reference is made in that statement to Mr Palmer or
Mr Linnane.
[7] Exhibit 7.
[8] The term is understood to mean “random breath testing”.
The most detailed account of the Linnane event was recorded by psychiatrist, Dr Bruce Lawford, who saw the veteran on one occasion which resulted in a report dated 29 March 2011.[9] He wrote that the veteran had befriended a young sailor known as “Boots” Linnane who served on the Sydney from 1973.[10] In 1975 or 1976, Mr Linnane was in charge of a group of young sailors, all of whom indulged in a drinking session after lunch on a particular day. Apparently, on a dare from Mr Linnane, one of the sailors in a state of some inebriation, drove an RAN vehicle into a dam. On learning of this, the veteran was forced to discipline Mr Linnane and advised him that the matter would be reported to superiors. After returning to his home which was on an RAN base, Mr Linnane shot himself in the head and died. On learning of this, the veteran felt badly about the events of the afternoon. Some weeks after Mr Linnane’s funeral and after the cleaning of the scene in the house where Mr Linnane died, the veteran was in a group which was to recover the furniture in the house. This was to be sold and proceeds of sale were to be given to Mr Linnane’s widow. In carrying out that task, the veteran came into contact with some of Mr Linnane’s human tissue which was under a lounge cushion. Dr Lawford recorded that the veteran had been horrified at that time.
[9] Exhibit 1, T-Document 4, pp. 83-89.
[10] In his evidence he accepted that the reference could be to 1972. An inconsistency in the report is Dr Lawford’s reference to the veteran meeting Mr Linnane in 1975.
Dr Lawford also referred, briefly, to the event involving Mr Palmer. He wrote that the veteran was on the Sydney and had to deal with a situation as it was steaming to Vietnam when Mr Palmer was burnt by superheated steam. Dr Lawford noted that Mr Palmer had to be taken from the ship and was treated ashore for many months.
On 7 June 2013, Brian Moore completed a statement in which he described the incident involving Mr Palmer.[11] This occurred when Mr Moore and the veteran were serving on the Sydney en route to Vietnam in November 1972. He had known the veteran for some years and he, the veteran and Mr Palmer all lived in the same mess on the Sydney.
As a Petty Officer, the veteran was in charge of the boiler room and was on duty when Mr Palmer was working there. Superheated steam, which is invisible and was at approximately 1,200 degrees centigrade, burst from a steam line in the boiler room of the Sydney and severely injured Mr Palmer. The veteran dragged Mr Palmer to safety and assumed responsibility for arranging emergency treatment for him. Mr Moore described the veteran as being “absolutely distressed and horrified” by the event which he believed had effects on him thereafter.
[11] Exhibit 4.
Dr Lawford completed a further report on 5 July 2013 after reading Mr Moore’s account of the injury to Mr Palmer. Dr Lawford’s opinion was that Mr Moore’s account “was identical” to that given to him by the veteran.[12]
[12] Exhibit 3.
The applicant gave evidence and also completed an Alcohol Questionnaire on
7 February 2012 and a statutory declaration on 3 October 2012. These are noted below. She said that the veteran did not speak to her about aspects of his service on the Sydney, including the Palmer event. However, he had related to her the incident concerning the Linnane event.
Smoking
The veteran completed a smoking questionnaire on 1 April 2003 in relation to a claim by him that his ischaemic heart disease was related to his service on the basis of his smoking and alcohol consumption. He wrote that he started smoking on the day of his enlistment and continued at 5 to 7 cigarettes per day because of “peer pressure, accepted standard of behaviour, readily available [and] cheap.” He described the following changes in usage levels:[13]
[13] Exhibit 1, T-Document 4, p. 13.
Date of change New amount smoked Reason for change 1967-69 20 to 30 per day Duty free; peer pressure 1969-71 30 to 40 per day Responsibility of command; peer pressure 1971-85 20 to 30 per day Peer pressure 1985-91 10 to nil Aware of danger to my health
The applicant completed a statutory declaration on 3 October 2012 and gave evidence. She met the veteran in 1969 and they
married in March 1972. She said that the veteran smoked heavily from when she first met him and that he increased his smoking during his years in the RAN particularly in the periods that he was travelling to and from Vietnam. She estimated that he would smoke a carton of cigarettes per week.
She recalled that he tried frequently to cease smoking cigarettes but without success until 1991 before taking up pipe smoking which continued until shortly before his death when he was very ill.
The veteran’s brother-in-law, Tim Wall, completed a statement on 1 November 2011.
Mr Wall was also in the RAN and served with the veteran on various ships and shore establishments. He wrote that the veteran was a heavy cigarette smoker until 1991 and then took up smoking a pipe until his death.[14]
[14] Exhibit 1, T-Document 4, p. 45.
Alcohol
In an Alcohol Questionnaire completed by her on 7 February 2012,[15] the applicant wrote that the veteran had commenced alcohol consumption in 1967 and, because of peer pressure, increased to become a heavy drinker especially after service on the Sydney on 19 August 1973. She also wrote that he increased consumption after their marriage and noted that, from 1973 to 1974, he drank increasingly more heavily as the year progressed. She was unable to explain the reference in her alcohol questionnaire about his commencement in 1967, which was before they met but confirmed that the veteran drank heavily when she first met him. She considered that the request to complete the document was made too soon after the veteran’s death, some 4½ months earlier, and that this may have impacted on the accuracy of the report. She said that the veteran consumed alcohol on a daily basis after leaving the RAN and would have consumed more than 500 grams per week.
[15] Exhibit 1, T-Document 4, pp. 46-48.
Dr Lawford recorded the veteran’s account of his alcohol consumption, stating that he would occasionally drink in a binge pattern especially on ANZAC Day when he became a “total write-off”. The veteran is recorded as advising that, generally speaking, he drank about one or two standard drinks per day.[16] Dr Lawford’s opinion was that the veteran was not suffering from alcohol abuse or alcohol dependence when he saw him.
[16] Exhibit 1, T-Document 4, p. 86.
Medical matters
On 21 June 2013, Dr Chin set out the following history of the veteran’s health concerns:[17]
[17] Exhibit 5.
Active Past History
Inactive Past History
2007 Prostatism
2008 Hypercholesterolaemia
2010 (Ptsd) Posttraumatic Stress Disorder
2000 Hypertension
2000 Ihd (Ischaemic Heart Disease)
2001 Cabg
2001 Right Retroperitoneal Teratoma Excised
2008 Right Hydrocele
2009 Left Cellulitis – Leg
2009 Left Venous Ulcer
2010 Right Hydrocele Repair
20??[18] Chronic Renal Failure
[18] This entry in the report is not legible.
On 9 April 2003, Dr Chin made an assessment of the veteran’s heart condition and described shortness of breath but nil chest pain following the veteran’s coronary artery by-pass operation in 2001.[19] On 15 February 2011, Dr Chin described the years of onset of hypertension and ischaemic heart disease, respectively, as 2000 and 2001.[20]
[19] Exhibit 1, T-Document 4, p. 22.
[20] Exhibit 1, T-Document 4, p. 34.
In a report dated 23 October 2012, Compensation Medical Advisor Dr B Grehan, wrote that the evidence on the veteran’s files supported a clinical onset of ischaemic heart disease in 2000.[21]
[21] Exhibit 1, T-Document 4, p. 80.
The veteran attended the Urology clinic at Greenslopes Hospital in May 2004 where he was seen by Dr David Nicol who completed a report on 6 May 2004. Dr Nicol referred him to Dr Andrew Bofinger, Consultant in Renal Medicine and Hypertension. In his report, dated 11 June 2004, Dr Bofinger noted that the veteran had been treated for hypertension for about 2½ years though he recognised that he may have been hypertensive for longer than that.[22]
[22] Exhibit 1, T-Document 4, p. 60.
Dr Tien, from the same practice as Dr Chin, referred the veteran to Dr Lawford who included part of the referral letter in his report. Dr Tien had described the veteran as having “no symptoms of depression or psychiatric problem”. Dr Lawford noted that
Dr Tien had not been advised by the veteran of such problems but that Dr Tien had suspected some difficulties and had referred him to Dr Lawford, in part because of the applicant’s prompting.
In his first report, Dr Lawford noted that the veteran had received no treatment for his posttraumatic stress disorder partly because of the veteran’s wish to deal with his problems on his own. He considered that the veteran required pharmacotherapy and antidepressant medication. Dr Lawford noted the content of an Emotional and Behavioural Medical Impairment Worksheet and recognised effects on the veteran’s functioning, occupation, domestic situation, social activities and leisure activities.
The veteran advised Dr Lawford that he had “changed” since the incident with
Mr Linnane but did not elucidate on the changes except for difficulty sleeping for the first time in his life and experiencing intrusive thoughts about it. Dr Lawford attributed difficulties with civilian employment, after leaving the RAN, to his condition.
Dr Lawford summarised the information given to him by the veteran as demonstrating no psychological disturbance prior to or during service but as changing with the trauma of seeing part of Mr Linnane’s body after which he reported psychological symptoms.
Dr Lawford identified no other factor that may have affected the veteran’s psychological state apart from surgery to remove a teratoma. He considered that the diagnostic criteria for posttraumatic stress disorder were met with reference to the event involving
Mr Linnane.
Dr Lawford’s second report was prepared after he had seen the statement by Mr Moore concerning the Palmer event. Dr Lawford’s opinion was that that the Palmer event was a stressor sufficient for the development of posttraumatic stress disorder. He reiterated that opinion in his oral evidence, concluding that each of the two events played a role in the development of the veteran’s posttraumatic stress disorder. He considered that the event on the Sydney with Mr Palmer triggered the condition and that the condition was worsened by the event in 1976. Dr Lawford’s opinion was that the veteran had the condition since 1972. He considered that the diagnostic criteria for posttraumatic stress disorder were recognisable in aspects of the veteran conduct from that time. In his evidence, he denied that there was any inconsistency between his two reports.
RAN records
In evidence was an Historical Record of the veteran’s RAN service.[23] It described his successful completion of command tests for respective promotions in 1968, 1969, 1971, 1977 and 1980 as well as course achievements in 1966, 1968, 1970, 1971, 1976, 1977, and 1985. Also noted was a Machinery Watchkeeping Certificate (Steam) in 1973. His posting to the Sydney was stated to be for the period from 18 November 1971 until
19 August 1973.
[23] Exhibit 11.
A Medical/Dental History questionnaire was completed by the veteran on 29 March 1981. Therein, he referred to “high blood pressure” and an entry from a dental officer reads: “possible high Bl pressure – no current treatment”.[24] Also in evidence were the veteran’s discharge medical documents completed in late 1985. His blood pressure is recorded as 135/80. His cardio-vascular system is noted to be “normal” but an entry of “NE” in relation to psychiatric assessment suggests that this was not undertaken.[25]
A radiology report declared that there was “No active cardiac or pulmonary lesion seen”.[26]CONSIDERATION
[24] Exhibit 8.
[25] Exhibit 1, T-Document 4, pp. 2-3.
[26] Exhibit 1, T-Document 4, p. 4.
Clinical Onset
Each of the identified factors in the relevant Statements of Principles listed below requires consideration of the concept of clinical onset. In Kaluza v Repatriation Commission (“Kaluza”),[27] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission,[28] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[27] [2010] FCA 1244.
[28] (2002) 125 FCR 331.
Consideration will be needed in relation to the clinical onset of posttraumatic stress disorder, of hypertension and of ischaemic heart disease as each relates to Mr Richard’s hypotheses, in respect of war service. For the contentions in respect of defence service, the clinical onset will be determined on the basis of reasonable satisfaction.
Defence-caused death
As I understood Mr Richards’ submissions, the following contentions were made by him for attributing the veteran’s death to defence service:
·First contention: the Linnane event caused or worsened posttraumatic stress disorder; which caused ischaemic heart disease; which caused death;
·Second contention: service-related alcohol consumption caused hypertension; which caused ischaemic heart disease; which caused death;
·Third contention: service-related smoking caused ischaemic heart disease; which caused death.
The determination of a relationship between the veteran’s death and defence service requires a consideration of the relevant Statements of Principles for posttraumatic stress disorder, hypertension and ischaemic heart disease. These, with the relevant factors and associated definitions read:
Statement of Principles concerning posttraumatic stress disorder No. 6 of 2008:
Factor 6(a): experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
Factor 6(e): experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder;
"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;Factor 6(b): experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;
Factor 6(f): experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eye witness 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;
Statement of Principles concerning hypertension No. 36 of 2003,[29] as amended by No 4 of 2004 and No. 12 of 2008; and No. 64 of 2013:
[29] As amended by No. 4 of 2004 in a manner unrelated to this matter.
Factor 5(b)[No. 12 of 2008] consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.[30]
[30] As it read at the time of the applicant’s claim.
Factor 5(b) [No. 64 of 2013] consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension.[31] alcohol is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;[32]
[31] As it read since 26 August 2013.
[32] As it read at the time of and since the applicant’s claim, with the only difference being the use of numeral ten in the earlier amendment.
Statement of Principles concerning ischaemic heart disease No. 90 of 2007 as amended by No. 44 of 2009:[33]
[33] As amended by No. 97 of 2010 and No. 126 of 2011 in a manner unrelated to this matter.
Factor 6(a) [No 90 of 2007] having hypertension before the clinical onset of ischaemic heart disease[34]
[34] As it read at the time of and since the applicant’s claim.
Factor 6(h) [No 90 of 2007] where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or
"cigarettes per day or the equivalent thereof in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco;
"pack year of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Factor (ff)(iv) [No 44 of 2009] having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease
a clinically significant anxiety spectrum disorder as specified" means one of the following disorders:
…
(e) posttraumatic stress disorder;
…
that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner
Clinical onset for defence service
I am reasonably satisfied, on the basis of Dr Chin’s evidence, that the clinical onset of hypertension and ischaemic heart disease was 2000 and 2001, respectively.
For posttraumatic stress disorder, Dr Lawford’s first report strongly supports the role of the Linnane event as marking the commencement of the veteran’s posttraumatic stress disorder symptoms. He described the friendship between the veteran and Mr Linnane; noted that the veteran attributed “changes” to himself thereafter including difficulty sleeping for the first time in his life and experiencing intrusive thoughts about the event; and reported psychological symptoms after that event. In that report, Dr Lawford declared that he identified no other factor which may have affected the veteran’s psychological state apart from surgery to remove a teratoma. Specifically, he identified the year 1976 (October or November) as the year of the clinical onset of the condition and, assessing the veteran’s condition against diagnostic criteria for posttraumatic stress disorder, his reference base was the Linnane event.
Dr Lawford devoted more than a page of his report in his description of the Linnane event and its impact on the veteran. It is very detailed. The event involving Mr Palmer occupied some four lines with no reference to the nature of the injuries to him or the role played by the veteran in providing assistance. In his statement, the veteran, himself, appears to have given less significance to the Palmer event than to the Linnane event.
He described boiler incidents involving “stokers” that “play on his mind occasionally” but identified no one. On the other hand, he makes specific reference to the “young bloke” who shot himself though he did not refer to the finding of human tissue.
Dr Lawford’s second report was prepared after he had read Mr Moore’s statement concerning Mr Palmer. Dr Lawford wrote that Mr Moore’s account “was identical” to that given to him by the veteran and he then attributed the veteran’s posttraumatic stress disorder to the Palmer event and its worsening due to the Linnane event.
Despite Dr Lawford’s denial, I am satisfied that his two reports are inconsistent with each other. If the account of Mr Moore was identical to what the veteran reported, it would, surely, have been detailed in the same manner as was the event involving Mr Linnane. Also, if Dr Lawford was aware of the event involving Mr Palmer, Dr Lawford, surely, would not have been able to eliminate, as he did in his first report, any cause other than the Linnane event for the veteran’s posttraumatic stress disorder. Yet, Dr Lawford specifically excluded symptoms before 1976 in which case, the diagnostic criteria for posttraumatic stress disorder could hardly have been met at the time of the Palmer event.
The relevant causal factors in the Statement of Principles concerning posttraumatic stress disorder are set out above. It also sets out the following diagnostic criteria for posttraumatic stress disorder which are derived from DSM-IV-TR (“the Manual”):[35]
[35] DSM-IV-TR which is defined in in cl 9 to mean “the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”.
3(b) For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
In Repatriation Commission v Warren,[36] Kiefel J noted that the Manual explains that there is more to a diagnosis than the application of the criteria in a ‘cookbook’ fashion and said:
A person having symptoms which fall short of meeting the stated criteria may nevertheless be diagnosed as suffering from the condition. DSM-IV refers to the need to exercise clinical judgment, which I take to include the application of experience. In some cases the SoP criteria may not therefore be met.
[36] (2007) 95 ALD 606 at 614 [27]; see also O’Dowd v Repatriation Commission [2013] FCA 991 at [27].
In this matter, Dr Lawford, in his first report, attributed all of the diagnostic criteria (A) to (F) to the Linnane event. Also, in that report, he denied the presence of them prior to that event. While noting her Honour’s comment that posttraumatic stress disorder may be diagnosed without all of the criteria in the Statement of Principles being met, I am satisfied that the absence of criteria B to E render unreliable the diagnosis of posttraumatic stress disorder as being related to the Palmer event especially when they were all attributed to the later Linnane event. As Jacobson J noted in Kaluza,[37] the doctor will say when the clinical onset occurred by the presence of features or symptoms.
Dr Lawford did not record features or symptoms in the veteran before the Linnane event and, on the balance of probabilities, I am satisfied that the clinical onset of any posttraumatic stress disorder from which the veteran suffered was not earlier than the Linnane event in 1976.[37] Supra at para 36 (above).
Relationship to defence service
The event on defence service relied upon by Mr Richards for posttraumatic stress disorder was the Linnane event involving the finding of human tissue. This occurred some weeks after Mr Linnane’s death. He submitted that it was a category 1A stressor. However, I am reasonably satisfied that the Linnane event did not amount to the experiencing of a life-threatening event, or a serious physical attack or being threatened with a weapon, being held captive, being kidnapped, or being tortured. Those are the elements of a category 1A stressor. No other factor was relied on for this condition but, although not relied upon by Mr Richards, I am also reasonably satisfied that the Linnane event did not constitute a category 1B stressor. No relevant factor in the Statement of Principles concerning posttraumatic stress disorder is met and I am reasonably satisfied that any posttraumatic stress disorder from which the veteran suffered was not attributable to his defence service. Mr Richards also submitted that the Linnane event worsened the veteran’s posttraumatic stress disorder. As I have determined that posttraumatic stress disorder did not pre-date the Linnane event, I am reasonably satisfied that the condition was not worsened by that event. Accordingly, the veteran’s posttraumatic stress disorder was neither caused by nor worsened by defence-service on the basis of the Linnane event.
Mr Richards relied on hypertension as being related to the veteran’s service through service-related alcohol consumption comprising an average of at least 500 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension. I have found that the clinical onset of hypertension was in 2000. The evidence from the applicant was that the veteran was a heavy user of alcohol from when she first met him in 1969 and that he increased his consumption after their marriage. She also described subsequent increases and a continuation in his post-service years in the amount of least 500 grams per week. In his statement, the veteran wrote that he was consuming alcohol from the days when he was in his RAN training. Clearly, he was an established consumer of alcohol well before any aspect of his eligible service. The evidence is that he continued to consume alcohol after he left the RAN although his estimate to Dr Lawford was that he engaged in binge drinking on occasions but generally consumed one or two standard drinks per day.
The Statement of Principles is specific in its requirement of an average of 500 grams per week for a continuous period of at least the six months before the clinical onset of hypertension.[38] While the applicant referred to a consumption habit of more than 500 grams per week, most of that pre-dated any aspect of his eligible service. There is no basis on the available evidence for calculating the amount of alcohol the veteran consumed during his service or how any increase that may have occurred was causally associated with that service. I am satisfied that the alcohol factor in the Statement of Principles concerning hypertension is not met and that hypertension was not defence-caused by that means. Because hypertension is not defence-caused, any relationship between hypertension and ischaemic heart disease can not be attributable to the veteran’s defence service.
[38] Similarly expressed as “consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension”.
Mr Richards contended that the veteran’s smoking contributed to his ischaemic heart disease. For that to be the case, the smoking factor must be met. In his smoking questionnaire, the veteran wrote that he ceased smoking in 1991. However, the applicant’s evidence and that of Mr Wall was that he continued to smoke a pipe until close to the time of his death. I accept their evidence in that regard and the appropriate smoking factor is that where the veteran had not ceased prior to the clinical onset of ischaemic heart disease.
The evidence is that the veteran smoked heavily and at a rate which meets the requirements of the Statement of Principle. However, he smoked from the very first day of his service and was an established smoker by the time of his marriage and by the commencement of any aspect of his eligible service. In his questionnaire, he declared that he increased his levels of smoking by 1971 to 40 cigarettes per day due to responsibility of command and peer pressure. That was prior to any aspect of his eligible service.
From 1971 and into the commencement of his defence service, his smoking reduced and I am satisfied that there was no service-related causation of the veteran’s smoking habit at the level identified in the Statement of Principles and that his ischaemic heart disease is not defence-caused by that means.
The factors in the Statement of Principles for ischaemic heart disease identified by
Mr Richards were posttraumatic stress disorder and hypertension. As neither of those conditions is related to the veteran’s service, I am reasonably satisfied that his ischaemic heart disease and consequential death from that condition was not attributable to his defence service.
War-caused death
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[39]
(i) 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.
(ii) If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.
[39] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82-83.
Step 1:- Hypotheses
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. This requirement is met with each of the hypotheses advanced by Mr Richards in relation to the event involving Mr Palmer. These are:
·First hypothesis: aspects of operational service caused the veteran to consume alcohol heavily; which caused hypertension; which caused ischaemic heart disease; which caused death
·Second hypothesis: aspects of operational service caused the veteran to smoke heavily; which caused ischaemic heart disease; which caused death
·Third hypothesis: an event on operational service caused posttraumatic stress disorder; which caused ischaemic heart disease; which caused death;
·Fourth hypothesis: an event on operational service caused posttraumatic stress disorder; which caused hypertension; which caused ischaemic heart disease; which caused death.
·Fifth hypothesis: an event on operational service caused posttraumatic stress disorder; which caused the veteran to consume alcohol heavily; which caused hypertension; which caused ischaemic heart disease; which caused death.
Step 2:- Statements of Principles
The hypotheses noted above require consideration of the Statements of Principle concerning posttraumatic stress disorder, hypertension and ischaemic heart disease.
Each of the Statements of Principles requires that the relevant factor be related to the relevant service rendered by the veteran.[40] The relevant factors and associated definitions in the Statements of Principle read:
[40] In each Statement of Principles, this is specifically stated in the clause which precedes the list of factors.
Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008:
Factor 6(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
Factor 6(b) experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;
"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;Statement of Principles concerning hypertension No. 35 of 2003, as amended by No 3 of 2004 and, No. 11 of 2008; and No. 63 of 2013:
Factor 5(b)[No. 11 of 2008] consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.[41]
[41] As it read at the time of the applicant’s claim.
Factor 5(b) [No. 63 of 2013] consuming an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension.[42]
[42] As it read since 26 August 2013.
Factor 5(n) [No. 35 of 2003] suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension.[43]
[43] As it read at the time of the applicant’s claim.
Factor 6(o) [No. 63 of 2013] having a clinically significant psychiatric disorder from the specified list before the clinical onset of hypertension.[44]
[44] As it read since 26 August 2013.
alcohol is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;[45]
[45] As it read at the time of and since the applicant’s claim, with the only difference being the use of numeral ten in the earlier amendment.
a “clinically significant anxiety disorder” means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;[46]
[46] As it read at the time of the applicant’s claim.
“a clinically significant psychiatric disorder from the specified list” means one of the following conditions, which is of sufficient severity to warrant ongoing management, which may involve regular visits (for example, at least monthly) to a psychiatrist, counsellor or general practitioner:
…
(c) posttraumatic stress disorder;[47][47] As it read since 26 August 2013.
Statement of Principles concerning ischaemic heart disease No. 89 of 2007 as amended by No. 43 of 2009:[48]
[48] As amended by 96 of 2010 and 125 of 2011 in a manner unrelated to this matter.
Factor 6(a) [No. 89 of 2007] having hypertension before the clinical onset of ischaemic heart disease[49]
[49] As it read at the time of and since the applicant’s claim.
Factor 6(rr)(iv) [No. 43 of 2009] having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical onset of ischaemic heart disease
“a clinically significant anxiety spectrum disorder as specified" means one of the following disorders:
…
(e) posttraumatic stress disorder;
that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner
Factor 6(h) [No. 89 of 2007] where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or"cigarettes per day or the equivalent thereof in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco;
"pack year of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Step 3:- Reasonableness of the hypotheses
The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[50] This requirement will be met if an hypothesis fits or is consistent with the template provided by the factor in the relevant Statements of Principles.
[50] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
First hypothesis:
The Statement of Principles concerning hypertension is specific in its requirement of consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension.[51] The material points to the clinical onset as being in 2000. Dr Lawford recorded that, in March 2011, the veteran would occasionally drink in a binge pattern but, generally speaking, he drank about 1 or 2 standard drinks a day. However, the applicant’s evidence pointed to a much heavier level of consumption by 2000 so there is material which points to the relevant amount of alcohol consumption at the relevant time in the Statement of Principles. Nonetheless, that amount of consumption must be related to his war service.
The evidence points to the veteran being a heavy consumer of alcohol from when the applicant met him in 1969. Such an early commencement is consistent with the veteran’s references to his alcohol use in his career statement. The applicant also wrote that the veteran increased consumption after their marriage and noted that, from 1973 to 1974,
he drank increasingly more heavily. I have noted the applicant’s concern that she completed her alcohol questionnaire too soon after the veteran’s death and that this may have resulted in inaccuracies. The available evidence does not provide guidance to calculate the amount of alcohol the veteran consumed during his service or how any increase that may have occurred was causally associated with that service. It does point to him being a heavy user of alcohol even before any of his eligible war service on the Sydney in November 1971.
[51] Similarly expressed as “consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension”.
The material before me does not fit and is not consistent with the template provided by the factor relating to alcohol consumption in that Statement of Principles. It follows that the first hypothesis is not reasonable.
Second hypothesis:
The material before me points to the clinical onset of ischaemic heart disease in 2001.
I have noted the applicant’s evidence and that of Mr Wall about the veteran’s smoking until the time of his death so factor 6(h) in the Statement of Principle is relevant.
The applicant’s evidence was that the veteran smoked heavily when she first met him. She also said that he increased his smoking during his years in the RAN, particularly in the periods that he was travelling to and from Vietnam. However, that is not consistent with the veteran’s responses in his smoking questionnaire which he completed for his claim for his ischaemic heart disease. It confirms the early commencement of smoking and also supports an increase in smoking during service but prior to any eligible service rendered by the veteran. He described his level of consumption at 40 cigarettes per day by 1971 when his first period of eligible service commenced and his cigarette use then decreased.
When all of the material concerning the veteran’s smoking is considered, it points to him smoking at the level and for the time-frame required by the Statement of Principles. However, that material does not point to a causal relationship between eligible service and that post-service use of tobacco. The material before me does not fit and is not consistent with the template provided by the factor relating to smoking in the Statement of Principles concerning ischaemic heart disease. Accordingly, the second hypothesis is not reasonable.
Third, fourth and fifth hypotheses:
The first element of each of these hypotheses is posttraumatic stress disorder. Mr Moore described the veteran’s involvement in the Palmer event. He also purported to indicate the veteran’s feelings by describing him as being distressed and horrified by the event which, Mr Moore believed, stayed with the veteran thereafter. In his career statement, the veteran referred to a “soot blower steam line blow out, caused by old age, causing injuries to stokers that were on watch at the time”. This may be seen as a reference to
Mr Palmer being injured on the Sydney. The Palmer event is given only a brief reference by Dr Lawford in his first report but, as with Mr Moore’s statement, he noted
Mr Palmer’s injuries were severe. Considering that material at its highest, it points to the occurrence of a category 1B stressor in the Statement of Principles concerning posttraumatic stress disorder, to the veteran being an eyewitness, to Mr Palmer being critically injured and, placing reliance on Dr Lawford’s opinion, to the clinical significance of the condition from 1972 onwards.
Factor 6(rr)(iv) of the Statement of Principles concerning ischaemic heart disease requires a clinically significant anxiety spectrum disorder, which includes posttraumatic stress disorder, as specified, at the time of the clinical onset of ischaemic heart disease. The evidence before me points to the clinical onset of ischaemic heart disease in 2001. Dr Lawford’s report, which was completed only months before the veteran died and 10 years after the clinical onset of ischaemic heart disease, points to the factor being met.
As the material fits the template of the Statement of Principles, the third hypothesis is reasonable.
That result also ensues in relation to the fourth hypothesis. The Statements of Principles concerning hypertension identify a clinically significant anxiety disorder of six months duration before the clinical onset of hypertension and/or a clinically significant psychiatric disorder from the specified list. In each case, this includes posttraumatic stress disorder. The material before me points to the clinical onset of hypertension in 2000. Further, the Statement of Principles for ischaemic heart disease, in factor 6(a), identifies the causal role of hypertension where it pre-dated the ischaemic heart disease. Those requirements are pointed to by the material in this matter and the fourth hypothesis is reasonable.
There is no material which points to a relationship between the veteran’s posttraumatic stress disorder and his heavy alcohol consumption. Rather, the material points to the veteran’s heavy use of alcohol as pre-dating his posttraumatic stress disorder and it follows that the fifth hypothesis is not reasonable. In that regard, I have noted
Dr Lawford’s opinion that the veteran did not suffer from alcohol dependence or alcohol abuse.
Step 4:- Is Death War-caused?
Two reasonable hypotheses of a relevant relationship between the veteran’s service and ischaemic heart disease which caused his death have been raised. The veteran’s ischaemic heart disease and consequential death will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case. Each of those hypotheses relies upon the development of posttraumatic stress disorder because of the Palmer event.
Dr Lawford’s first report gave little weight to the Palmer event. Yet, Dr Lawford asserted that the account by Mr Moore was exactly what he had been told by the veteran.
The veteran clearly advised Dr Lawford of the injuries to Mr Palmer but not in the context of his involvement of the kind described by Mr Moore. If he had done so, in the terms related by Mr Moore, Dr Lawford would surely have referred to it. After all,
he was preparing a report on the matter of whether the veteran had a service-related posttraumatic stress disorder. He did not link the Palmer event to that condition until after reading Mr Moore’s account. The veteran’s career statement is not supportive of what Mr Moore described. The veteran identified boiler incidents that “play on his mind occasionally” and it is not even clear that this is a reference to the Palmer event.
The veteran identified more than one stoker who was injured and gave no reference to his involvement as described by Mr Moore. If it is a reference to the Palmer event,
the occasional playing on the mind is not reflective of Mr Moore’s description of the consequential effects on the veteran thereafter.
Not only is it the case that Dr Lawford did not detail the Palmer event, he devoted much of his report to the complete absence of any relevant psychological criteria prior to the Linnane event. The veteran told Dr Lawford of his difficulty sleeping after the Linnane event and his experiencing intrusive thoughts about that event. This casts more than a reasonable doubt on Dr Lawford’s evidence especially when he adopted the Moore account as being “identical” to that given to him by the veteran. This means that his denial of any other cause for the veteran’s posttraumatic stress disorder prior to the Linnane event was given with full knowledge of the Palmer event as described by
Mr Moore. Dr Lawford specifically excluded posttraumatic stress disorder symptoms, which constitute the diagnostic criteria (B) to (F) as set out above,[52] before 1976 in which case I am satisfied beyond reasonable doubt that the veteran did not have posttraumatic stress disorder from 1972 onward. I am also satisfied beyond reasonable doubt that any psychiatric condition was not clinically significant prior to the clinical onset of either hypertension or ischaemic heart disease in 2000 and 2001, respectively. There was no ongoing management of any kind. In his referral of the applicant to Dr Lawford, Dr Tien had described the veteran as having “no symptoms of depression or psychiatric problem” and Dr Chin provided a health summary which lists a range of conditions which affected the veteran from 2000 onwards. Posttraumatic stress disorder is not identified until 2010 some 10 or 11 years after the clinical onset of hypertension and ischaemic heart disease.
[52] See Para 45 (above).
Although two reasonable hypotheses have been raised on the material before me, there are facts inconsistent with the hypotheses which leave me satisfied beyond reasonable doubt that the veteran’s posttraumatic stress disorder was not war-caused. As that condition was material to each of two raised hypotheses, it follows that I am also satisfied beyond reasonable doubt that the veteran’s ischaemic heart disease and consequential death are not attributable to his operational service.[53]
[53] In so determining, I have noted the authorities cited by Mr Richards.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ........................[Sgd]................................................
Associate
Dated 9 December 2013
Date of hearing 19 November 2013 Representative for the Applicant Mr Bob Richards Advocate for the Respondent Mr Bruce Williams
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