Cottrell and Repatriation Commission

[2004] AATA 1171

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1171

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/5

VETERANS' APPEALS  DIVISION		)
Re		GREGORY COTTRELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date9 November 2004

PlaceHobart

Decision The decision under review is varied to the extent that the Tribunal finds that the veteran's claimed disabilities of anxiety disorder and alcohol abuse or dependence were caused or contributed to by service in the Royal Australian Navy.  The matter be remitted to the Commission for re-assessment.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - eligibility - disability pension - eligible service - operational service - whether war-caused or service related-alcohol dependence or abuse - hypertension - anxiety disorder - irritable bowel syndrome - Statements of Principles (SoPs) - Veterans' Review Board (VRB)

Legislation:

Veterans' Entitlements Act 1986 - ss120(1),(3),(4) 120A,120B

Statements of Principles issued by the Repatriation Medical Authority, relating to specific medical conditions.

Guide to the Assessment of Rates of Veterans' Pension (GARP)

Authorities:

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 391 FCA

Stoddard v Repatriation Commission (2003) FCA 334

REASONS FOR DECISION

9 November 2004 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      This is an appeal against part of the decision of the Repatriation Commission dated 13 April 2001, subsequently affirmed by the Veterans’ Review Board (VRB) on 5 December 2001, whereby the applicant’s claim to have alcohol abuse, hypertension, anxiety disorder and irritable bowel syndrome accepted as due to war service was refused.

Date of Effect

2.      The date of effect if the application succeeds is 12 December 2000.

The issue

3.      The issue in this case is whether the claimed conditions were caused or contributed by the applicant’s period of service in the Royal Australian Navy between:

(a)      the 14 September 1965 and 20 October 1965; and

(b)      the 7 December 1972 and 13 February 1986.

Standard of Proof

4. The applicant having rendered operational service during period (a), the standard of proof is that prescribed in ss120(1) and 120(3) of the Veterans’ Entitlements Act 1986 (“the Act”). In respect of period (b) the standard is that prescribed in s120(4) of the Act.

5. As the claim was lodged after 1 June 1994, ss120A and 120B of the Act apply. The relevant Statements of Principles in respect of alcohol abuse are Nos 76 and 77 of 1998; in respect of hypertension Nos 25 and 26 of 19998 as amended by Nos 31 and 32 of 2001; in respect of generalised anxiety disorder Nos 1 and 2 of 2000; and in respect of irritable bowel syndrome Nos 103 and 104 of 1996.

Background

6.      Mr Gregory Cottrell, the applicant, was born on 24 February 1947 and joined the Royal Australian Navy eleven days before his 18^th birthday on 13 February 1965.   He claims to have fit at the time and did not drink alcohol.   He joined HMAS Cerberus for initial training and reports having become anxious and distressed as a result of abuse and stress on the parade ground and the exams he had to undergo.   He was admitted to hospital and given medication.   After training he played a lot of sport, but states he did not drink during this period.

7.      Mr Cottrell joined HMAS Sydney and departed for Vietnam in September 1965.   He started drinking during this time, as he felt anxious when scare charges were dropped in the harbour while he was below decks.   By this time he was drinking three 26 oz cans of beer per day.  

8.      On return to Australia he was given shore duties and claims he felt anxiety and depression when away from his wife.    He was transferred to HMAS Vendetta in January 1973 and when the ship visited the Philippines in February 1974, he witnessed a person being shot but did not know the outcome.    His alcohol consumption was building up.

9.      In September 1974 he was posted to HMAS Melbourne and later that year was sent to Darwin to help clear up the aftermath of Cyclone Tracy.    He was worried they would discover bodies.   He was transferred to further shore stations in 1975 and 1977, being accused at the latter time of “fiddling of the books” of the Petty Officer’s Mess.   By this time he was drinking to excess and was advised to forego cigarettes and alcohol.  In 1978 he was referred to a psychiatrist because of depression and urinary problems.   He was now drinking 8-12 cans per night and sometimes lunchtime beer as well.

10.     His naval service continued in Melbourne between 1979 and 1983, then in Launceston as a recruiting officer between 1983 and discharge in 1986.   He admits his alcohol problem continued during this period and subsequently, but he did his best to hide this during his final naval years.

Disability Claims

11.     Mr Cottrell first sought a disability pension in May 1995 and has submitted a range claims almost every year since.   His claims for bilateral tinnitus, sensori-neural hearing loss and gastroesophageal reflux disease were accepted in 1996 and 2000, leading to grant of a pension at 30 percent of the General Rate, subsequently adjusted to 50 percent of the General Rate.

12.     In refusing a claim made on 12 October 2000, the delegate of the Repatriation Commission stated there was no evidence to support the existence of anxiety disorder or irritable bowel syndrome.   In rejecting a claim for alcohol abuse and hypertension it was decided circumstances did not meet criteria specified in the relevant SoPs about psychiatric disorder or existence of a severe stressor.  The applicant was advised of this determination on 3 April 2001 and appealed to the VRB on 10 April 2001.

13.     The VRB hearing was held on Hobart on 5  December 2001, the veteran and his wife being present.    Having considered all evidence before it, the VRB affirmed the decision under review i.e. Mr Cottrell’s appeal failed.

14.     The VRB accepted the applicant’s claim of having witnessed a shooting, but noted it was at a distance and did not constitute a severe stressor, since he was not at personal risk at any stage.   The Board acknowledged that clearing up after Cyclone Tracey had been distressing to all involved, but the veteran had not witnessed any bodies or threats to life.   They were not satisfied these incidents initiated Mr Cottrell’s alcohol problem, as it was clear he had commenced drinking well before the events.

15.     The VRB’s decision was conveyed to the applicant on 6 December 2001, he then appealed to the Administrative Appeals Tribunal (AAT) on 21 January 2002.

Facts and Contentions

16. Both parties submitted statements of facts and contentions prior to the AAT hearing. The applicant indicated that the claim for irritable bowel syndrome was abandoned, but the case for hypertension, alcohol abuse and anxiety disorder would be pursued. The question to be determined by the Tribunal would be whether the applicant’s alcohol dependence or abuse met criteria set out in SoP’s No 76 of 1998 or No 77 of 1998, namely under Factors 5(a), 5(c) and 5(e), that the veteran was suffering a psychiatric disorder at the time of clinical onset or worsening of alcohol dependence or abuse and whether he was unable to obtain appropriate clinical management of the disability.

17.     The respondent accepted that the veteran suffers from alcohol dependence and hypertension, but contended he had not at any relevant time suffered from anxiety disorder.   Alternatively, if it was found he suffered from anxiety, such condition was not service related and should not be accepted as a factor for SoPs relating to alcohol dependence.   Similarly, alcohol dependence should not be accepted as a factor for the SoP relating to hypertension.

The AAT Hearing

18. The AAT hearing was conducted in Launceston on Thursday 14 October 2004. The applicant was represented by Mr C Webster of counsel and the respondent by Mr M Castle. In opening submissions counsel for the applicant indicated that his client’s case would focus on a claim for anxiety disorder arising from eligible naval service between 1972 and 1986, leading to the onset or worsening of alcohol dependence or abuse. No emphasis would be placed on the brief period of operational service in late 1965, thus the standard of proof would now be in accordance with s120(4) of Act, namely on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

19.     The applicant Mr Gregory Cottrell was sworn and tendered a proof of evidence outlining his naval career, drinking habits and claimed disabilities.   He was questioned about alcohol consumption and stated he had commenced drinking in 1965, being depressed at the time and having undergone medication in hospital.   During overseas service on HMAS Sydney and later service on other vessels he was drinking 3-4 cans per day.   By the time of service on HMAS Vendetta in 1973 – 1974 and having witnessed a shooting incident in the Philippines, his drinking habit was increasing, as alcohol was cheap and abundant and boredom had set in.

20.     During service at HMAS Cerberus in 1977 he was accused of “fiddling the books” of the Petty Officer’s Mess and became depressed and worried.   By this stage he was drinking to excess, consuming 3 glasses of beer at lunchtime, 4 – 6 10oz beers at night and some Scotch.   He started experiencing urinary problems and was seen for alcohol problems in 1977, but when referred to a psychiatrist in 1978 the latter thought his depression was due to urinary problems and gave him a book on relief without drugs and some meditation tapes.   He was then drinking 8 – 12 cans per night, plus lunchtime beers and some spirits.   This pattern persisted from 1979 until discharge from the Navy in 1986 and he  has alcohol problems to this day.

21.     He was queried under cross-examination about claimed anxiety at the time of review of mess funds.   He stated it was not because he was guilty, but because he considered it a slur on his integrity.   He admitted sometimes telling doctors he had cut back on alcohol consumption when it had not occurred, because he feared disclosure could result in discharge from the Navy.   Mr Castle said it was incorrect to claim Mr Cottrell’s alcohol problems were only diagnosed in 1977; there were prior mentions in medical records, but it appeared the Navy regarded heavy drinking as acceptable behaviour to deal with personal problems, such as depression or anxiety.

22.     Dr Eric Ratcliff, Consultant Psychiatrist, was then called as witness and sworn.  He stated he had viewed various reports about Mr Cottrell and referred to a statement he had prepared on 20 October 2003.     He took the view the applicant’s alcohol abuse had undoubtedly commenced during naval service, but considered it could not be specifically attributed to Mr Cottrell’s brief period in a war zone.   Dr Ratcliff noted there was a history of anxiety at various states after enlistment and while these may not have been diagnosed as a significant ongoing disorder at the time, they might be so regarded now.   Alcohol dependence is a common reaction to such personal problems, even though it may result in physical harm, such as urinary tract disorders, obesity or hypertension.

23.     Dr Ratcliff considered that the principal issues to be addressed were whether Mr Cottrell was suffering from a diagnosable physical disorder at the time of clinical onset or worsening of alcohol abuse and dependence and whether appropriate management of such disabilities were available to the applicant at the time.   Here factors such as 5(a), 5(c) and 5(e) of Statements of Principles Nos 76 and 77 of 1998, concerning alcohol abuse or dependence were pertinent.

24.     Dr Ratcliff noted a number of medical records dating from 1965 onwards, when hospitalisation occurred, mentioning stress and anxiety, but the Navy appeared to have attributed these to urinary and renal problems from 1968 onwards. The first specific diagnosis of alcohol abuse or dependence occurred in August 1977, but alcohol related problems appear to have occurred much earlier.   The Navy appeared to have under-estimated the significance of alcohol dependence, as it was regarded as normal relief for personal problems.   Given limited information it was not possible to confirm that Mr Cottrell had a generalised anxiety disorder from the 1960’s onwards; but there was sufficient evidence to indicate an adjustment disorder had existed for many years, intermittent but persistent.   Mr Cottrell needed ongoing counselling and treatment, but it appears to have been intermittent and non-targeted.

25.     Mr Castle for the respondent queried the medical record of the times, given that Mr Cottrell himself had sometimes supplied false information.   Dr Ratcliff responded that the overall evidence was sufficient to demonstrate that an adjustment disorder involving anxiety and alcoholism had existed for a long period.   It would be regarded as episodic, but Mr Cottrell was still suffering from alcohol dependence today.

26.     In closing submissions, Mr Webster for the applicant argued that the anxiety disorder and alcohol dependence were both service related.   The applicant had sometimes attempted to mask this, claiming he was reducing or limiting alcohol intake, but medical records indicated doctors had seen through this.   There was an underlying psychiatric disorder, which had arisen from service incidents.   Mr Castle said that if Mr Cottrell’s application was to succeed, it had to be shown his disabilities were service caused and fitted the template of Statements of Principles.

Analysis

27.     The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, having regard to statutory provisions and any relevant case determinations.

28.     The Statements of Principles in this case are Instruments Nos 76 and 77 of 1998, in respect of alcohol abuse or dependence and Instruments Nos 1 and 2 of 2000 in respect of generalised anxiety disorder.   The significant query is whether Mr Cottrell was suffering from a diagnosable physical disorder at the time of onset or worsening of alcohol abuse or dependence and whether appropriate management of such disabilities were available at the time.

29.     There is clear medical evidence that Mr Cottrell suffered stress and anxiety early in his naval career, being briefly hospitalised in March 1965.   Thereafter the evidence is a little more tenuous, although Mr Cottrell claims to have been in an anxiety state during brief service in South Vietnam in 1965 and during an incident in the Philippines in 1974 as well as the cleanup operation in Darwin in late 1974.   He also exhibited stress during the mess funds incident in 1977, but by then had been suffering renal symptoms from 1969 onwards.     Medical records indicate emotional stress and anxiety were exhibited in 1977, 1978 and 1979, by which time he was drinking to excess and suffering urinary tract problems.   He was referred to a psychiatrist in March 1979, but was not supplied with relaxation treatment, only advice and meditation tapes.

30.     Dr Ratcliff considered the anxiety disorder to be episodic rather than generalised; nonetheless it was significant, persistent and clearly related to service experience rather than a single incident such as brief operation service in Vietnam.   It involved readily invoked anxiety, with associated alcoholism, which met the criteria specified in factors 5(a) and 5(c) of SoPs Instruments 76 and 77 of 1998, concerning alcohol dependence or abuse.    Dr Ratcliff considered Mr Cottrell needed ongoing treatment for his adjustment disorder during naval service, but his treatment was intermittent and non-targeted.

31.     The Tribunal has reconsidered all available evidence in the case and in general agrees with Dr Ratcliff’s assessment.   Mr Cottrell developed an anxiety disorder early in his naval career and this became reinforced and persistent by subsequent incidents, leading to the excessive alcohol consumption which remains today.   The Navy appears to have regarded the drinking disability has normal reaction to personal problems, rather than a matter to receive ongoing treatment, but the situation may not have been aided by Mr Cottrell’s attempts to hide the truth from doctors.

Decision

32. Having considered all evidence anew, the Tribunal finds on the balance of probabilities and in accordance with s120(4) of the Act that Mr Cottrell’s anxiety disorder and alcohol abuse or dependence are service related i.e. they were caused or contributed to by service in the Royal Australian Navy.

33.     The decision under review is therefore set aside and in substitution thereof the Tribunal finds that the conditions of anxiety disorder and alcohol abuse or dependence are service related.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  14 October 2004
Date of Decision  9 November 2004
Counsel for the Applicant         Mr C Webster
Solicitor for the Applicant          Wallace Wilkinson and Webster
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs