Crowley and Repatriation Commission

[2001] AATA 999

DECISION AND REASONS FOR DECISION [2001] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL               No V2000/1326

VETERANS      APPEALS      DIVISION       

Re:            WILLIAM M CROWLEY

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B. H. Pascoe, Senior Member
Date:             7 December 2001
Place:            Melbourne

Decision:The Tribunal varies the decision under review by finding that the condition of Dupytren's contracture is war caused.  In all other respects the decision is affirmed.

(sgd)  B. H. Pascoe
  Senior Member
  VETERANS — varicose veins of left leg — generalised anxiety disorder — alcohol dependence or abuse — Dupytren's contracture of the hand — whether war caused — whether Statements of Principle satisfied.
Veterans' Entitlements Act 1986

REASONS FOR DECISION

September 2001  Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Veterans' Review Board ("VRB") of 19 July 2000 which affirmed decision of the respondent of 29 January 1999 and 5 November 1999 that the claimed condition of varicose veins of the left leg, generalised anxiety disorder, alcohol dependence or abuse and Dupytren's contracture of the left hand were not war caused.  Other conditions of varicose veins right leg, melanoma of back, vertebrobasilar ischaemia, chronic solar skin damage and cervical spondylosis had been accepted previously by the respondent.

2. At the hearing the applicant, Mr Crowley, was represented by Mr A Larkin of counsel and the respondent by Mr K Rudge, an Advocate with the Department of Veterans' Affairs. Evidence was given by Mr Crowley, his wife and Dr Cole, a psychiatrist. The Tribunal had the documents provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T40). 

Documents tendered on behalf of the applicant were:

Ex      A1      Statement of Mr Crowley
           A2      Report of Professor Myers, surgeon
           R3      Report of Dr Connors, dermatologist
           A4      Report of Dr Cole, psychiatrist

A5      Completed Lifestyle Questionnaire

Documents tendered for the respondent were:
  R1      Transcript of VRB Hearing
  R2      Impairment Assessment, Dr Kaplan
  R3      Report of Mr Piper, military historian, 11 April 2001
  R4      Report of Dr Kenny, psychiatrist
  R5      Report of Dr Markov, rheumatologist

R6      Impairment Assessment, Dr Morgan
R7      Letter from Mr Piper   6 May 2001
R8      Report of Mr Piper   21 August 2001

1. Mr Crowley served in the Royal Australian Air Force from 5 July 1943 to 10 April 1946.  As he served in the South-West Pacific Area the whole of such was eligible war service constituted operational service.

2. Mr Crowley is now 76 years old, having been born on 21 June 1925.   He said that he was an only child adopted by his parents.   He had an attentive mother but a father who had regular "outbursts" caused by alcohol.   He left school at 14 years of age and, after working at a paper mill, commenced an apprenticeship to become a hairdresser.  Initially he worked in Fitzroy but then worked with his father as a civilian hairdresser at Puckapunyal Army camp.   He joined the Air Force at 18 years and completed his apprenticeship after the war.   During his service with the Air Force he was a cook's assistant.   In June 1944 he was transferred to Thursday Island with a stores unit and in 1945 served some ten months in Morotai and Balikpapan with that unit.   Mr Crowley said that he did not see any Japanese but the islands were scarred with bomb craters and shrapnel which, for a nineteen year old in such places for the first time, was "scary" and "upsetting".   The wet weather made living in tents uncomfortable.   He said there were rumours of Japanese in the hills and possibilities of water supplies being poisoned.   He heard some gun shots but had no idea of their source.   He did see some aircraft overhead but was not sure whose aircraft they were or whether they were solely on reconnaissance.   While in Balikpapan there was some bombing of the harbour, although Mr Crowley was some 4-5km away and only heard the sounds of bombing.   He said that he saw an American plane which had crashed on the reef; but he did not know how long it had been there or what had happened to the pilot.

3. Mr Crowley said that he had his first taste of beer at 14 years of age but did not like it.  Although his father was a heavy drinker, he denied ever drinking with his father prior to joining the Air Force.  He said that when initially posted to Sale for training, alcohol was readily available and he was able to go off camp and purchase alcohol.   In his written statement, Mr Crowley said that he drank regularly and would become intoxicated two or three times per week at Sale.   In his oral evidence, he said that he drank socially only at Sale.   At Thursday Island, Morotai and Balikpapan he was issued with one bottle of beer per week but Mr Crowley said that he used the proceeds of hair-cutting to buy bottles from non-drinkers.  In his written statement he said that he drank five or more bottles of beer per week but in his oral evidence he reduced the level of consumption to three to four bottles per week.   He said he increased the level of drinking after the war to approximately 18 glasses of beer per day until 1987 when he stopped drinking for some two and a half years.   He recommenced in 1989, drinking 10 light stubbies of beer per day, a bottle of whisky per week and a litre of port per week.   He could not recall whether a medical report of 21 March 1949 (T5) stating a consumption of two beers per day or a medical report of 18 July 1958 (T8) stating a consumption of six beers per day were correct.

4. Mr Crowley confirmed a history taken by Dr Kenny which stated that:

   he said he was always nervous, used to wet the bed – but didn't know what age he stopped – had nightmares as a child, used to bite his fingernails, occasionally missed time from school because of being bullied and a fear of being bullied.

He accepted that he had told Dr Kenny that he had always been a nervous person and that it could be said that he had an "unhappy childhood".   He acknowledged that he did not enjoy being in the Air Force from the start and that his main problem was being away from home and being bored.  Mr Crowley said that there had been some turbulence during his 50 years of marriage primarily because of his drinking and his moodiness.

1. Mrs Crowley said that she met her husband in 1947 and they were married in 1948.   She said that he was a very moody person with major mood swings which she believed, in retrospect, were abnormal.   She said that Mr Crowley had difficulty in expressing himself and was inclined to agree when questioned rather than have a dispute.  She said that, initially, she was not conscious of his drinking excessively but in subsequent years they argued regularly about it.   She felt that the drinking was a more significant problem during the 1960s.   Mr Crowley said that her husband did not talk very much about the war but, when down, blamed his war experiences causing her to believe that his drinking stemmed from the war.

2. Dr Cole examined Mr Crowley on 23 January 2001 and provided a report dated 13 February 2001 (Ex A4).   He observed that Mr Crowley "showed no evidence of emotional disorder, was briefly responsive in conversation and gave what appeared to be a straightforward account of himself and and his problems, although he was rather vague when it came to recalling dates and times".  Dr Cole's opinion was that:

   Mr Crowley is suffering from a chronic generalised anxiety disorder of mild to moderate degree complicated by alcohol abuse or dependence.  Apparently he had no nervous symptoms when he joined the Air Force and was not in the habit of drinking.   However, on his discharge he was anxious, irritable, had difficulty in concentrating, lacked confidence, was indecisive, suffered from depression and had difficulty in sleeping, while he was drinking excessively and continued to do so.   Although he did not see action he served in an area where there were still Japanese troops about and felt apprehensive the whole time at the thought of coming into contact with the enemy, particularly when he was obliged to stand guard.   I believe, therefore, that a reasonable hypothesis can be raised connecting this stressful period of his service with the development of his generalised anxiety disorder and alcohol abuse.

In his oral evidence, Dr Cole accepted that there were no specific traumatic events experienced by Mr Crowley during service, and that it was more in the way of apprehension by him.   Dr Cole accepted also that the history taken by Mr Kenny demonstrated symptoms of anxiety experienced by Mr Crowley as a child.

1. Dr Kenny examined Mr Crowley on 18 April 2001 and provided a report dated 20 April 2001 (Ex R4).   He concluded that Generalised Anxiety Disorder ("GAD") was the most appropriate psychiatric diagnosis and that Mr Crowley also suffered from Alcohol Abuse.   He was unable to arrive at a date of clinical onset of GAD but believed that it clearly antedated his war service.   Dr Kenny said:

   It's quite clear that this man suffered from symptoms of anxiety throughout his childhood and I am sure the symptoms have been continuous throughout and hence I am sure that he experienced anxiety while he was in the Service – as an extension of his pre-existing and continuing generalised anxiety disorder.

   Now the reason I assert that he had his anxiety disorder antedating his service time – indeed through his childhood – is his statement that he used to have nightmares as a child, used wet the bed, used always be nervous, would chew his fingernails; these are all non-specific symptoms of anxiety that one commonly sees in children and indicate that we have a person who is a chronically anxious person, and that's the case here.

   I note too that he didn't get on particularly well at school, had Year Seven level of schooling and I note that he found his time in the Air Force somewhat anxiety-provoking.  But I am of the view that that is simply symptomatic of his pre-existing and continuing generalised anxiety disorder.

   So I don't consider that his experience in the Air Force caused or contributed to his anxiety disorder – except for the time when he was in the service when he felt anxious about many things – that many others wouldn't feel anxious about.

   I note that he didn't require any treatment while he was in the Air Force for anxiety-related problems.   I do note that he had a period of obvious depression in 1959.  He relates that to clear circumstances in his life.  There had been some conflict with his wife, leading to him exposing himself, being charged and getting depressed afterwards.

   He still thinks about that.   He had psychiatric treatment at that stage but not continuing.

Dr Kenny was of the view that the alcohol abuse was dependent upon Mr Crowley's background of a father who was a heavy drinker and violent when drinking, his wanting to fit in while he was in service and his anxiety disorder.  Dr Kenny did not see either condition as being service related.

1. Dr Markov examined Mr Crowley on 16 May 2001 and provided a report dated 29 May 2001 (ex R5).   He diagnosed Dupytren's contracture of both hands.  Whilst the cause of the condition was unknown, Dr Markov said that heavy alcohol intake was thought to be a significant risk factor for the development of the condition.   He was of the opinion that, if the veteran's heavy alcohol intake was attributable to war service that a reasonable hypothesis was raised connecting the condition with that service.   In his report, Professor Myers (Ex A2) stated that there was considerable evidence that Dupytren's disease was markedly predisposed to by alcohol abuse that, if it was accepted that there was a chain between anxiety, alcohol abuse and war service, then the disease would also be service related.

2. Dr Rose, a psychiatrist, examined Mr Crowley on 6 October 1999 and provided a report dated 7 October 1999 to the respondent (T33).  In this report he stated:

   There is no doubt that Mr Crowley is suffering from severe alcohol dependence with possible mild alcoholic dementia.   He started drinking at the age of 14 but allegedly through boredom.   He started drinking much more during service in the Air Force in the Pacific Islands.   His drinking habits and his general mental state do no [sic] appear to have been affected by his two operations of varicose veins.   I must therefore, conclude that Mr Crowley's undoubted alcohol dependence is unrelated to war service.  A further pointer to factors other than war service being involved in Mr Crowley's alcohol dependence is that his own behavioural pattern is very similar to that of his adoptive father.  His adoptive father was a heavy drinker who was physically and mentally abusive to his wife.  Mr Crowley's marriage has been characterised by the same problems as those of his father.

1. Dr Parkin, a psychiatrist, examined Mr Crowley and provided a report dated 11 May 2000.   He had interviewed Mr Crowley also.  Dr Parkin diagnosed generalised anxiety disorder and alcohol dependence.   He believed that, while he had difficulty finding a relationship with war service, the level of concern and fear during Mr Crowley's time in the islands satisfied the relevant SOP.

2. It was submitted for Mr Crowley, that while there were difficulties in meeting the statement of Principles ("SOP") for varicose veins, it was anomalous that the right leg had been accepted and not the left leg.  Mr Larkin believed that, as a cook's assistant, Mr Crowley would have been required to stand for long periods leading to the development of varicose veins.  It was argued that, further, that Dupytren's disease had resulted from heavy alcohol consumption which, in turn, had been war-caused.   It was submitted that alcohol consumption had not commenced until service.  The conditions of generalised anxiety disorder and alcohol abuse were said to have been war-caused and to have satisfied the relevant SOPs having resulted from the stress, anxiety and apprehension suffered by a 19 year old sent to an alien and hostile area.   It was argued that even if Mr Crowley suffered from some anxiety disorder prior to service, which was not conceded, such condition was significantly worse after service.

3. For the respondent, it was submitted that Mr Crowley did not meet the requirements of the SOP for varicose veins and could not succeed in his claim for that condition.   It was said that there was no evidence that Mr Crowley had not commenced drinking prior to service.   However, Mr Rudge conceded that, if the Tribunal was to find that the veteran's drinking commenced with service, a reasonable hypothesis had been raised concerning Dupytren's disease with such service.   It was submitted, nevertheless, that the SOP for alcohol abuse had not been satisfied given the relatively modest consumption during service and in a period after service, the lack of evidence of suffering a severe stressor during service and the clinical onset not occurring within two years of any stressor.   Mr Rudge submitted that any anxiety disorder suffered by Mr Crowley antedated his service and there was no evidence of any exacerbation of any such condition arising from his service.  It was argued further that the relevant SOP was not satisfied in that there was no evidence of an actual stressful event within two years before any clinical onset of such condition.
   As Mr Crowley had operational service, Section 120 (1) of the Veterans' Entitlements Act 1986 ("the Act") provides that an injury or disease shall be determined as war-caused unless the tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120 (3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, Section 120A of the Act requires the tribunal to assess the reasonableness of an hypothesis in accordance with any SOP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SOPs are:

Instrument No 7 of 1992 concerning varicose veins of the lower limbs
Instrument No 48 of 1994 (as amended) concerning generalised anxiety disorder
Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse

There is no SOP concerning Dupytren's disease.

1. The claim for varicose veins of the left leg can be dealt with easily.  It was conceded for the applicant that he does not satisfy the requirements of the relevant SOP.   The condition of varicose veins of the right leg was accepted at some unknown date but, clearly, was some years ago and, presumably, prior to the SOP.  It is clear that any claim made after 1 June 1994 is required to satisfy the SOP and, whilst appearing anomalous, the claim for the left leg cannot be accepted.  

2. The SOP concerning GAD sets out the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.  The factors relied upon here are "experiencing a stressful event not more than two years before the clinical onset" or "clinical worsening" of GAD.   "Stressful event" is defined as "an occurrence which evokes feelings of anxiety or stress".  In relation to Mr Crowley, I am satisfied with the diagnosis of GAD.  However, I am satisfied that the onset of such condition antedated his service and commenced in childhood.  I am further satisfied that there was no worsening of the condition during or post service.  The history taken by Dr Kenny was confirmed by Mr Crowley in his evidence.  Dr Cole's opinion was based on his understanding that Mr Crowley "had no nervous symptoms when he joined the Air Force".  Dr Kenny's opinion is further supported by that of Dr Rose who believed that Mr Crowley's behaviour patterns were similar to and characterised by the same problems as those of his father.   The evidence of Mrs Crowley relates only to the period from when she first met her husband in 1947, some 12 months after his discharge from the Air Force.   Whilst on balance, it is likely that there were occurrences on the islands which evoked feelings of anxiety or stress in Mr Crowley, I am satisfied that these were not within two years before the onset or worsening of his GAD but well outside the required period.   Consequently he does not satisfy the requirements of the relevant SOP.

3. The SOP concerning alcohol dependence or alcohol abuse requires the experiencing of a "severe stressor" within two years immediately before the clinical onset or clinical worsening of alcohol dependence or alcohol abuse.  The definition of experiencing a severe stressor states:

   "experiencing a severe stressor" means, the person experienced,
   witnessed or was confronted with, an event or events that involved actual
   or threat of death or serious injury, or a threat to the person's or other
   people's physical integrity, which event or events might evoke intense
   fear, helplessness or horror.
   In the setting of service in the Defence Forces, or other service where the
   Veterans' Entitlements Act applies, events that qualify as severe stressors
   include:
   (i) threat of serious injury or death; or
   (ii) engagement with the enemy; or
   (iii) witnessing casualties or participation in or observation of casualty
   clearance, atrocities or abusive violence;

It is noted that the definition requires much more than the stressful event in the SOP concerning GAD.   While I might accept that his experiences may have evoked feelings of anxiety or stress there was no evidence that such experiences amounted to "a severe stressor" as defined.   Mr Crowley's evidence was that he may have been apprehensive and anxious but he did not experience, witness nor was confronted with any actual threat of death or injury to himself or any other person.  Any events mentioned by him clearly evoked feelings which fall far short of intense fear, helplessness or horror.   Consequently, while accepting the diagnosis of alcohol abuse, I cannot be satisfied that the requirements of the SOP are met so as to attribute such condition to war service.

1. In relation to the claim for Dupytren's contracture or disease there is some doubt from the evidence as to when Mr Crowley commenced drinking alcohol and the quantity consumed during and in the early years after the war.   However, I cannot be satisfied, beyond reasonable doubt, that drinking did not commence as a result of his service and, on the evidence of Dr Markov and Professor Myers, accept that a reasonable hypothesis has been raised connecting the condition with alcohol consumption and, therefore, with service.   Consequently, I find that the condition was war caused.

2. Mr Crowley is currently in receipt of a pension at 40% of the general rate on the basis of his previously accepted condition.  An impairment assessment of the Dupytren's contracture was done by each of Dr Markov, Dr Kaplan and Dr Morgan under Table 3.1.2 of the Guide to the Assessment of Rates of Veterans' Pensions ("GARP").  Each arrived at nil impairment points.  As a result, the acceptance of the condition as war-caused will have no effect on the rate of pension.

3. The decision of the VRB under review should be varied by finding that the veteran's condition of Dupytren's contracture was war-caused.  In all other respects the decisions of the VRB and the respondent should be affirmed.

   I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of 

   Mr B. H. Pascoe
   Senior Member

   (Sgd)             Rhona Hammond
     Personal Assistant

   Date/s of Hearing  12 September 2001
   Date of Decision  7 December 2001
   Counsel for the Applicant        Mr Andrew Larkin
   Solicitor for the Applicant         Ms. Ineke Black, De Marchi & Associates
   Advocate for the Respondent  Mr Ken Rudge, Departmental Advocate