Cruise and Repatriation Commission

[2007] AATA 1263

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1263

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/95

VETERANS' APPEALS  DIVISION		)
Re		TERENCE WILLIAM CRUISE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

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

Date27 April 2007

PlaceHobart

Decision

1.  The decision under review is set aside and in substitution thereof the Tribunal finds on the balance of probabilities the applicant's claimed disabilities of anxiety disorder and alcohol dependence are war-caused.

2.  The matter is remitted to the Repatriation Commission for assessment of amended disability pension from 23 November 2004.

..............................................

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - claimed disabilities - anxiety disorder - alcohol dependence or alcohol abuse - hypertension - gastro-oesophageal reflux - whether war-caused - medical evidence - reasonable hypothesis - Statements of Principles (SOP) - Veterans' Review Board (VRB)

Veterans' Entitlements Act 1986 and Amendments, Sections 120(1) and 120(3), 120A and 120B

Note also Statements of Principles issued by the Repatriation Medical Authority

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Stoddard (2003) FCAFC 300

Woodward and Repatriation Commission (2003) 75 ALD 420

Repatriation Commssion v Constable (2006) FCAFC 102

Comino and Repatriation Commission (2007) AATA 1071

REASONS FOR DECISION

27 April 2007   Associate Professor B W Davis AM (Part-Time Member)   

Decision Under Review:

1.      The decision under review is that part of the decision made by a delegate of the Repatriation Commission on 25 October 2005, subsequently affirmed by a decision of the Veterans’ Review Board on 3 April 2006, whereby the applicant’s claims to have anxiety disorder, alcohol dependence or alcohol abuse, hypertension and gastro-oesophageal reflux disease accepted as service-related were refused.

The Issue:

2.      The issue before the Tribunal is whether Mr Terence William Cruise’s claimed disabilities are war-caused ie whether they meet the criteria specified in subsections 120(1) and 120(3) of the Veterans’ Entitlements Act 1985 (the Act) and also Sections 120A and 120B.

Standard of Proof:

3.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal, as provided for in Section 120(4) of the Act,

Background:

4.      The applicant Terence William Cruise joined the Royal Australian Navy at age 16 years and served from 4 April 1965 to 3 April 1977.  His eligible war service (which is also operational service) was from 27 May 1966 to 29 January 1967 in Malaysian waters on board HMAS Parramatta and from 3 September 1969 to 7 December 1970 in Vietnam on board HMAS Duchess.

5.      After leaving the navy in 1977 Mr Cruise joined his father in a mechanical business for about 20 years, then worked in other vocations prior to becoming a casual delivery driver about two years ago.

6.      Mr Cruise claims he first experienced symptoms of stress during naval service when HMAS Parramatta was headed towards hostile waters during the Malaysian confrontation.  As a radio operator he was continually closed below and alarmed by noises and bangs, with no fresh air or exercise.  He claims to have suffered periods of claustrophobia since that time. 

7.      The applicant indicated he did not drink at the time of joining the service or during training, but following an incident when the ship struck a submerged rock and entered dry dock in Singapore for a period of several weeks he commenced heavy drinking.  He had been in the cafeteria below deck when the ship struck the rock and feared the vessel would sink.  He subsequently suffered symptoms of stress such as palpitations and diarrhoea, but was reluctant to seek medical advice since he did not wish to be regarded as a ‘sickbay jockey’.  During his last two years of service at HMAS Huon the drinking problem which had commenced on Parramatta and become exacerbated during service on HMAS Duchess became even worse, so he saw a doctor who diagnosed anxiety symptoms, high blood pressure and palpitations.

8.      He subsequently tried to stop drinking but could not do so.  He now tolerates large quantities of alcohol on a regular basis, as temporary relief from his disabilities.  He remains tense and cannot always control his temper.

9.      The veteran has a number of accepted service-related disabilities, in the form of lumbar spondylosis, sensorineural hearing loss of the right ear, bilateral tinnitus and solar keratoses of the face and arms.

10.     Mr Cruise lodge a claim for recognition of other disabilities in February 2005.  He was advised by the Repatriation Commission on 27 October 2005 that the following applications were rejected:-  anxiety disorder, alcohol dependence or abuse, gastro-oesophageal reflux disease and hypertension, with no incapacity of haemorrhoids found.  His disability pension would continue at 50 percent of the General Rate.

11.     The veteran lodged a request for review by the Veterans’ Review Board on 24 November 2005.  A hearing was conducted in Hobart on 3 April 2006, with his wife and advocate Mr J van der Hoek of Claremont RSL present.  After considering the evidence in detail the VRB decided to affirm the decision under review ie Mr Cruise’s appeal was unsuccessful. 

12.     In making its determination the Board noted a psychiatric report by Dr Philip Reid dated 18 May 2005.  The report considered whether the applicant had undergone a severe psychosocial stressor and decided there was not a causal link between the claimed disabilities and the veteran’s service.  Dr Reid indicated that the veteran had “... never experienced a severe stressor nor had a severe illness, psychological or physical”.

13.     Mr van der Hoek referred the Board to cases of veterans’ who perceived incidents as serious threats, whether real or not, citing Repatriation Commission v Stoddart (2003) 38 AAR 76 as an example. Mr van der Hoek also drew attention to the cumulative impact of episodes of stress. However the veteran told the Board he could not recall any particular incident on board ship which had caused him serious concern. There had been an upsetting incident ashore in Vanuatu, when a bungy-jumping display had resulted in a death, but he was on shore leave at the time.

14.     The VRB also considered evidence in the light of relevant SOPs for anxiety disorder (Instruments 76 and 77 of 1998), hypertension (Instruments 35 and 36 of 2003) and gastro-oesophageal reflux disease (Instruments 11 and 12 of 2005).  In no case did Mr Cruise’s situation meet the specified criteria or factors, demonstrating a causal link between the claimed disabilities and service conditions.  In these circumstances the Board affirmed the decision under review.

AAT Hearing:

15.     Mr Cruise sought de-novo review by the Administrative Appeals Tribunal on 22 June 2006.  The hearing was conducted in Hobart on 16 March 2007, with the applicant and one witness (Mr Rodney Joseph Kirk) present and Dr Ian Sale, psychiatrist, called to provide evidence by telephone.  The applicant was represented by Ms Lindi Wall of counsel and the respondent by Mr Michael Castle for the Repatriation Commission.

16.     After counsel for the applicant indicated the case would centre around the issue of alcohol dependence rather than other claimed disabilities, Terence William Cruise was affirmed and spoke to a proof of evidence he had provided, detailing service on board HMAS Parramatta and HMAS Duchess in hostile waters and subsequent personal events.  He stressed the panic and anxiety he felt when confined below decks unaware of what was occurring topside.  He recounted that during the period the ship HMAS Parramatta was in dry dock for repairs in Singapore, the crew were idle and he commenced joining them in heavy alcohol consumption which had continued ever since.

17.     It became clear during questioning that the period spent in dry dock in Singapore was probably six weeks rather than the six months claimed in some documentation and the period of active service was about one month during the extended service tour of eight months.  Mr Castle queried whether major anxiety could develop in such a short period of time without any specific triggering event, but noted Mr Cruise was young at the time.  Ms Wall said vomiting and diarrhoea were identified in Mr Cruise’s naval medical records, but Mr Castle pointed out that the first firm indications of anxiety and palpitations were not recorded until 1975 during Mr Cruise’s final two years of service HMAS Huon.

18.     Rodney John Kirk was then called as witness and sworn.  He had trained with Mr Cruise and served with him on HMAS Parramatta.  He agreed that periods of ship lockdown could create anxiety, but considered it was the extended period of idleness when the ship was in dry dock at Singapore which had resulted in binge drinking by some of the crew.  There was no restriction on consumption, with a dock bar open all day, so sustained drinking occurred over six weeks or more.

19.     Dr Ian Sale, psychiatrist, was contacted by telephone and affirmed.  He was questioned about two reports he had prepared about the veteran’s anxiety disorder and possible alcohol dependence or abuse, dated 25 August 2006 and 10 October 2006.  Dr Sale had indicated at the time that he considered Mr Cruise was alcohol dependent and subject to periodic anxiety attacks, but he did not believe the applicant had experienced a severe stressor as defined in the relevant SOP (Statement of Principles).

20.     Ms Lindi Wall queried whether he had been aware of the ‘submerged rock’ incident at the time of preparing his reports;  Dr Sale said he had not and the stress engendered in Mr Cruise during the event might have constituted a severe stressor.  Mr Castle expressed surprise at this claim, given that Dr Sale’s reports were about anxiety and alcohol dependence, with no detailed exposition about possible stressors.  Dr Sale said a reasonable hypothesis could be postulated between fear, anxiety and alcohol dependence and there was no other identified trigger than the veteran’s service in hostile waters.

21.     In closing submissions Ms Wall said there was a reasonable hypothesis for the purpose of Factor 5(1) of the SOPs 76 and 77 of 1998, linking the veteran’s service on HMAS Parramatta and later HMAS Duchess, to the anxiety disorder which in turn precipitated the onset of alcohol dependence.  Mr Castle said it was a ‘chicken and egg’ problem as to which symptom appeared first, but it was clear Mr Cruise recovered quickly when ashore, thus the periods of exposure to anxiety were very short.  The case had been portrayed as about alcohol dependence, when it was really about short periods of anxiety disorder and should be considered as such.

Analysis:

22.     The Tribunal is required to conduct a de novo review, taking all available evidence into account, as well as statutory and policy provisions and any relevant prior case determinations.

23. In respect of periods of operational service Subsection 120(1) and 120(3) of the Veterans’ Entitlements Act 1986 apply, with the Tribunal required to find the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the particular circumstances of the veterans’ period of service.

24.     In respect of any period of defence service, Subsection 120(4) of the Act applies, with the Tribunal required to decide all relevant matters to its reasonable satisfaction, on the balance of probabilities.  The Tribunal is also required to apply Sections 120A and 120B of the Act, assessing the reasonableness or otherwise of any hypothesis, using Statements of Principles (SOPs) issued by the Repatriation Medical Authority or any other prescribed provisions of the Act.

25.     Counsel for the applicant made it clear at the outset of the AAT hearing that the focus of the case was on Mr Cruise’s claimed alcohol dependence and not on other claimed disabilities, such as hypertension or gastro-oesophageal reflux disease.  However as the case progressed it became clear it was the nexus between a diagnosed anxiety disorder and alcohol dependence which must be tested.

26.     The Statements of Principles relating to Generalised Anxiety Disorder are Instruments 1 and 2 of 2000 and those for Alcohol Dependence or Alcohol Abuse are Instruments 76 and 77 of 1998.  Counsel for the applicant claimed that Factor 5(b) is the relevant factor for alcohol dependence, namely:

“... experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; ...”

No specific factor was nominated in respect of anxiety disorder, but the Tribunal notes that Mr Cruise’s advocate at the VRB hearing drew attention to Factor 5(a)(ii):

“... experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder ...”

27.     The definition of ‘severe psychosocial stressor’ in Anxiety Disorder Instruments 1 and 2 of 2000 is as follows:

“... ‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as a divorce or separation, loss of employment, major financial problems or legal problems”.

28.     The “Tribunal has personal doubts that limited periods of confinement below decks on a naval vessel meets this criterion, especially when such periods are trained for and a normal part of service.  Moreover Mr Cruise himself told the VRB he could not recall any particular incident on board ship that caused him serious concern.

29.     The Tribunal notes, however, that in recent years the AAT and Federal Court have recognised instances where subjective anxiety has arisen from perceptions of danger, as distinct from objective (actual) circumstances.  See, for example, Repatriation Commission v Stoddart (2003) FCAFC 300; Woodward and Repatriation Commission (2003) 75 ALD 420 and Repatriation Commission v Constable (2006) FCAFC 102.

30.     Following Repatriation Commission v Deledio (1998) 83 FCR 82, the Tribunal is now required to consider whether a prospective hypothesis might exist between the veteran’s claimed disability of anxiety disorder and resultant alcohol dependence and if so whether there is a relevant SOP, such as Instruments 76 and 77 of 1998, which can be used to test whether the applicant’s disabilities can be regarded as war-caused (service-related).

31.     As earlier noted, counsel for the applicant relies upon Factor 5(b) of the relevant SOP dealing with alcohol dependence, namely:

“... experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol  abuse ...”.

The medical report prepared by Dr Philip Reid on 18 May 2005 expressed an opinion that a causal relationship between anxiety disorder and alcohol dependence could not be supported in Mr Cruise’s case because the veteran “... never experienced a severe stressor nor had a severe illness, psychological or physical”, but noted the applicant experienced symptoms of anxiety before and following discharge from the navy.  The veteran had not mentioned the death by bungy-jumping episode.

32.     Dr Ian Sale, psychiatrist, provided an assessment report dated 10 October 2006 which identified anxiety disorder and alcohol dependence, but noted that although significant periods of the veteran’s service were unlikely to be stressful, there was a reasonable hypothesis linking service to the anxiety disorder.  In an earlier report dated 25 August 2006, he had indicated he did not believe a severe stressor had occurred.  In evidence given to the AAT hearing Dr Sale changed his mind once the ship striking a rock episode was put to him.  He agreed it could have acted as a severe stressor when the applicant was already suffering anxiety problems in what he perceived as hostile waters. 

33.     Under Sections 120(1) and 120(3) of the Act, the Tribunal is required to find the claimed conditions were war-caused, unless it is satisfied beyond reasonable doubt there is no sufficient ground for making that finding.  In Mr Cruise’s case there is not sufficient evidence to reach such a conclusion, thus the hypothesis that his claimed disabilities of anxiety disorder and alcohol dependence were war-caused must be accepted. 

34.     The decision under review is therefore set aside and in substitution thereof the Tribunal finds on the balance of probabilities the veteran’s claimed disabilities of anxiety disorder and alcohol dependence were war-caused. 

35.     The matter is remitted to the Repatriation Commission for calculation of amended disability pension as from 23 November 2004, being three months before the date of application for review.

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:  R Hunt (Administrative Assistant)

Date/s of Hearing  16 March 2007
Date of Decision  27 April 2007
Counsel for the Applicant         Ms Lindi Wall
Solicitor for the Applicant          Wallace Wilkinson & Webster
Counsel for the Respondent     Mr Michael Castle
Solicitor for the Respondent     Repatriation Commission