Cunningham and Repatriation Commission

[2007] AATA 1790

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1790

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600451

VETERANS'       APPEALS       DIVISION		)
Re		NEVILLE CUNNINGHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member 

Date21 September 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review in relation to the claim for peptic ulcer disease and, in its stead, finds that the condition of peptic ulcer disease is war-caused.  In all other respects the decision is affirmed.  

(sgd) Mr B. H Pascoe

Senior Member

VETERANS’ AFFAIRS – Peptic ulcer disease, hiatus hernia, irritable bowl syndrome, depressive disorder – whether condition was war caused – chronic sea sickness – helicobacter pylori infection.

Veterans’ Entitlement Act 1986

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

21 September 2007   Mr B.H. Pascoe, Senior Member 

1.      This is an application to review a decision of the respondent Repatriation Commission refusing claims for a number of medical conditions as being war- caused.  The applicant, Mr N. Cunningham, had lodged a claim to have peptic ulcer disease, hiatus hernia, irritable bowel syndrome, depressive disorder with some associated features of anxiety and alcohol dependence or alcohol abuse accepted as war-caused.  Further claims for goitre and fatty liver had been made but were not sought to be pursued further.  At the hearing, the Tribunal was advised that Mr Cunningham was no longer pursuing a claim for alcohol dependence or alcohol abuse.  The respondent had accepted claims for gastro-oesophageal reflux disease, sensorineural hearing loss of the left ear, tinnitus and tinea of the skin

2.      At the hearing Mr Cunningham was represented by Mr G. Chancellor.  The respondent was represented by Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs.

3.      Mr Cunningham was born on 3 January 1952 and joined the Royal Australian Navy (Navy) on 7 July 1968 at age 16½ years.  After a year of recruit training at HMAS Leeuwin in Western Australia, he was transferred to HMAS Penguin in Sydney before being assigned to HMAS Parramatta on 14 July 1969.  When that vessel sailed from Sydney to Melbourne for re-fit it was the first occasion when Mr Cunningham had been on open seas.  Prior to joining the Navy he had done a considerable amount of small craft sailing in the sheltered waters of Corio Bay.  He said that on the trip in HMAS Parramatta he had periods of slight nausea but not seasickness.  On 26 October 1969 he was posted to HMAS Sydney (Sydney).  From 3 to 5 November, Sydney sailed from Jervis Bay on a 48 hour exercise.  Mr Cunningham is recorded as reporting to sick bay on 4 November with dizziness, double vision, nausea and vomiting.  He said that he was given anti-nausea tablets and ordered to lie down for an hour.  His recollection was that he was then able to resume normal duties and to cope with the rest of the voyage.  He said that he talked with Petty Officer Rogers, an experienced sailor who advised him that things would improve as he became accustomed to the sea.

4.      On 15 November 1969 the Sydney sailed from Sydney to Brisbane and on 17 November departed for Vung Tau, Vietnam.  Mr Cunningham said that he felt unwell with nausea and visited sick bay.  He said that it was crowded and he was given seasickness tablets.  He believed there was some improvement and the seas were relatively calm.  As the ship neared Vietnam, the seas became turbulent and he suffered nausea, giddiness, vomiting and diarrhoea.  Mr Cunningham said that he did not report to sick bay as he did not believe it would assist, the sick bay was crowded and he was the subject of some derision by other sailors.  On that trip his duties were on the flight deck.  He believed that there were some 1,200 men on board with a naval complement of 680 and over 500 army troops on their way to service in Vietnam.  The crew slept in crowded temporary accommodation on the hangar deck.  Mr Cunningham said that he experienced the same severe sea- sickness on the return trip.  He believed that he lost over one stone in weight and became concerned at the prospect of future service in the navy.  Again he said that he did not report to sick bay primarily because of the navy culture that sailors did not get sea sick.  Attending sick bay was said to be a sign of weakness.  The Sydney arrived back at Fremantle on 5 December 1969.

5.      On 16 February 1970 the Sydney sailed again to Vietnam.  Mr Cunningham said that his duties were in the laundry which was small, extremely hot without any air conditioning and very noisy.  He said that again, he suffered nausea, dizziness, vomiting and diarrhoea.  Again, he did not report to sick bay.  He said that he kept to himself where possible as he was subject to critical comments and laughter.

6.      Mr Cunningham said that he became depressed with the constant sea-sickness as he was unsure of his future.  He felt that he had let down his father, a former navy man, and may not be able to continue his long-held ambition.

7.      On 15 July 1970, Mr Cunningham was posted to HMAS Cerberus, a Navy training school, for a six month gunnery course.  On 16 January 1971 he was posted to HMAS Parramatta.  On 4 February 1971 the medical records show that the reported with chronic seasickness and was placed in Category BY for six months for service on big ships only.  In March 1971 his medical records show reports of a Dr Norgate of an acute anxiety state as a result of chronic seasickness and a feeling of no future in the service.  He was sent for examination by a psychiatrist.  As Mr Cunningham felt unable to go to sea and had no desire to spend his service in shore establishments it was recommended that he be discharged.  He was discharged on 18 June 1971.

8.      Mr Cunningham had two periods of operational service on the Voyager to Vietnam from 17 November 1969 to 5 December 1969 and 16 February 1970 to 5 March 1970.  Section 120(1) of the Veterans’ Entitlement 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) of the Act 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, s120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. 

Each of the relevant SoPs set out the factors, one of which relate to the veteran’s service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.

In the decision in Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Court of the Federal Court set out the four-step process which a decision maker should follow. These four steps are:

1.whether the material points to a hypothesis connecting the injury, disease or death with the circumstance of the particular service rendered by the veteran;

2.        whether there is in force an SoP;

3.        whether the hypothesis is reasonable under the terms of the SoP; and

4.whether, on the facts determined from the material before the decision maker there can be satisfaction beyond reasonable doubt that the incapacity or death was not war-caused.  It is only in this fourth step that fact finding arises.

9.        In relation to the claim for depressive disorder the hypothesis relied upon by Mr Cunningham was that the condition was war-caused by the chronic sea sickness experienced during his operational service, with a resulting social isolation and depression at the possibility of being unable to serve at sea.  The relevant SoP at the date of the respondent’s decision was Instrument No.58 of 1998.  At the date of the hearing this SoP had been repealed by Instrument No.17 of 2007.  The applicant is entitled to the benefit of the Instrument which is more favourable.

10.      The factor relied on under Instrument 58 of 1998 was 5(b):

Experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder.

Severe psychosocial stressor is defined in the SoP as:

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

Here the hypothesis of depression arising from severe seasickness is reasonable under the terms of the SoP.  The question there is whether the Tribunal can be satisfied that the seasickness was not attributable to operational service and whether the clinical outset of a depressive disorder was within the two years of that stressor.  In relation to the latter question the records show a diagnosis of an acute anxiety state in March 1971.  I am prepared to accept that as the date of clinical onset of his depressive state.  This is supported by the evidence of Dr N. Strauss, a consultant psychiatrist, who examined Mr Cunningham on 21 February 2007.  However, it is clear that Mr Cunningham experienced the onset of seasickness on the two voyages prior to operational service.  From his first exposure to the open sea on board a ship he experienced seasickness and it would seem clear that he had a constitutional predisposition to that ailment.  It was only when he was in open seas that he suffered the illness with no ongoing symptoms once on dry land.  That constitutional predisposition was the cause of the seasickness and the subsequent depression on the realisation that his long-held ambition to be a sea going sailor was not to be achieved.  Being a pre-existing condition with the symptoms well established prior to operational service, I am satisfied that the seasickness was not war-caused.  As such the depressive disorder cannot be accepted as war-caused under Instrument 58 of 1998.

11.     The alternative hypothesis under Instrument 17 of 2007 relied on factor 6 (c) experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder.  A category 2 stressor means one or more of the listed negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry.  For Mr Cunningham reliance was placed on item (b) of the category 2 stressor:

Being socially isolated and unable to maintain friendship or family relationships due to physical location, language barriers, disability or medical or psychiatric illness.

Here it could be said that the hypothesis is reasonable under the terms of the SoP.  The evidence of Mr Cunningham was that, while seasick on board HMAS Sydney he stuck to himself most of the time and was the subject of constant comments and laughter from his shipmates.  This can be readily accepted.  However, the effects of the stressor must be chronic, i.e. continuing a long time.  It is clear that the word chronic is used to differentiate from acute being brief and severe.  While Mr Cunningham’s evidence of some social isolation whilst on the voyager can be accepted, there is no evidence of any ongoing difficulties with his ability to maintain friendship or family relationships.  I am satisfied that his relatively brief periods of sticking to himself and laughter directed at him cannot be seen to satisfy the requirements of the SoP.

12.     The consequence of the foregoing is that the decision in relation to the claim for depressive disorder should be affirmed.  It was accepted by both parties that the claim for irritable bowel syndrome relied on the claim for depressive disorder being accepted pursuant to Instrument No.103 of 1996.  In view of the Tribunal findings relating to depressive disorder the decision in relation to irritable bowel syndrome should be affirmed also.

13.     The hypothesis relied upon by Mr Cunningham in relation to his claim for peptic ulcer disease was having helicobacter pylori infection contracted during his operational service.  Under Instrument No.21 of 1999, having such an infection at the time of the clinical onset of peptic ulcer disease provides a reasonable hypothesis connecting peptic ulcer disease with the veteran’s relevant service.  The evidence of Dr R. Knight, a gastroenterologist, was that Mr Cunningham had contracted Helicobacter pylori infection which was eradicated by antibiotic therapy in the 1990’s.  Dr Knight said that it was believed that the infection was spread by human excretions, including vomiting.  While Dr Knight acknowledged that a person can be infected as an infant but not be affected until a later age and there was no way of knowing when or how Mr Cunningham was infected, he said that it is conceivable that he contracted the infection during naval service in 1969 and 1970 related to living in confined quarters, sharing of utensils and potential contamination from other infected individuals.  The evidence of Mr Cunningham was that, with some 680 naval crew and over 500 army personnel on board during the voyager to and from Vietnam, he slept in a hammock close to many other on the hanger deck of Sydney.  Many of the army personnel were seasick.

14.     While it is clear that there is no evidence of contracting of Helicobacter pylori infection during operational service and it is just as possible that Mr Cunningham contracted the infection as an infant, I cannot be satisfied beyond reasonable doubt that it was not contracted aboard Sydney during operational service.  Consequently, the claimed condition of peptic ulcer disease should be accepted as war-caused and the decision relating to this claim should be set aside.    

15.     The claim for hiatus hernia is governed by Instrument No.17 of 2004.  The factors in this SoP upon by the applicant are:

5(a)undergoing a surgical procedure to the region of the ocsophageal hiatus of the diaphragm within the two years immediately before the clinical onset of hiatus hernia or

5(d)having gastro-oesophageal reflux disease at the time of the clinical worsening of hiatus hernia.

Dealing with the second factor it was submitted that as gastro-oesophageal reflux disease had been previously accepted as war-caused, the hiatus hernia should be accepted, also.  In a report by Dr. Knight of 4 April 2005 he stated that Mr Cunningham has chronic gastro-oesophageal reflux as a result of a sliding hiatus hernia and an incompetent cardio oesophageal sphincter.  There is no evidence of any clinical findings of the existence of the hiatus hernia until May 1998.  There is no evidence of any clinical worsening of hiatus hernia after that date.  On the contrary, treatment since 1998 has managed the condition and a further gastroscopy in January 2006 reported that there remained a small sliding hiatus hernia.  Consequently, I am satisfied that Mr Cunningham does not meet that factor with no clinical worsening.  In 1998 Mr Cunningham’s ulcer was treated with highly selective vagotomy which was unsuccessful.  Whilst this procedure appears to satisfy the surgical procedure requirement of factor 5(a), there is no evidence of any clinical findings of hiatus hernia until some ten years later.  The factor requires clinical onset within two years.  It is generally accepted that the date of clinical onset is the date of the first appearance of signs or symptoms of the disease or condition.  Dr Knight in his report of 4 April 2005 clearly predates the hiatus hernia from the gastro-oesophageal reflux disease.  The gastro-oesophageal reflux disease was accepted as a war-caused condition on 14 May 1998.  It cannot be said that the hiatus hernia followed the surgical procedure, but clearly, predated that procedure.  As a result, I am satisfied that the hiatus hernia does not satisfy the requirements of the relevant SoP.

16.      As a consequence of the foregoing, the decision under review should be set aside in relation to the claim for peptic ulcer disease and, in its stead, a finding that the condition was war‑caused should be made.  In all other respects the decision should be affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Bruce Pascoe

Signed:          (sgd) Lauren Spragg
  Associate

Date/s of Hearing  2 & 3 August 2007
Date of Decision  21 September 2007
Counsel for the Applicant            Mr G. Chancellor
Advocate for the Respondent       Ms J. McCulloch