Delaforce and Repatriation Commission

[2005] AATA 455

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 455

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1421

VETERANS' APPEALS DIVISION		)
Re		KEVIN DELAFORCE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date19 May 2005

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the diseases of generalised anxiety disorder and alcohol dependence are war-caused diseases and that this matter be remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.

(Sgd)  M D Allen

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

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS –whether there is a reasonable hypothesis connecting Applicant’s diseases with circumstances of Applicant’s operational service – original decision varied – Applicant’s generalised anxiety disorder and alcohol dependence war-caused – matter remitted to Respondent to assess rate of pension.

Veterans’ Entitlement Act 1986 ss 6C, 120, 120A.

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Stoddart (2003) 77 ALD 67

.

REASONS FOR DECISION

19 May 2005   Senior Member M D Allen   

1.      By application made the 4th November 2004 the Applicant sought review of a decision by a Veterans’ Review Board made on 25 August 2004.  That decision affirmed prior determinations by the Respondent Repatriation Commission that the conditions described as “breathing difficulty, malignant neoplasm of the submandibular gland, alcohol dependence or alcohol abuse, existential despair, anxiety disorder, and depression” were not related to war service.

2.      As the Applicant is in the terminal stages of the disease of malignant neoplasm of the submandibular gland it was agreed by the parties that the Tribunal should consider this matter “on the papers” and without the necessity of a formal hearing.

3. When considering the matter I had before me the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which documents have been indexed as T1 to T34 together with the report of Dr G S Robinson, psychiatrist dated 16 February 2005.

4. As the relevant incidents giving rise to the Applicant’s claim were alleged to have occurred whilst the Applicant was on operational service as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 (“VEA”) the standard of proof in this matter is that mandated by ss120 (1) and (3) VEA.

5. Subsections 120 (1) and (3) VEA provide that any disease suffered by a Veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that the there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.

6. Subsection 120 (6) VEA provides that neither party to this review bears any onus of proof.

7.      The manner in which the Tribunal must approach its task were a SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) ALD 193 The so called Deledio principles are now so well known as not to require recapitulation here.

8.      Notwithstanding the manner in which the Tribunal is required to approach its task as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant; see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof is that of to the Tribunal’s “reasonable satisfaction” and in which the SoP regime established by s196B VEA has no part to play, see Benjamin v Repatriation Commission (2001) 70 ALD 622.

9.      The initial diagnosis of the Applicant’s psychiatric illness was by a Dr Darcy, psychiatrist, in a report dated 17 July 2001.  Dr Darcy came to the conclusion that the Applicant was suffering from a post-traumatic stress disorder.  Subsequent psychiatric reports have not concurred with this diagnosis.

10.     At the request of the Respondent Dr Lambeth, psychiatrist, who is apparently the Applicant’s treating psychiatrist, prepared a report dated 10 November 2003.  In that report Dr Lambeth states that the Applicant had initially been referred to him by his general practitioner on 29 October 2003 and he had subsequently seen him on 30 October 2003 and 6 November 2003.  After taking a full history Dr Lambeth opined:

“I have no doubt that he is suffering from both anxiety and depression.

In my opinion, it is more probable than not that both the anxiety and depression were precipitated by his service in Malaysian waters on HMAS Melbourne, while they were on action stations and he was hyperaroused and hypervigilant about what was happening above while he was below deck.”

Dr Lambeth also opined:

“A diagnosis of Alcohol Dependence can also be made, which I believe is also associated with, and very possibly secondary to, his anxiety and depression.”  

11.     Not being satisfied with this diagnosis in favour of the Applicant the Respondent then referred him again to Dr Allan White, psychiatrist of Newcastle.  As is a common feature with Dr White’s reports where alcohol is involved he states in his report of 21 January 2004:

“Alcohol Misuse and Abuse is the great mimicker because it can cause psychiatric symptoms which are indistinguishable from recognised psychiatric disorders, absolute abstinence from alcohol consumption must occur after which reasonable psychiatric assessment and appropriate treatment becomes possible.”

Given this opinion it is difficult to ascertain how any weight can be placed on Dr White’s diagnosis and opinions as to causation.  Nevertheless Dr White did state in his report:

“Mr Delaforce served as a steward in the Navy and spent four years on the HMAS Melbourne. There were occasions when he was in a combat zone and the ship was on action stations. Being on action stations and being in confined spaces caused him to experience apprehension and anxiety. He was seen in the sick bay with stomach cramps, which in retrospect may have been due to anxiety, although the diagnosis was not made at the time…”

12.     Finally the Respondent sought a report from Dr G S Robinson, psychiatrist. That report is dated 16 February 2005.  The history taken by Dr Robinson is quite important in this matter as due to his terminal illness the Applicant has been unable to give evidence.  In his report Dr Robinson records the history as:

“His first Action Station was 3 or 4 decks below the waterline in the “tunnel” (that is what they called it).  The tunnel was a confined space were you would pass along shells from one sailor to the other, or if you were on the end of the line, on to the elevator.  They were shells for the 3 ½ inch twin Bofors.  They would go from the elevator up to gunnery.  There they would put them into clips for the 14 twin Bofors on the Melbourne. He remembered that he was trained for it, and that the training “wasn’t too bad”, although it was not pleasant. The real Action Stations were quite a different thing; they “scared the shit” out of him, he told me.

He explained that you were pretty much alone down there, below the waterline, on Action Stations. It was very hot, with a temperature of around 120 degrees Fahrenheit. There was no air conditioning. They mostly happened under “red light” or “darkened ship” condition as they happened mainly at night.  Not knowing what was happening was the worst thing. You would be wondering all the time if the ship was going to be hit. You would hear all the various bumps and rumblings, from the aircraft taking off and landing, and from the firings of the guns. He remembers that the NCO noticed his nervousness on his first time in Action Stations; he was told to go above decks after he was finished to have a cigarette because that would calm his nerves (he had never before then smoked a cigarette).

…

One time at Action Stations one of the NCO’s noticed that he wasn’t handling it very well at all. He was so nervous he was dropping things. They had a bit of a yarn, and the NCO swapped him over to a different Action Station after that. At first he was sent up to one of the gun turrets, and his task there involved clearing shells away. The shells were very hot. He had to get rid of them out of the way. A lot you could kick over the side; others you would kick into a hatchway.

From the gun turret his next Station was as a stretcher bearer. It was his job there to carry any injured persons from the flight deck area to the ship’s sick bay. Luckily there were never any casualties to carry.

Later again, his Action Stations were changed to “HQ Runner”. It was his job then to run messages in case communications were knocked out. Luckily, this never happened. Another Action Station was at the rear of the ship loading rockets into the rear of the ship. None were as bad as being in the “tunnel”.

He added that he felt that they were really lucky that they never had any casualties, never to have been hit. From some of the Action Stations he could see some of the things that were happening. He could see the shell bursts up on the hills, but as it was dark, he never did know what they were actually hitting. The planes were constantly coming and going…”

Dr Robinson continued:

“Mr Delaforce went on to tell me that as well as having troubles with nerves ever since being on Action Stations on the Melbourne, he has also been a heavy drinker.

Mr Delaforce told me that he was a non-drinker and non-smoker when he joined the Navy at 17.

After turning 18, he was entitled to get his beer issue. They would be given a 26 oz can (equivalent to one large bottle) of beer.

Shortly after his first time in Action Stations in “the tunnel” on the Melbourne he had his first shore leave in Singapore. It was the first time he had ever been drunk. He was as drunk as a Lord. He went ashore with all the old salts. They “sank a few ships” on that leave, quite a few. After that, beer and cigarettes became a regular part of his life.

He started drinking full strength beer. From that very first shore leave in Singapore he never felt satisfied that he had had enough to drink until he was drunk. He went from beer to spirits whenever he was ashore after that. He would drink to the point of being drunk every opportunity he could get.  He would always do his work first. He would only ever drink while on leave. He explained that in the Navy there were times when you didn’t drink. You did not drink, for example, when you were at sea. But as soon as you were ashore, you would spend all of your money on grog.

He carried on with this pattern of heavy drinking after leaving the Navy. He never drank at work, but soon as the job was finished he would get “tanked”.”

13.      Dr Robinson went on to make the following diagnosis namely:

“Using DSM IV criteria, I made a diagnosis of Generalised Anxiety Disorder.

I made a co-diagnosis of Alcohol Dependence, now in sustained remission.

I made a further diagnosis of Social Phobia.

I made a further diagnosis of Dysthymic Disorder.”

14.      Dr Robinson then opined:

“Each of the above disorders, Generalised Anxiety Disorder, Social Anxiety Disorder, Dysthymic Disorder, and Alcohol Dependence are intertwined. It appears clear from the history given to me by Mr Delaforce that he has used alcohol as a form of self medication for his psychological problems. It is apparent that he has done so since his experiences in Action Stations in the Melbourne as described in the history. The Generalised Anxiety Disorder, Social Anxiety Disorder and Dysthymic Disorder also appear to stem from those experiences.”

15.     In particular Dr Robinson deals with the opinion of Dr White at page 12 of his report he says:

“The report of Dr White does not note the link made by Mr Delaforce between the anxiety experienced on Action Stations and the use of alcohol. I note that Dr White does not use DSM-IV terminology or the DSM-IV criteria in the context of Mr Delaforce’s use of alcohol. He has used terms “alcohol”, “alcohol misuse”, “alcohol abuse”, and “alcoholism”, and he notes his view that “alcoholism is a voluntary disorder in which self induced intoxication is the conscious goal. Thus alcoholism is not a psychiatric disorder…”. This is not the view of the authors of the DSM-IV system of psychiatric classification. Dr White also made the comment that Mr Delaforce has “Existential Despair”. This too is not a DSM-IV diagnostic entity.”

And continued:

“I note that Dr White’s opinion is at marked variance not only with the opinions of Dr Darcy and Dr Lambeth, who both diagnose an Anxiety Disorder and Alcohol Dependence and note “depression”, but with my own opinions.”

16.     Taking into account all the psychiatric opinions referred to above, it is clear that the Applicant does indeed suffer from an anxiety disorder and alcohol dependence.

17.     I have quoted extensively above from the history taken by Dr Robinson.  Given that history, it is clear that a hypothesis exists linking the diseases of anxiety disorder and alcohol dependence with the Applicant’s operational service.

18.     The current SoP for anxiety disorder being Instrument No 1 of 2000 gives as a factor linking the said disease with service as being “experiencing a severe psycho-social stressor within the two years immediately before the clinical onset of anxiety disorder”.  The term “severe psycho-social stressor” is defined in the SoP as meaning “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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.

19.     As was pointed out by the Full Court of the Federal Court in Repatriation  Commission v Stoddart (2003) 77 ALD 67, threat of death or serious injury in SoP’s can mean a natural or perceived threat. It is clear on the Applicant’s evidence that he felt a threat whilst in the “tunnel” when at action stations.  Consequently the psycho-social stressor was present.  The SoP also requires that the clinical onset of the disease be within two years of experiencing the psycho-social stressor.  In a statement to the Veterans’ Review Board the Applicant said inter alia:

“When I left the Navy, I pulled beer while waiting to go into the Police Force. I joined the Police because I knew I could go to the Country out West, so I could work alone, this I did for most of my Service, the isolation I found was the best move I could have made.”

He also says:

“There were times when my wife and I had problems in the first six months of our marriage, because of my isolating myself, being withdrawn and drinking too much – all my married life my wife has complained about me swinging my arms, kicking and thrashing in my sleep, sweating on the coldest of nights.”

20. The Applicant married his wife six months before leaving for the Navy. At page 204 of the section 37 documents is a statement by one F J Imber, retired Superintendent of Police to whom the Applicant was well known ever since he had been a Probationary Constable in 1965. Superintendent Imber refers to the Applicant as going into his shell and becoming very moody. He also refers to times when the Applicant drank to excess.

21.     On the material before me it seems that the criteria in the SoP have been met and thus a reasonable hypothesis exists linking the Applicant’s operational service with the disease of anxiety disorder.  Furthermore, I am satisfied beyond reasonable doubt, that the facts necessary to support this hypothesis have been negatived.

22.     Instrument No 76 of 1998 is the SoP relating to alcohol dependence.  The factors required to link the disease with operational service are 5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or subparagraph (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.

23.     It seems on the material adduced in this matter that the Applicant can conform with both subparagraphs 5 (a) and (b) of the SoP.  Similarly on the histories taken and the Applicant’s evidence it is clear that the clinical onset was within the two years of experiencing the stressor and/or contracting his psychiatric illness.

24.     So far as the conditions of social phobia and dysthymic disorder are concerned I consider that those particular diseases have been subsumed by the generalised anxiety disorder and any assessment of pension will take into account the interlinking of those conditions.

25.     Reference has been made to the Applicant’s malignant neoplasm of the submandibular gland and the applicable SoP is Instrument No 25 of 1997 entitled “Malignant Neoplasm of the Salivary Gland”.  The factors that must as minimum exist before a reasonable hypothesis has been raised in regard to this particular disease referred to having been within four kilometres of the epicentre of the atomic bomb explosions on Hiroshima or Nagasaki or undergoing a course of therapeutic radiation to the head of neck region before the clinical onset of the malignant neoplasm or an inability to obtain appropriate clinical management for malignant neoplasm of the salivary gland.  None of these factors apply to the Applicant. Consequently, it cannot be said that a reasonable hypothesis exists linking this disease with the circumstances of his operational service.

26. On the evidence contained in the section 37 document it is clear, particularly having regard to the report of Dr Deacon, consultant respiratory physician dated 24 June 2003, that the Applicant’s current breathlessness is referable to his psychiatric disorders. As I see it therefore no separate condition exists but the symptoms must be taken into account in assessing the rate of pension for psychiatric disability.

27.     My decision is therefore that the decision of the Veterans’ Review Board dated 25 August 2004 is set aside and I substitute in lieu thereof my decision that the conditions of anxiety disorder and alcohol abuse are war-caused diseases. The matter will be remitted to the Repatriation Commission in order that it might assess the rate of pension to be paid.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)            .....................................................................................
  Associate

Date of Decision  19 May 2005

Solicitor for the Applicant             Mr P Jones, Legal Aid Commission of New South Wales        

Advocate for the Respondent      Mr M Huthnance, Department of Veterans’ Affairs