Dettmer and Repatriation Commission
[2001] AATA 320
•20 April 2001
DECISION AND REASONS FOR DECISION [2001] AATA 320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/880
VETERANS' APPEALS DIVISION )
Re DENIS JAMES DETTMER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr M E C Thorpe, Member
Date20 April 2001
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent with the direction: THAT Denis James Dettmer suffers from the war-caused disease of psychoactive substance abuse (alcohol) and that he is entitled to payment of pension for incapacity occasioned by the said disease as and from the 24th day of November 1997; AND THAT the Respondent is to assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases.
(Sgd) M D ALLEN
..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Various diseases claimed as war-caused. Diagnosis of diseases compared to the symptoms. Whether material raised met the factors necessary to establish a reasonable hypothesis.
Veterans' Entitlements Act 1986 - s120 and s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Owens 70 ALJR 900
Repatriation Commission v Bey 79 FCR 364
Repatriation Commission v Cooke 90 FCR 307
Repatriation Commission v Smith 15 FCR 327
Budworth v Repatriation Commission [2001] FCA 317
Connors v Repatriation Commission [2000] FCA 783
REASONS FOR DECISION
20 April 2001 Senior Member M D Allen Dr M E C Thorpe, Member
By application lodged with the Tribunal on 9 January 2000 the Applicant sought review of a determination by the Respondent as affirmed by a Veterans' Review Board which determination denied his claim to have the disabilities described as "strain of the back region" and "chronic anxiety state with alcohol dependence" attributed to his operational service.
The Applicant, so far as is relevant to these proceedings, had operational service in the Far East Strategic Reserve as a member of the Royal Australian Navy from 9 May 1963 to 18 May 1963 and 24 January 1966 to 2 August 1966. He did have other brief periods of operational service whilst a crew member of HMAS Sydney when that vessel paid short visits to Vung Tau in the Republic of South Vietnam but before this Tribunal no claims were made regarding the brief interludes whilst anchored in the port of Vung Tau.
As the Applicant had operational service, the provisions of subsections 120(1) and (3) of the Veterans' Entitlements Act 1986 (as amended) (the VEA) apply, namely that the Repatriation Commission and hence this Tribunal shall determine that a disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination but that the Tribunal is deemed to be so satisfied beyond reasonable doubt if the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the Applicant. Section 120A of the VEA then provides that an hypothesis connecting a disease with the circumstances of the Applicant's services is not reasonable unless it conforms with a so-called Statement of Principles that upholds the said hypothesis. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
The relationship between the reverse standard of proof required by subsection 120(1) and the Statement of Principles regime imposed by section 120A was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97, namely:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
In matters where there is no Statement of Principles the High Court pointed out in Repatriation Commission v Owens 70 ALJR 900, in considering whether a hypothesis is reasonable, that the whole of the material before the Tribunal must be considered not just the facts favourable to the existence of an hypothesis. Whether an hypothesis is reasonable is a question of fact – see Repatriation Commission v Bey 79 FCR 364.
Although the Full Court of the Federal Court said in Repatriation Commission v Cooke 90 FCR 307 that the question of whether a disease exists or not is to be decided on the civil standard of proof, that is to say on the balance of probabilities, see Repatriation Commission v Smith 15 FCR 327, Madgwick J pointed out in Budworth v Repatriation Commission [2001] FCA 317 that the question to be asked is not whether a particular disease exists but whether the Applicant has a range of symptoms and whether those symptoms can be related to operational service. Although the Respondent has, through the Repatriation Medical Authority, issued various Statements of Principles relating to named diseases, Budworth supra points out that it is wrong to give a label to a range of symptoms and then, in circumstances where causation is bound up in the question of diagnosis, reject a claim by deciding on the balance of probabilities the specific named disease did not exist.
This case demonstrates the point raised in Budworth supra. The Applicant first claimed for "back problems". The delegate of the Repatriation Commission dealing with the Applicant's claim referred to the condition as a claim for "strain of the back region". In a later report dated 18 October 2000 Dr Giblin, Orthopaedic Surgeon, diagnosed the condition as a soft tissue injury to the thoracic spine. There is no Statement of Principles which relates to soft tissue injury.
The Applicant's evidence to the Tribunal regarding this condition was quite straight forward. He stated that whilst a crew member of HMAS Gull, a minesweeper, he was acting as helmsman when he received an order to turn the vessel sharply to port. The act of turning caused a box of Owen gun ammunition to break loose and slide across the deck. With one hand on the wheel he stretched out to restrain the ammunition box and, in so doing, felt a sharp pain in his back.
There was no medical officer aboard HMAS Gull, however, the medical orderly on board provided the Applicant with pain killers and liniment (Tiger Balm ointment). Other crew members assisted him in carrying out his duties for two to three weeks until the pain in the back ceased. Upon return to Singapore he attended before a naval medical officer who simply confirmed a back strain. He has continued to have back pain ever since.
Document T4 at p16 confirms that the Applicant, at his discharge medical examination, complained of "occasional" backache. However, the reason given for this is that he "strained his back when lifting stores on HMAS Gull". A later document, being a letter forwarded to the Respondent by the Vietnam Veterans' Federation on behalf of the Applicant dated 21 October 1998, states:
"The veteran contends that he suffered a back injury while moving stores on the Gull during stormy, turbulent weather. He consequently suffered pain, altered mobility and tenderness and consulted the Medic on board, who prescribed pain relief and liniment." (T18 p63)
In evidence to the Tribunal the Applicant claimed that upon leaving the Navy he first attended a medical practice at Ramsgate on account of his back and then had treatment from a chiropractor at Chatswood. In his statement (Exhibit A3) the Applicant stated:
"14.After leaving the Navy in 1968 at home I would kneel on the lounge room floor and place my elbows on the lounge. My wife would place my elbows on the lounge and sit on my hips, place her hand under my shoulders and pull my back towards her. This was done to try to and ease my back from aching.
15.When working for Sydney County Council I would constantly hang from a broomstick placed high between shelves to try to get some relief."
In evidence in chief the Applicant stated that his back did not bother him when employed as a labourer by Sydney County Council. The Tribunal also notes that in Exhibit R5, being records from Energy Australia (formerly Sydney County Council), the Applicant, when applying for a position in November 1968, denied any history of a "back condition". He was examined by the County Council's Medical Officer and passed fit for duties as a labourer.
There is no other recorded history of the Applicant suffering from pain in his thoracic spine until 1997. On 3 December 1997 the Applicant was referred to Dr Stone, Surgeon, because of back pain. In his report (undated) to the Respondent (Document T10) Dr Stone states inter alia:
"Mr. Dettmer was first seen by me on the 3rd December 1997. He gave a history of thirty years of low back ache with a two week history of more severe back ache after a game of golf such that he was restricted to lying on the floor most of the day unable to carry out his usual activities.
The local doctor had ordered xrays of the pelvis and hips, and abdomen. He had a CT scan of the lumbar spine and sacrum and plain xrays of the lumbar sacral spine and sacral iliac joints.
I attach copies of the results of these but there was essentially normal radiological features in all cases. There was no evidence of disc protrusion or nerve root compression on his CT scan. When I looked at the xrays I thought that the pelvic tilt of the sacrum on his lumbar spine was slightly exaggerated and there was a slight scoliosis to the left.
…
There was no evidence radiologically to suggest that there had been ongoing organic disease for thirty years and physical findings were such to suggest that an acute muscular or tendon traumatic event had occurred during the exercise of playing golf. He was advised to rest over Christmas and given advice with regard to sitting, rotating etc.
…
His general practitioner referred him back to see me again on the 17th March 1998 now complaining of tenderness in the spinal region and a request that a bone scan be organised. Bone scan results are also attached and as you will note there was minor facet joint disease in T7/T8 on the left with minor arthritic changes in other major joints. None of these findings correlate with symptomatology.
On his last visit he indicated that there had been a previous workers compensation claim whilst he worked for Energy Australia and this had been unsuccessful because there was a statement on his notes that said he was over zealous.
I have no doubt that this man suffered a musculoskeletal event whilst playing golf just before Christmas but feel that there is a large stress component overlying this, possibly, related the retrenchment of both himself and his wife. I have attempted to reassure him … I advised his referring general practitioner that an orthopaedic opinion would be helpful but I have since understood from Mr. Dettmer that he has consulted several orthopods over the years with no resolution or diagnosis."
Apparently the Applicant was not satisfied with Dr Stone's opinion because on 18 March 1998 Dr Stone wrote to the Applicant's general practitioner (Exhibit R7 p58):
"I have ordered the bone scan for him but do not expect this to help. There was a change in his story today in that previously I had understood that he had not been to an Orthopaedic Specialist nor had other specialist help but today it was indicated that he had a workers compensation request which it appears was not successful because the statement was that he (was) over zealous. He also then said he had seen so many different specialists he can't remember their names. He is picking on minutia in his xrays which are irrelevant and he is really clutching at straws when he is goes (sic) back asking the radiologist to do a revised report. …"
No details were given to the Tribunal of other specialists the Applicant had consulted regarding his back. He had, however, as revealed from the notes of his treating general practitioner, consulted a neurologist in September 1997. In her report of 23 September 1997 to the Applicant's general practitioner (Exhibit R7 p176), Dr Vonau states inter alia:
"Thank you for referring Mr. Dettmer a fifty-three year gentleman who had a couple of injuries over the years. The first was about twenty years ago when he was skiing behind a boat and had an accident and was unconscious for a few seconds. He fractured his facial bones and tore his retina and I believe there were problems with the after effects of his head injury for a few months. Ten years ago he was in a stationary car hit from behind and he sustained an injury to his neck. He underwent manipulation several times and it improved his pain.
He has recently been retrenched. At the time he was doing computing work whereas previously he did quite heavy lifting.
He is troubled by pain in the neck in the mornings with suboccipital pain. He has radicular symptoms in the arms and recently has had an injection into the left elbow for tendonitis.
I reviewed a CT of his brain from 11th September 1997. This was a non-contrast study but was within normal limits and I reviewed x-rays of the cervical and thoracic spine from 9th July 1997 showing no significant abnormality." (Tribunal's emphasis)
The Tribunal notes no history was taken by Dr Vonau of back injury whilst in the Navy nor of any history of continuing back pain thereafter. No complaint appears to have been made of pain in the thoracic spine and, on perusing x-rays of the thoracic spine, Dr Vonau noted no significant abnormality.
On 2 September 1999 the Applicant was examined by Dr Kalnins, Orthopaedic Surgeon. In his report of 3 September 1999 (T26 p95) Dr Kalnins took a history as follows:
"I examined the above patient on 2.9.99. He indicated that he had initially injured his back while in the navy sometime in the 1960's. He was unable to remember the exact date. He experienced a sharp pain in the interscapular area while moving some ammunition boxes on board a ship. He was treated with analgesics and local liniment applications. He states that he has had a thoraco-lumbar back pain ever since that time.
I understand that he left the navy in 1968 and up to that time, no x-rays of his spine had been performed. He states that he has had these recurrent back pains aggravated by physical activity and has had treatments with a physiotherapist and still uses Panamax or Panadeine Forte tablets when necessary. He does some stretching exercises but no longer does any swimming although he did do some swimming at one stage in his treatment.
…
He had with him x-rays and a C.T. scan of his thoracic and lumbo-sacral spines. These were all within normal limits. He had a bone scan dated 20.3.98 which reports minor T7-T8 facet joint disease but also reports arthritic changes in his shoulders, elbows, hands and feet.
Examination of his thoraco-lumbar spine revealed no deformity. …
Mr. Dettmer indicates that he has had these back sypmptoms for over 30 years. Clinical examination does reveal restricted spinal movements and very tight hamstrings with indication of pain by the patient when these were performed as described in the examination. There is however no objective evidence to account for these symptoms apart from the minor degenerative change noted at T7/T8 facet joint. I note however that the bone scan describes arthritic changes in numerous other joints and I would respectfully suggest that to try and elucidate the possible causes for these changes he would benefit from referral to a rheumatologist to exclude inflammatory joint disease.
… However I can see no causal relationship between the incident which he described to me occurring some time in the 1960's and his generalised back problems of today."
The report of Dr White, Rheumatologist, is Document T26 p102. That report dated 1 November 1999 concludes:
"In summary, Mr. Dettmer is a 55 year old man with chronic back pain. I am confident that he doesn't have an inflammatory spondylo arthropathy. Considering the duration of his history, I am similarly confident that his symptoms don't reflect any significant structural pathology. In fact, I couldn't identify any specific condition that adequately explained the extent, severity and duration of his symptomatology and reported disability. Although I am sure that he has degenerative spondylosis, the features that he describes seem disproportionate to the objective findings. I therefore suspect that psychosocial factors have been contributing and have had an amplifying effect. Hence, in my opinion, his symptoms represent an augmented pain response complicating mild degenerative spondylosis, and that his ongoing pain is largely neuropathic. …
Problems with his spine couldn't be attributed solely to his previous service, although psychosocial factors resulting from that service and perceived discrimination could be acting to amplify his pain, as mentioned above."
In contrast to the reports of Drs Stone, Kalnins and White, Dr Giblin, Orthopaedic Surgeon, after taking a history of the Applicant experiencing a sharp pain between the shoulder blades after attempting to grasp a box of Owen gun ammunition, opined that the Applicant suffered a soft tissue injury to the thoracic spine as a result of injury whilst aboard HMAS Gull and that the Applicant's current condition in the thoracic spine is reasonably causally related to his alleged war service injury.
In coming to that opinion Dr Giblin did not have the advantage of being able to refer to any x-rays or other investigations, noting that none were available to him. Also, contrary to fact, the history taken by Dr Giblin states (Exhibit A4 p2): "He denies any previous history of road traffic accidents, … sports injuries …"
Contrast the reports of Drs Stone, Vonau, Kalnins and White who had the advantage of x-rays, a bone scan and a CT scan. Drs Stone and Vonau also had the history of a motor vehicle accident and Dr Vonau also noted a water skiing accident.Dr Giblin has postulated an hypothesis linking the Applicant's current back condition, howsoever described, with a soft tissue injury suffered by him aboard HMAS Gull in 1966. Given the opinions of the other specialists who gave reports in this matter, combined with:
(i)the fact the Applicant was apparently not troubled by his back condition when he applied for work as a labourer with the Sydney County Council;
(ii)the dearth of material in the records of the Sydney County Council (now Energy Australia) of the Applicant's absences from work because of back problems;
(iii)that the Applicant engaged in vigorous sports such as water skiing;
(iv)that the first reference in the Applicant's now general practitioner's notes regarding his back is a referral to a surgeon following pain after a game of golf in 1997;
(v)that there are no reports of treating medical practitioners or specialists regarding pain in the thoracic spine until the reference to Dr Stone in 1997;
(vi)the very real possibility, given the reports of Drs Kalnins and White, that the Applicant's back pain is psychosomatic rather than injury based; and
(vii)the failure by Dr Giblin to take any history of prior accidents and the unavailability to him of any investigations of the Applicant's spine,
we are satisfied on the balance of probabilities that the hypothesis based on the report of Dr Giblin cannot be regarded as a reasonable one. We therefore are deemed to be satisfied beyond reasonable doubt that the Applicant's back pain, howsoever described, is not a war-caused injury or disease.
There is no doubt that the Applicant has an habituation to and abuses alcohol. Currently he drinks about 10 schooners of beer a day with possibly a couple of nips of scotch, whisky or port at night. At other times he may drink more. It is not an exaggeration to state that the Applicant is indulging in a pattern of drinking alcohol which is dangerous to his health.
The Applicant has also been diagnosed as suffering from either an anxiety state or disorder (Drs Keshava and Subhas) or a post traumatic stress disorder (PTSD) (Dr Dinnen).
The relevant SoPs are:
No 15 of 1994 as amended by No 225 of 1995 No 48 of 1994 as amended by No 275 of 1995 No 5 of 1994 Post Traumatic Stress Disorder Generalised Anxiety Disorder Psychoactive Substance Abuse or Dependence
Whereas Dr Dinnen opined that the Applicant had a PTSD, he stated in evidence that as PTSD is but a specific disorder under the general rubric of anxiety disorders in the Diagnostic and Statistical Manual of Mental Disorders (DSM), he would have no difficulty in accepting that the diagnosis of the Applicant's condition is anxiety disorder with substance abuse (alcohol).
Although in histories taken by Dr Keshava, who was until recently the Applicant's treating psychiatrist, the Applicant has implicated service in Vietnamese waters as contributing to his anxiety state, in evidence to the Tribunal he clearly implicated events whilst on service aboard HMAS Gull in 1966 as the cause of his anxiety disorder and alcohol habituation. We do not therefore propose to canvass events alleged to have happened whilst aboard HMAS Sydney, except to say we regard the references to events in South Vietnam as no more than attempts by the Applicant to manufacture alleged events in order to bolster his case.
At the hearing before the Veterans' Review Board on 14 July 1999 the Applicant stated that Dr Keshava's reports reveal a very confused understanding of what he was told. In these proceedings, therefore, we will concentrate on the events said by the Applicant in these proceedings to be causative of his anxiety state and use of alcohol.
The first of such events was the sudden and accidental firing of anti-submarine mortars whilst the Applicant was a crew member of HMAS Parramatta. We can understand how, in the circumstances, the Applicant would have received a fright from this occurrence but there is no evidence that that event had any further affect upon him.
Dr Dinnen, in his evidence and in his report of 27 October 2000 (Exhibit A5), implicates the cause of the Applicant's symptoms as his service aboard HMAS Gull in the period 24 January 1966 to 2 August 1966.
The task of HMAS Gull during that period, which was part of the period in which an undeclared war was taking place between Indonesia and Malaysia supported by British Commonwealth countries commonly known as "confrontation", is described in the historical report by Captain Stevenson (Exhibit R3) as follows:
"HMAS GULL was a coastal minesweeper of the Ton Class. She was 152 overall length and displaced 360 Tons. Reports of Proceedings for HMAS GULL for 1966 record patrol duties between Indonesia and the Malay Peninsular and investigating small boats for the illegal traffic of weapons and other goods. On 08 MARCH a sampan suspected of being booby-trapped was sunk. On 27 MARCH the ship was subject to a 'near miss' from an Indonesian shore battery. During the period 13-18 MAY the ship was subject to the effects of typhoon Irma whilst on passage from Hong Kong to Singapore."
In his evidence to the Tribunal the Applicant stated that whilst HMAS Gull was carrying out interception duties he was very nervous. A British minesweeper of the same class carrying out the same duties had been blown up. It would have been very easy to throw a bomb or grenade onto the ship from any small vessel intercepted. As pointed out by Dr Dinnen, the Applicant was fearful for the entire time HMAS Gull was carrying out these duties.
A more specific incident occurred when, to the Applicant's perception, HMAS Gull was fired upon by an Indonesian shore base anti-aircraft battery. The Applicant saw tracer fire coming towards HMAS Gull and he was so frightened that he became incontinent. He stated that to this day he still has nightmares regarding this incident.
The incident described by the Applicant is confirmed by the Reports of Proceedings for HMAS Gull for the month of March 1996, namely:
"15. … during a busy night in the Singapore Strait in the course of which AA fire from an Indonesian Shore Battery exploded uncomfortably close to the ship. At the time it was not known at what the fire was directed but it is now considered likely that the target was an unidentified aircraft …" (See Exhibit R4 p30)
It was during this period of service aboard HMAS Gull, and particularly after the tracer incident, that the Applicant began to increase his intake of alcohol. He stated that when the vessel came into Singapore at the end of a patrol "that's when I started to get on the booze". He also found it possible to get extra beer whilst on board, if a beer ration was given out, by buying the ration not used by non-drinkers.
The SoP for Generalised Anxiety Disorder states that one of the factors for the hypothesis to exist connecting that disease with service is the (T28 p111):
"experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder."
We agree with Dr Dinnen that for both generalised anxiety disorder and for the factor in the SoP for PTSD, namely a stressor that the stressful event or stressor need not be a distinct individual occurrence but a sense of apprehension or fear existing during a period of time is sufficient. For example, in the Applicant's case a fear of being killed or injured whilst HMAS Gull was engaged in patrol duties would be sufficient. The definition of a "stressful event" in Instrument No 48 of 1994 is "means an occurrence which evokes feelings of anxiety of stress.", and we see no necessity to limit the word occurrence to any discrete period of time.
Exhibit R2 is the report of Dr Shand, Psychiatrist, dated 17 November 2000. In that report Dr Shand opines that the Applicant does not suffer from either PTSD or an anxiety disorder but rather from a personality disorder which dated from his school days.
In particular Dr Shand, in a comprehensive review of the Applicant's medical history, demolishes much of the alleged symptoms which the other psychiatrists have used to diagnose an anxiety condition (including PTSD). At p13 of his report Dr Shand states:
"Comparison of information/history of the stressors during service in the Navy to various doctors including Dr Blows, Dr Keshava, Dr Dinnen, Dr Subhas, and to myself, indicate not only some confusion about the nature and detail of the events, but also a marked variation about the major stressors themselves. …
From the accumulated information, I find the claims of service related PTSD and alcohol abuse/dependence more than difficult to accept. He probably does have a serious drinking problem but I do not think that he is suffering from Post Traumatic Stress Disorder, of which there was no history until he made his claim in January 1998, 30 years after he left the Navy. That clinical notes indicate that he was a golf player at least up to 1997/1998 and that he had a big, long, boozy send off party at the RSL Club prior to his move to Banora Point, raises serious doubts about the credibility of the history of being antisocial."
The first step in the investigation to be undertaken by the Tribunal, as outlined in Deledio supra, is to determine if the material before the Tribunal points to an hypothesis connecting the disease with service.
As pointed out by Kenny J in Connors v Repatriation Commission [2000] FCA 783, following the amendments to the VEA affected by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994, it is no longer permissible to assume facts and any hypothesis must be supported by evidence pointing to each individual element in an SoP for the hypothesis to be reasonable.
Similarly, in Repatriation Commission v Cooke supra the words of the Federal Court are quite clear, namely (90 FCR 307 p310):
"... the issue whether a disease exists, is to be decided to the reasonable satisfaction of the Commission."
Instruments Nos 15 of 1994 and 225 of 1995 set out the factors which must exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with service. These instruments then define PTSD in the same terms as used in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders.
Dr Dinnen, in his report of 27 October 2000, stated (Exhibit A5 p7):
"All the criteria for this condition were evident at my examination and can be found in the various reports …"
However, when we examine the criteria for the diagnosis of PTSD and the contrary report of Dr Shand, we find that on the evidence before us we are not satisfied that the Applicant does suffer from a ptsd.
we are strengthened in that opinion by the fact that neither Dr Keshava, who was the Applicant's treating psychiatrist and to whom the Applicant had been referred by the pensions officer at his RSL Club, nor Dr Subhas, to whom the Applicant was referred by the Department of Veterans' Affairs, diagnosed a PTSD. It can be assumed that Dr Keshava is familiar with the treatment of veterans and would be alert to a diagnosis of a PTSD if the history given by the patient suggested that classification of mental disorder. Dr Subhas did consider PTSD but rejected that diagnosis on clinical grounds.
Material has been put before the Tribunal which points to an hypothesis that the Applicant has a generalised anxiety state which is related to his service.
That hypothesis is, as we see it, that the Applicant whilst aboard HMAS Gull experienced a stressful event when he believed that an Indonesian shore battery was firing at the vessel.
Instrument No 48 of 1994 states that of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting a generalised anxiety disorder with service, one such factor is:
"experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;"
As stated above, there is no doubt that the Applicant did experience a stressful event when tracer rounds were fired near to HMAS Gull. There is, however, no evidence whatsoever that he developed the clinical onset of a generalised anxiety disorder within two years after that event.
All the evidence before us points to the Applicant having an uneventful career for the rest of his service in the Navy. There were no disciplinary problems and no medical referrals for psychological disturbance. On discharge his only complaint was regarding an alleged back injury.
Post service the Applicant had a successful career at Energy Australia. He took very little sick leave and as was pointed out by his supervisor Mr McHatton, in evidence to the Tribunal, when he first met the Applicant, the Applicant was a good worker who did an excellent job. It was not until the last 9 to 12 months of his service that Mr McHatton noticed a decline in the Applicant's ability to undertake his tasks.
The report of Dr Vonau shows that the Applicant had engaged in sport such as water skiing and Dr Stone refers to the Applicant playing golf. Dr Shand's report is also relevant as to the Applicant's social activities.
The description of the symptoms constituting a general anxiety disorder are set out in Instrument No 48 of 1994. As stated above, Dr Shand did not find that those symptoms existed. Dr Stone, on the other hand, implicated psychosomatic features resulting from retrenchment in the Applicant's back problems.
Having regard to all the material before us we are reasonably satisfied that the hypothesis raised by the Applicant seeking to connect an anxiety state with service is not a reasonable one as there is no evidence of any anxiety state existing within two years from the stressful event.
Instrument No 5 of 1994 sets out the factors for Psychoactive Substance Abuse or Dependence. In this case the substance is alcohol and there is no doubt that the Applicant is abusing alcohol in that a consumption of 10 schooners, that is to say 200 grams of alcohol, per day amounts to "destructive drinking" leading to inevitable physical or mental damage.
The SoP states a factor which links psychoactive substance abuse with service as being:
"experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service."
There is, as stated above, no doubt that the Applicant experienced a stressful event aboard HMAS Gull, and that the definition of stressful event in the SoP has been met. The Applicant believed his vessel was being fired upon and he manifested symptoms of increased stress by becoming incontinent. Upon return to Singapore he increased his consumption of alcohol and this continued post service.
The fact of tracer fire coming close to HMAS Gull has been corroborated and as to the Applicant's pattern of increased alcohol intake to cope with the stress he experienced, we cannot be satisfied beyond reasonable doubt that this did not occur.
Consistent with the relative SoP we find that the Applicant has the condition described as psychoactive substance abuse and that a reasonable hypothesis has been raised connecting this disease with his operational service. There are no facts upon which we can be satisfied beyond reasonable doubt that the disease was not war-caused.
The decision under review will therefore be set aside and this matter remitted to the Respondent with the direction that the Applicant's disease of psychoactive substance abuse (alcohol) is war-caused, and that the Respondent is to assess the rate of pension to be paid for incapacity occasioned by all war-caused injuries and diseases.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr M E C Thorpe, MemberSigned: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing 3 April 2001
Date of Decision 20 April 2001
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant R L Whyburn & Associates
Advocate for the Respondent Mr S Modder,
Department of Veterans' Affairs
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