Devereaux and Repatriation Commission - [2001] AATA 557

DECISION AND REASONS FOR DECISION [2001] AATA 557

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/901

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE DEVEREAUX
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date20 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that: (a) the disease/injuries of generalised anxiety disorder, psychoactive substance abuse/dependence, namely alcohol, hypertension, impotence and osteoarthrosis right knee are war caused; (b) the assessment of the impairment rating for the generalised anxiety disorder and substance abuse/dependence is 39; and (c) the remaining war caused diseases/injuries are remitted to the Respondent for assessment of an individual impairment rating, a total combined impairment rating for all war caused disabilities, and the calculation of disability pension.
..............................................

DR J CAMPBELL
Member

CATCHWORDS
Veterans' Entitlements - claim for injuries/diseases to be war caused - generalised anxiety disorder - psychoactive substance abuse - hypertension - impotence - osteoarthrosis right knee - stressful events

Veterans Entitlement Act 1986 - sections 120, 120A.
Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No. 5 of 1994
Statement of Principles Instrument No. 83 of 1995
Statement of Principles Instrument No. 97 of 1996
Statement of Principles Instrument No. 352 of 1995

REASONS FOR DECISION

Dr J D Campbell, Member

In this application, Mr Neville Devereaux ('the Applicant') seeks a review of the decision of the Repatriation Commission ('the Respondent') dated 22 January 1998 which refused the Applicant's claim dated 30 June 1997 that the conditions of osteoarthrosis of the right knee, panic disorder with agoraphobia, hypertension and impotence were causally connected to his periods of eligible service. This decision was reviewed by the Veteran's Review Board ('VRB') and affirmed in a decision dated 7 April 1999.
A hearing was held before the Tribunal on 28 February 2001 at which the Applicant was represented by Ms Rudland of Counsel. The Respondent was represented by Mr Modder, a solicitor from the Department of Veterans' Affairs. The Applicant and Dr Dinnen presented oral evidence to the Tribunal. Written submissions were obtained from the parties with the last submission in reply, on behalf of the Applicant, being received on 30 April 2001.
The following material was placed into evidence before the Tribunal.
Exhibit No     Description    Date
T1-33 Documents prepared pursuant to section 37 of the Administrative appeals Tribunal Act 1975
A1      Applicant's further amended Statement of Facts and Contentions    2 May 2000
A2      Statement of the Applicant           22 March 2000
A3      Statement of Mr Maher      25 June 1999
A4      Medical Report Dr Giblin    6 April 2000
A5      Medical Report Dr Dinnen 23 February 2000
A6      Statement of Mr Cox          6 July 1999
R1      Medical Report Dr Lennon 12 April 2000
R2      Medical Report Professor Richards         26 May 2000
R3      Medical Report Dr Lewin    27 October 2000
R4      Medical Report Mr Mulcare           27 June 2000
R5      Medical Report Mr Mulcare           20 July 2000
R6      Respondent Statements of Facts and Contentions      27 February 2001

issues

The relevant issues in this matter are:
(a) the diagnosis of the Applicant's psychiatric condition;
(b)whether the Applicant's diagnosed psychiatric condition, substance abuse and/or dependence, osteoarthrosis of the right knee, hypertension and impotence are war caused conditions; and
(c)what the appropriate assessment of the impairment rating for the psychiatric disorder is, if it is considered to be a war caused disability.

legislation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ('the Act') and in particular ss 120(1), 120(3), and 120A.
background
An application was lodged with the Respondent on 30 June 1997, in which the Applicant detailed the following injuries/illnesses occasioned during service with the Far Eastern Strategic Reserve, during the periods 7 April 1960 to 15 April 1960 and 6 May 1960 to 2 June 1960 (T10):

fall at sea while on HMAS Voyager causing injury to right knee;
nervous breakdown on return to Australia from service in Far Eastern Strategic Reserve;
hypertension brought on by nervous disorder caused by breakdown; and
other injuries/illnesses including bilateral hearing loss, refractive error and damage to lower back, although they are not part of this appeal (T4, p59)

Following assessment of the application by the Respondent, the Applicant's claim for osteoarthrosis of the right knee, panic disorder with agoraphobia, hypertension and impotence, was refused on 22 January 1998 (T12).
On 7 April 1999 the Veterans' Review Board affirmed the decision of the Repatriation commission.
applicant's evidence
The Applicant told the Tribunal that he left school at age 13, enjoyed an urban childhood and joined the Navy at age 17 on 20 June 1957, because it was his wish to do so. The Applicant stated that in July 1959 he joined the HMAS Voyager as a mechanic engineer with his main duties being as a stoker in the boiler rooms, watch keeping on machinery while at sea and general maintenance duties when in port. Following his leaving the Voyager in September 1960, the Applicant indicated that he attended a diving course at HMAS Albatross, before being posted to engine rooms on minesweepers at HMAS Waterhen and a final posting at HMAS Curlew prior to his discharge from HMAS Penguin on 14 April 1964.
In describing what he considered as stressful events during his service, the Applicant nominated two in particular. Namely, the heat exhaustion episode and the Thai Border incident. In describing the heat exhaustion episode, the Applicant detailed an incident, which he stated occurred on 15 April 1960, when having docked in Hong Kong and shut down the boilers they were asked to refire the boilers in order that the ship could be moved. This, in the Applicant's view, was a very hot and hazardous activity. The Applicant described waiting outside the boiler room when first the chief stoker was dragged out with what was confirmed as a heart attack. Another six stokers were dragged out with heat exhaustion, while the Applicant waited his turn. The Applicant stated that he found this a very frightening experience.
In describing the Thai Border incident, the Applicant stated that it occurred after the Hong Kong incident in early May 1960, and that it involved an exchange of about 10 sailors with 10 army personnel, with the former being given some range instruction practice with army weapons. Following this, the Applicant recounts that they were driven to a base camp after which they commenced patrolling with five to eight other men. He found this extremely tough and exhausting as they had to cut their way through the jungle with machetes. The Applicant indicated that he was not used to this type of environment and he felt a fear of being shot at, a fear of the unknown, a fear of the jungle, a fear of leeches and wild animals, including tigers and elephants, and while on picquet duty, a fear of rats.
The Applicant also stated that he experienced stress when the generator he was operating shut down on him twice while the ship was on patrol at sea, and that he felt a great deal of pressure to get it going.
The Applicant told the Tribunal that he was at home, on leave, in Perth in July 1960, when he was called back by telegram to rejoin HMAS Voyager. He stated that he was found by his father sitting on the back steps of the house crying, anxious and upset. His father took him to the local general practitioner who arranged his transfer to hospital by ambulance.
In relation to his drinking, the Applicant indicated that he currently drinks at clubs four to five times a week, during which time he consumes eight or more plus schooners of beer. The Applicant stated that he started drinking during recruit training at HMAS Cerebrus, where he would have a couple of beers when on leave. The Applicant said that he started drinking every night after coming back from Malaya, consuming beer over a six hour period between 3pm and 9pm.
After his period of hospitalisation in Perth in July 1960, the Applicant said that he did not do much as he was tired and sleeping a lot. He recommenced drinking which helped him to settle down and sleep. He continued to drink heavily when his children were young, and this caused marital difficulties, with he and his wife being separated on more than one occasion.
The Applicant described himself as being nervy, shaky, irritable, experiencing difficulty with concentration and stated that he does not want to be associated with anything. He finds that he has a dry mouth, his stomach churns two to three times a week and he needs a beer to relax. He wakes two to three times a night, dreams and wakes up sweating. He has been on valium for a long time.
The Applicant stated that he has suffered from impotence since 1991, with no difficulties prior to that time.
The Applicant stated he experienced an injury to his right knee in 1959, and that it was swollen and strapped for eight to ten weeks. The Applicant described a further injury to his right knee following a fall on 10 April 1960, with his knee swelling and being bandaged by the sick berth attendant.
In response to questions in cross examination, the Applicant indicated that the incident in Hong Kong occurred about one month before the army exchange, with the patrol activity lasting for 10 days. The Applicant also indicated that he was drinking very heavily on leave in July 1960 and after the period of hospitalisation would drink up to 40/50 schooners per week. Alcohol has caused minimal interference with his work, he has not been charged with any alcohol related offences, and it has not interfered with his medication.
In relation to his right knee the Applicant indicated that the first injury was on 27 October 1959 when he reported knocking his right knee in the café on board ship a week previously. The knee was strapped. On 10 April 1960 the Applicant said he was walking upstairs in the engine room, when he fell and landed on a grate causing his right knee to swell. He was given light duties involving watch keeping. The Applicant played rugby union in 1961 and 1962 and his right knee was swollen again in Scotland in 1962.
In response to questions from the Tribunal, the Applicant stated that the major stressor was the boiler room incident, and that he was nervous and scared at that time. He was unable to recall what he did that particular evening, but he went back to normal duties the next day. Further, the Applicant commented that while serving with the Army, there was no particular incident, and that he just considered that he was in a dangerous situation.
medical evidence
The Nervous Disorder:
As a result of his admission to hospital on 18 July 1960 for anxiety state and severe emotional upset (T3, p18), Dr Home, a Consultant Psychiatrist made the following comments on 27 July 1960 (T3, p21):
"This lad has a suggestion of schizoid personality. He also shows an acute situational maladjustment to the RAN. This is causing his symptoms. He is unlikely to make an efficient rating and his discharge is recommended as soon as possible. No treatment indicated and discharge from hospital suggested."

On 19 August 1960, Dr McGeorge, a Consultant Psychiatrist, examined the Applicant at Balmoral Naval Hospital and reported (T3, p24):
"Says he doesn't feel too bad now. It seems that his depression has lifted. Claims he suffers from claustrophobia. States that while away, seven members went down with heat exhaustion and this worried him. He denies any personal worry "to any extent". I agree that his present attitude is one of emotional indifference, almost apathy, rather than depression."

Dr John Pickering, a Consultant Psychiatrist, stated in his report dated 31 October 1997 that the Applicant's "first overt symptoms of anxiety appear to have begun after the incident in which he was sent ashore with the Army in Malaysia". Dr Pickering, as a consequence of his consultation, stated the following opinion (T6, p70-71):
"Mr Devereaux is suffering from Panic Disorder with Agoraphobia. His symptoms certainly more than sufficiently meet DSM-IV criteria for that disorder, with typical panic attacks consisting of the symptoms as outlined, and phobias which are typical of agoraphobia. He also would appear to have some degree of avoidant personality, with his shyness and inability to mix easily unless he has a few drinks.
The causation of this disorder is clearly something which is of principal interest to yourself in assessing his entitlement. Panic Disorder with Agoraphobia is a constitutional disorder which can arise spontaneously in the first 25 years of life, but can also arise at any time brought out by psychosocial stressors. That is to say that some individuals with a lower degree of predisposition to this constitutional disorder may go through life without ever developing the disorder unless it is brought out by some intercurrent stressful event. In Mr Devereaux's case, it would seem that the disorder was present in a low-grade form as a claustrophobia and it is impossible to ascertain whether or not he was having panic attacks early on. Certainly there was nothing in the actual exacerbation of the disorder other than his leave being shortened which would adequately explain the apparent worsening of the disorder. Although the disorder appears to have either arisen or become exacerbated during his service with the RAN the conditions of his service were not such that he was exposed to undue stress and therefore it is this writer's opinion that the disorder is primarily a constitutional one. If you regard the … of shipboard life as a contributing factor, then you may find that he is entitled to some assistance with respect to this disorder. It is possible that his hypertension may be entirely or at least partly brought about by this disorder as these disorders with panic attacks are frequently associated with elevated blood pressure. The erectile impotence would seem to be related to the use of antihypertensive medication.
This disorder is one which is causing considerable disruption to Mr Devereux's enjoyment of life. He certainly hates his present job and it is this writer's opinion that this is largely on the basis of the fact that he has frequent panic attacks and this makes his work extremely unpleasant for him. He has never been referred to a psychiatrist and yet this is a disorder which is imminently treatable. It is this writer's belief that if he had treatment, despite the chronicity of the disorder, he has a better than even chance of the disorder being controlled but not cured, i.e. the symptoms can be controlled for as long as he takes medication. For a recent disorder, the chances for control are better than 90% but for a disorder which has been going on for the bast part of 40 years, this prognosis is somewhat worse.
Psychiatric treatment is therefore highly recommended."

Dr Keshava, a Consultant Psychiatrist, in a report to the Applicant's treating general practitioner Dr Wong, dated 14 April 1998, stated the following opinion as a result of a consultation with the Applicant (T15, p98):
"Mr Devereaux suffers from chronic Anxiety State with Depression and Alcohol Dependence. He has low frustration tolerance and he loses his temper easily. He cannot relate with people and claimed to have lost several jobs due to his temper. He gets anxious in crowded places and avoids going to the crowded shopping centres and supermarkets. He often gets depressed feels that his life is not worth living. He has late insomnia and difficulty staying asleep. He has frightening dreams from which he wakes up sweating heavily. He has suffered a 'nervous break down' and he was hospitalised for two weeks after his return from Malaya. He has been drinking to excess since he came back from Malaya. He was also smoking heavily in the past. He suffers from hypertension, impaired hearing, tinniuts [sic] and arthritis since he was in Navy [sic]. He has been taking valium for over 30 years. His prognosis is guarded and his psychiatric impairment rating is 45 according to the 4th edition of GARP."

Dr Lewin, a Consultant Psychiatrist, in his report dated 27 October, made the following summary diagnosis and opinion of the Applicant:
"Mr Neville Devereaux is a 59 year old married man who lives with his wife Beverley in the family home at Pendle Hill. He is a Self Employed Courier Driver. Mr Devereaux is the father of three and grandfather of nine. He served in the Royal Australian Navy for a period of almost seven years and was discharged because of Hypertension and a low back problem.
Mr Devereaux was not involved in combat at any stage. He was not fired upon. He described two particularly unpleasant periods of time during his Naval Service. During one period of time he served on a vessel where there were a number of mechanical problems. He describes being fearful of things getting worse. Mr Devereaux also reported that he was frightened during a period of time when he was on jungle patrol. The account that Mr Devereaux gave of these events is not consistent with the account recorded in the Veteran's Review Board papers. It was described as a "good will visit" in those documents, where as Mr Deveraux recalls that this was a serious military patrol. He believed he was in imminent danger. I was not given a history of any specific stressor sufficient to satisfy diagnostic criteria regarding Post Traumatic Stress Disorder.
Mr Devereaux describes a longer term history of Anxiety. Symptoms were evident in his middle teenage years from the earliest days of his Naval Service and prior to his hospitalisation at the Repatriation General Hospital Hollywood in Perth. At that stage he appears to have developed a transient Adjustment Disorder. It is recorded in the records prepared by the Psychiatrist, that he recovered completely from that incident.
Mr Devereaux describes a life long history of Anxiety, characterised by panic episodes, Hyperventilation, a range of generalised bodily symptoms of arousal and some agoraphobic symptoms. This is the typical life history of an Anxiety Disorder. It appears that this condition was established before the episodes that Mr Devereaux recorded as the significant episodes. This condition has been complicated by a drinking problem.
Mr Devereaux records a history of heavy drinking, an inability to restrain, relief drinking and a range of withdrawal symptoms including Delirium Tremens. He has experienced episodes of "forgotten weekend". This man is addicted to alcohol. I diagnosed Alcohol Dependence.
The usual life history of Anxiety Disorders is that they follow an episodic course. This disorder appears to have been clearly established prior to the events of 1960. The life long Anxiety Disorder has been manifest by a range of anxiety symptoms at various times. Panic symptoms, hyperventilation symptoms and generalised symptoms of autonomic arousal, are part of this life long condition. There appears to be an underlying Obsessional Personality and his Anxiety Disorder has been complicated by Alcohol Dependence.
I think it possible that his Military Service caused a transient exacerbation of an already established disorder. Based upon the history available, I would not conclude that the Military Service "caused" the Anxiety Disorder. Firstly it appears that the Anxiety Disorder was already established. Secondly the sort of life events that Mr Devereaux described are unlikely to give rise to a life long mental condition.
The episodes he described could reasonably have given rise to a short term exacerbation of the pre-existing condition. I found no evidence that the military experience led to any entrenched worsening of Mr Devereaux's condition.
On this basis one would conclude that there is no enduring impairment attributable to his Military Service in general, during the 1960's, nor any specific change in his Anxiety Disorder due to the events of 1960 in particular.
On the other hand if it is your conclusion that his Anxiety Disorder is "war caused", then the following rating under the GARP V system would apply.
…"

In a medical report dated 23 February 2000, Dr Dinnen, a Consultant Psychiatrist, concluded his report with the following comment and opinion (Exhibit A5):
"Dr Lewin documents the patient's chronic symptoms of anxiety, and the history of excessive drinking, both chronic conditions present for many years. He notes that the patient had taken Valium on prescription from his general practitioner "on and off over a 30 year period". He noted the father's military history, and the effect of his brother's death on the family. He noted no symptoms of anxiety prior to enlistment. In the section of his report devoted the summary diagnosis and opinion, Dr Lewin concludes that the patient's anxiety disorder is "life long" and "clearly established prior to the events of 1960". In the body of this opinion he includes the note that "symptoms were evident in his middle teenage years from the earliest days of his naval service and prior to his hospitalisation at the Repatriation General Hospital in Perth. At that stage he appears to have developed a transient adjustment disorder." His impairment rating is of 21 points.
Comment: Whether or not this patient had some personality predisposition to psychiatric disorder, constitutional and/or environmental – (interestingly this was the view certainly taken by Dr McGeorge in 1960) there is no doubt that he did develop an acute psychiatric disorder 3 years into his naval service. From his account to me, and the body of information referred to in this report, I have no doubt that he suffered from a severe acute anxiety disorder directly related to the circumstances of his service. These are well described in the body of this report.
I see no reason for the Veterans Review Board to discount the statement of his treating doctors at the time that the condition was clearly related to the conditions of his service, nor do I understand why their search for proof that he suffers from "anxiety" is to be satisfied by a psychologist's report. It is important to have expert psychiatric comment about the meaning of Dr McGeorge's opinion and the totality of the medical records in 1960, as seen from a present day view point. Only a psychiatrist who has practised in the 1960's, as I have, is properly qualified I would suggest to interpret these medical documents. I have no doubt that those records clearly describe an acute anxiety state with dissociative features, and in hindsight it is glaringly obvious that the circumstances of his work as a stoker on board the Voyager led to this breakdown. This is notwithstanding any predisposition, for certainly there has been no subsequent breakdown since that time, including his Naval service.
It is likely, in my view that he did suffer an acute post traumatic stress disorder and this led on to a generalised anxiety disorder through the years following, associated with alcohol dependence. That is conjecture on my part, although I would argue it very strongly.
What is not conjecture is that he has suffered from a generalised anxiety disorder associated with alcohol dependence since the breakdown which occurred while he was serving in the Navy and there are no other sufficient reasons to explain this condition. If ever a Statement of Principles would apply, with regard to generalised anxiety disorder, that would seem to be the case with this patient.
Opinion: I therefore believe this patient suffers from chronic generalised anxiety disorder attributable to service in accord with the relevant Statement of Principles. Psychoactive substance abuse was a feature of this condition in the past, and is probably still present to the extent that the diagnosis of psychoactive substance abuse is warranted, associated with generalised anxiety disorder.
Assessment of Impairment: The attached worksheet provides the appropriate ratings, which have been provided for generalised anxiety disorder combined with psychoactive abuse. The ratings for 4.1 through to 4.8 of GARP V are respectively 15, 15, 1, 2, 3, 3, 3, 5, yielding an overall rating of 4 points."
In oral evidence, Dr Dinnen stated that there was documented evidence of stressful experiences which create a psychiatric disorder in a number of ways – namely the onset of a sudden psychological disorder or one where the onset is delayed with emergence occurring over a period of days to years. In such situations the individual is able to cope initially with the stressor but later there is a clinical onset of the psychiatric disturbance. Dr Dinnen considered his written opinion to best outline the Applicant's psychiatric disorder, which in Dr Dinnen's view arose from particular stressors as outlined in his report.
impotence:
Dr Williams, a Consultant Psychiatrist, in his report dated 23 June 1995, considered the Applicant to be "tense, anxious, unassertive, depression-prone fellow with an obsessional personality structure. There was no obvious evidence of any significant sexual psychopathology." Dr Williams concluded that the Applicant's impotence problem had commenced some three years earlier and that he was anxious about his performance, with which Dr Williams hoped to assist (T23, p116).
osteoarthrosis:
Dr Giblin, a Consultant Orthopaedic Surgeon, in his report dated 6 April 2000, recorded a history of a fall in November 1959, when the Applicant was at sea, and that his left knee was swollen and as a consequence strapped up for some eight weeks. A further fall on 10 April 1960 is reported again as causing injury to the left knee and subsequent swelling, requiring strapping for four weeks.
As a result of his examination, Dr Giblin concluded that the Applicant satisfied the diagnosis of osteoarthrosis as defined in the relevant SoP (Exhibit A4).
Dr Lennon, a Consultant Orthopaedic Surgeon, in his report dated 12 April 2000, records the Applicant as describing a fall on 10 April 1960, whereby the Applicant slipped and fell heavily onto his right knee. Subsequently, the knee was painful and swollen and after visiting sick bay, the knee was strapped for some three weeks.
As a result of his examination, Dr Lennon concluded (Exhibit R1):
"I certainly doubt that the continuing problems with his knees are related to his service while in the Far East Strategic Command while serving at the Malaysian emergency."
hypertension:
In a medical report dated 26 May 2000, A/Professor Richards, a consultant cardiologist concluded as a result of his examination of the Applicant on 25 May 2000 that:
"From all the evidence available to me, it appears that Mr Devereaux experienced a significant increase in alcohol consumption after his service in Malaya in 1960. Although his period of operational service was short, it is my opinion that it is possible that his service in Malaya did result in an increase in anxiety, and an increase in alcohol consumption leading to alcohol dependence. It is my opinion that his anxiety and alcohol dependence caused or aggravated marital disharmony, and reduced his professional efficacy.
It is my opinion that alcohol dependence was present at the onset of hypertension, and that this dependence persisted until he obtained psychiatric therapy from about 1998. His degree of incapacity (GARP Table 23.1) would be 60 (impairment 20, lifestyle rating 5)." (Exhibit R2)

historian report

In his report dated 27 June 2000, Mr Tilbrook confirmed that HMAS Voyager arrived in Hong Kong on 15 April 1960, and that there was evidence of seven engine room personnel suffering severe heat exhaustion, and the chief stoker suffering a heart attack. Further there is evidence of an exchange activity with the Army (Exhibit R5).
The Tribunal also notes the report of Capt. Millar who at paragraph 17 of his April 1960 report states (Exhibit R4):
"Whampoa Dockyard officials arrived to inspect the work to be done on Sunday 17th and preparatory work commenced immediately."

submissions
the applicant:

Counsel for the Applicant contends that the Applicant suffers from the following conditions:
(a)      generalised Anxiety Disorder;
(b)      alcohol abuse or dependence;
(c)       hypertension;
           (d)      impotence; and
           (e)      osteoarthrosis of the right knee.

Counsel for the Applicant contends that the following hypothesis can be postulated from a consideration of all the material before the Tribunal:
(a)the boiler room incident of 15 April 1960, and the Thai Border episode were stressful events experienced by the Applicant which led to the Applicant's emotional and anxiety disturbance on his return to Perth in July 1960. That this is an ongoing disorder;
(b)that the psychiatric disorder led to a pattern of alcohol usage which can be characterised as alcohol abuse or dependence;
(c)that the psychiatric disorder and the alcohol abuse/dependence led to the development of hypertension;
(d)that medication for hypertension led to the development of impotence; and
(e) that the fall on 10 April 1960 led to the development of osteoarthrosis.

Counsel for the Applicant contends that each of the above hypothesis is a reasonable hypothesis in that the appropriate Statement of Principles (SoPs) are satisfied, with the appropriate SoPs being those in existence at the date of the primary decision, namely 28 January 1998:
(a)SoP Instrument No. 48 of 1994 concerning generalised anxiety disorder: definition of disorder, paragraph 4; and definition of stressful event and factor 1(b) satisfied;
(b)SoP Instrument No. 5 of 1994 concerning psychoactive substance abuse or dependence: definition of stressful event and factors 1(a) and (b) satisfied;
(c)SoP Instrument No. 83 of 1995 concerning hypertension: factor 1(b) satisfied;
(d)SoP Instrument No. 97 of 1996 concerning impotence: factors 5(a), (n), (o) satisfied; and
(e)SoP Instrument No. 352 of 1995 concerning osteoarthrosis: factors 2(b), (v) satisfied.
Counsel for the Applicant in making such submissions, relies upon detailed particulars drawn from the Applicant's evidence, the file material and the various medical reports, plus the historical statements and the statements of Mr Maher and Mr Cox.
Counsel for the Applicant further submits, that no evidence, exists which would disprove beyond reasonable doubt the existence of any fact that constitutes the various hypothesis, or alternatively, the existence of another fact, which would disprove beyond reasonable doubt elements of the nominated hypothesis.
the respondent:
The Respondent contends that the boiler room incident occurred outside operational service, believing it to have occurred on 17 April 1960, and that the Army patrol activity was not a stressful event. It is contended that a reasonable hypothesis cannot be found in relation to either incident as the relevant SoP Instrument No 48 of 1994 is not satisfied.
In relation to alcohol abuse/dependence, the Respondent acknowledges that there is material pointing to a hypothesis linking this condition to service, but when considering SoP Instrument No 5 of 1994, the hypothesis is not reasonable in that the date of onset is vague and there is no relevant stressful event.
In relation to hypertension, the Respondent contends that there is material which points to a hypothesis connecting the disease to his service and that this would be a reasonable hypothesis pursuant to SoP Instrument No 83 of 1995, if alcohol abuse or dependence is accepted.
On the matter of impotence, the Respondent contends that, if alcohol abuse or dependence is accepted, the hypothesis would be reasonable, pursuant to the Applicant satisfying factor 5(n) within SoP Instrument No 97 of 1996.
In relation to the condition of osteoarthrosis of the right knee, the Respondent contends that there is insufficient written material documented surrounding the incident of 10 April 1960 and that from the clinical material available, the injury at that time, did not amount to trauma to the relevant joint and as such the hypothesis is not reasonable, pursuant to paragraph 6 of SoP Instrument No 352 of 1995.
It is the Respondent's submission that the decision under review should be affirmed.
consideration and findings
In addressing the many issues raised in this matter, the Tribunal would first comment that the Applicant presented his evidence to the Tribunal in a low key, matter of fact and frank manner. The Tribunal considered the Applicant to have presented his story to the best of his ability and without any significant embellishment.
In turning to the issues upon which this matter is concerned with, the Tribunal does conclude that the boiler room incident did occur on 15 April 1960, and not as suggested by the Respondent on 17 April 1960. In so stating, the Tribunal notes the report of Mr Tilbrook which indicates that the HMAS Voyager arrived at Hong Kong on 15 April 1960 (Page 2 Para 4), with the reference in paragraph 13 of Captain Millar's report clearly indicative of work prepared for 17 April 1960.
As indicated in paragraph 48 the Tribunal accepted into evidence the oral and written material as presented by the Applicant in relation to both the boiler room incident and the exchange duty arrangements which saw the Applicant patrolling with the Army on the Thai border for a period of ten days. The Tribunal does find that both incidents occurred within periods of operational service.
The Tribunal has been careful to document the Applicant's evidence of the commencement of his psychiatric episodes in July 1960 and the various contemporaneous documents completed during 1960, and particularly those which are to do with the illness at that time.
In turning to the issue of diagnosis of the psychiatric illness, the Tribunal, in noting that both the Applicant and the Respondent are in agreement on this issue, find, on the balance of probabilities, that the diagnosis is generalised anxiety disorder. In making such a finding, the Tribunal has relied upon the significant number of psychiatric opinions, and particularly those of Drs Keshava, Dinnen and Lewin.
In further addressing this issue, that is the generalised anxiety disorder, and having carefully addressed all the material before the Tribunal, the Tribunal does conclude that the first overt clinical manifestations of this disorder occurred in Perth in July 1960, after his return from the Far East. The Tribunal is unable to find any documentation to support Dr Lewin's contention, that the anxiety condition was long established before the 1960 incidents and episodes.
The Tribunal, having considered all the material before it, concludes that such material does point to a hypothesis connecting the Applicant's service with his illness. In so stating, the Tribunal observes that the Applicant was involved in two events, which on his own evidence clearly caused him anxiety and stress, and some six weeks later resulted in his admission to hospital for an evaluation of his anxious and highly emotional disturbed state. Further, the Tribunal notes both from the evidence of the Applicant and the documented opinions of the many psychiatrists in this matter that this same psychiatric condition has continued over the many years to this time (Drs Keshava, Lewin, Dinnen and Pickering). The Tribunal also notes that Dr Lewin is of the opinion that the anxiety disorder was present prior to his navy entry and prior to his period of operational service, but as indicated earlier there is no significant evidence to point to such a conclusion, while at best all the other psychiatrists including Dr Williams talk of a pre-existing obsessional personality.
In addressing as to whether the hypothesis is reasonable the Tribunal turns to SoP Instrument No 48 of 1994 concerning generalised anxiety disorder. The Tribunal further notes the definition of 'stressful event', which means an occurrence which evokes feelings of anxiety or stress contained within the Instrument.
In examining the two incidents as described by the Applicant, and further considering the opinion of Dr Lewin, where he found the incidents not to constitute stressors as defined within the SoP for post traumatic stress disorder, the Tribunal concludes that there is significant evidence in the Applicant's narration of events, including his subsequent episode of hospitalisation in July 1968, to find that the Applicant reacted to these two incidents with feelings of stress and anxiety. The Tribunal therefore concludes, that the Applicant has experienced stressful events while on operational service.
In turning to a consideration of whether a particular factor within the SoP has been satisfied, it is clear to the Tribunal on the facts of this matter that the Applicant satisfies factor 1(b) of SoP Instrument No 48 of 1994, in that the clinical onset of the anxiety disorder occurred some weeks later in July 1960, when prior to or at the time the Applicant was admitted to hospital. In making such a finding the Tribunal relies upon clinical documentation made at that time and the opinions of Drs Keshava and Dinnen.
As a consequence of the Tribunal's findings, the Tribunal further concludes that the hypothesis connecting the Applicant's disease of generalised anxiety disorder with his operational service is a reasonable hypothesis.
In further deliberation and having again reviewed all the material before it, the Tribunal finds that one or more of the facts necessary to support the hypothesis has not been disproved beyond reasonable doubt, nor has or the truth of a fact inconsistent with the hypothesis been proved beyond reasonable doubt. Accordingly, the Tribunal finds that the condition of generalised anxiety disorder is war caused. In making such findings, the Tribunal again revisited the date of the boiler incident and concluded that the Respondent had not proved the date of 17 April 1960 to the reasonable satisfaction of the Tribunal, let alone beyond reasonable doubt.
substance abuse/disorder:
In addressing the material before the Tribunal, it is clear to the Tribunal that such material points to the disease of substance abuse/dependence being an accurate description of the Applicant's condition. The material includes the Applicant's own evidence of increased alcohol intake to a substantial daily quantity after his return from Malaya in July 1960, and the continuance thereafter (apart from his two brief periods of hospitalisation in July/August 1960), and the circumstances and consequences of his alcohol abuse as described by both the Applicant and his wife to Dr Dinnen. This material is sufficiently complete for the Tribunal to find that the Applicant satisfies the definition of psychoactive substance abuse/dependence as defined within paragraph four of SoP Instrument No 5 of 1994. In making such a finding, the Tribunal relies upon the evidence of the Applicant and his wife, who has known the Applicant since August 1960, the opinions of Dr Keshava and Dinnen, and the opinion of Dr Lewin, in so far as to the existence of the disease, but not in relation to its commencement.
With the diagnosis of substance abuse/dependence being established, and agreed to by both parties, the Tribunal does conclude that the material points to such a disease having a causal connection to the Applicant's operational service, both by way of experiencing a stressful event and further, as a consequence of suffering a psychiatric condition prior to the clinical onset of substance abuse.
The Tribunal again notes the definition of a stressful event in SoP Instrument No 5 of 1994 and notes that it means "an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where these were subjective symptoms of increased stress". While noting that the example given refers to combat, the Tribunal is satisfied that the two incidents nominated in this matter fulfil the requirements of the definition. The Tribunal, in making such a finding, relies upon the evidence of the Applicant and the opinions of Drs Keshava and Dinnen, which have been outlined earlier in this decision.

The Tribunal further finds that the hypothesis proposed is a reasonable hypothesis, in that factors 1(a) and (b) of SoP Instrument No 5 of 1994 are both satisfied, in that the Applicant experienced a stressful event and had a psychiatric condition prior to the clinical onset of psychoative substance abuse/dependence. The Tribunal is also mindful that the material points to the Applicant commencing his pattern of substance abuse after the period in Malaya in 1960, with absence of material pointing to such an activity prior to the two incidents in 1960.
The Tribunal further finds, that in the absence of evidence, which would allow the Tribunal to conclude that one or more of the facts which constitute the hypothesis has been disproved beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt, that the disease of alcohol abuse/dependence is war caused.
hypertension:
The Tribunal again notes that there is agreement between the parties as to the diagnosis of the disease hypertension. The Tribunal notes that the material before it points to a hypothesis connecting the disease of hypertension with the Applicant's operational service by way of commencing after the onset of his alcohol dependence, a hypothesis put forward by the consultant cardiologist, Dr Richards. Thus, the Tribunal finds that this is a reasonable hypothesis, in that factor 1(b) of SoP Instrument No 83 of 1995 concerning hypertension is satisfied.
Further, the Tribunal, in the absence of evidence, which would allow the Tribunal to conclude that one or more of the facts which constitute the hypothesis has been disproved beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt, finds that the disease of hypertension is war caused.
impotence:
In noting the history of the disease of impotence as described in the material, the opinion of Dr Williams and the agreement between the parties, the Tribunal finds that the diagnosis of impotence is appropriate and that it satisfies factor 2 of SoP Instrument No 97 of 1996, concerning impotence.
In considering the relevant material before the Tribunal, the Tribunal concludes that such material points to a hypothesis connecting the disease of impotence with his operational service by way of the Applicant suffering from a specified psychiatric condition, namely generalised anxiety disorder, at the time of clinical onset of impotence or suffering from psychoactive substance abuse at the time of the clinical onset of impotence, or undergoing treatment with Betaloc at the time of the clinical onset of impotence.
The Tribunal finds that such a hypothesis, relating the disease of impotence to his operational service, as outlined in the previous paragraph, is a reasonable hypothesis, in that factors 5(a), (n), (o) are satisfied with Betaloc being a drug identified in the Schedule of SoP Instrument No 97 of 1996. The Tribunal, in making such a finding, relies upon the earlier findings as to generalised anxiety and substance abuse and the opinions of Drs Richards and Williams.
Further, the Tribunal, in the absence of evidence, which would allow the Tribunal to conclude that one or more of the facts which constitute the hypothesis has been disproved beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt, finds that the disease of impotence is war caused.
osteoarthritis right knee:
The Applicant injured his right knee on 27 October 1959 and the knee was painful, swollen and strapped for some weeks. The Applicant states that on 10 April 1960, he slipped and fell onto his right knee, again causing pain and swelling and being strapped for some weeks. The only difference between the two episodes is that the Applicant saw a doctor on the first occasion and it was recorded, while on the second occasion he saw a sick berth attendant and it was not recorded.
The Tribunal accepts the evidence of the Applicant and finds that, in relying upon the clinical history and the opinions of Drs Giblin and Lennon, that such evidence satisfies the diagnostic criteria for osteoarthrosis, contained within factor 5 and trauma to the relevant joint, contained within factor 6 of SoP Instrument No 352 of 1995 concerning osteoarthrosis.
In further consideration, the Tribunal concludes that the material does point to a hypothesis connecting the injury of osteoarthrosis to his operational service by a way of trauma to his right knee in the fall of 10 April 1960. The Tribunal also notes the opinion of Dr Giblin which supports such a contention, with the Tribunal recognising the particular error of left knee being mentioned in the report rather than the right knee.
Further, the Tribunal concludes that factor 2(b)(v) of SoP Instrument No 352 of 1995 is satisfied and that accordingly, a reasonable hypothesis is found to exist. The Tribunal again relies upon the clinical history of the Applicant and the opinion of Dr Giblin, in making such a finding.
Further, the Tribunal, in addressing the issue of sparsity and the non-existence of a record of the later incident, recognises the beneficial notice of the legislation and does not draw any particular negative inference from such a fact.
Similarly, in addressing the report of Dr Lennon, the Tribunal, in noting that the report is not complete, does not view such an opinion as evidence, which would allow the Tribunal to conclude that one or more of the facts which constitute the hypothesis is disproved beyond reasonable doubt, or the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt. Accordingly, the Tribunal finds that osteoarthrosis right knee is a war cause injury.
In summary, the Tribunal finds that the following diseases/injuries are war caused:
(a)      generalised anxiety disorder;
(b)      psychoactive substance abuse/dependence – alcohol;
           (c)       hypertension;
           (d)      impotence; and
           (e)      osteoarthrosis right knee.

In addressing the assessment of the various disabilities, it was agreed between the parties that the Tribunal would assess the generalised anxiety disorder and the alcohol abuse/dependence, with the remainder being remitted to the Respondent for assessment.
In addressing the assessment of the generalised anxiety disorder/alcohol abuse dependence, the Tribunal notes the opinions of the three psychiatrists, namely Drs Dinnen, Keshava and Lewin, and finds that the significant difference between the three relates to subjective and manifest distress, namely tables 4.1 and 4.2.
The Tribunal makes the following assessment:
Table 4.1      Subjective Distress Frequent symptoms of arousal and hyperventilation. Generally uncomfortable. Irritable most of the time. Finds only relief in having a few beers.        15
Table 4.2      Manifest Distress     Tense, restless, irritable, vague, depressed mood, flustered, avoidance.    15
Table 4.3      Functional Effects    Avoids outings/activities     1
Table 4.4      Occupation   Occasional day off every three to four weeks    0
Table 4.5      Domestic Situation Occasional tension at home re drinking 2

Table 4.6      Social Interaction     Limited social life dinner once a week out with wife      3
Table 4.7      Leisure Activities     Limited, occasional visit/meal out            3
Table 4.8      Current Therapy      Medication. Sees GP, Psychiatrist every 2 months    3

The Tribunal assesses the Applicant's impairment rating for his combined generalised anxiety disorder and alcohol abuse/dependence as 39.
determination
The Tribunal determines that the decision under review be set aside and in substitution therefor determines that:
(a)      the disease/injuries of generalised anxiety disorder, psychoactive substance abuse/dependence, namely alcohol, hypertension, impotence and osteoarthrosis right knee are war caused;
(b)      the assessment of the impairment rating for the generalised anxiety disorder and substance abuse/dependence is 39; and
(c)       the remaining war caused diseases/injuries are remitted to the Respondent for assessment of an individual impairment rating, a total combined impairment rating for all war caused disabilities and the calculation of disability pension.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  14 & 15 December 2000
Date of Decision  20 June 2001
Counsel for the Applicant        Ms Rudland
Counsel for the Respondent    Mr Modder