Draper and Repatriation Commission

[2008] AATA 1032

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1032

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600466

VETERANS' APPEALS DIVISION		)
Re		GRAEME DRAPER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date17 November 2008

PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans’ entitlements – Disability pension – Applicant suffers from ischaemic heart disease, post-traumatic stress disorder and alcohol dependence – Causation – Whether applicant’s conditions are war-caused – Applicant’s conditions are not war-caused – Decision affirmed

Veterans’ Entitlements Act 1986 (Cth), s 120

Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364

Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61

Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107

Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365

REASONS FOR DECISION

17 November 2008 Senior Member Bernard J McCabe         

1.      Mr Graeme Draper, the applicant, was serving on board HMAS Melbourne when that ship collided with HMAS Voyager in 1964. He remained in the Navy for several years and now says that he suffers from ischaemic heart disease and psychiatric conditions that are connected to the circumstances of his service. He has sought compensation under the Veterans’ Entitlements Act 1986 (“the Act”).

2.      The Repatriation Commission, the respondent, does not dispute the applicant’s claim that he suffers from ischaemic heart disease and psychiatric conditions, although the Commission says it is unclear how the psychiatric conditions should be described. But the Commission says the psychiatric conditions were not aggravated by anything that occurred during operational service. It also says the applicant’s long-standing smoking habit was already established by the time he commenced operational service so that the amount of cigarettes he smoked during the relatively limited period of operational service made little or no contribution to the development of ischaemic heart disease.

3.      I am not satisfied there is any connection between the applicant’s operational service and the development or aggravation of his current conditions. The decision under review must therefore be affirmed. I explain my reasons below.

History of the proceedings

4.      Mr Draper was represented by Mr Chalk, a lay advocate belonging to the Far North Queensland Veteran and Ex-Service Support Centre Inc. The hearing began in Cairns on 3 December 2007. Mr Draper gave evidence. During the course of that evidence, Mr Draper referred to some events that had not previously been mentioned in the material provided to the respondent. An adjournment was allowed so the respondent could commission research into the events Mr Draper described. Mr Draper was also asked to provide any additional evidence he could locate that might support his account.

5.      The hearing resumed on 5 November 2008 in Cairns. The respondent tendered an extensive report from Writeway Research Service that dealt with the issues Mr Draper raised at the earlier hearing. The applicant also provided me with copies of statements from two witnesses, Mr Brazier and Mr Larkin. Mr Stoner, for the Commission, had asked that both of these witnesses be available for cross-examination. They were not available. A brief additional report was also provided by Dr Stephenson on behalf of the applicant. Dr Stephenson was not required for cross-examination.

The factual background

6.      Mr Draper enlisted in the Royal Australian Navy on 31 May 1963 when he was 17 years old. He was discharged on 30 May 1972. He rendered operational service aboard HMAS Melbourne for three short periods in the first half of 1965. The Melbourne was the applicant’s first posting after training as an electrician.

7.      The applicant was aboard the Melbourne on the night in February 1964 when the ship collided with HMAS Voyager off Jervis Bay. Mr Draper did not see the collision. His station was in a compartment below the waterline where he was required to manage electrical switching equipment. He gave evidence that the compartment was taking water and there was a good deal of confusion. He left his post in a traumatised state and went to the upper decks where he saw a portion of the Voyager sink. In the days that followed the Melbourne’s return to port, he said he and his crew-mates were given leave and told to drink but not to discuss the incident. He says he had not been a heavy drinker until that occurred. Thereafter he became a very heavy drinker. He says he also became a heavy smoker as the two activities tended to go together. He says his drinking was not brought under control until he left the Melbourne in late 1965.

8.      Mr Draper gave evidence about a range of incidents that occurred while he was aboard the Melbourne. Two of them may have occurred during periods of operational service. He says he recalls seeing an aircraft going over the side of the ship as the aircraft landed or took off. He also says he remembers an incident in the Straits of Malacca when the Melbourne passed close by another large vessel that he thought might result in another Voyager-style collision. The applicant’s memories of these events are complicated by the fact that he says he recalls nothing of what occurred on board the Melbourne following the Voyager incident. He said in his evidence that he recalled the incidents in question after his memory was prompted by other witnesses.

9.      The applicant appeared to enjoy a successful naval career after he left the Melbourne. He worked on submarines in the Royal Navy for several years and was promoted to Petty Officer. After leaving the Navy, he worked at a variety of jobs. He said his psychiatric problems manifested themselves about seven or eight years ago after watching a television documentary about the Voyager collision. He was also experiencing other pressures at the time. One stressful event appeared to stand out: the applicant was mistakenly identified as a sex offender. He also suffered a serious head injury in a fall.

10.     In the meantime, the applicant’s physical health had been poor. It appears he began to experience symptoms of ischaemic heart disease around 1980. He has had problems ever since.

Diagnoses

11.     The first task is to determine what is wrong with Mr Draper. Once I have identified the condition or conditions from which he suffers, I can go on and assess whether there is any connection between the circumstances of his operational service and those conditions.

12.     It is clear the applicant suffers from ischaemic heart disease. Dr Simjanoski’s reports say the date of clinical onset is 1980. I do not understand there to be any dispute about that.

13.     The applicant’s psychiatric conditions are harder to isolate. It is clear he does experience psychiatric symptoms. Dr Stephenson suggests it is post-traumatic stress disorder (“PTSD”) and alcohol dependence. She said the PTSD had its genesis in the Voyager incident. The other doctors were less sure. Dr Glaser preferred a diagnosis of generalised anxiety disorder and alcohol dependence but acknowledged there was some evidence of PTSD. Dr Ding also diagnosed generalised anxiety disorder and noted the heavy alcohol use but did not appear to discount the possibility of PTSD. Dr Mulholland, who provided a recent report, also saw features of PTSD but said it was difficult to reach a coherent diagnosis. He suggested major depression, substance abuse disorder, cognitive disorder associated with the recent head injury sustained in the fall and PTSD (partial).

14.     Mr Stoner agreed that it was open to me to make findings of generalised anxiety disorder or PTSD and alcohol dependence. I prefer the evidence of Dr Stephenson. She has had a lengthy association with Mr Draper. Her firm opinion is not in any event contradicted by, and is arguably consistent with, most of the other experts. I therefore accept the applicant suffers from PTSD, alcohol dependence and ischaemic heart disease.

15.     The date of onset of the PTSD does not appear to be in doubt. All the medical experts link the applicant’s PTSD to the Voyager incident. There is some doubt about the point or points at which the condition might have been aggravated. The alcohol dependence condition occurred sometime after that, and is secondary to it. If the claim in respect of PTSD fails, the claim in respect of alcohol dependence must also fail.

Causation

16. The next task is to determine causation. Section 120 of the Act contemplates a four-step process. The first step requires that I identify the hypothesis connecting the applicant’s conditions and the circumstances of his service. While I do not make findings of fact, it is essential that there be material pointing to a connection: Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364 at 372-373 per Northrop ACJ, Sundberg, Marshall and Merkel JJ. The connection cannot be made out (and the hypothesis cannot be reasonable) if the material does not point to each element in the relevant statement of principles: Connors v Repatriation Commission [2000] FCA 783; (2000) 59 ALD 61 at [18] per Kenny J.

17. There are two statements of principles relating to PTSD. Those are No 5 of 2008 and No 3 of 1999 amended by No 54 of 1999. Both of them refer to aggravation of an existing condition.

18.     In those circumstances, it is necessary to identify material suggesting there was an aggravation or clinical worsening of the pre-existing PTSD condition as a result of what occurred during operational service. The expression “aggravation” is reasonably well-known: it means more grave, more grievous or more serious in its effects: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 639 per Windeyer J. But as Mr Stoner pointed out, it is not enough to say the condition looked worse, or that the applicant felt worse in some general sense. The Federal Court explained in Repatriation Commission v Milenz [2006] FCA 1436; (2006) 93 ALD 107 at [29], [35] that there must be a worsening having regard to the diagnostic criteria set out in the relevant statement of principles. Those criteria set out a medical-scientific standard rather than a lay person’s standard.

19.     There is no evidence before me that would enable me to conclude the applicant’s condition worsened while he was on operational service or in response to events that he experienced while he was on service. Dr Stephenson comes closest when she opined in her report of 8 February 2007 that the applicant’s condition worsened in an unspecified way while on the Melbourne. But she does not attribute that unspecified worsening to any particular event, much less an event that occurred during the course of operational service. Indeed, what evidence there is appears to point the other way. I note in particular there is uncontradicted evidence from the applicant that his condition substantially improved once he left the Melbourne and moved to the United Kingdom to work on submarines. He enjoyed a successful career in that different environment. That evidence is inconsistent with a conclusion that he experienced a permanent aggravation to his underlying condition.

20. It follows I am satisfied the applicant is unable to establish a reasonable hypothesis suggesting a link between the circumstances of his service and his psychiatric conditions. His claim must fail at the first of the hurdles contemplated under s 120 of the Act. That leaves only his claim in respect of ischaemic heart disease.

21. The applicant had taken up an intense smoking habit before he undertook operational service. The respondent conceded the information provided by Mr Draper in his smoking questionnaire and statement established that he smoked two or even three times the amount of cigarettes contemplated in the relevant statement of principles (No 89 of 2007 and – if unsuccessful under that statement of principles – No 53 of 2003 amended by No 9 of 2004) during the course of his non-operational service. His period of operational service was only very short. The respondent said the smoking during operational service made a very small contribution to the applicant’s total consumption of tobacco products.

22.     Mr Stoner pointed me to the decision in Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365 but argued it does not assist the applicant. I agree. The applicant would have reached the required number of “pack years” even if the smoking that occurred during operational service is discounted. In those circumstances, I am satisfied the material does not point to a connection between the circumstances of service and the claimed conditions. I am also satisfied the applicant does not fare any better under the older statements of principles which include essentially the same requirements.

Conclusion

23.     The decision under review must be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:................................[Sgd]..............................................
  Michael Buckingham, Associate

Dates of Hearing  3 December 2007
  5 November 2008          
Date of Decision  17 November 2008

Advocate for the applicant        Mr D Chalk, Far North Queensland Veterans
and Ex-service Support Centre Inc

Advocate for the respondent     Mr J Stoner, Department of Veterans’ Affairs