Dunne and Repatriation Commission
[2004] AATA 827
•6 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 827
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1016
VETERANS' APPEALS DIVISION )
Re JOHN DUNNE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date6 August 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review, namely a decision of a delegate of the respondent dated 20 November 2001 insofar as it relates to claims for solar keratosis, tinea and gout and substitutes the decision that:
1. solar keratosis of the back is war caused with effect from 8 May 2001; and
2. tinea and gout are not war caused.
The Tribunal otherwise affirms the decision under review, noting that the diagnosis of the condition claimed as adjustment disorder is amended to a diagnosis of dysthymic disorder.
..................[Sgd]............................
MJ Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – adjustment disorder, alcohol dependence, gout, depressive disorder, gastro-oesophageal disease, tinea and solar keratosis – operational service – diagnosis of psychiatric condition – no adjustment disorder – applicant suffering from dysthymic disorder - reasonable hypothesis raised connecting gastro-oesophageal disease with service – reasonable hypothesis raised connecting alcohol dependence with service but disproved beyond a reasonable doubt – no connection between gout and war service – hypothesis connecting depressive disorder with service is not reasonable – no hypothesis raised connecting tinea with service – concession that solar keratosis connected with war service
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B
Re Rhodes and Repatriation Commission [1999] AATA 72
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Deledio (1998) 83 FCR 82Re Stonehouse and Repatriation Commission [2004] AATA 707
REASONS FOR DECISION
6 August 2004 Ms MJ Carstairs, Member 1. This is an application by John Dunne (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 22 October 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) made on 20 November 2001.
2. The applicant was represented by Mr R Richards, an advocate with Advocacy for Veterans. The respondent was represented by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, numbered T1–T6 (the “T documents”) as well as exhibits marked A1–A10 for the applicant and R1–R5 for the respondent.
BACKGROUND
4. The applicant is aged sixty-one. He enlisted in the Royal Australian Navy (the Navy) at the age of sixteen and served from 3 July 1959 to 2 July 1971. Much of his service was at sea, in HMAS Quiberon, HMAS Melbourne and HMAS Sydney. The periods of relevant service for the Veterans’ Entitlements Act 1986 (the Act) are the applicant’s periods of service with the Far Eastern Strategic Reserve:
(a)28 September 1962 – 31 October 1962
(b)8 November 1962 – 1 December 1962
(c)6 December 1962 – 18 December 1962
(d)5 February 1963 – 16 February 1963
and periods of service on voyages to Vietnam:
(e) 25 April 1966 – 6 May 1966
(f) 25 May 1966 – 9 June 1966
(g) 17 November 1969 – 5 December 1969
(h) 16 February 1970 – 5 March 1970.
These periods of service are operational service within the meaning of the Act and this has relevance for the standard of proof applied when determining his claims.
5. On 8 August 2001 the applicant lodged claims with the respondent to have adjustment disorder, alcohol abuse, gout, gastro-oesophageal reflux, tinnitus, solar keratosis and tinea attributed to his service. The conditions of gastro-oesophageal reflux, gout and tinea were accepted by the respondent as related to the applicant’s service, in a decision by the respondent’s delegate made on 20 November 2001 and tinnitus was taken into account in the assessment of the applicant’s condition of sensori-neural hearing loss. The claims for adjustment disorder, alcohol dependence and solar keratosis were rejected by the respondent and by the VRB. The applicant sought review with this Tribunal on 25 November 2002.
6. At the hearing the Tribunal was told that the respondent concedes the condition of solar skin damage to the applicant’s back. The Tribunal accepts the correctness of that concession, and sets aside that part of the decision under review. Mr Smith said that the respondent’s delegate was wrong in accepting the conditions of gastro-oesophageal reflux and gout as attributable to service as he said these conditions could not be accepted unless the applicant’s condition of alcohol abuse or dependence was attributable to his service. He also said the delegate was wrong to accept tinea as related to relevant service as this first condition occurred prior to service that can be taken into account under the Act. The respondent sought to have the delegate’s decisions granting those parts of the claim set aside.
7. The issues for the Tribunal are therefore whether the conditions of adjustment disorder, alcohol abuse, gout, gastro-oesophageal reflux, and tinea are attributable to the applicant’s service.
EVIDENCE
8. Five written statements by the applicant were marked exhibits A5–A9. The applicant’s case in relation to psychiatric symptoms and alcohol dependence or abuse relies in the main part on his observation of an incident whilst aboard HMAS Melbourne on 28 April 1966 when a Sea Venom aircraft, returning from exercises, failed to land correctly on the deck of Melbourne and crashed into the sea (the “incident”). The pilot and observer on board ejected from the plane. The pilot was rescued from the sea, but the observer drowned.
9. In a written statement dated 10 February 2003 (exhibit A8), the applicant said that he had served with the observer, Lieutenant Kennell, in HMAS Quiberon. He said he regarded him as a friend even though the applicant was a lower rank as stoker. They had no contact after serving aboard HMAS Quiberon, however met again when the applicant was posted to HMAS Melbourne. He said that he and Lieutenant Kennell discussed many things during their association (exhibit A9) as he was easy to talk to, though the applicant said in oral evidence that they would talk in passing, but not socialise together.
10. The applicant said he was off duty at the time of the incident, with eight or nine others in a recreation area located behind the mess deck. He heard the aircraft crash, went to the port side and saw a person passing, still attached to the ejector seat, down the side of the ship about twenty feet away. He later learned that this was Lieutenant Kennell. The applicant said he was “distressed” (exhibit A7), “very stressed and worried” and spent many hours looking out to sea for him (exhibit A8). The applicant said in the statement at exhibit A8 that he saw the rescue of the pilot, however under cross-examination the applicant said that he did not see the rescue of the pilot.
11. The applicant said that he was first treated for gastro-oesophageal reflux in 1971, a year after he left the Navy. He said he was treated for gout a few years after he left the Navy, as he had pain in his feet for some years prior to 1980 (T4, p18). He agreed that he suffered tinea in the Navy in about 1960.
12. In regard to his smoking habit, the applicant said that he commenced smoking when he joined the Navy and maintained the habit due to the availability of cheap cigarettes during sea postings. In a questionnaire dated 20 August 2001, the applicant stated that he increased smoking in “9/62” to 30 tailor-made per day. Under cross-examination in regard to the date “9/62” he agreed that was a reference to September 1962 and said that he had put that date because it was when he had access to duty-free cigarettes at sea (HMAS Quiberon), and smoked more during the watch-keeping duties at sea, when he was rostered on a four-hour-on, eight-hours-off basis. He said that everyone smoked for reasons of boredom in the long hours between shifts. In a questionnaire dated 7 April 2003 the applicant dated his increase to smoking 30 tailor-made cigarettes to 1966 after Lt Kennell’s death.
13. In oral evidence the applicant denied having given a history to Dr A Freed, psychiatrist, of consuming alcohol heavily on HMAS Quiberon, HMAS Melbourne and HMAS Sydney and denied that he told Dr Freed that while on shore leave from all three ships he would get into fights while drunk. He agreed under cross-examination, however, that he had confirmed to the VRB that he had given that history to Dr Freed. In an alcohol questionnaire dated 20 August 2001 (T4, p 25-26), the applicant stated that he commenced consuming alcohol in 1959/60 as a result of peer pressure and that he increased alcohol consumption in “9/62”. In oral evidence the applicant said that he increased alcohol consumption after Lieutenant Kennell’s death, and stated that he had increased his alcohol consumption more than the earlier increase in consumption about September 1962.
14. Dr Freed first examined the applicant in October 2001 and prepared several reports. In a report dated 23 October 2001 (T4), Dr Freed stated :
He then spent 2.5 years on the HMAS Melbourne, an aircraft carrier…There were a couple of aircraft crashes. Mr Dunne happened to be in the recreation area when he saw an incident involving a fellow who was an observer on a “sea venom” aircraft. The crew ejected out and this observer never separated from his seat. He recalls a bang and he saw the observer in the water, being taken down deep…He still thinks about seeing this Lieutenant drown. This is not a frequent thought but it does intrude…he knew Lt Kennell from the HMAS Quiberon.
15. The applicant told Dr Freed that he had commenced smoking and drinking when he joined the Navy. Dr Freed noted the applicant’s consumption of 120 standard alcoholic drinks per week, and diagnosed the applicant as suffering alcohol abuse. In this report Dr Freed also diagnosed chronic adjustment disorder with anxious mood and noted that the applicant said he was repeatedly anxious in the engine room, with the stressors being continuous fear of death in the confined boiler room, and fear when depth charges exploded. In a report dated 21 October 2002, Dr Freed stated that the applicant developed the Anxiety of Adjustment Disorder to a degree that it affected his adjustment of life while still in the engine room of the Melbourne. He further noted that the applicant’s alcohol abuse began at the same time.
16. In a report dated 29 March 2003 (exhibit A2), Dr Freed stated:
I have again interviewed Mr Dunne. He has again explained to me his helplessness and horror at watching a man who he later learnt was his friend, Lt Kennell, eject from his plane… He did find scare charges scary but his trauma was the loss of his friend, Lt Kennell. He found after the loss of Kennel that he was aware that “we are all vulnerable”.
Dr Freed diagnosed the applicant as suffering adjustment disorder with anxious mood, which persisted more than three months after Lieutenant Kennell’s death.
17. In a report dated 31 October 2003 (exhibit A3) Dr Freed referred to the report of Dr W Kingswell, consultant psychiatrist (exhibit R5), and noted Dr Kingswell’s view that a diagnosis of chronic adjustment disorder was not indicated in the factual circumstances. Dr Freed stated that the diagnosis of chronic adjustment disorder was appropriate for the applicant’s symptoms, which were below those required for generalised anxiety disorder and fell in an area not well covered by diagnostic criteria. Dr Freed disagreed with Dr Kingswell’s view that the applicant suffers from dysthymic disorder and said that this was not the correct diagnosis where, as here, mood change is attributable to substance abuse. He agreed with Dr Kingswell that the applicant suffered from depression. Dr Freed’s final diagnosis was that the applicant suffered from substance-induced mood disorder with features of anxiety and depression. Dr Freed considered that the applicant suffers from alcohol abuse rather than dependence, because the applicant did not demonstrate all diagnostic features of dependence.
18. In oral evidence Dr Freed agreed that adjustment disorder does not usually last more than six months, but he said the death of Lieutenant Kennell continued as a stressor, and the applicant was a more anxious man after the incident. He acknowledged in his oral evidence that his last report (exhibit A3) presented a different diagnosis and took a different approach to diagnosis because of the problem of diagnosing adjustment disorder after six months. He confirmed that he considered that the applicant’s main problem was alcohol abuse, and he said that the order of events was that the applicant’s continued consumption of alcohol exacerbated anxiety and later increased his depression.
19. In a report dated 14 August 2003 (exhibit R5), Dr Kingswell stated that the applicant described feeling miserable most of the time and having difficulty sleeping unless he had consumed alcohol. Dr Kingswell stated that the applicant said he commenced consuming alcohol at seventeen after joining the Navy. He said the applicant told him he now consumed 8-10 stubbies of mid-strength beer per day, more on weekends, and had been diagnosed with liver disease.
20. Dr Kingswell considered the applicant had two conditions - dysthymic disorder which occurred sixteen years after he left the Navy (about 1987), and stated that he obtained this date from the applicant’s history to him, and alcohol dependence which Dr Kingswell said was present from 1966 or 1969. Dr Kingswell said that he considered the applicant did not have a chronic adjustment disorder, as that diagnosis is made only if there is an enduring stressor, not a passing one, such as the incident. In oral evidence Dr Kingswell stated that he also disagreed with Dr Freed’s diagnosis of alcohol-induced mood disorder with symptoms of anxiety and depression because this diagnosis would be reserved for cases where the substance taken provides the physiological basis for the illness which follows. He cited the examples of the withdrawal stages from certain anti-depressants or amphetamines. Dr Kingswell acknowledged that sufferers of alcohol abuse or dependence will have associated symptoms of anxiety or depression. He said however that this does not warrant the diagnosis of substance induced mood disorder adopted by Dr Freed.
CONSIDERATION OF THE ISSUES
21. Section 9 of the Act provides:
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
22. Section 120 of the Act provides:
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. …
23. The provisions dealing with the standard of proof in claims made after 1994 are to be found at section 120A. It provides, so far as relevant, as follows:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
24. The principles to be applied in cases where s120A applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a series of four steps:
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
25. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: s120(4) of the Act. There was no dispute between the parties that the applicant suffers gastro-oesophageal reflux, gout, and tinea. The Tribunal finds on the basis of the medical evidence (T4) that the applicant has these conditions. The parties also agreed that the applicant suffers from either alcohol abuse or dependence (conditions which are covered by the same SoP). The difference of opinion between the two psychiatrists concerning whether the proper label is alcohol abuse or alcohol dependence is not critical when there is agreement that the applicant suffers from alcohol-related problems and the issues to be decided under the Act are dealt with under the one SoP without differentiating the two conditions.
26. In relation to the diagnoses on the remaining psychiatric condition(s), Mr Richards submitted that the evidence of Dr Freed should be preferred to that of Dr Kingswell. Mr Richards said that the Tribunal should accept that the applicant suffers from chronic adjustment disorder with anxious moods as well as alcohol abuse. Mr Richards referred to exhibit A3, and submitted that the applicant’s anxiety and depression contribute to the continuance of adjustment disorder. However the Tribunal was satisfied that by the time of his final report (exhibit A3) and having taken into account Dr Kingswell’s views, Dr Freed had moved away from his earlier preferred diagnosis of adjustment disorder. The diagnosis in his final report was alcohol-induced mood disorder (with symptoms of anxiety and depression) and in his summary in the final report Dr Freed makes no further reference to adjustment disorder. The Tribunal was satisfied, taking into account Dr Freed’s oral evidence and preferring the report of Dr Kingswell, that the diagnosis of adjustment disorder is not made where the effects of a stressor like the incident relied upon recedes, and was therefore satisfied that the applicant does not suffer from adjustment disorder.
27. The next area of difference between the two psychiatrists concerned whether the applicant has a psychiatric condition apart from alcohol abuse or dependence. The Tribunal considered that the evidence of Dr Kingswell was more consistent and more fully explained than that of Dr Freed who changed his views in each of his three written reports; he was not convincing in his oral evidence and his reports were based on altered histories given by the applicant without any comment being made on this by the doctor. The Tribunal notes Dr Kingswell’s opinion that Dr Freed’s diagnosis of substance-induced mood disorders was not one that accorded with diagnostic practice in psychiatric medicine.
28. Dr Freed in his oral evidence was more concerned with defending his view that the applicant suffers from alcohol abuse rather than dependence, than with explaining how he arrived at his most recent diagnosis that the applicant suffers from substance-induced mood disorders. His report at exhibit A3 was of limited assistance in explaining his reasoning. Dr Kingswell said Dr Freed’s views were idiosyncratic. However, both Dr Kingswell and Dr Freed acknowledged that a person with alcohol-related problems may suffer symptoms of anxiety and depression. Overall, the Tribunal preferred the evidence of Dr Kingswell and was reasonably satisfied; accepting Dr Kingswell’s evidence that the applicant suffers from a depressive condition (dysthymic disorder) which warrants a separate diagnosis in addition to the applicant’s alcohol abuse or dependence.
29. In determining whether the applicant’s conditions of alcohol dependence or abuse, depressive disorder, gout, tinea and gastro-oesophageal reflux disease are war‑caused, the Tribunal must first consider all the material before it and decide whether that material points to a reasonable hypothesis linking the disease, through the existence of medical factors, to the circumstances of the particular service rendered by the applicant.
30. The Tribunal is then required to ascertain whether there is a relevant Statement of Principles (SoP) in force.
alcohol dependence or abuse
31. The parties agreed that the applicable SoP for alcohol dependence or abuse was Instrument No 76 of 1998 which provides in factor 5(b) that a reasonable hypothesis might be raised linking the occurrence of the condition with a person’s service, where the person has experienced:
(b)…. a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
32. Factor 5(e) provides similarly, except that the stressor must occur within two years before the clinical worsening of alcohol abuse or dependence. The SoP defines experiencing a severe stressor in the following terms:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
33. If a SoP is in force, the Tribunal must form an opinion whether the hypothesis raised is a reasonable one: step 3 of Deledio. It will only be so if it is consistent with the template to be found as a factor in the SoP. If not, the claim will fail. In respect of this third step, for an hypothesis to be reasonable where an SoP applies, it is necessary that the material raising the hypothesis contain all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192.
34. In relation to factor 5(b) of SoP No 76 of 1998, it is necessary that the evidence points to an incident that meets the definition of experiencing a severe stressor and that the evidence points to clinical onset within the specified time of two years.
35. Mr Richards submitted that the incident led to the applicant increasing his alcohol consumption. He said that factor 5(b) of the SoP has no requirement for the length of time that the stressor lasts. Mr Richards submitted that the applicant’s evidence should be accepted, and that any inconsistencies between the applicant’s evidence to the Tribunal and written answers in questionnaires or evidence given before the VRB, had been explained.
36. Mr Smith submitted that the limited time in which the applicant could have observed the incident from his position on the deck of HMAS Melbourne, and the fact that he did not learn until later that the observer was Lt Kennell, meant that the incident was not of the required level of severity contemplated by the SoP definition experiencing a severe stressor. He submitted that to qualify as a severe stressor the incident must be at least as severe as the three examples listed in the SoP. Furthermore, he said that the applicant had tailored his evidence to suit the needs of the claim and should not be believed. In support of this Mr Smith referred to the applicant’s first consultation with Dr Freed where he had spoken only of suffering stress when depth charges were set off. Mr Smith pointed out that references to the incident as a stressor were raised only recently.
37. The applicant’s hypothesis in regard to alcohol dependence or abuse is that in witnessing the incident, he experienced a severe stressor before the clinical onset of alcohol abuse or dependence. No submissions were made about clinical worsening of alcohol abuse or dependence, but in view of the history of the applicant commencing to drink when he joined the Navy and his evidence that he drank more after the incident, the question of clinical worsening (factor 5(e)) must be examined.
38. The Tribunal does not accept the respondent’s submission that the incident did not meet the definition of experiencing a severe stressor in the SoP. It comes within the compass of witnessing casualties and the applicant spoke of his feelings of helplessness and distress relating to the incident. The evidence that pointed to clinical onset of alcohol abuse or dependence was the reports of Drs Freed and Dr Kingswell, which relied on the history given by the applicant.
39. The applicant’s evidence was that he commenced drinking at the time that he joined the Navy at the age of seventeen. He stated in an alcohol questionnaire provided to the respondent in August 2001 that he increased alcohol consumption in September 1962, at the time of his first service with the Far Eastern Strategic Reserve aboard HMAS Quiberon. He was then aged twenty. He told Dr Freed at his first interview that he drank heavily while on shore leave from all three ships on which he served and confirmed this in evidence to the VRB. This material points to the applicant having a pattern of abuse of alcohol before the incident in 1966, when he now claims that he increased his alcohol consumption. Taking into account the whole of the evidence, the factor of clinical worsening is pointed to strongly by the evidence, that is, factor 5(e) of SoP No 76 of 1998. The Tribunal finds that the hypothesis as it encompassed clinical worsening of alcohol abuse or dependence was a reasonable hypothesis. The Tribunal considered that an hypothesis relying on clinical onset of alcohol abuse or dependence within two years of experiencing a severe stressor in 1966 was not a reasonable hypothesis because it lacked the element of clinical onset within two years. The evidence points to clinical onset before the incident occurred. Thus, the hypothesis relying on factor 5(b) of Instrument No 76 of 1998 does not contain all the elements prescribed by the SoP: Repatriation Commission v Hill.
40. The next step then is the consideration of step four of Deledio, in which s120(1) is applied. It is at this stage that findings of fact are made. The Tribunal took into account that parts of the applicant’s evidence were inconsistent and that he changed his evidence in the course of his claim. The Tribunal does not accept the applicant’s denial that he told Dr Freed that he drank on all three ships on which he served and had episodes of fighting after drinking while on shore leave from ships before the occurrence of the incident. The Tribunal did not accept the applicant’s explanations about the discrepancies in what was reported to Dr Freed and what he now says.
41. The Tribunal took into account the effects of the passage of time on a person’s ability to recall events a long time in the past, and took into account the effects of s119 of the Act in these cases. Nevertheless, consistency in the giving of evidence is vital and the changes that the applicant has made to his version of important events and dates, including his answers given in the alcohol questionnaire in 2001, and his evidence to the VRB was not convincingly explained by him. The Tribunal does not accept the accuracy of the applicant’s evidence now that he increased his alcohol consumption as a result of the incident. The Tribunal particularly took into account that there was no mention at the commencement of the claim of any reliance on the incident. If the incident was of such ongoing concern to the applicant that it led to increases in alcohol consumption, changing from being merely a social drinker, and gave rise to levels of anxiety that he now recounts it is highly unlikely that he did not recall this at the time he made the claim.
42. The applicant did not explain in his evidence any features of the relationship that he claimed existed between himself and Lieutenant Kennell. The Tribunal finds that the applicant had no strong connection with Lieutenant Kennell. This makes it less likely that the incident, of which he observed little according to his evidence, would have an ongoing effect on his psychiatric state. The applicant’s evidence concerning his observations of the incident was equivocal and the Tribunal noted the inconsistencies in his evidence about whether he witnessed the rescue of the pilot.
43. On the basis of the inconsistencies in the applicant’s evidence, and preferring his earlier evidence in 2001 and as reported to Dr Freed that he had problems with alcohol by 1962, the Tribunal finds that facts necessary to prove the hypothesis are disproved beyond reasonable doubt and finds that there is no sufficient ground for making the determination that alcohol abuse or dependence is war caused. For these reasons the claim as it relates to alcohol abuse or dependence fails.
depressive disorder
44. The applicable SoP is Instrument No 58 of 1998 which provides in factor 5(b) that :
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
45. The SoP defines “severe psychosocial stressor” as meaning :
…. an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
46. Turning to Step 3 of Deledio in regard to the condition of dysthymia the evidence did not point to the clinical onset of depressive disorder within two years of a severe psychosocial stressor. Dr Kingswell’s evidence was that clinical onset was about 1987 and was connected with the applicant suffering repeated disappointments with civilian employment. Dr Freed did not diagnose depressive disorder until his report at exhibit A3, and his report does not suggest onset within two years of the incident. His two earlier reports make no reference to depressive symptoms. Apart from the question of whether the incident could qualify as a severe psychosocial stressor and in view of the findings above concerning the relationship between the applicant and Lieutenant Kennell, there was no evidence pointing to clinical onset of a depressive disorder within two years of the incident: Re Stonehouse and Repatriation Commission [2004] AATA 707. The hypothesis does not fit the factor provided for in the SoP for depressive disorder and for this reason the claim fails.
gastro-oesophageal reflux disease
47. The applicable SoP in regard to this condition was Instrument No 52 of 2002 which provides for two factors, namely:
(c) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of the clinical onset of gastro-oesophageal reflux disease; or
(d) suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of the clinical onset of gastro-oesophageal reflux disease;…
48. This condition had been accepted by the respondent in the decision dated 20 November 2001, based upon a history of cigarette smoking. The applicant’s evidence has essentially been consistent that he commenced smoking on service but that he increased his smoking when he was in the Far Eastern Strategic Reserve in 1962 as cheap cigarettes and the nature of his duties, especially the extended periods between watches, led him to increase his consumption. Mr Richards submitted that these matters were properly taken into account by the delegate. Mr Smith submitted that it should not be accepted that a claimed increase in smoking, where smoking commences before eligible service, can form the basis of a connection with service, and he said that the applicant’s changes to his smoking history at different times in the course of his claim were self-serving and unreliable.
49. Applying Deledio, there is material pointing to an hypothesis in regard to gastro-oesophageal reflux disease (Step 1); there is a SoP in force (Step 2) and the hypothesis is one that fits the template as it contains a factor that the Repatriation Medical Authority has determined as a minimum that must exist. Paragraph 4 of SoP No 52 of 2002 provides that the factor must be related to service. The meaning of “related to service” is provided in s196(B)(14) of the Act, and includes where the factor arose out of or was attributable to service, where it was contributed to in a material degree and where, in the case of a disease, it would not have occurred but for changes in the person’s environment consequent upon rendering that service. As the Tribunal noted in Re Rhodes and Repatriation Commission [1999] AATA 72 for a factor to be related to service there is no requirement that it be the sole factor.
50. In the applicant’s case, the evidence points to an increase in his smoking in about 1962 when he was aged twenty, after commencing the habit in 1959. The Tribunal does not accept the respondent’s submission that the applicant’s claim is ruled out because he was already smoking prior to eligible service, where the evidence supports the proposition that something about the service caused an increase in the level of smoking. He was still at a young age when the increased level of smoking occurred, and his smoking habit would not have been an entrenched one. Factor 5(c) of SoP No 52 of 2002 is pointed to by the evidence because the applicant was smoking at the level required by the SoP at the time of clinical onset of gastro-oesophageal reflux disease in 1971. His smoking was related to his service because of the particular circumstances arising from access to duty free cigarettes and his increased levels of smoking due to the boredom of being on long watches at sea. The hypothesis fits the template and is therefore a reasonable hypothesis (Step 3 of Deledio). The Tribunal was not satisfied that any facts necessary to support the hypothesis were disproved beyond reasonable doubt, nor was the Tribunal satisfied beyond reasonable doubt of the existence of other facts inconsistent with the hypothesis that disprove the hypothesis (Step 4 of Deledio). The delegate’s decision to grant the claim for gastro-oesophageal reflux disease was correct.
tinea
51. In regard to the condition of tinea the relevant SoPs were No 13 of 2004, replacing No 27 of 1994 as amended by Instruments No 184 of 1995 and No 7 of 2002. The evidence was that the applicant had tinea in the Navy in 1960, that is, at a time prior to relevant service that may be taken into account under the Act. There was no evidence that pointed to any of the factors dealing with clinical worsening of the condition of tinea. In view of this and taking into account that no hypothesis was raised in the applicant’s submissions, the respondent’s decision accepting the condition of tinea must be set aside.
gout
52. The applicant’s condition of gout could only succeed if the applicant’s condition of alcohol abuse or dependence succeeded. The only factor raised in the relevant SoPs (that is, Instrument No 11 of 2000 as amended by Instrument No 43 of 2003) was factor 5(f):
Drinking at least 150kg of alcohol … within the ten years immediately before the clinical onset of gout
This was the basis on which the delegate had accepted the condition as attributable to service. That basis was incorrect for the reasons given above in relation to alcohol abuse or dependence and for these reasons the delegate’s decision must be set aside.
DECISION
53. The Tribunal sets aside the decision under review, namely a decision of a delegate of the respondent dated 20 November 2001, insofar as it relates to the applicant’s claims for solar keratosis, tinea and gout, and substitutes the decision that:
§solar keratosis of the back is war caused with effect from 8 May 2001; and
§tinea and gout are not war caused.
The Tribunal otherwise affirms the decision under review, noting that the diagnosis of the condition claimed as adjustment disorder is amended to dysthymic disorder.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Denise Burton
Administrative AssistantDates of Hearing 19 March and 14 April 2004
Date of Decision 6 August 2004
For the Applicant Mr R Richards, Advocate
For the Respondent Mr M Smith, Departmental Advocate
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