Ellis and Repatriation Commission
[2003] AATA 252
•19 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 252
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1317
Nº V2002/586
VETERANS' APPEALS DIVISION
Re: GEORGE THOMAS ELLIS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard, Member
Date: 19 March 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review that the claimed conditions of generalised anxiety disorder and alcohol dependence or Alcohol Abuse were not war‑caused.
The Tribunal sets aside the decision under review in relation to osteoarthritis of the left knee and in its stead decides that the condition is war‑caused and remits the matter to the respondent for assessment of the impairment rating and assessment of the rate of pension.
(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – generalised anxiety disorder – alcohol dependence or alcohol abuse - whether war‑caused – whether events constituted a severe psychosocial stressor or whether applicant experienced a severe stressor – date of clinical onset of conditions – whether incident related to service – osteoarthritis of left knee – respondent conceded as war‑caused
Veterans' Entitlements Act 1986
Statements of Principles
Instrument Nº 1 of 2000
Instrument Nº 76 of 1998
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
19 March 2003 Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard, Member
These are two applications to review decisions of the Veterans’ Review Board (VRB) dated 15 March 2001, each of which affirmed earlier decisions of the respondent. The first reviewable decision was that claimed conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse were not war‑caused. The second reviewable decision refused a claim for osteoarthritis of the left knee. Prior to the hearing, the respondent conceded that the osteoarthritis of the left knee was war‑caused following receipt of a report from a consultant orthopaedic surgeon and requested that the second reviewable decision be set aside.
At the hearing, the applicant was represented by Mr A. Larkin, of counsel, and the respondent by Mr G. Purcell, of counsel. Evidence was given by the applicant, Mr G. Ellis, his former wife, Mrs M. Ellis, and Dr E. Cole, a psychiatrist. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Statement of Mr Ellis dated 9 October 2001 Exhibit A1
Report by Dr Cole dated 18 December 2001 Exhibit A2
Report of Dr S. Rope, general practitioner, dated 3 February 2003 Exhibit A3
Transcript of VRB Hearing of 4 September 2001 Exhibit R1
Documents from Department of Veterans' Affairs
file (1‑34) 6 December 2001 Exhibit R2
Clinical notes of Dr Rope Exhibit R3
Clinical notes of Hastings Central Medical Centre Exhibit R4
Service Medical Documents (1‑8) Exhibit R5
Documents from Department of Veterans' Affairs file
(1‑28) 8 August 2002 Exhibit R6
Report of Dr S O'Loughlin, orthopaedic surgeon,
dated 16 September 2002 Exhibit R7
Report of Captain H. Josephs, WriteWay Research Service
dated 19 September 2002 Exhibit R8
Report of Dr L. Walton, psychiatrist, dated 25 October 2002 Exhibit R9
Supplementary report of Dr Walton dated 2 December 2002 Exhibit R10
Mr Ellis was born on 28 September 1940. He served in the Royal Australian Navy (the navy) from 28 April 1958 to 27 April 1970. He had the following periods of operational service:
HMAS Voyager – Malaya and Singapore
18 March 1959 to 20 April 1959
7 April 1960 to 15 April 1960
6 May 1960 to 2 June 1960
5 January 1961 to 24 January 1961
17 February 1961 to 9 March 196125 March 1961 to 17 April 1961
HMAS Boonaroo – Vietnam
13 March 1967 to 13 April 1967
HMAS Vampire – Vietnam
14 May 1969 to 25 May 1969
He lodged a claim on 20 October 2000 for the conditions of "Generalised Anxiety Disorder and Alcoholism (controlled at present)". The claim stated that he first became aware of the condition in 1967 and that the date of onset was 1967‑1969. The claim contended that the cause was
…war service in Vietnam – HMAS Vampire, HMAS Boonaroo & HMAS Vendetta? Was bosun on Boonaroo, which was carrying 7000 ton H.E. explosives etc. Vampire on the gun line in Vietnam.
In his oral evidence, Mr Ellis acknowledged that the 7000 was the ship's tonnage and the quantity of bombs carried was more likely to have been approximately 500 tons.
In his statement and oral evidence, Mr Ellis referred to four events during his operational service which, he believed, had caused or aggravated his anxiety condition and alcohol abuse. The first event was alleged to have happened during shore leave in Singapore when on his first trip in HMAS Voyager in 1959. He thought that it had been approximately 4:30 p.m. when he had gone ashore with his best friend. They visited various bars and he accepted that it was likely that, by late evening, they were intoxicated. He said that, in the late evening, they had left a bar where they were attacked by a group of Chinese men. Both suffered blows resulting in welts and minor abrasions before they could escape back to the ship. Mr Ellis said that he did not report the incident as he was not hurt severely and performed his normal duties the next day. He maintained that he was very frightened and subsequently suffered regular but intermittent nightmares of the attack. He accepted that he had not mentioned this incident at the VRB hearing, but said that, at the time, he did not think that it had any bearing on his case as not being, to his mind, a war service incident. Mr Ellis accepted that the ship's notice board warned of areas to which members of the crew should not go and it was possible that the attack took place in such an area. He accepted also that he had first said that his friend was Able Seaman Edwards but that he had later realised it was an Able Seaman Simonds. He maintained that, although he had been drinking alcohol regularly prior to the incident, his level of consumption increased subsequently. He acknowledged that he had been confined to cells at HMAS Cerberus in October 1958 for being drunk. He acknowledged also that, in 1960, he had been drinking while ashore in Sydney and was injured in a fight with another sailor.
The second event referred to by Mr Ellis was when he was assigned to HMAS Boonaroo in 1967 as an Acting Petty Officer. HMAS Boonaroo was a merchant ship commissioned to carry munitions and other stores from Australia to Vietnam. Mr Ellis said that, because of a dispute with waterside workers, the crew was required to load and stow a cargo of aerial bombs. He had no prior experiences with such large bombs and was fearful of possible detonation. He said that, after reading Captain Josephs's report (R8), he recollected that one bomb had broken free while being unloaded by the Americans in Vietnam and dropped back into the hold. He could not explain why he had not recalled that incident prior to the hearing.
The third event related to the voyage in HMAS Boonaroo.. He said that the coxswain was a mature man with many years' experience who warned him that the unarmed ship was susceptible to attack by pirates. He maintained that the coxswain advised him to carry a firearm for protection. Mr Ellis said that he carried a pistol during the night hours and slept with a Thomson machine gun given to him by the coxswain, who took it from the ship's armoury. He concealed the possession of these weapons from other officers. Mr Ellis said that he drank heavily while in HMAS Boonaroo. In addition to the beer issued to him, he obtained beer from some non‑drinkers and a steward friend provided additional alcohol. He said that he had his own cabin and drank to excess regularly with the coxswain. He maintained that, although he was not officially allowed to take beer rations of others, it happened regularly and he would frequently consume five large cans of beer at night. Mr Ellis maintained that he suffered ongoing intermittent nightmares of being attacked by pirates and of bombs dropping.
The fourth event referred to by Mr Ellis was his fear of attack by Viet Cong whilst unloading HMAS Boonaroo in Vietnamese waters, particularly from enemy divers. He acknowledged that he was well aware of the use of scare charges to deter divers and that he had not seen any indications of possible attack on his ship. He maintained that he was fearful of being fired on from land positions while in HMAS Vampire in Vietnamese waters, although accepted that no such firing had taken place. He was unable to explain why he had not referred to his fear of attack in Vietnamese waters at the VRB hearing.
There were several other stressful events noted in the life of Mr Ellis. His father was a World War II veteran whom he did not see until he was six years old. He was somewhat frightened of his father who was, at times, violent and family disputes were frequent. He has seen little of his three siblings over many years. Mr Ellis left school at 14 and joined the navy at 17 years of age. He was married in 1962 and had a daughter soon after, who suffered kidney problems. When about to sail from Australia in the HMAS Boonaroo in March 1967, Mr Ellis was informed by a neighbour that his wife had left and did not intend to return. He was committed to sailing and could do nothing until his return to Australia. Whilst on board HMAS Vampire in 1969, he was informed that his wife was seriously ill with a brain haemorrhage. He was taken from the ship in Singapore and flown home. He and his wife separated in 1971 but reconciled in 1974 for some five years before a final separation. Mr Ellis has had little or no contact with his daughter in recent years and his son committed suicide in 2000 at age 29.
Mrs Ellis said that she has seen little of her former husband during the last 10 years. She said that they first met in 1962, were married soon after. She said that Mr Ellis was not a heavy drinker at that time. He did not drink at home and it was rare for him to become intoxicated. She said that she noticed Mr Ellis increased drinking after returning from his posting to Vietnam on board HMAS Boonaroo.. His heavy drinking created problems in the marriage and she left him in 1971. Mrs Ellis said that, after reconciliation in 1974, the drinking habit of Mr Ellis improved but then deteriorated, resulting in a final separation some five years later. Mrs Ellis said that her husband suffered nightmares and would get out of bed in the middle of the night to sit in the lounge room. He would not tell what was troubling him. One difficulty with the evidence of Mrs Ellis is that she sought to attribute the alcohol problems of Mr Ellis to the post‑Vietnam trip period. However, this conflicts with the picture painted by Mr Ellis of heavy drinking after the first trip in HMAS Voyager, eight years earlier and his concern at being informed that his wife had left him prior to HMAS Boonaroo arriving in Vietnam.
Captain Josephs said that most bars in Singapore at the time of the incident, related by Mr Ellis, employed a night guard known as a jaga.. Jagas in the area would chase off troublemakers with much noise and wielding bamboo poles. The use of bamboo poles was tolerated by the authorities as they rarely caused serious injury. Captain Josephs noted that Mr Ellis was a Leading Seaman Quartermaster Gunner promoted to Acting Petty Officer Quartermaster Gunner when assigned to HMAS Boonaroo in 1967. He said that the bombs carried would not have been armed to avoid premature explosion and was surprised that Mr Ellis with nine years experience in the navy and very familiar with weapons and ammunition would have been unduly concerned about the cargo of bombs. Captain Josephs said that there was no reference in the records to the Captain of HMAS Boonaroo having any concern at possible attack by pirates. He noted that, while there had been some reports of pirate activity, although none involving naval vessels, the area of concern was the Malacca Strait and HMAS Boonaroo did not enter that strait. Captain Josephs said that HMAS Boonaroo unloaded its cargo in Cam Ranh Bay, which was much less susceptible to attack than at Vung Tau. No Australian naval ship was ever attacked in Vietnam by Viet Cong divers nor fired on by land based Viet Cong.
Dr Cole examined Mr Ellis on 28 November 2001 and provided a report dated 18 December 2001. He was of the opinion that:
…Mr. Ellis is suffering from a generalised anxiety disorder which apparently began after he was assaulted in Singapore and was aggravated by the events that he subsequently experienced during the course of his naval service. He also suffers from alcohol dependence or alcohol abuse, which is also to be seen as service related, in as much as he began to drink heavily only after the assault in Singapore.
Dr Cole considered, on the history given to him by Mr Ellis, that the clinical onset of the anxiety disorder and alcohol abuse was within a year of the Singapore incident. He acknowledged that, if the incident had been as significant as stated in the history given to him by Mr Ellis, he would have expected it to be related to Dr L. Chester, psychiatrist, who examined him in 1997 and to the VRB. Dr Cole accepted, also, that aspects of Mr Ellis's private life would have contributed significantly to his anxiety.
Dr Walton examined Mr Ellis on 17 September 2002 and provided a report dated 25 October 2002. He was of the opinion that Mr Ellis was suffering from a chronic mixed anxiety/depressive disorder with a parallel diagnosis of alcohol dependency. Dr Walton believed that Mr Ellis had suffered psychiatric symptoms since childhood and that service‑related events had aggravated a pre‑existing anxiety condition. He noted that Mr Ellis described the onset of troublesome anxiety state and depressed mood prior to joining the navy, which was attributed to a troubled family life and lacking accommodation after a move to Melbourne. Dr Walton noted that Mr Ellis first sought treatment in 1972 driven primarily by his alcohol problem, rather than any psychiatric problems. Mr Ellis confirmed that, after urging by his wife, he was referred to Prince Henry's Hospital by his general practitioner in 1972 for alcoholism. Dr Walton was not called to give oral evidence.
Mr Ellis was examined by Dr Chester on 19 November 1997 and a report dated 8 December 1997 was provided to the Department of Veterans' Affairs (T5). Dr Chester had taken a history of an unstable and unsatisfactory childhood with parental conflicts, an absent father and poor socio‑economic conditions. Mr Ellis had told him of a colourful career in the navy with more charges than anybody else, usually for being drunk and insubordinate, but having enjoyed his 12 years in the service. Dr Chester's diagnosis and opinion was:
…
The history presented by Mr Ellis indicates that his main current concerns are financial problems, concerns over family issues such as his son's drug abuse, and discomfort in his right knee which he attributes to an injury sustained during his naval service.
However, Mr Ellis did not present with any symptoms or complaints suggestive of significant psychopathology and systematic enquiry did not reveal any such symptoms.
The history also indicates that although Mr Ellis has been assessed by psychiatrists in the past, in 1973, he attended both Prince Henry's Hospital and the Alfred Hospital on one occasion for assessment regarding his alcoholism and again he saw another psychiatrist in 1983 regarding the same problem. However, he has had no other psychiatric disorders, assessment or therapy.
The history also indicates that Mr Ellis served in the Navy for some twelve years and enjoyed his naval service, was never in action under enemy fire, did not experience any overwhelmingly traumatic experience and was not injured or wounded and did not require any medical or psychiatric treatment either during or after his war service. On return to civilian life he continued to function effectively in his capacity as a clerk, shipping agent and deck hand until he was made redundant in 1994.
The mental state examination furthermore did not reveal any psychopathology.
In conclusion, therefore, in my opinion Mr Ellis does not suffer from any psychiatric disorder and in particular does not suffer from post traumatic stress disorder or generalised anxiety disorder as defined by the DSM4 of The American Psychiatric Association.
It is assumed that the examination by Dr Chester resulted from a claim by Mr Ellis in 1997 following which the conditions of bilateral sensorineural hearing loss, bilateral tinnitus and osteoarthritis of the right knee were accepted as war‑caused.
As Mr Ellis had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war‑caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:
Instrument Nº 1 of 2000 concerning generalised anxiety disorder
Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
Each of the relevant SoPs sets out the factors, one of which must relate to the veteran's service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.
In relation to the claim for generalised anxiety disorder, the factors relied on are:
5. …
(a)…
(i)…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
…
8.…
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
In relation to the claim for alcohol dependence or alcohol abuse, the relevant factors are:
5. …
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
In this SoP, experiencing a severe stressor is defined, and is relied on, 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;
It was submitted for Mr Ellis that the incident in Singapore satisfied the definitions of severe psychosocial stressor and severe stressor under the relevant SoPs and that the clinical onset of both claimed conditions was within two years of the incident. Additionally, or alternatively, it was argued that the three events relating to the service in HMAS Boonaroo satisfied the definitions and there was a clinical worsening of the conditions within two years of those events.
In Repatriation Commission v Deledio (1998) 49 ALD 193, the Federal Court set out a four step process in arriving at a determination of whether a condition was war‑caused pursuant to s.120 of the Act. These steps are:
1.whether the material points to a hypothesis connecting the claimed condition with the circumstances of the particular service rendered by the veteran;
2.whether there is in force a SoP under s.196B;
3.if a SoP is in force, whether the hypothesis is reasonable and consistent with the "template" to be found in the SoP; and
4.whether the Tribunal is satisfied beyond reasonable doubt that the incapacity did not arise from a war‑caused condition. It is at this stage of the process only that the Tribunal is required to find facts from the material before it.
In this case, the material presented to the Tribunal raised a hypothesis connecting generalised anxiety disorder and alcohol dependence or alcohol abuse with the service by Mr Ellis. The hypothesis is reasonable and consistent with the relevant SoPs. However, the Tribunal then needs to determine whether the events identified as stressors in the hypothesis are both connected with service and satisfy the relevant definitions in the SoPs.
Under s.9(11)(a) of the Act, provides that an injury or disease suffered by a veteran shall be taken to be war‑caused if the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operation service. Subsection 9(3) provides that the foregoing provision does not apply if the injury or disease:
…
(a)resulted from the veteran's serious or wilful act; or
(b)an occurrence that happened while the veteran was committing a serious breach of discipline.
From the evidence given by Mr Ellis, we are satisfied that the alleged incident of attack by a group of Chinese in Singapore happened when he and his friend had been drinking heavily and in an area which he had been instructed to avoid. He had told Dr Walton that …I was half pissed. I was in the red light district from where sailors were banned and he had disobeyed those restrictions. It appears most likely that the reason the alleged attack was not reported was that Mr Ellis was well aware that he had disobeyed restrictions on entering the area. Thus, the attack arose from a serious and wilful act of Mr Ellis and a serious breach of discipline so as not to be connected with his service.
Even if we are wrong in that finding, we are satisfied that the alleged incident was not a severe psychosocial stressor or a severe stressor under the SoPs. It is very relevant that Mr Ellis first mentioned the incident after the VRB hearing in September 2001. If the occurrence had evoked feelings of substantial distress or which might have evoked intense fear, helplessness or horror and, subsequently, caused Mr Ellis to commence drinking heavily and to have nightmares, it is very surprising that he did not consider it relevant in the VRB hearing nor to any medical practitioner prior to that hearing. In addition, there were two other incidents related by Mr Ellis to the Tribunal or to both Dr Cole and Dr Walton. One was an alleged assault by an Indian Sikh in Singapore which, apparently, did not frighten Mr Ellis because it was over before he knew what was happening. The second was an apparent brawl in Sri Lanka in which Mr Ellis and other sailors were involved in which one participant was killed. Although Mr Ellis told Dr Walton that he had been anxious about the altercation, he has not sought to attribute any ongoing anxiety to either incident. We are left with a not unusual concern that, after a VRB hearing and a veteran's exposure to the precise wording of a SoP, a previously unmentioned incident during operational service suddenly comes to mind and evidence is appropriately tailored in an attempt to fit within the SoP. While we do not suggest that the alleged incident of the assault in Singapore did not happen, we are satisfied that it does not satisfy the requirements of either SoP. It is relevant that Mr Ellis suffered very minor injuries, went to bed on return to his ship and performed his normal duties the next day.
Further, we are satisfied that the other three events concern bombs carried on HMAS Boonaroo, fear of pirates while on HMAS Boonaroo and concern of possible attack while in port on HMAS Boonaroo or HMAS Vampire do not satisfy the definitions of stressors under the relevant SoPs. While Mr Ellis may have been apprehensive in relation to each of them, no identifiable occurrence or threat happened. Given the experience and qualifications of Mr Ellis when he served on HMAS Boonaroo, it is unlikely that he was unduly worried about a cargo of bombs. Further, he did not recall that one was actually dropped in the course of unloading until he read Captain Josephs's report. While he may have had some concern of pirate attack, this did not appear to be shared with any one other than the coxswain, no attack actually happened to that or any other naval vessel and, on his evidence, he was drunk most nights. Again, while there may have been some feelings of apprehension, no attack was made or observed while in harbour in Vietnam.
For completeness, it is appropriate to consider the likely date of the clinical onset of generalised anxiety disorder and alcohol dependence or alcohol abuse. Mrs Ellis said that Mr Ellis was not a heavy drinker in 1962 when they were married. She first noticed an increase in drinking after his return from a first visit to Vietnam in 1967. Some time between then and 1972, Mrs Ellis urged Mr Ellis to seek help for his drinking and he first sought treatment in 1972. Dr O'Loughlin, who examined Mr Ellis on 12 September 2002, took a history of having experienced problems with alcohol since 1970. Against that, Mr Ellis was confined to cells in October 1958 for being drunk, was clearly drinking heavily in Singapore in 1959 and told the VRB that he …got into trouble the first day in the Navy, got into disciplinary trouble through alcohol and was introduced to the wet canteen at HMAS Cerberus after about three weeks and …my troubles started while I was in there.. From one aspect, it could be seen that his alcohol problems started prior to any operational service but from the other aspect, may not have attained the stage of a clinical onset until, at least, 1970.
Consequently, even if we were able to find that any of the events satisfied the definitions of a stressor, which we do not, we cannot be satisfied that there was a clinical onset or worsening of alcohol dependence or alcohol abuse within two years of any of them. The onset of generalised anxiety disorder is also difficult. Dr Chester found that Mr Ellis did not suffer from any psychiatric disorder in 1997. Since then he has had a very significant stressful event with his son committing suicide. Prior to that, he has had substantial marriage problems. Dr Rope, his general practitioner, noted that Mr Ellis …suffered from insomnia and several bouts of depression between May 1993 and June 2001. On the other hand, Mr Ellis told the VRB that he was first troubled by fear and anxiety when he was about 13 and joined the navy at 17. Again, there is no evidence to satisfy us that there was any clinical onset of anxiety disorder within two years of any service‑related event.
It follows from the foregoing findings that the decision under review, that the conditions of generalised anxiety disorder and alcohol dependence or alcohol abuse were not war‑caused, should be affirmed. In accordance with the acceptance prior to the hearing by the respondent, the decision that osteoarthritis of the left knee was not war‑caused should be set aside and in its stead a finding that the condition was war‑caused.
I certify that the twenty‑four [24] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 7 February 2003
Date of Decision: 19 March 2003
Counsel for the applicant: Mr A. Larkin
Solicitor for the applicant: Williams Winter & Higgs
Counsel for the respondent: Mr G. PurcellSolicitor for the respondent: Advocacy Section, Department of Veterans' Affairs