Fanna and Repatriation Commission
[2007] AATA 1665
•13 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1665
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600191
VETERANS’ APPEALS DIVISION ) Re FRANKLIN DOUGLAS FANNA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date13 August 2007
PlaceBrisbane (heard in Townsville)
Decision
The Tribunal sets aside the decision under review; substitutes the decision that alcohol abuse and anxiety disorder are war caused; and remits to the respondent the assessment of the rate of pension payable for these medical conditions. The Tribunal allows 7 days for the parties to make submissions on the date of effect of this decision.
.................[Sgd]............
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS - service in Australian Army – disability service pension – post traumatic stress disorder – alcohol dependence/abuse – generalised anxiety disorder – unarmed guard duty – decision set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 7, 9, 120(1), 120A, 176(4), 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Fenner v Repatriation Commission [2007] FCA 406
REASONS FOR DECISION
13 August 2007
M J Carstairs, Senior Member 1. In this application Franklin Douglas Fanna seeks review of a decision rejecting his claim for post traumatic stress disorder and alcohol abuse. He claims that these conditions are related to his service in the Australian Army, in particular the six months he served in Thailand, between December 1965 and May 1966, when he was on operational service.
ISSUES
2. The issues before me are:
(a)the correct diagnoses of Mr Fanna’s psychiatric conditions; and
(b)whether these conditions are war-caused.
The conditions will be war caused if they resulted from an occurrence during service in Thailand, or if they arose out of or were attributable to that service.[1]
[1] As provided for in s 9 of the Veterans’ Entitlements Act 1986.
BACKGROUND
3. Mr Fanna enlisted in the Australian Army at the age of 17. He trained as a field engineer and was posted (via Malaya) in December 1965 to Ban Kok Talat, 66 miles north of Ubon, Thailand, as a driver/plant operator with 2 Field Troop Royal Australian Engineers. In Thailand the Australian troops joined with troops from the British Commonwealth Far Eastern Strategic Reserve in “Operation Crown,” engaged in re-building an airport runway as part of a SEATO defence commitment.
4. Mr Fanna had enlisted in the Australian Army for a period of 6 years but served for only 3 years. The service records revealed little about why his period was truncated. It appears there were disciplinary issues. The official record reads that he was discharged at his own request, but Mr Fanna said that he was offered a choice between resigning or dishonourable discharge. The only documented incident in the service records was a $10 fine for drunkenness that Mr Fanna incurred in February 1966. A warning was entered in his records in March 1966 that his discharge would be recommended unless he showed improvement. On 13 May 1966 Mr Fanna was sent back to Malaya, and was discharged in June 1966 when he returned to Australia.
5. Mr Fanna remembers little about this. Two others who served with Mr Fanna shed some light on the possible sequence of events. Mr N Nuttall[2] said that on one occasion when they were returning late to base, Mr Fanna threw himself without warning onto the barbed wire fence surrounding the camp, injuring himself to the extent that he required treatment for cuts at the RAP. Later that night, according to Mr Nuttall, Mr Fanna did not settle down, required sedation and was placed in the guard house. There it seems he went berserk, charging the wall until he collapsed the building and escaped. Mr Nuttall said that a search was instituted and Mr Fanna was later found safe, asleep on the floor of the gym. He had by then sustained even greater injuries. Mr Nuttall said that it was after this incident that Mr Fanna was sent back to Malaya. Mr G Lockyer provided much the same version of the events of that night.[3] Mr C MacGregor[4] also recalled that after this incident Mr Fanna was sent back to Malacca, Malaya, and the troop never saw him again.
[2] T4, p101.
[3] T4, p 125.
[4] T4, p1 23.
6. After taking his discharge in Australia Mr Fanna travelled about Queensland, working in a number of labouring jobs, including as a fruit picker, meat worker, farm hand and mechanic. He married in 1971. In about 1973 he commenced working as a fisherman.[5] In about 2003 his boat sank when he was returning to Cooktown harbour, and although he was later able to salvage the boat he sustained significant loses including his catch and a lot of equipment. It seems he was able to purchase a smaller boat and continued working for a while,[6] but he has ceased employment now.
[5] Claim form T4 p 26 and T6 p 121.
[6] Exhibit R1.
THE STRESSFUL EVENTS
7. Mr Fanna’s six months’ operational service in Thailand is eligible war service[7] and as such attracts a particular standard of proof in relation to his claims.
[7] Section 7 of the Act.
8. Mr Fanna maintains that during his operational service he experienced certain stressful events, two of which were the basis of hypotheses, which, it was submitted, posed a connection between his current psychiatric conditions and his war service. These events were
§ witnessing a shooting at a restaurant (the restaurant incident); and
§ as a general matter, the troop being unarmed during guard duty, which made Mr Fanna feel exposed and vulnerable. More specifically he relied upon one incident during guard duty, where he maintains that there was cross fire from a nearby village and had to take refuge behind a dozer blade while bullets ricocheted in the area around him (the guard duty incident).
9. Because of the view that I have taken of this matter, I will confine myself to the second of these stressful events. The respondent conceded that the second stressful event, if it happened as alleged, would satisfy the definition of experiencing a severe stressor, a term defined in certain of the Statements of Principles which I am required to consider. I should say, in addition, that I had real reservations about whether Mr Fanna’s stated reactions to the restaurant incident would satisfy the definitions concerning stressful events set out in various Statements of Principles.
10. There were some unusual aspects of Mr Fanna’s case that I should say something about before looking at the hypotheses. Mr Fanna admits that he has scant recollection of what happened in Thailand. He frequently refers to being unable to remember his time in Thailand at all. He cannot remember people with whom he served, some of whom now assist him with his claim and have provided him with details of what happened while they were there. These people include Mr Nuttall, to whose statement I have already referred. Mr Nuttall assures Mr Fanna that they trained together at Canungra. They were posted together to Malaya and then went to Thailand where they were close friends and spent most of their leisure time together. Mr Fanna remembers nothing of this, and even now cannot recall Mr Nuttall. Mr Nuttall has provided Mr Fanna with photographs of the airbase but these have not helped jog his memory. In one of these photographs a young Mr Fanna was pictured on service in Thailand.[8]
[8] Exhibit A4.
11. Mr Fanna told the Veterans' Review Board that he had no independent recollection of any events during his time in Thailand. Mr Fanna’s evidence to me was along similar lines. He said:
I cannot remember leaving Malaya for Thailand. I can’t remember coming back. I can’t remember ever working in Thailand. The only reason I know what the base looks like is through photos. I’ve got a friend here…who has been helping me…otherwise I wouldn’t have a clue what the base looked like…[9]
[9] Transcript p 13.
12. Mr Fanna said that he is piecing things together and has dreams of being chased by members of the local insurgent group, the Pathet Lao. Mr Fanna said that …it’s only because of the nightmares that things are piecing themselves together, and with Neville Nuttall and a couple of the other boys I talked to, and they’re helping me piece everything together…[10]
[10] Transcript p 14.
13. It is against this background that Mr Fanna’s hypotheses and his evidence about stressful experiences - being on guard duty unarmed, and the single incident when Mr Fanna believes he closely escaped a bullet – must be viewed.
the guard duty incident as a stressor
14. In a written statement[11] Mr Fanna referred to undertaking regular night time patrols that were carried out alone, armed only with a pick handle. Mr Fanna has told all the doctors who have prepared reports on him that this experience troubled him greatly. In his written statement he said he regularly heard gun fire from the local village and on a couple of occasions when this occurred he ran back to the guardhouse to take cover. He then referred to the incident of cross-fire in the following terms:
On one particular patrol I was carrying out the guard patrol with my pick handle for protection when gunfire erupted in the village adjacent to the base. I was amongst the plant and equipment at the time it erupted. I distinctly remember hearing round going through the trees and ricocheting off the plant and equipment around me. I was terrified by what was happening and took cover behind a D8 dozer blade. I thought I was going to get hit by one of the rounds before I took cover. I recall my heart rate was up and I was frightened for my life. I wanted to get out of there but had to wait for the bullets to stop. I remember there were quite a few rounds ricocheting around for a while. I waited until it completely stopped before I ran back to the guardhouse and reported what had happened to the guard commander. I do not recall what happened after that.[12]
[11] Exhibit A1.
[12] Exhibit A1.
15. When asked in the hearing whether he had any specific recall of the guard duty incident, Mr Fanna said that he did, and that it was one of his nightmares that keep him awake at night, but in the nightmare, I’ve got little Asian fellows chasing me and this is what wakes me up. It’s not the actual shooting and that…[13] When questioned further Mr Fanna explained that he knew the gun fire incident happened as he was having nightmares about it.[14]
[13] Transcript p 13.
[14] Transcript p 14.
16. A Veterans' Review Board, when deciding one of Mr Fanna’s earlier claims, had observed that it was unlikely that guard duty in an operational area would be carried out armed only with a pick handle.[15] However the respondent requested reports from Writeway Research Services[16] when Mr Fanna made the current claim. In the course of that report the Research Service consulted Brig A H Hodges (retd), who, having the rank of captain at that time, was the officer commanding 2 Fd Tp RAE in Thailand during the time Mr Fanna served there. The results those enquiries included the following:
§ Live rounds were not issued to the troops on Operation Crown. They were issued with pick helves for sentry duty.
§ 1965/1966 was a time of tension in the province due to its proximity to the Vietnam border, and the local community was the target of communist activity. Local guerrilla groups had killed 7 of the 38 police in the district.
§ There were 6 incidents of insurgency in the time that 2 Troop was deployed there, within the vicinity of the worksite at Ban Kok Talat.
§ Brig Hodges was reported as stating that he was not surprised at the lack of record of injury to Mr Fanna, as he had knowledge of this in other cases.
§ Brig Hodges supplied extracts of the written report he had filed on their participation in Operation Crown when a subsequent Writeway research report was compiled.[17] Brig Hodges’ report stated that there were 24 deaths in the general area (local police, a headman, and civilians) between January and April 1966, resulting from clashes between the locals and communist insurgents. On 6 February 1966 he recorded that there had been a gun battle involving a 10-man communist patrol.
§ On two nights there was an outburst of rifle and machine gun fire within 1000 (whether metres or yards was indecipherable) of Crown Camp.
[15] T4, p 61.
[16] T4, p 94-99.
[17] Exhibit R2.
17. Brig Hodges gave oral evidence and confirmed, however, that he was not aware of any occasion that rifle or machine gun fire had penetrated the base. He considered that gunfire of any kind could not have travelled the distance of 1000 metres (referred to in his report on Operation Crown) into the base. However he said he was not a technical expert on weapon trajectories and distances.
18. Brig Hodges was certain, however, that if Mr Fanna had been exposed to gun fire on guard duty and reported it as Mr Fanna maintains that he did, it would have passed up to him through the chain of command. Brig Hodges said he would have heard about it, but he heard of nothing like this and he said that he had only included the information about communist insurgent activity in his report as background information. He said he had no direct knowledge of it and it was likely that he was simply provided with the information by a Thai liaison officer. The substance of Brig Hodges’ evidence was that he recalled there being no real security issues for the Australians serving at the base. He said that they took no particular measures when moving about the area; they travelled freely without requiring protection and they did not travel in convoy.
19. I turn now to the first question that I must decide, which is the diagnosis of Mr Fanna’s conditions.
DIAGNOSIS OF MR FANNA’S MEDICAL CONDITIONS
20. When looking at the question of diagnosis, I must decide to my reasonable satisfaction, based upon the medical and other evidence before me, whether Mr Fanna suffers from a particular injury or disease.[18] The medical evidence, broadly speaking, demonstrated that Mr Fanna suffers from an alcohol related disorder and some kind of anxiety disorder. Certain practitioners identified Mr Fanna as having a depressive disorder, but this was some time ago and was not pressed in the current claim.
[18] Benjamin v Repatriation Commission (2001) 70 ALD 622.
alcohol abuse or dependence
21. The parties agree that Mr Fanna suffers from alcohol abuse, an inescapable conclusion given that the medical evidence agreed on that point. It was readily apparent also from their reports that all doctors agreed that Mr Fanna’s alcohol abuse dates from his service in Thailand. His alcohol consumption has been extreme at times, as was indicated by the report of Dr P Morris, consultant psychiatrist, who noted that Mr Fanna drank heavily from the time of his discharge until the mid 1990’s. Dr Morris stated that 3-4 days a week, Mr Fanna was consuming 12 cans of beer and half a bottle of spirits per day – a daily equivalent of 38 standard drinks. On the remaining days he drank less, but still significant amounts. A few doctors noted that being a self employed fisherman enabled Mr Fanna to sustain this heavy intake in a way that might not have been possible in other employment. Since the mid-1990’s Mr Fanna has managed to progressively reduce his intake to 10 standard drinks per day. He home brews beer and drinks wine now rather than spirits.
anxiety
22. Whilst the question of identifying Mr Fanna’s alcohol disorder was a simple matter, rather harder was the question of identifying his anxiety condition, although the evidence uniformly indicated that Mr Fanna suffers from one amongst the anxiety spectrum of disorders. The difficult question was whether Mr Fanna fully satisfied the criteria required for a diagnosis of post traumatic stress disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (these are criteria A-F), or whether Mr Fanna’s anxiety condition is better described as generalised anxiety disorder or anxiety disorder (not otherwise specified).
23. I should also observe that the predominant view, with the possible exception of Dr Morris, was that Mr Fanna’s anxiety, like his alcohol abuse, has been evident since his Army service.
24. The following summarises the conclusions on diagnosis:
Dr U Stephenson (2002)[19]
Alcohol abuse disorder
Generalised anxiety disorder
Intermittent major depressive disorder with background dysthymia
Dr J Woolridge (2002)[20]
Alcohol abuse
Anxiety
significant posttraumatic stress disorder symptomatology’
depression
Dr M Likely (2004)[21]
Alcohol abuse
Post traumatic stress disorder
Dr A Young (2004)[22]
Alcohol abuse
Post traumatic stress disorder
Dr P Morris (2006)[23]
Alcohol dependence more recently alcohol abuse
Anxiety disorder (not otherwise specified),
[19] T4, p 30.
[20] T4, p 42.
[21] T4, p 70.
[22] T4, p 75.
[23] Exhibit R1.
25. I should set out a little further detail of how these doctors reached their conclusions. Dr U Stephenson,[24] psychiatrist with the Queensland Government Integrated Mental Health Program, considered that Mr Fanna did not meet the full criteria for post traumatic stress disorder but she concluded that he suffered generalised anxiety disorder. It was plain that she regarded this as being the case from the time of his discharge from the Army. Dr Stephenson said that Mr Fanna had been deeply disappointed at his early discharge and she observed that he became something of a loner after his military service came to an end.
[24] T4, p 29.
26. Dr Stephenson acknowledged that Mr Fanna’s early life had been beset by misfortune; nevertheless she considered that he suffered a significant downturn as a result of his service. She said he came out of the Army with an alcohol abuse disorder as a result of his using alcohol inappropriately to control his stress during service. As she saw it, his generalised anxiety disorder and intermittent depression arose from his experiences in Thailand and from the severe blow to his self esteem occasioned by his involuntary discharge.
27. Dr Stephenson said that Mr Fanna’s alcohol consumption may be responsible for his nightmares, as it is probably contributing to the pattern of broken sleep with alarming nightmares and sudden awakenings.[25]
[25] T4, p 30.
28. The next practitioner to report on Mr Fanna’s case was Dr J Woolridge, psychiatrist. I found his written report[26] the least helpful of all the reports. In saying that I intend no criticism of Dr Woolridge or his report. What was unclear to me from his report might have been easily explained had Dr Woolridge given oral evidence. He made it sufficiently plain that Mr Fanna’s clinical picture was clouded by his severe alcohol abuse, which is well-recognised as a problem when diagnosing psychiatric disorders. Dr Woolridge said that Mr Fanna’s case did not fall into any easily recognised diagnostic pigeonhole. I was left with the strong impression that Dr Woolridge was unsure that any other diagnosis should be ascribed to Mr Fanna, apart from alcohol abuse (with its flow on effects on mood).
[26] T4, p 42.
29. I should observe that Dr Woolridge set out his thoughts about Mr Fanna’s symptoms against the criteria for post traumatic stress disorder (Criteria A – F in DSM-IV). However Dr Woolridge nowhere concludes that he was satisfied that Mr Fanna fully meets the diagnostic criteria needed to confirm the diagnosis. He says only that Mr Fanna has significant posttraumatic stress disorder symptomatology.[27]
[27] T4, p 51.
30. Dr M Likely, Mr Fanna’s treating psychiatrist, appears to have taken Dr Woolridge’s report as concluding that Mr Fanna has post traumatic stress disorder. Dr Likely agreed with that diagnosis, by reference to the criteria. Dr Likely thought that Mr Fanna’s alcohol abuse arose from his post traumatic stress disorder. I should also point out that Dr Likely was not called to give evidence.
31. In 2004, as a result of Mr Fanna having made the current claim, Dr A Young, consultant psychiatrist, was asked by the respondent to complete a file review, presumably because by now the were so many different diagnostic conclusions. Dr Young was not called to give oral evidence and she did not see Mr Fanna. Dr Young considered that Mr Fanna’s symptoms were consistent with post traumatic stress disorder and alcohol abuse and commented that:
… assuming that his history remains correct…it would appear in my opinion that Mr Fanna has been exposed to events during his time in Thailand which involved serious death or serious injury. In my opinion, this includes both the experience of sitting in a restaurant when a man nearby was shot and his guard duty experiences. From the accounts, his feelings at those times were of intense fear and a sense of vulnerability.[28]
[28] T 4, p 79.
32. Dr P Morris, consultant psychiatrist, prepared a report in 2006 and gave evidence at the hearing. Dr Morris observed that everyone agrees that Mr Fanna suffers from a chronic alcohol misuse disorder. His opinion was that Mr Fanna’s use of alcohol was influenced by that of other service personnel around him, and Mr Fanna was using alcohol to deal with his anxiety and insomnia, a point earlier made by Dr Stephenson. For that reason Dr Morris concluded that his alcohol abuse and dependence is a service related condition.[29]
[29] Exhibit R1, p 6.
33. Dr Morris considered that if what Mr Fanna said about being caught in local militia cross fire was verified, a diagnosis of post traumatic stress disorder might be justified. This would be a traumatic event that would satisfy Criterion A1 of the diagnostic criteria for post traumatic stress disorder (as a sufficient stressor) and because his reaction was fear and helplessness, criterion A2 would be satisfied. But, Dr Morris considered that Mr Fanna did not fully satisfy the requirements of criterion C (avoidance and numbing of responsiveness) or of criterion D (hyper arousal).
34. Dr Morris’ ultimate conclusion was that Mr Fanna’s kind of anxiety disorder best fitted the diagnostic description of anxiety disorder (not otherwise specified) (anxiety disorder (NOS)). He noted in reaching this conclusion that Mr Fanna’s anxiety is focussed and not pervasive, as would be the case if he suffered from a generalised anxiety disorder.
35. I note, and will return to this later, that Dr Morris considered that Mr Fanna’s symptoms of irritability, short temper, insomnia and avoidance of conflict dated from his service. But Dr Morris concluded that as his anxiety condition only was diagnosed in 2002, this was the date of its clinical onset.
36. In coming to a conclusion about the correct diagnosis of Mr Fanna’s anxiety condition, I preferred Dr Morris’s opinion that it is best described as anxiety disorder (NOS). Not only is Dr Morris the most qualified of all the practitioners who have reported on Mr Fanna, it seemed to me that he was in the best position to make a fully informed diagnosis because he was the only one who had the full range of materials before him (as well as the opportunity of interviewing Mr Fanna). The full material available to him included all the medical reports to date, and also the Writeway research and the statements of colleagues who served with Mr Fanna - which have only been available from the time of the Veterans' Review Board hearing. No other doctor had the full picture when they were called upon to write their reports.
37. Some deference should be accorded to Dr Likely as Mr Fanna’s treating psychiatrist, favouring as he does a diagnosis of post traumatic stress disorder. However Dr Likely appears to have relied heavily, in the first instance, on what he understood as being Dr Woolridge’s diagnosis to that effect, which, for the reasons I have given, I regard Dr Woolridge as being quite equivocal about. Dr Likely also seems to have taken an inaccurate history in places, both about the guard duty incident, and about matters under Criterion C and Criterion D of the diagnostic criteria for post traumatic stress disorder. For instance Dr Likely said that Mr Fanna avoids associating with any Army personnel. This is clearly not the case, in view of the amount of contact that Mr Fanna appears to have with people who served with him in Thailand.
38. I concluded that Dr Morris much more thoroughly examined and recorded the matters relevant to criterion C and criterion D symptoms in Mr Fanna’s case. I accept Dr Morris’ evidence that Mr Fanna insufficiently demonstrates behaviours under these criteria to warrant a diagnosis of post traumatic stress disorder.
ARE THE CONDITIONS OF ALCOHOL ABUSE AND ANXIETY DISORDER (N.O.S.) WAR CAUSED?
39. As I am reasonably satisfied that Mr Fanna suffers from anxiety disorder NOS and alcohol abuse/dependence I now turn to matters of causation.
40. Determining whether alcohol abuse and anxiety disorder NOS are related to Mr Fanna’s war service requires the application of ss 120 and 120A of the Veterans’ Entitlements Act 1986. The Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 said it was necessary to follow a four-step reasoning process in the application of s 120 and s 120A where a claim is made in respect of periods of operational service.
41. The first of these steps was satisfied in Mr Fanna’s case in the following way. The hypotheses raised in relation both to the alcohol disorder and anxiety disorder relied upon the occurrence of stressful events during Mr Fanna’s operational service. These occurrences and Mr Fanna’s reactions to them, it was said, led to his psychiatric disturbance. I should point out that “stressful events” (whether described as severe stressors or severe psychosocial stressors) are identified in the relevant Statements of Principles as providing a possible connection with service.
42. The second step from Deledio is satisfied because there are Statements of Principles in force, formulated by the Repatriation Medical Authority under s 196B of the Act, in relation to alcohol abuse and anxiety disorder, namely:
§ Instrument No 76 of 1998 for alcohol abuse/dependence.
One factor provided for in that Statement of Principles as making a connection with service is factor 5(b):
experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse)
§ Instrument No. 1 of 2000 for anxiety disorder.
One factor provided for in that Statement of Principles connecting anxiety disorder (NOS) with a veteran’s service is factor 5(a)(ii):
experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder
43. The term severe psychosocial stressor is defined elsewhere in the Statement of Principles as an identifiable occurrence that evokes feelings of substantial distress in an individual, and the non-exhaustive list of examples include being shot at and loss of employment. The term experiencing a severe stressor is defined in the Statement of Principles for alcohol abuse as including experiences of events that involve threat of death and injury and which might evoke a response of intense fear or helplessness. The respondent, quite correctly in my view, conceded that the gun fire incident on guard duty would meet the description of a severe stressor.
44. The third step in the Deledio process requires the Tribunal to look at the whole of the evidence in order to determine whether the hypothesis raised fits the template set out in the Statement of Principles. Findings of fact are not made at this step. At this point, however, if the evidence taken as a whole does not fit within the templates provided for in the Statements of Principles for alcohol abuse and for anxiety disorder, then any hypothesis will not be reasonable: s 120A(3). In those circumstances, the claim would be unsuccessful.
45. In relation to alcohol abuse the material taken as a whole points to an hypothesis that Mr Fanna experienced a severe stressor coming under fire during the guard duty incident (this having been conceded by the respondent for the purposes of agreeing that the third step of the Deledio process would be met by such an incident). All doctors agreed that clinical onset of alcohol abuse was at the time of operational service, so the temporal aspect of the hypothesis was pointed to by the evidence. The hypothesis fits the template in the Statement of Principles for alcohol abuse.
46. In relation to anxiety, and by reference to the definition of severe psychosocial stressor in the Statement of Principles for anxiety, the hypothesis referring to the guard duty incident also matches the template in the Statement of Principles for anxiety. The evidence taken as a whole points to Mr Fanna having anxiety from the time of his service. This is indicated by the two reports of Dr Stephenson; Dr Woolridge’s observation that anxiety and depression have been with him ever since he left the Army;[30] and Dr Likely and Dr Young’s clear thoughts that he had post traumatic stress disorder from the time of his service.
[30] T4, p 51.
47. The only one who might be taken as indicating an opinion other than onset as being about the time of service is Dr Morris. He agreed however that Mr Fanna suffered from anxiety symptoms, irritability, insomnia and avoidance of conflict, as matters quite separate from his alcohol abuse symptoms since his service.[31] As I see it, Dr Morris concluded, incorrectly, that he could not assign an earlier date to clinical onset than the date the condition was formally diagnosed. Such an approach is inconsistent with Federal Court authority. The meaning of clinical onset was addressed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 where Branson J accepted the meaning as follows:
...there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present... (emphasis added).
[31] R1, p 6.
48. It is important at this stage of the Deledio process also to be mindful that factor 5(a)(ii) of the Statement of Principles for anxiety disorder requires only that the evidence indicates the presence of symptoms from the anxiety spectrum disorders within 2 years of the experience of a stressor.[32] The hypothesis in relation to anxiety disorder therefore fits this template.
[32] Clause 2(b) of Statement of Principles for anxiety disorder.
THE FOURTH STEP
49. At this, the fourth of the Deledio steps, the conditions will be war-caused unless I am satisfied beyond reasonable doubt that such is not the case.
50. Mr Fanna’s claim is made in what I have already noted as being the unusual circumstances whereby he readily admits that he has little recollection of what happened in Thailand. It would seem difficult for a claim of this kind to succeed.
51. However, it is possible to view Mr Fanna’s admitted lack of direct recall (and reliance on the recollections of others) in two ways. One might think, favourably to Mr Fanna, that what has happened here is that his memory (submerged for some time, even perhaps by reason of his excessive alcohol consumption) has been jogged by the recollections of others. Alternatively, one might conclude that by repeated discussion with others, Mr Fanna has incorporated as his own what are in fact the memories of others. One might even conclude that he has made it up.
52. It is important to be mindful of the standard of proof and the proper application of s 120(1) of the Act.
53. I should observe that there is nothing supportive of Mr Fanna’s experience of the guard duty incident in the statements of his colleagues, Messrs Nuttall, Lockyer and MacGregor that lends any support to Mr Fanna’s evidence that he experienced gun shots whizzing around him on guard duty. They of course were not present. The evidence about that incident comes from him alone. However it is not inherently implausible, given the content of the Writeway research indicating that there was significant insurgency activity in the area.
54. I do not see the recency of Mr Fanna’s more detailed recollections as being a bar to his claim. His recollections may well have been revived by others who have helped him to fill in the gaps. I observe also that none of the doctors who interviewed him, and took quite detailed histories from him, regarded him as untruthful or as making it all up. Most were well aware, because he told them, that he had little direct recollection of his time in Thailand.
55. The evidence suggests that Mr Fanna buried these memories for much of his life. I was satisfied that the substance of Mr Fanna’s claim as it relates to stressful experiences during his service in Thailand has foundation and is supported by the Writeway research. I accept Mr Fanna’s evidence. I accept also that he has learned to understand the content of his nightmares about these stressful events through information provided to him by others who were there. The Writeway report provides much support for what Mr Fanna says happened on guard duty. As Mansfield J pointed out in Fenner v Repatriation Commission [2007] FCA 406 the fact that evidence is exaggerated or even fabricated does not necessarily mean that a person was not afraid when they experienced stressors, and there is in Mr Fanna’s case no evidence that he is fabricating or exaggerating.
56. Mr Fanna’s evidence about what he experienced on guard duty is not disproved beyond reasonable doubt.
57. Of the two claims, the one relating to alcohol abuse is more readily identified as a condition related to service, as was quite correctly noted by Dr Morris in his written report (see para 32 above). I have already referred to his reservation about clinical onset of the anxiety disorder. But it is equally important, at the fourth of the Deledio steps to be mindful that Dr Morris was alone in considering that clinical onset of an anxiety disorder was not until 2002. The preponderance of the medical evidence was to the contrary, and I take into account here the views of those doctors who I believe misdiagnosed Mr Fanna as suffering post traumatic stress disorder. Their identification of that condition as dating from his service should not be disregarded. The medical evidence supports a temporal connection indicating clinical onset of anxiety disorder within the required two years. The evidence does not disprove beyond reasonable doubt that Mr Fanna was suffering anxiety disorder within the necessary time frame.
58. I was not satisfied beyond reasonable doubt that Mr Fanna’s anxiety and alcohol abuse are not war caused and accordingly his claims for both conditions succeed.
59. Before concluding I wish to observe that two matters stood out consistently in the doctors’ written reports:
§ The first was that Mr Fanna was chronically anxious while in Thailand and felt particularly vulnerable on guard duty. They identified his chronic anxiety as then leading to his inappropriate use of alcohol.
§ The second was that he suffered an enormous blow to his self esteem being required to leave the Army.[33]
[33] T4: Dr Stephenson p 20 & p 30; Dr Woolridge p 51; Dr Likely p 72.
60. It is of particular significance that the preponderance of medical evidence concluded that Mr Fanna suffered from both conditions - anxiety and alcohol abuse - from the time of his operational service. In these circumstances where there is a temporal connection between two psychiatric disorders, there were other possible bases upon which Mr Fanna’s case might be favourably decided, some of which were the subject of submissions. One was as provided for in factor 5(iii) of the Statement of Principles for anxiety disorder, that Mr Fanna had a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder where the clinically significant psychiatric condition would be alcohol abuse. The obverse is provided for in the Statement of Principles for alcohol abuse. There, factor 5(a) provides for suffering from a psychiatric disorder at the time of the clinical onset of… alcohol abuse where the psychiatric disorder would be Mr Fanna’s anxiety disorder. Given the standard of proof, it is of little consequence that we may never know for certain which came first for Mr Fanna, the anxiety condition or the alcohol abuse.
61. I also observe, although it was not a matter addressed in any detail at the hearing which focused upon Mr Fanna’s experience of stressful events, that there was much in the medical evidence and supported by Mr Fanna’s written statement[34] indicating that the unexpected termination of Mr Fanna’s employment in the Army caused him great personal distress. Loss of employment is specifically identified as being a severe psychosocial stressor in the Statement of Principles for anxiety and might well thereby provide another connection between Mr Fanna’s service and his psychiatric disturbance.
[34] Exhibit A1.
62. The one matter remaining is setting the date of effect of this decision. On behalf of Mr Fanna it was submitted that the relevant date was 15 January 2005; the respondent submitted it was 10 February 2004.[35] My preliminary view of the correct date is that, because Mr Fanna’s application to the Tribunal was later than 3 months after the date of the Veterans' Review Board decision, allowing time for service of that decision (s 176(4) of the Act), I can set no earlier date than 6 months prior to his application to this Tribunal, which would be 20 September 2005. In view of the importance of this to Mr Fanna, and the disparity of possible dates presented to me, I will give the parties leave to make submissions on the correct date of effect.
[35] Exhibit A3
DECISION
63. The Tribunal sets aside the decision under review; substitutes the decision that alcohol abuse and anxiety disorder are war caused; and remits to the respondent the assessment of the rate of pension payable for these medical conditions. The Tribunal allows 7 days for the parties to make submissions on the date of effect of this decision.
I certify that the preceding 63 paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms M J Carstairs.
Signed: M J Brazier
AssociateDates of Hearing 20 March 2007
Date of Decision 13 August March 2007
Counsel for the Applicant Mr D Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
For the Respondent Mr T Thrupp, Advocate
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