Freemantle and Repatriation Commission

[2003] AATA 1076

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1076

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/326

VETERANS' APPEALS DIVISION		)
Re		KEITH ROBERT FREEMANTLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date28 October 2003

PlaceCanberra

Decision The decision under review is set aside and the tribunal substitutes its own decision that the applicant qualifies for a Disability Pension with effect from 6 May 1999 at a rate to be determined by the Repatriation Commission.

...............................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Disability Pension – post-traumatic stress disorder – depressive disorder – alcohol abuse – alcohol dependence – hypertension - impotence – whether applicant qualifies for Disability Pension

Veterans’ Entitlements Act 1986 ss 20(1), 68(1)(“defence service”), 70(1)(b), (d), 119, 120(1), (3), (4), 196B.

Statement of Principles 3/99 as amended by 54/99 concerning post-traumatic stress disorder

Statement of Principles 59/98 concerning depressive disorder

Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse

Statement of Principles 35/2003 concerning hypertension

Statement of Principles 97/96 as amended by SoP 16/2002 concerning impotence

Statement of Principles 98/96 concerning impotence

Benjamin v Repatriation Commission (2001) 34 AAR 270

Bull v Repatriation Commission (2001) 66 ALD 271

Cornelius v Repatriation Commission [2002] FCA 750

Deledio, Repatriation Commission v (1998) 49 ALD 193

Gorton, Repatriation Commission v (2001) 33 AAR 370

Lees v Repatriation Commission [2002] FCAFC 398

Slattery v Repatriation Commission, Re (1998) 52 ALD 90

Smith, Repatriation Commission v (1987) 74 ALR 537

Williams, Repatriation Commission v [2001] FCA 1195

Woodward v Repatriation Commission [2003] FCAFC 160

REASONS FOR DECISION

28 October 2003 Mr M J Sassella, Senior Member

APPLICATION

1.      Keith Robert Freemantle (“the applicant”, “the veteran”), born 5 July 1945 (TD1/T1), applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of the Repatriation Commission (“the respondent”) dated 27 October 1999 (TD1/T10) rejecting the applicant’s claim for a Disability Pension in respect of conditions of hypertension, impotence and stress, having re-defined the claimed disabilities as hypertension, impotence, post-traumatic stress disorder and major depressive disorder.  The Veterans’ Review Board (“the VRB”) affirmed the primary decision on 6 June 2001 (TD1/T15).  The applicant is not in receipt of a Disability Pension at all.

HEARING

2.      The tribunal convened a hearing in this matter in Canberra on 31 October 2002.  Mr Paul Crabb, a solicitor, represented Mr Freemantle.  Mr Jim Marsh of the Department of Veterans’ Affairs (“DVA”) represented the Repatriation Commission.  The hearing did not conclude on that day and the representatives elected to provide written final submissions to finalise the proceeding.  The applicant’s submissions were received by the tribunal on 3 February 2003.  The respondent provided its submissions on 4 April 2003 and the applicant advised on the same day that it would be providing no response to the respondent.  The tribunal heard oral evidence from the veteran, Dr B White (psychiatrist), Dr R Haik (psychiatrist) and Retired Captain H A Josephs (researcher).  The tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T28) provided by the respondent.

Exhibit TD2 – Applicant’s medical examination record, 16 September 1982.

Exhibit A1 – Applicant’s statement of facts and contentions, 16 August 2002.

Exhibit A2 – Statement by Keith Robert Freemantle, 27 October 2002.

Exhibit A3 – Statement by Vikki Freemantle, 27 October 2001.

Exhibit A4 – Report by Dr White, 14 April 2002.

Exhibit R1 – Respondent’s statement of facts and contentions, 28 October 2002.

Exhibit R2 – Report by Dr Haik, 24 January 2002.

Exhibit R3 – Report by Captain Josephs, 27 April 2002.

Exhibit R4 – Transcript of VRB hearing, 6 June 2001.

Exhibit R5 – Statement by Retired Commander R H Woolrych, 27 April 2002.

3.      After the hearing the parties filed the following submissions which were accorded exhibit numbers:

Exhibit AHA1 – Applicant’s final written submissions, 3 February 2003.

Exhibit AHR1 – Respondent’s final written submissions, 4 April 2003.

UNCONTROVERSIAL FINDINGS

4.      The applicant served in the navy and rendered operational service on the HMAS Melbourne in three periods:

·     24 February to 7 April 1965 (Far East Strategic Reserve).

·     21 April to 7 May 1965 (Far East Strategic Reserve).

·     31 May to 22 June 1965 (Vietnam) (ex AHR1).

Total service ran from 27 July 1962 to 30 September 1982, after which Mr Freemantle served in the Naval Reserve from 1982 to 1988 and he was still an “inactive” member of the Naval Reserve at the time of the hearing (ex AHR1).  Mr Freemantle rendered eligible defence service from 7 December 1972 to 30 September 1982 (ex AHR1). 

5.      The applicant lodged a valid claim on 6 August 1999 (TD1/T4).

6.      The date of effect of any decision favourable to the applicant would be 6 May 1999 (s 20(1) of the Veterans’ Entitlements Act 1986 (“the Act”)[1].

[1] The standard of proof in relation to whether any disease is a war-caused disease linked to operational service is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to whether any disease is a defence service-caused disease linked to eligible defence service is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

8. The Statements of Principles (“SoPs”) issued by the Repatriation Medical Authority under s 196B of the Act relevant to the determination of these matters are, prima facie, those in force on the date of this decision relating to post-traumatic stress disorder, depressive disorder, hypertension, impotence and alcohol dependence or abuse.  If the hypothesis fails in relation to the current SoPs then a SoP in force at the time of the primary decision (27 October 1999) can be applied (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).

DIAGNOSES

9.      The applicant claimed to suffer from hypertension, impotence, post-traumatic stress disorder and major depressive disorder.  There was considerable emphasis given to the veteran’s alcohol consumption because of its link to hypertension. 

10. In accordance with s 120(4) of the Act as interpreted by the full Federal Court in Benjamin v Repatriation Commission (2001) 34 AAR 270 questions of diagnosis and the kind of disease suffered by a veteran are determined on the balance of probabilities. The tribunal found as follows:

·     The applicant suffers from hypertension.  The evidence was in a long series of references to his hypertension in medical documents.  These included service medical documentation and medical reports (eg TD2; TD1/T3/1, 2, 3, 7; TD1/T14; Dr W Harrex, TD1/T9).  These date back as far as 1965 (TD1/T13/92).

·     The applicant suffers from impotence, albeit impotence treatable by Carofit as a result of which he is able to participate fully in sexual intercourse (Dr Harrex, TD1/T9). 

·     As regards major depressive disorder, Dr White diagnosed this in his report dated 14 April 2002 (ex A4).  The diagnosis was post-traumatic stress disorder with related major depressive disorder.  Dr Haik doubted that the applicant suffered from either post-traumatic stress disorder or depressive disorder (ex R2).  He considered it unlikely that the veteran could have worked so efficiently and so long in his position if he was depressed without this coming to the notice of other personnel.  In oral evidence in cross-examination Dr White agreed with Mr Marsh that Mr Freemantle’s depressive disorder could be linked to the fact that his son is disabled through having a brain tumour.  Dr White could not say when the depressive disorder had its onset.  As seen below, the tribunal was satisfied on balance that Mr Freemantle suffers from a depressive disorder.  It preferred the evidence of Dr White, a treating specialist, who has had the benefit of treating Mr Freemantle since September 1999.  However, the tribunal has yet to determine in these reasons whether the depressive disorder was related to eligible service.

·     As regards post-traumatic stress disorder there was a similar disagreement.  Dr Haik considered Mr Freemantle not to be suffering from post-traumatic stress disorder.  Dr White thought he was suffering from post-traumatic stress disorder.  This is a central matter and so the tribunal will proceed to consider the applicant’s status regarding post-traumatic stress disorder in the next paragraphs.

11.     The respondent, supported by Dr Haik, submitted that the required criteria for post-traumatic stress disorder were not met.  It is established that a decision-maker can find that a certain type of disease is present even where the appearance of the disease in the veteran does not accord with the definition of the disease in a SoP concerning that disease (Re Slattery and Repatriation Commission (1998) 52 ALD 90, 106 and Benjamin (above) at 282). The tribunal in Re Slattery (above) described the approach as being, “Is Mr Slattery’s condition, quite apart from its cause, to be determined according to the expert evidence of psychiatrists based on the general criteria of DSM-IV[2] or on the basis of the condition as defined in SoP15?” (page 106)(tribunal’s emphasis).  The tribunal went on to find that a decision-maker could prefer the evidence of psychiatrists to that of a SoP in deciding whether a particular disease is present. 

[2] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995).

12.     The definition of post-traumatic stress disorder in the relevant SoP, SoP 3/99 as amended by 54/99[3], is not materially different from the criteria for post-traumatic stress disorder found in DSM-IV.  However, unlike the SoP, DSM-IV does not require strict compliance with its criteria for a diagnosis.

[3] as amended by SoP definition is in paragraph 2 of the SoP and is as follows:

(b) For the purposes of this Statement of Principles, “post traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):

(A) the person has been exposed to a traumatic event in which:

(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and

(ii) the person’s response involved intense fear, helplessness, or horror; and

(B) the traumatic event is persistently re-experienced in one or more of the following ways:

(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;

(ii) recurrent distressing dreams of the event;

(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, awakening or when intoxicated);

(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;

(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and

(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:

(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;

(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;

(iii) inability to recall an important aspect of the trauma;

(iv) markedly diminished interest or participation in significant activities;

(v) feeling of detachment or estrangement from others;

(vi) restricted range of affect (eg, unable to have loving feelings);

(vii) sense of a foreshortened future (eg, does not expect

to have a career, marriage, children, or a normal life span); and

(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:

(i) difficulty falling or staying asleep;

(ii) irritability or outbursts of anger;

(iii) difficulty concentrating;

(iv) hypervigilance;

(v) exaggerated startle response; and

(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and

(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,

attracting ICD-9-CM code 309.81.

14.     It is necessary to consider evidence to ascertain whether this extensive definition of a disease was satisfied.  The applicant pointed to several events that occurred during service.

·     On 24 March 1965 (during operational service) an aircraft piloted by Sub-Lieutenant (“S-L”) Hutchison crashed into the sea.  Mr Freemantle was working on the aircraft carrier when the doomed aircraft attempted a faulty landing.  He did not see the crash but he heard shouting and that an aircraft piloted by S-L Hutchison had crashed.  He knew S-L Hutchison socially and had done for about a month.  They were on the same cricket team.  He also saw the resulting damage to the ship. 

·     In 1967 the applicant’s submarine went into an uncontrolled dive to the bottom of the sea off the Scottish coast.

·     In 1974, during eligible defence service, Mr Freemantle was on board the submarine HMAS Otway when water poured in through an open hatch.  Mr Freemantle had to clear the hatch of detached cargo before he could close it.  It was later suggested that there were two incidents of this type.

·     In 1978, again during eligible defence service, he was on the HMAS Orion when the ship was subjected to underwater explosive charges dropped by the ship of another nation. 

15.     The applicant relied on evidence from Dr White.  The criteria in the SoP and DSM-IV may have been regarded as satisfied in the following ways:

·     SoP paragraph 2(b)(A)(ii), intense fear, helplessness or horror.  The applicant said that he was physically trembling after the aircraft crash and had to take several minutes off work.  He said he was devastated by the loss of the pilot, that it was a great shock and it made him feel quite vulnerable. 

·     SoP paragraph 2(b)(B)(ii), recurrent distressing dreams.  The applicant’s evidence was of a recurrent and persistent nightmare which began within a night or two of the aircraft crash.  The nightmare involved him flying with S-L Hutchison and telling the pilot that something bad is going to happen.  He says that the craft is going to crash.  He then awakes with a start.  This had continued ever since. 

·     SoP paragraph 2(b)(C)(i), effort to avoid thoughts and feelings associated with the trauma.  The veteran said that he started to consume alcohol as self-treatment for the nightmares.  He said he drank heavily to try and sleep and forget the incident.  Dr White endorsed this as an appropriate avoidance behaviour.

·     SoP paragraph 2(b)(C)(v), feeling of detachment of estrangement from others.  Evidence from Mrs Freemantle (ex A3) was that Mr Freemantle in 1974 began withdrawing emotionally from the family, “building a wall around himself”..  Dr White recorded social withdrawal and avoidance of contacts (TD1/T8; ex A4).

·     SoP paragraph 2(b)(C)(vi), restricted range of affect (eg unable to experience loving feelings).  Again Mrs Freemantle (ex A3) referred to the process by which “a loving, caring husband and father” withdrew emotionally.

·     SoP paragraph 2(b)(D)(i), difficulty falling or staying asleep.  Dr White in oral evidence referred to Mr Freemantle self-medicating with alcohol in order to be able to sleep.  Dr White recorded poor sleeping patterns in his report of 6 October 1999 (TD1/T8) and later (ex A4).  In his own statement the applicant reiterated this (ex A2, paragraphs 3 and 7). 

·     SoP paragraph 2(b)(D)(ii), irritability or outbursts of anger.  Mrs Freemantle referred to Mr Freemantle’s developing anger and deterioration into anger after periods of improved behaviour.  Dr White recorded this as a symptom (TD1/T8). 

·     SoP paragraph 2(b)(F), clinically significant distress.  The applicant described himself as devastated by the loss of S-L Hutchison (ex A2, paragraph 3).  In his report dated 14 April 2002 Dr White recorded that Mr Freemantle has recurrent distressing memories of the crash of the aircraft (ex A4). 

16.     At face value this evidence was sufficient to satisfy the diagnostic criteria for post-traumatic stress disorder.  However, there was contrary evidence from Dr Haik and that should be considered before a finding is made.  Dr Haik in his report dated 24 January 2002 (ex R2) noted the following:

·     That, despite the effects Mr Freemantle said the entry of water into the hatch on the HMAS Otway had on him, there was no evidence that Mr Freemantle’s functioning on the submarine was impaired. 

·     That, despite Mr Freemantle’s claims that his experiences had caused later marital conflict, there was evidence that he always had difficulty with emotional closeness.  This appeared to be derived from the veteran’s history in which he had said he had always been shy and had not had a girlfriend by age 21. 

·     That Mr Freeman was able to function effectively at all life tasks for decades.  This suggested the absence of a psychiatric disorder.

·     That, despite the adverse experiences, Mr Freemantle, after 12 years of military service had re-enlisted in 1974 for another eight years. 

·     That it was implausible that Mr Freemantle would have kept his fear (stemming from the water inflow incident) from his navy colleagues.

·     That Mr Freemantle sought no medical help until 17 years after he left the navy.

·     That Mr Freemantle’s evidence that he has nightmares every night regarding drowning in a submarine was dubious as such regularity of nightmares is not usually seen in clinical practice. 

17.     The tribunal also considered the points made in the respondent’s submissions in ex AHR1.  Of these the most important were the following.  First, it was suggested that Mr Freemantle’s responses to the suggested stressors did not embody the necessary “intense fear, helplessness or horror”..  The respondent’s submissions were to the effect that, as the applicant had not seen S-L Hutchison’s aircraft crash into the sea he could not have witnessed or been confronted with a stressful event.  The decision of the full Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160 would seem to have put an end to this argument (in paragraphs 122-128). The court endorsed an expansive definition of the concept of being confronted with an event. However, the respondent submitted that, as the applicant’s evidence was that he was shaking for only a few minutes and that after the initial shock was able to carry on with his job for some two and a half hours, there was not the necessary impression of intense fear, helplessness or horror.

18.     Second, Dr White was inconsistent regarding the date of clinical onset of the post-traumatic stress disorder.  At one point he saw this as occurring in 1967 (TD1/T13/78-79) but later opted for 1965 (ie following S-L Hutchison’s death) during the hearing. 

19.     Third, as regards paragraph 2(b)(B)(i) and (ii) of the post-traumatic stress disorder SoP, distressing recollections and dreams, the respondent noted that the applicant’s dreams do not refer to S-L Hutchison’s death.  The dreams refer to the crash of an aircraft in which Mr Freemantle is a passenger and S-L Hutchison is pilot. 

20.     Fourth, as regards paragraph 2(b)(C) of the post-traumatic stress disorder SoP, which refers to avoidance of reminders of the trauma, the respondent queried whether there was any basis for satisfaction of this criterion.  The veteran was said to have continued in the navy full-time for 17 more years, plus eight years in the Naval Reserve.  This was said to involve continued association with other sailors, a constant reminder. 

21.     Fifth, in relation to the same criterion, Mrs Freemantle’s evidence of her husband’s emotional withdrawal was said to relate to the grave illness of their son.  There was evidence that the son had suffered from a brain tumour and was seriously disabled as a result (ex A3, paragraph 5). 

22.     Sixth, as regards paragraph 2(b)(F) of the post-traumatic stress disorder SoP, which requires clinically significant distress or impairment in social, occupational or other important areas of functioning, the respondent referred to factors inconsistent with such distress.  As regards social and occupational functioning, these included that he became president of the senior sailor’s mess and was recommended (TD1/T14/87) for the British Empire Medal for outstanding diligence and application to duty. 

23.     The respondent submitted that the applicant’s evidence seemed to concentrate on impairment in “other important areas of functioning” as mentioned in paragraph 2(b)(F).  The only example said to have been offered was disturbing dreams.  The respondent submitted that this was irrelevant in that the meaning of the “other important areas” would have to be drawn from its context in the SoP and would refer to something to do with lifestyle such as recreational limitations.  The tribunal considered this to be correct, especially as sleeping difficulties and dreaming/re-experiencing phenomena are explicitly included in other paragraphs. 

24.     The respondent also pressed that the distress referred to in this criterion has to be “clinically significant”..  The respondent submitted that this requires that there be clinically significant features of distress or impairment in social, occupational or other important areas of functioning that would be seen as significant by a doctor.  The respondent relied on the connection between a “clinical” requirement and a medical expert’s perceptions as seen by the Federal Court to be required in the context of the clinical onset of a disease (see for example Cornelius v Repatriation Commission [2002] FCA 750). The respondent submitted that there was no evidence of such distress in this case.

25.     Seventh, and linked to the last point in paragraph 24 above, the applicant said in evidence that he never considered that he had any psychological problems during service and never sought medical treatment.  He told the tribunal he sought medical treatment in 1999 when his marital problems were becoming intractable.  Dr White in his oral evidence was prepared to say that all the requirements in paragraph 2(b)(A)-(F) were met in Mr Freemantle’s case but he was not confident regarding their date or various dates of onset.

26.     In the above considerations the tribunal has concentrated on the death of L-S Hutchison in considering the relevant stressor.  The tribunal has deferred consideration of the water entering the hatch area and the underwater charges.  However, it will be necessary to look at these alleged stressors in this context if the tribunal finds that post-traumatic stress disorder was not the appropriate diagnosis because of problems with the criteria in paragraph 2(b)(B)-(F) of the SoP concerning post-traumatic stress disorder.  As is clear from the definition in paragraph 13 above, there must be evidence of all the required factors.  The full Federal Court confirmed this in relation to anxiety disorder in Lees v Repatriation Commission [2002] FCAFC 398.

27.     The tribunal was convinced by sufficient aspects of the respondent’s submissions to find that the applicant does not suffer from post-traumatic stress disorder as defined in the appropriate SoP.  The tribunal refers to and endorses the comments by the respondent in relation to the criteria in paragraph 2(b)(B), (C) and (F).  The tribunal therefore found that, as a matter of diagnosis, the veteran did not suffer from post-traumatic stress disorder.

28.     For completeness the tribunal addressed whether the veteran might suffer from a post-traumatic stress disorder diagnosed by expert specialists but not fitting the SoP definition.  Despite Dr White’s evidence in favour of a diagnosis of post-traumatic stress disorder the tribunal considered that it could not find post-traumatic stress disorder in this case.  While it might be possible to make such a finding if the dispute between the parties related only to the suggested stressor in paragraph 2(b)(A), it becomes increasingly difficult to support such a finding when so many of the required criteria are not established to the satisfaction of the tribunal. 

29.     The alternative diagnosis suggested by the veteran was depressive disorder.  The relevant SoP is SoP 58/98[4] concerning depressive disorder.  The definition of the disease in paragraph 2(b) is:

(A)      the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:

(i)        major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and

(ii)       dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegatative signs, social withdrawal, cognitive impairment and suicidal ideation; and

(iii)      depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSM-IV diagnostic criteria for other specific mood disorders,

attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.

[4] medical evidence indicated that Dr White saw Mr Freemantle as suffering from post-traumatic stress disorder with related major depressive disorder (TD1/T8; ex A4).  Dr Harrex diagnosed a “depressive state induced by drugs” (alcohol) dating from 1969 (TD1/T9/44).  Dr Haik (ex R2) was again unconvinced regarding any depressive disorder.  He said that the veteran would not have been able to work so efficiently and for so long in his position if depressed, without coming to the notice of other personnel.  He noted that the dosage of Aurorix, an anti-depressant taken by Mr Freemantle, was minimal. 

31.     The tribunal considered that the applicant did suffer from a depressive disorder, albeit not a major disorder.  The tribunal saw merit in Dr Haik’s observation that a major depressive disorder would seldom go unnoticed in a workplace such as the navy.  However, Mr Freemantle has been seeing Dr White for some years on a regular basis and is on an appropriate medication, albeit at a low dose.  On balance the tribunal saw this evidence as indicating a “depression not otherwise specified”..  The tribunal rejected the diagnosis of dysthymic disorder because DSM-IV requires that it, like major depressive disorder, should cause clinically significant distress or impairment in social, occupational or other important areas of functioning.  The tribunal has already found this not have been established.

32.     Depressive disorder not otherwise specified, however, is defined more loosely.  DSM-IV states that it includes disorders with depressive features that do not meet the criteria for major depressive disorder, dysthymic disorder, or certain types of adjustment disorder.  Examples include "recurrent brief depressive disorder", that is depressive episodes lasting from two days to two weeks, occurring at least once a month for 12 months and “situations in which the clinician has concluded that a depressive disorder is present but is unable to determine whether it is primary, due to a general medical condition, or substance induced". 

CAUSATION

33.     The tribunal having found that the veteran suffers from hypertension, impotence and depressive disorder had then to consider whether all or any of those diseases was caused or materially contributed to by the veteran’s operational or defence service.  The potential contribution from operational service was considered first.

34.     The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused.  The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

35.     The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. 

36.     There were several linked hypotheses here.  These were:

That the veteran experienced a severe stressor prior to the clinical onset of depressive disorder when he experienced and was confronted with an event that involved the death of S-L Hutchison when that pilot’s aircraft crashed into the sea on 24 March 1965.

That the veteran was suffering from a depressive disorder at the time of the clinical onset of his alcohol abuse. 

That the veteran experienced a severe stressor (as in the first hypothesis) within the two years immediately before the clinical onset of alcohol abuse.

That the veteran suffered from alcohol abuse and was consuming at least 200 grams a week of alcohol at the time of the clinical onset of hypertension. 

That the veteran suffered from depressive disorder and/or alcohol abuse at the time of clinical onset of his impotence.

37.     The second step is to ascertain whether there is a relevant SoP in force.  There are SoPs in force for all of these diseases.  The SoP concerning depressive disorder has already been identified (paragraph 29 above).  That for alcohol dependence or alcohol abuse is SoP 76/98[5]..  The SoP for hypertension is SoP 35/2003[6].  The SoP for impotence is SoP 97/96[7] as amended by SoP 16/2002[8].

[5] The third step is to form an opinion as to whether any hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant’s operational service. If the tribunal finds that step three has been satisfied that means that the hypothesis raised by the applicant is a “reasonable” hypothesis in the terms of s 120(3) of the Act.

39.     In considering the veteran’s depressive disorder the tribunal noted the following material.  Factor 5(b) of SoP 58/98 requires that the veteran experienced “a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder”.  A “severe psychosocial stressor” is defined in the SoP at paragraph 8 as:

“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;”

40.     The psychosocial stressor in this case was the death of S-L Hutchison.  Mr Freemantle told the tribunal that he did suffer substantial distress so there was material to this effect before the tribunal.  There was also, of course, the material from Dr Haik and the respondent discussed earlier suggesting that the subjective distress could not have been great as the veteran did not see the air crash, had known S-L Hutchison only superficially and for a few weeks, and was on his own statements able to work on for more than two more hours after some initial shock. 

41.     The tribunal accepted that the raised facts supported the hypothesis that the veteran did suffer substantial distress on hearing of the death of S-L Hutchison.  In view of the full Federal Court decision on post-traumatic stress disorder in the Woodward case (above), and in view of the more relaxed requirements for a relevant stressor in the matter of depressive disorder, the tribunal came to its conclusion on this point.  While the tribunal took into consideration the material suggesting that this was unlikely the tribunal did not see that material as sufficient to render the hypothesis fanciful, impossible, incredible, too remote or too tenuous, as discussed in Bull v Repatriation Commission (2001) 66 ALD 271.

42.     There was however the difficulty of the date of any clinical onset of depressive disorder.  There may be a query as to whether there was material to support the notion that there had been clinical onset within two years of the veteran experiencing the severe psychosocial stressor.  The tribunal considered Cornelius v Repatriation Commission (above) at paragraphs 26-28 on clinical onset:

“26       Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression ‘clinical onset’ as used in clause 5(a) of the SoP.  The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that:

‘… 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….’

“27      By inference the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook in his report of 6 March 2001.  Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression ‘clinical onset’ in clause 5(a) of the SoP.  For present purposes, therefore, Professor Sambrook’s opinion that ‘[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993’ (see [8] above) may be disregarded.

“28.     The critical issue on this appeal is thus whether there was material before the Tribunal which pointed to the respondent becoming aware, within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which his hypothesis relies, of some feature or symptom which enables a medical practitioner to say that the respondent had carpal tunnel syndrome at that time.  Without any such material it cannot be said that the respondent’s hypothesis fits the ‘template’ to be found in clause 5(a) of the SoP.  As is mentioned above, the specified maximum time period between the cessation of the repetitive activities and the clinical onset of carpal tunnel syndrome specified by clause 5(a) of the SoP is an element of the factors identified in clause 5(a).”

From this it flows that the onset of depressive disorder should be assessed by identifying the point at which the applicant displayed symptoms that would have enabled a clinician to diagnose a depressive disorder.  The material before the tribunal was as follows regarding the onset of any psychiatric condition. 

·     Military medical officers completing forms related to the applicant did not record on the relevant pro-formas any problems in relation to conditions variously described as “nervous trouble”, “severe depression”, “mental illness”, “attempted suicide”, “psychiatric assessment”, “emotional stability” or “mental capacity” (TD1/T14/92 – 14 July 1965; TD1/T3/4 – 8 February 1973; TD2 – 16 September 1982; TD1/T3/7 – March 1987; TD1/T3/9 – 8 March 1988).

·     In his claim form (TD1/T4) the veteran claimed for “stress” and identified 1998 as the time when he first became aware of the disability or its aggravation.

·     Dr Harrex completed for DVA a medical report in questionnaire form in October 1999 (TD1/T9).  He recorded that post-traumatic stress disorder had its onset in 1967 and a depressive state induced by drugs commenced in 1969.  He recorded (folio 47) that symptoms of acute stress disorder were first noticed about two hours after the incident on the HMAS Oxley in 1967, that is when the submarine went into an uncontrolled dive and struck the ocean floor during trials off the coast of Scotland.  That alleged incident was, however, problematic because it was said to have occurred during a period of service that was neither operational nor defence service and so could not attract Disability Pension.

·     Dr Harrex recorded (folio 58) that the veteran had “sought help for assistance, for this condition, from health workers (other than a GP or psychiatrist) or from any other person … about 8 years ago”, ie in 1991.

·     Dr White wrote on 24 July 2000 (TD1/T13/78-79) that the veteran’s post-traumatic stress disorder initially started after the 1967 incident (ie the submarine dive) and that it was aggravated by the later events during defence service when water entered through the submarine hatch.

·     Mrs Freemantle married the applicant on 23 December 1966 (ex A3) but wrote that she was unaware of any psychological problem until 1974. 

43.     In fact, the only material suggesting an onset of post-traumatic stress disorder or any similar condition in 1965 came in oral evidence from the applicant and Dr White.  Dr White’s statements, however, were really surmise.  When asked about the presence in 1965 of the full gamut of post-traumatic stress disorder symptoms he was unable to express a confident view that they were present.  Logically the same must apply in relation to the depressive disorder..  Logically too this must be the case in relation to the situation in 1967.  The material was consistent with a clinical onset of depressive disorder in 1974 at the very earliest.  That was when Mrs Freemantle said she noticed an entrenched set of symptoms that a clinical expert might regard as indicative of the relevant disease.

44. This took the matter out of the time of operational service. Any psychosocial stressor occurring in the two years before the clinical onset of depressive disorder would have occurred in 1972 or later. The tribunal therefore found that the hypothesis connecting his psychiatric condition with operational service was not consistent with the relevant SoP requirements. That meant that the hypothesis was not reasonable (s 120(3) of the Act).

45. The veteran could still succeed if such a stressor occurred during defence service, that is from 7 December 1972 until, in this case, the time of clinical onset of depressive disorder (ss 68(1)(“defence service”), 70(1)(b), (d) of the Act). The standard of proof was that in s 120(4) of the Act which equates to the balance of probabilities. The relevant SoP is SoP 59/98[9] and the relevant factor is 5(a) which requires the occurrence of the severe psychosocial stressor within one year immediately before the clinical onset of depressive disorder. 

[9] was in 1974 that the event involving entry of water into the HMAS Otway was said to have occurred.  If the tribunal could find on balance that this incident occurred, and that it occurred no earlier than a year before the clinical onset of the depressive disorder, then Mr Freemantle could succeed. 

47.     Mr Freemantle said the incident occurred late in 1974 (ex A2).  The incident did not appear in official journals of the Otway, however Mr R H Woolrych Cmdr, RAN (retired), did say (ex R5) that he recalled one time in the Otway, during a “SMASHEX” in rough weather off the NSW coast when the ship was required to stay on the surface “opened up”..  Some water entered into the control room.  He did not recall the amount as excessive.  This was probably why there were no official reports. 

48.     However, as was clarified by the Federal Court in O’Neil v Repatriation Commission (2001) 34 AAR 290, a stressor described in a SoP as “an occurrence which evokes feelings of anxiety or stress” exists where the veteran subjectively experiences such feelings even if he or she is super-sensitive in doing so. The test was said to be subjective. In the SoP on depressive disorder the psychosocial stressor is described in similar subjective terms, “an identifiable occurrence that evokes feelings of substantial distress in an individual”.. The tribunal was convinced on balance that Mr Freemantle did find this a frightening experience. He said the water was up to his knees and he feared he would drown. He said he was trembling, shaky and frightened.

49. There is some doubt that this incident preceded the onset of the psychiatric condition. Mrs Freemantle did not identify when in 1974 she thought the psychiatric condition had its onset. The tribunal thought this an appropriate case in which to use s 119 of the Act to permit a limited presumption in the absence of evidence obscured by the passage of time. The tribunal therefore found that Mr Freemantle’s depressive disorder was defence service-caused and so could attract Disability Pension. The date of effect was noted above in paragraph 6.

50.     Turning to consider Mr Freemantle’s alcohol abuse or dependence, this was not said to be a war-caused or defence service-caused disease, however the tribunal had, under s 120(4) of the Act, to be reasonably satisfied that the veteran suffered from this disease and that it was connected to service if his claim for hypertension was to succeed.

51.     The respondent submitted that Mr Freemantle does not suffer from alcohol abuse.  The definition of alcohol abuse in SoP 76/98 requires the presence of “cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems”.  The respondent submitted that there was nothing in the material to suggest cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems.  There was no suggestion of cognitive or physiological symptoms.  As regards behaviour, the respondent submitted that this appeared to have been exemplary.  "He was promoted steadily, there is no hint of disciplinary problems in the Navy, he was conscientious and diligent, and he received a commendation for his dedicated work.  He also agreed that he functioned perfectly normally in the Navy (see Transcript, p. 123/15).” 

52.     There was nothing from the applicant or elsewhere sufficient to rebut this analysis.  The tribunal was therefore not reasonably satisfied that the veteran suffered from alcohol abuse.  The same finding applied to alcohol dependence which requires a similar set of cognitive, behavioural or physiological problems as a foundation for a positive finding.

53.     The veteran could still succeed in his hypertension claim however, because the hypertension SoP changed to the veteran’s benefit in August 2003.  Factor 5(b) now requires only a certain level of alcohol consumption at the time of clinical onset of hypertension.  The quantity is “at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of clinical onset of hypertension”.  This is far from clear as a requirement.  It equates to 20 standard alcohol drinks a week. 

54.     The clinical onset of hypertension was apparently in 1965 or earlier.  A document dated 14 July 1965 (TD1/T13/92) indicated recent blood pressure readings of 190/100, 140/90 and 145/90, the reading for hypertension being one where systolic is 140 or higher or where diastolic is 90 or higher.  Other materials (TD1/T3, T9, T13 and TD2) show systolic readings consistently at or over 140 in 1972, 1973, 1987, 1984, 1998 and 1999.  Diastolic readings at or over 90 were recorded in 1972, 1973, 1984, 1987, 1990, 1998, 1999.  Normal readings were taken in 1972 and 1988.  In his claim form the applicant said that the onset of hypertension was in 1972 (TD1/T4).  He later said hypertension was first noted in 1965 (TD1/T13).  Dr Harrex recorded 1984 as the date of onset (TD1/T9).  The tribunal considered that the material supported 1965 or earlier as the date of onset of Mr Freemantle’s hypertension.

55.     The material further indicated that as at 1965 Mr Freemantle was engaged in some binge drinking (TD1/T13/84).  He claimed to drink three to four 26-oz cans of beer a night on many nights from 1962 to 1965.  Despite that, in his later statement (ex A2) he said he started drinking in 1963 but not to any great extent.  He said that it was after the incident in March 1965 that he commenced to drink heavily.  From 1965 to 1982 he said he consumed in excess of 10 schooners (ie 15 oz each) per day. 

56.     The material before the tribunal did suggest that by July 1965, when the hypertension was diagnosed, Mr Freemantle was consuming up to 100 oz of beer a night.  Although he did not consume that quantity every day it seemed that the raised facts supported a consumption of beer on a daily average of more than the three standard drinks a day required in the SoP.  This was said to be related to S-L Hutchison’s death.  There was therefore as part of the hypothesis a connection with Mr Freemantle’s operational service. 

57.     The tribunal therefore found that there was a reasonable hypothesis connecting Mr Freemantle’s operational service with his hypertension.  The hypertension was therefore a war-caused disease.

58. The tribunal did not see any reason to regard the hypothesis as fanciful, impossible, incredible, too remote or too tenuous. There was also nothing in the material to convince the tribunal that it could find beyond a reasonable doubt that the hypertension was not war-caused as discussed in s 120(1) of the Act and in step four of Deledio (above).

59.     As regards Mr Freemantle’s impotence, the hypothesis was that the veteran suffered from depressive disorder and/or alcohol abuse at the time of clinical onset of his impotence.

60.     Impotence had its onset in April 1997 (TD1/T9/52, T10/66).  The SoPs on impotence are as follows:

·     SoP 97/96 relates to impotence with a date of onset coinciding with, in the present case, the existence already of a specified psychiatric condition (factor 5(a)), or alcohol abuse or dependence (factor 5(n)), or treatment with a drug identified in the SoP schedule (factor 5(o)), here beta blockers for hypertension.  SoP 97/96 relates only to these factors where they occurred in relation to operational service.

·     SoP 98/96 is effectively the same as SoP 97/96 as regards relevant factors, but in this SoP the factors will have occurred in eligible defence service. 

61.     The tribunal has already found that the veteran’s depressive disorder and hypertension respectively are war-caused and defence service-caused conditions.  The use of beta blockers for war-caused hypertension at the time of onset of the impotence was sufficient to satisfy factor 5(o) of SoP 97/96.  There was therefore a reasonable hypothesis connecting Mr Freemantle’s operational service with his impotence.  The impotence was a war-caused disease unless, referring to step four in the Deledio case (above) analysis, the tribunal was satisfied beyond reasonable doubt that it was not war-caused.  There was no material before the tribunal such as to cause the tribunal to find that the hypothesis was fanciful, impossible, incredible, too remote or too tenuous and there was no evidence sufficient to prove beyond reasonable doubt to the tribunal that the impotence was not war-caused.

CONCLUSION

62.     The tribunal has found that Mr Freemantle suffers from the war-caused diseases of hypertension and impotence and from the defence service-caused disease of depressive disorder. 

63.     This will have the effect of according Mr Freemantle a Disability Pension for the first time.  That pension will be payable with effect from 6 May 1999 at a rate to be determined by the Repatriation Commission when this matter is remitted for that purpose.

DECISION

64.     The decision under review is set aside and the tribunal substitutes its own decision that the applicant qualifies for a Disability Pension with effect from 6 May 1999 at a rate to be determined by the Repatriation Commission.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed:         .......................................................................................
  Associate

Date of hearing  31 October 2002
Date of final submissions         4 April 2003
Date of decision  28 October 2003
Counsel for the applicant          Mr Paul Crabb
Solicitor for the applicant          Capital Lawyers
Counsel for the respondent      Mr J Marsh, DVA