Fudge and Repatriation Commission

[2002] AATA 1303

DECISION AND REASONS FOR DECISION [2002] AATA 1303

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2001/1416
VETERANS'      APPEALS     DIVISION

Re:            MALCOLM ROBERT FUDGE

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Associate Professor J.H. Maynard, Member
Date:             16 December 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS – entitlement - whether claimed conditions war-caused – lumbar spondylosis – post traumatic stress disorder – generalised anxiety disorder
Veterans' Entitlements Act 1986 s120

REASONS FOR DECISION

16 December 2002  Mr B.H. Pascoe, Senior Member
  Associate Professor J.H. Maynard, Member

1. This is an application to review a decision of the Veterans' Review Board (VRB) which affirmed a decision of the respondent made on 28 September 2000, that the applicant's claimed conditions of lumbar spondylosis and post traumatic stress disorder (PTSD) were not war-caused.

2. 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 M. Fudge; a psychiatrist, Dr E. Cole; an orthopaedic surgeon, Mr R. McArthur; and a war records researcher, Captain H. Josephs. 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 by Mr M. Fudge dated 29 October 2001  Exhibit A1
   Report of Dr E. Cole dated 8 March 2002  Exhibit A2
   Clinical notes of Dr R. Weiss, general practitioner  Exhibit R1

   Transcript VRB Hearing of 24 August 2001  Exhibit R2

   Report by WriteWay Research Service dated 4 July 2002             Exhibit R3
   Report of Dr L.Walton dated 1 October 2002  Exhibit R4
   Report by WriteWay Research Service dated 16 October 2002     Exhibit R5
   Clinical notes of Frankston Health Care Nº 1-35  Exhibit R6
   Service medical documents Nº 1-51  Exhibit R7

3. Mr Fudge served in the Royal Australian Navy (RAN) from 5 June 1965 to 20 July 1968.  His eligible war service and operational service was from:

   19 August 1966 to 8 September 1966 in North Borneo on HMAS Parramatta; and
   20 December 1967 to 3 January 1968, 17 January 1969 to 16 February 1968, 27 March 1968 to 26 April 1968, and 21 May 1968 to 13 June 1968 in Vietnam on HMAS Sydney.

He acted as a weapons mechanic on both ships.  He was born on 15 January 1947 and was aged 20 on his first trip to Vietnam.

1. In relation to his claim for lumbar spondylosis, Mr Fudge, at the hearing, attributed the condition to a fall on 22 April 1968 when washing down a bulkhead on HMAS Sydney.  He said that he was standing on a ladder, approximately one metre above floor level, using a broom.  He believed that the wet broom came into contact with an electrical junction box.  He received an electric shock and "…the next second I was flat on my back on the deck".  He recalled being in shock, suffering generalised pain, being taken to the sick bay and resting in the ward for a period of time.  In his written statement (exhibit A1), Mr Fudge stated:

   …
   I recall having a sore back with limitation of movement along with a lump on the head for quite some time after the accident.  It is my belief that I had acute symptoms at least a couple of weeks and then the symptoms generally settled to the point where I continued to suffer a dull ache which I aggravated from time to time.  I found that thereafter certain activities (such as bending and/or lifting) tended to aggravate my symptoms.  Over the years my symptoms have gradually worsened.

He stated, also, that, to the best of his recollection, he continued with normal duties after resting in the ward.  In his oral evidence, Mr Fudge thought that he was on light duties for a few days after the accident.  While he said that his back was sore, he noted that it was not acute pain, but rather like being bruised.  The service medical record of 22 April 1968 simply notes the diagnosis as "electric shock" when "…washing a bulkhead when splashed water on a live terminal" and the symptoms and treatment as "O/K colour, slightly shaken, pulse NAD, rest in ward 2 hrs".  There was no reference to any back pain and Mr Fudge could not recall why he had not reported any back problems to ships' doctors either then or subsequently.  Mr Fudge could not recall why, in his initial claim for lumbar spondylosis in July 2000, he had made no reference to the electric shock incident and had attributed his lumbar condition solely to carrying shells, cartridges and stores whilst on HMAS Parramatta and HMAS Sydney.  Neither could he recall whether had he told a Mr R. Jackson, consultant orthopaedic surgeon, who examined him in August 2000, nor his general practitioner, Dr Weiss, of that incident.  Neither had taken any history of any specific nor traumatic injury to the spine.

1. Mr Fudge acknowledged that he had been involved in two motor vehicle accidents prior to the electric shock incident.  The first was on 11 January 1966 when, as a pedestrian, he was struck by a motor vehicle whilst based at HMAS Cerberus.  He said that he had no recollection of the incident which was referred to in his service records.  He assumed that any injuries must have been minor because of his lack of recollection.  The second accident was on 8 March 1968 when he was driving between Adelaide and Sydney while on leave.  He was towing a trailer and lost control in gravel, causing his vehicle to roll over five times.  He recalled hitting his head and believed that he may have been unconscious for a short time but could not recall any other injury.  When referred to a service medical report of 28 May 1968, which noted the accident on 8 March 1968 and symptoms as being "… cuts & bruises now healed, occasional backache", Mr Fudge assumed that he had not wanted to blame any back problem on his navy service and had used the motor vehicle accident as a reason.  Since his discharge from the RAN, Mr Fudge could recall only one occasion prior to 1986 where he had sought medical attention for his back.  He said that, some 25 years ago, when in Sydney, he consulted a doctor who gave him some suggestions to assist but had told him that there was no specific treatment available.  As a consequence, he had not bothered to raise it with any other doctor until 1986. 

2. In relation to the claim for PTSD, Mr Fudge attributed this to the anxiety suffered during the periods in which HMAS Sydney was in Vung Tau harbour in Vietnam.  He said that no real briefing was given on what would occur while in harbour.  He was told of the intention to be in and out of the harbour within one day but not why.  He said that he felt vulnerable and regularly frightened by the scare charges dropped regularly to deter enemy divers.  He noted, also, smoke, dust and explosions in the hills on shore.  He was unsure of how far away these were from the ship and whether there was any enemy involvement.  He said that, on one occasion, he was in the crew of a landing craft.  He said that, when on shore, he was asked to go in a jeep and pick up mail bags approximately one mile away.  As they were about to return, he said that he heard some light arms firing although unsure of from where it was coming.  He said that he immediately jumped into the driver's seat and drove away quickly.  He was adamant that he drove the jeep back to the jetty, although he recalled that it was a US army jeep and the driver was a US military person.  Mr Fudge said that his anxiety and apprehension increased with each trip back to Vietnam.  He said that his anxiety condition was exacerbated by the electric shock in April 1968, because it made him feel "vulnerable and mortal" and that "luck was against me".  He said that, after the fourth trip to Vietnam, he was desperate to avoid a further trip so he stole a radio and made the theft obvious so that he would be caught and discharged.

3. The service records of Mr Fudge show that, on 1 September 1967, he was awarded 60 days detention.  On 18 October 1967, 12 days of the sentence were remitted and he was posted to HMAS Sydney.  On 2 January 1968, he was awarded 5 days cell punishment on HMAS Sydney.  On 20 July 1968, he was discharged from the RAN as unsuitable.  Mr Fudge, while recalling service detention at Holdsworthy military detention centre, maintained that he could not recall the reason for such a serious sentence.  Neither could he recall the reason for 5 days cell punishment in January 1968 nor whether he was actually charged with the offence of stealing a radio.  There is no record of such a charge.

4. Mr Fudge acknowledged that his service medical records show him reporting nerves and an anxiety state in April 1968.  These records attribute his condition to the motor vehicle accident in March 1968 and show that he was prescribed Valium.  Mr Fudge maintained that he had used the motor vehicle accident as an excuse because he did not want to admit to being scared of returning to Vung Tau and being regarded as a wimp. 

5. Dr Cole examined Mr Fudge on 13 and 28 February 2002 and provided a report dated 8 March 2002.  He was of the opinion that "…Mr Fudge is suffering from a chronic post traumatic stress disorder directly attributable to his war time experience Vietnam".  Dr Cole accepted that other psychiatrists had diagnosed the condition as generalised anxiety disorder (GAD) and that, while he would accept such a diagnosis, felt that the condition may be somewhere between PTSD and GAD although preferring his diagnosis of PTSD.  Dr Cole also accepted that Mr Fudge had some emotional problems prior to his service in Vietnam and some earlier events could be contributing factors to his condition.  These events included the divorce of his parents when he was aged 6 or 7, with the move to Australia with his stepmother and the offence that resulted in the 60-day detention in 1967.  Dr Cole believed that, while there was no one specific traumatic event, the number of potentially threatening events in the visits to Vietnam produced the condition of PTSD.

6. Dr Walton examined Mr Fudge on 28 August 2002 and provided a report dated 1 October 2002.  His preferred clinical diagnosis was chronic anxiety disorder.  In Dr Walton's opinion, the range and severity of Mr Fudge's psychiatric symptoms did not lead to a diagnosis of PTSD.  In his report, Dr Walton stated:

   …What I would state is that, according to the history I have obtained, in my opinion only the electric shock incident was likely to have caused "feelings of substantial distress", however, if that is accepted then the veteran's account of minimal problems only following the motor vehicle accident would have to be questioned.

7. Mr Fudge was examined by Dr M. Lee, consultant psychiatrist, on 23 June 2000 (T7).  Dr Lee was of the opinion that Mr Fudge does not suffer from PTSD on the background of military service.  Dr J. Gelb, consultant psychiatrist, examined Mr Fudge and provided a report dated 7 April 2001 (T21).  He was of the opinion that:

   …Mr Fudge suffers from a generalised anxiety disorder, which arose first in response to a serious car accident, in which his car rolled five times.  The electric shock suffered on the HMAS "Sydney", appears to have acted as a severe stressor, which led to the clinical worsening of his generalised anxiety disorder.

Dr Gelb believed that the Statement of Principles (SoP) for GAD was satisfied.

1. Mr McArthur examined Mr Fudge on 2 March 2001 and provided a report dated 15 March 2001 (T16).  He was of the opinion that Mr Fudge's chronic low back pain was due to arthrosis involving the apophyseal joints in the lower lumbar spine (L3-4-5-S1).  He noted that Mr Fudge attributed the onset of the back pain to the physically demanding service as a weapons mechanic but also took a history of an injury to the thoraco lumbar spine when thrown off a ladder as a broom hit a live wire.  He understood that Mr Fudge developed low back pain as a result, necessitating treatment in the sick bay for several days.  In his oral evidence, Mr McArthur said that he was not aware of the motor vehicle accident in March 1968 but this could be relevant to an opinion on causation.

2. Mr Fudge was examined by Mr Jackson on 22 August 2000.  In his report dated 8 September 2000, Mr Jackson diagnosed degenerative facet joint osteoarthritic change.  He was unable to detect anything to suggest a service-related component to his problem.  Mr Jackson stated that Mr Fudge "…denied any road traffic accidents or sporting injuries" and "…was unable to recall any specific injury to his back while serving with the Royal Australian Navy for three years". 

3. Captain Josephs was the author of the two reports provided by WriteWay Research Services (exhibits R3 and R5).  A copy of Mr Fudge's record of service card was included and Captain Josephs described the involvement of HMAS Sydney in its voyages to Vung Tau harbour and the range of defensive measures against the possibility of attack.  He said that the ship always anchored in open anchorage and that the average time at anchor was typically approximately 7 hours.  He believed that it was most unlikely to have been the case that Mr Fudge had been sent ashore armed to collect mail or other material.  Captain Josephs said that there were no air attacks which could have been observed from the ship on any of the four dates on which Mr Fudge was on board.  He accepted that there was a possibility of a threat of mortar or rocket attack or attack by divers or floating charges but was firm that there had not been any actual attack.  Captain Josephs noted that a detention of 60 days was very high on the scale of punishment in the RAN, the warrant had to be read to the ship's company and the punishment approved by the Fleet Commander.

4. As Mr Fudge 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 27 of 1999 and Instrument Nº 46 of 2002 concerning lumbar spondylosis
   Instrument Nº 3 of 1999 as amended by Instrument Nº 54 of 1999 concerning post traumatic stress disorder
   Instrument Nº 1 of 2000 concerning anxiety disorder

Each of the relevant SoPs set 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.

1. In relation to the claim for lumbar spondylosis, the factors relied on are 5(h) or 5(s) "…suffering a trauma to the lumbar spine before the clinical onset" or "…the clinical worsening of lumbar spondylosis".  Trauma to the lumbar spine is defined as:

   …
   "trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine.  These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

   (a)immobilisation of the lumbar spine by splinting, or similar external agent; or

   (b)injection of corticosteroids or local anaesthetics into the lumbar spine; or

   (c)surgery to the lumbar spine.

For the claimed condition of PTSD, factor 5(a) is relied upon of …experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.  The definition provides:

…
"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 another person's, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlement 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;

For the condition of GAD, factor 5(a)(ii) is relied upon of …experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.  Here, the definition provides:

…
"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;

1. It should be said that we have reservations about the evidence given by Mr Fudge.  Notwithstanding the long passage of time since the events with which this matter is concerned, there is some concern at the apparent memory lapses.  Mr Fudge denied recalling the reason for being sentenced to 60 days detention, clearly a serious penalty, nor for 5 days on HMAS Sydney in cell punishment.  He had no apparent memory of the detail of the reasons he was found unsuitable to continue in service and was discharged.  In his original claim for lumbar spondylosis he made no reference to the electric shock and fall but blamed the carrying of heavy loads only.  In giving a history to Mr Jackson, he denied having any motor vehicle accident and could not recall any specific injury to his back during service.

2. In relation to the claim for lumbar spondylosis, it is clear that Mr Fudge suffers from that condition.  However, we are satisfied that he does not satisfy factor 5(h) or 5(s) of the relevant SoP.  His evidence was such that we were led to assume that the provisions of the SoP were drawn to his attention after making the claim so leading to his recollection of a specific incident whilst on service.  In his written statement, he used the words "acute symptoms" but his oral evidence and the medical records make it clear that, while he may well have fallen on his back, he made no specific complaint of any acute pain and returned to normal duties soon after.  We are satisfied that this incident did not produce the acute symptoms required by the SoP nor lasted the required 7 days.  Although not referred to by either party during the hearing, the Tribunal notes that Instrument No.46 of 2002 has inserted a new factor 5(j) which states:

   Manually lifting or carrying loads of at least 25 kg while weight bearing to a cumulative total of 120000 kg within any ten tear period, before the clinical onset of lumbar spondylosis;

Given the relatively short period of operational service of Mr Fudge and the evidence, we are satisfied that he is unable to meet factor 5(j). Consequently, we affirm the decision in relation to lumbar spondylosis.

1. For the claim of PTSD, it is clear that Dr Cole is the only one out of four psychiatrists who has diagnosed that condition.  Dr Cole appears regularly for applicants in this Tribunal and is recognised for his somewhat generous diagnosis and his view that it is unnecessary to consider in detail the list of symptoms prescribed in DSM-IV.  On the basis of the psychiatric evidence, we prefer that of Dr Walton and Dr Gelb in finding that Mr Fudge does not suffer from PTSD.  Even if we are wrong in that finding, we find that he does not satisfy factor 5(a) of the relevant SoP.  While his voyages into Vung Tau harbour may well have caused apprehension and nervousness, there was no event, or combination of events, that involved actual or threat of death or serious injury or threat to his or any other person's physical integrity.  There was no greater stressor than any other member of the forces in a potential war zone might experience.  Here, there was no attack by an enemy either to the ship or to any nearby area, no engagement with the enemy, no casualties and no direct threat.  There was simply a perception of a possible threat.  We have difficulty accepting the truth of the incident on shore described by Mr Fudge but, even if it happened the way he said, it amounted to no more than hearing small arms fire somewhere and him running away from some unknown source of such fire.  There was no evidence or suggestion of a threat to him or anybody else.

1. Dr Cole would accept a diagnosis of anxiety disorder although not his preferred diagnosis.  Both Dr Walton and Dr Gelb made such a diagnosis and we are satisfied that a diagnosis of anxiety disorder should be accepted.  The question then arises as to whether factor 5(a)(ii) of the relevant SoP is satisfied.  If the first part of the definition of severe psychosocial stressor is considered in isolation, it would seem that there was an identifiable occurrence that evoked feelings of substantial distress in Mr Fudge if we accept his evidence of being distressed at the thought of returning to Vietnam.  However, the definition continues with examples, none of which appear to have occurred.  We do not accept the electric shock as a "major illness or injury" given the limited necessary treatment and, in any event, this incident occurred some 10 days after he was first recorded as complaining of a mild anxiety state and being prescribed Valium.  On balance, we are satisfied that Mr Fudge does not satisfy the factor of the relevant SoP and therefore, are satisfied that a reasonable hypothesis does not exist connecting his anxiety condition with his service.

2. In view of our findings, the decision under review should be affirmed.

I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Mr J.H. Maynard, Member

(sgd)       Olympia Sarrinikolaou
              Clerk

Date of Hearing:  17 October 2002, 21 October 2002
Date of Decision:  16 December 2002
Counsel for the applicant:           Mr A. Larkin
Solicitor for applicant:                  Williams Winter and Higgs
Counsel for the respondent:        Mr G. Purcell
Solicitor for the respondent:        Advocacy Section, Department of Veterans' Affairs