Gordon Knight and Repatriation Commission
[2013] AATA 672
[2013] AATA 672
Division Veterans’ Appeals Division File Number(s)
2012/4015
Re
Gordon Knight
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 20 September 2013 Place Melbourne The Tribunal affirms the reviewable decision date 21 August 2012.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – applicant served on HMAs Sydney in two limited periods in 1970 and 1971 – each voyage into Vung Tau harbour of very limited duration – hypotheses of depression by cigarette smoking (with a sub-hypothesis of erectile dysfunction) and alcohol abuse – many other non-service events contributed to smoking and alcohol consumption – satisfied beyond reasonable doubt the illnesses are not war-caused – decision affirmed.
LEGISLATION
Veterans' Entitlements Act 1986
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v McKenna (1998) 52 ALD 72McKenna v Repatriation Commission (1999) 86 FCR 144
REASONS FOR DECISION
Mr John Handley, Senior Member
Mr Knight, the applicant in this proceeding, applied for review of a decision made by the Veterans Review Board (VRB) which affirmed a decision made by the respondent to refuse his application for acceptance of the conditions of depressive disorder and alcohol abuse, as war-caused.
The applicant is presently 65 years of age and is in receipt of pension at 90 per cent of the general rate. He served in the Royal Australian Navy (the Navy) between 31 July 1965 and 5 May 1974. He was a member of the crew of HMAS Sydney (Sydney) between 22 May 1970 and 16 March 1971.
He completed 2 periods of operational service whilst on-board Sydney from 21 October 1970 to 12 November 1970 and from 15 February 1971 to 4 March 1971.
The hypotheses
The hypotheses relied on by the applicant, the applicable Statements of Principles (SoPs) and the factors within them asserted as existing as a minimum are:
(a)Operational serviceàservice eventsàcigarette smokingàerectile dysfunction àdepressive disorder (Instrument N° 27 of 2008 factor 6(vi)); and
(b)Operational serviceàservice eventsàalcohol consumptionàalcohol abuse (Instrument N° 1 of 2009 factors 6(b) and or 6(h)).
EVIDENCE
The applicant
The applicant served on-board Sydney as an electrician. His principal duties were as a radio operator and as a duty electrician undertaking periodic inspections in the boiler and engine rooms.
The applicant said the boiler and engine rooms were located at the rear end of Sydney, and were located on decks 6 and 7 which were both below the waterline. He said entry to them was from a hatch located on deck 5. After the hatch was opened, he would enter into a confined space which he said was secure and locked. Having entered that space, the entry hatch was closed and another hatch was opened to permit access to decks 6 and 7 via vertical steel ladders.
The applicant said that the boilers operated under pressure and the compartment within which they were located was also pressurised. He said it was important to ensure that entry hatches were closed and sealed to maintain pressure, the failure of which would cause the burners in the boiler to act like a flamethrower and cause serious injury.
In a statement completed by the applicant prior to commencement of the hearing (Exhibit A1), the applicant recorded that some of his service whilst on-board Sydney required him to work below the waterline. He recorded:
I was aware that scare charges would be randomly dropped in order to protect the vessel against possible attack by Viet Cong divers. Whilst below the waterline I heard explosions and although I was aware that the explosions might be due to scare charges (and therefore not life-threatening) I feared that what I heard might in fact be due to the explosion of a Viet Cong mine (in which case I would risk being drowned because I was in a watertight sealed compartment which would flood if the hull was breached). I was particularly fearful when the explosions were from charges which sounded as if they had been dropped closer to the side of the ship.
On one occasion the applicant recalled the sound of an explosion, whilst he was in the boiler room, which he estimated had occurred when he was within about 6 feet of the hull. He said the sound was deafening, it produced a vibration that was like a 10 ton truck coming through and he was scared witless. He also feared that the hull had been breached and he feared drowning. He said escape from the boiler room would have been very difficult because it required climbing a number of ladders, at the same time as approximately 6 others who would also have been in the boiler room working with him. Additionally, he said that the entry of salt water into the boiler room would cause the burners to react and possibly cause an explosion.
On that occasion, he said he was shaken by the noise and it was the only time he had left the boiler room before completing his work.
The applicant said he could not recall any broadcast over Sydney's speakers of scare charges being dropped but if it had occurred, he said he would not have heard it because of the noise within the engine room. Later, when he returned to the upper decks he learnt that a scare charge had been dropped. The applicant said that until the 1980s, he suffered nightmares after this incident of being in confined spaces and drowning.
Mr Philip Mulcare, a retired Commodore, in a report commissioned by Writeway Research Service at the request of the respondent, recorded hatches at deck 5 would have been left open, that a sentry guard would be posted at that opened hatch or a sign would be attached to the open hatch with the words may be left open. The applicant said he was not aware of that practice.
In cross-examination, the applicant agreed that he had been enlisted for about 5 years before his first tour to South Vietnam. He had previously been posted on-board HMAS Stuart which had engaged in exercises around Pearl Harbour and had engaged in service in the Far Eastern Strategic Reserve in 1967. He had also served on-board HMAS Samurai, a patrol boat, around the Papua New Guinea coast and on-board HMAS Anzac which had sailed to New Zealand. He agreed that he was an experienced sailor before his first tour and also agreed that Sydney was a supply ship, delivering troops and other supplies to Australian forces on shore.
It was suggested to him that he had no reason to believe that the Sydney was exposed to any danger whilst he was on-board on either voyage. The applicant said that there was always a danger going into a war zone. He said Sydney was at risk from divers and floating mines.
The applicant said that Sydney was anchored at Vung Tau on each occasion for very short periods of time. Additionally, his work as a duty electrician, below the waterline, on each occasion would have been only for a few hours. Nonetheless, he said that he was scared of being caught down there. He said there were some incidents where he had heard muffled explosions and although he had completed his work, he felt uncomfortable. He was unable to explain an entry in the history taken by his treating psychiatrist, Dr Collier, Sometimes the scare charges were going all day every two minutes till, we'd loaded and sailed out of the area (T8, p. 34).
Smoking
The applicant said he did not smoke cigarettes before he enlisted. Whilst a member of the crew of HMAS Stuart, he said, he was advised to take up cigarette smoking because it would keep him awake whilst he was on watch. He was a member of the crew of Stuart for 2 years but said he only purchased 1 or 2 packets of cigarettes during that time.
About 3 or 4 months before his first voyage to South Vietnam, he resumed smoking and then at about 30 cigarettes per day. He said he commenced smoking because he was going into a war zone which he described as harm’s way. During that tour, his smoking habit increased to about 50 cigarettes per day. He said, he was then apprehensive and anxious and was unable to sleep. Although he had commenced drinking alcohol, he regarded smoking as a way of overcoming nerves. In about 1973, he reduced smoking to 40 cigarettes per day and continued at that rate until 1994 when he was advised by his doctor to stop smoking. He did then stop but resumed in 2004 and ceased in 2006.
The applicant was referred to a smoking questionnaire completed by him in March 2004 in which he recorded that he first commenced smoking on a regular basis at between 20 and 30 cigarettes per day in May 1970 (Exhibit A2). He recorded that in 1971 he was smoking between 40 and 50 cigarettes per day but reduced to 30 cigarettes per day in 1973. At that time he was also smoking a pipe. When asked to explain the difference between his earlier evidence of reducing his cigarette consumption to 40 per day in 1973 with having recorded in the questionnaire that he was smoking 30 cigarettes per day in 1973, the applicant said he could not now give evidence of the quantity of cigarettes with any precision.
In cross-examination the applicant was asked to comment on a recording in a psychological assessment of him, prior to his enlistment, on 8 September 1964, of smoking 6 cigarettes per day (Exhibit R5). The applicant said that entry was incorrect. He said if he was then smoking his mother would kill me. My stepfather died from cigarette smoking.
The applicant's attention was then drawn to an entry on the 11 November 2003 in the medical records of his former general practitioner, Dr Harris (Exhibit R2, p. 9). The entry records that the applicant ceased smoking on 11 November 1982, was then smoking 60 cigarettes per day and had started smoking in 1965. The applicant said that but for consuming a few cigarettes whilst on-board Stuart after 1965 he did not commence smoking until 3-4 months before his first tour to South Vietnam in 1970.
Erectile dysfunction
The applicant said he first suffered symptoms of erectile dysfunction in the late 1980s and early 1990s. He was then married to his first wife. Treatment by his general practitioner and a specialist urologist by medication and injections were unsuccessful.
The applicant said his impotence imposed an enormous strain on his marriage. His wife (and his mother-in-law) accused him of having an affair with another woman. Despite his persisting denials, his relationship with his wife deteriorated, they ceased communicating and eventually divorced.
Depressive disorder
In about 1995-1996, during his marital instability and unhappiness, the applicant said he had significant symptoms of low self-esteem, anxiety and depression. However, it was not until about 2009 that he recognised those symptoms, having watched a television documentary program. He consulted his general practitioner and was referred to Dr Collier, a practising psychiatrist who continues to treat him.
In 2010 the applicant was in full-time employment as a salesman of industrial chemicals. In early 2012 he said he had a breakdown. He said he was under extreme pressure in his job, his boss knew that he suffered depression and it all got too much for me. He described an occasion when he was driving his car, having attended some clients during work. He pulled over to the side of the road and was in tears. Dr Collier suggested that he should cease employment (T14, p. 62) which he did, in July 2012 at the age of 64.
Dr Collier had been prescribing Lovan medication at 60mg. Earlier this year it was reduced to 40mg, however, the applicant became lethargic, he had trouble waking, he was uncommunicative, he withdrew from social activities, lacked motivation and was not interested in maintaining his house. The Lovan medication has recently resumed at 60mg and the symptoms previously experienced have largely been eliminated.
In cross-examination it was suggested to the applicant that his symptoms in 2012 of lethargy and withdrawal were associated with him suffering sleep apnoea (rather than from the effects of a reduction in the strength of the Lovan medication). His attention was drawn to reports in the clinical file of Dr Harris (Exhibit R2) from Dr Cain, a consultant physician practising in respiratory and sleep medicine of 12 July 2012 and 13 September 2012.
In the first report, Dr Cain reported to Dr Harris that the applicant finds himself to be very tired during the day and he was mentally sluggish. He diagnosed the applicant as suffering very significant obstructive sleep apnoea and a CPAP device was recommended (Exhibit R2, p.73). In his report of 13 September 2012, after the applicant had been using the CPAP device for 6 weeks, Dr Cain reported that the applicant was sleeping right through the night… and wakes more alert and refreshed. He also reported the applicant believes his mood has improved and it was noted he was a little more animated than in the past (at p.74).
Alcohol abuse
The applicant agreed that he did drink beer and spirits before his first voyage to South Vietnam. He said that he was then in fear that Sydney could have been sunk by the VC. His fear during both voyages was confined to the risk of attack from divers and from floating mines. He had also heard a rumour before the first voyage that a US vessel was damaged by a floating mine. He said he subsequently increased his alcohol consumption, often to excess because of anxiety and with the knowledge of having to undertake another tour. He acknowledged that he continued to drink alcohol to excess and more frequently after the second tour, again because of anxiety.
In an alcohol questionnaire he completed on 30 March 2004 the applicant said he was drinking 6-8 beers per day more if I could get it in 1970 (Exhibit A3). In another part of the questionnaire, when asked whether the amount of alcohol consumed changed significantly after he first started drinking, the applicant recorded that in 1971, he was drinking 8 -10 stubbies a day and spirits.
The applicant reduced the quantity of alcohol he consumed in the late 1970s but resumed drinking heavily in the 1990s. Presently he drinks between 1and 1½ bottles of wine on 3 or 4 occasions per week. He said there are some days when he does not drink at all and on other occasions he might drink daily.
In cross-examination, the applicant said that he was allocated a beer ration on-board Sydney and he purchased beer rations from colleagues who did not drink. The beer was rationed in large cans which the applicant estimated to be 1 pint in quantity. When he was before the VRB, the applicant said they were 26 ounce cans (Exhibit R4, p. 31).
The applicant said that on each tour to Vietnam, Sydney would unload during the day, leave the harbour at night, return to sea (as a precaution) and then return the next morning to complete unloading. He recalled that Sydney returned to sea on 4 or 5 occasions.
The applicant was asked to comment on entries in Naval records that were received in evidence indicating that during the first tour, Sydney returned to sea on one occasion only (because it did not complete unloading in one day) and on the second occasion, it completed unloading entirely during one day and then returned to sea to commence its return voyage to Australia. The applicant said that his memory was poor (a comment he made frequently in this review and in his evidence before the VRB).
The applicant was referred to his alcohol questionnaire and agreed that the reasons he recorded for an increase in alcohol consumption in 1971, namely posted to Darwin (illegible) was hot the culture was drinking and it had become a habit and to relieve stress were correct (Exhibit A3).
The applicant was also asked to comment on an entry in the outpatient Naval medical records dated 22 January 1971 (Exhibit R7) and on his evidence before the VRB concerning his increased consumption of alcohol in that year and subsequently.
The medical record of 22 January 1971 contains the following history:
Many problems which are influencing his concentration and job performance. Referred by Meth Chap.
·alcoholic stepfather
·mothers distress due to stepfather
·epileptic sister
·obstruction to immediate marriage (prior to Melville parting) by fiance's father
·unhappiness in Navy
Seems an intelligent honest sailor.
The medical officer who completed the above history made a diagnosis of the applicant suffering reactive depression and prescribed Valium.
The applicant spoke about his reaction to the above events during his evidence to the VRB. Although the transcript refers to the month of August (Exhibit R4, p. 27-28), the applicant said in this review that the withdrawal of his fiancé from marriage, as was recorded by the medical officer on 22 January 1971, was in early 1970 and the evidence subsequently recorded was referable to his reaction to the wedding not proceeding. He was then a member of the crew of HMAS Anzac and was based in Sydney.
He adopted the evidence that he gave to the VRB, namely, that her withdrawal was devastating, that his mother and his sister had travelled to Sydney for the wedding, he started drinking and it wasn't unusual for me to go out and get drunk. Let me put it to you that way. When he was asked to describe the frequency of becoming drunk, he said Well back then it probably would have been about two or three days a week. Get really stoned (Exhibit R4, p. 27-28)
The applicant said whilst he remained in Sydney he would go out on 2 or 3 occasions per week and drink from about 5pm until he returned to Anzac at midnight. On other occasions, he would drink the beer rations (two cans) on-board the ship. When he was asked whether his pattern of consumption changed he said it didn't really. When l left the navy, I would have a drink at home (Exhibit R4, p. 31-32).
The applicant's attention was drawn to a comment recorded in a medico-legal report completed by Dr Rose, a psychiatrist, who examined the applicant at the request of the respondent in 2004 (Exhibit R3, p.2). Dr Rose recorded, having obtained a history of commencing alcohol consumption early in his service, prior to travelling to Vietnam and subsequently drinking his own beer ration and the ration of others. He concluded his drinking was no different after travelling to Vietnam to what it was beforehand. It was put to the applicant that his consumption of alcohol did not change after his fiancé withdrew from the marriage compared to the quantity of alcohol consumed previously. The applicant said he could not recall and his memory was poor.
Phillip Mulcare
In his report of 22 February 2013, Mr Mulcare recorded, having inspected the records from Sydney that it was at anchor in Vung Tau harbour during the first period of operational service for 8¼ hours on the first day and 3¾ hours on the second day (Exhibit R1). During the second voyage, it was at anchor for one day only and then for 8 hours. He said Operation Awkward procedures would have been implemented as Sydney approached harbour on each occasion, which was a normal defensive manoeuvre because of the known risk of threat from enemy divers or floating mines. He said scare charges were only thrown overboard or dropped if an order was given from an officer in the operations room. The order would have been broadcast and there would be a documented record of it. Additionally, he said a scare charge would not have been thrown overboard whilst Sydney was being unloaded.
Mr Mulcare was unfamiliar with the boiler and engine rooms on-board Sydney. However, in his experience, if persons within those areas were unable to hear a broadcast, they would have been informed in advance by a petty officer of a scare charge being thrown. He did not make enquiries whether a broadcast would have been audible in the boiler room below the waterline.
Sydney’s log for 31 October 1970 revealed that at 0725 hours Scare charges dropped for’d (Exhibit R1, p. 5). Mr Mulcare said that had occurred before Sydney was anchored when it was approaching harbour.He disputed the history taken by Dr Collier from the applicant of scare charges being dropped every 2 minutes. He said there was no documented record of any other scare charge being dropped during either voyage. Additionally, if the tide was flowing at 2 knots or greater, scare charges would not have been dropped because divers would not have been in the water. Additionally, he did not know of any attack on a US vessel in the weeks prior to the applicant's first voyage to Vietnam. He did not make that enquiry and said that Australian officials would only know about it depending on the nature of the attack. He queried whether it was a rumour.
Mr Mulcare annexed a copy of the applicant’s postings and employment duties to his report which indicated that whilst on-board Sydney, he was a radio maintainer (Exhibit R1, p.15). He did not understand why the applicant would be inspecting electrical equipment in the boiler and engine rooms, but said he would be capable of doing it because it did not need specialist skills.
Mr Mulcare said that only the boiler room was below waterline and it was located on decks 6 and 7. Entry to it was through a hatch on deck 5. He said, that hatch would only be opened with permission from Damage Control Headquarters and if required to be left open, it would be attended by a sentry. The hatch would otherwise be closed to ensure water tight integrity in decks 6 and 7 which he also said were not pressurised because air was pumped into them from deck 3.
Paul Collier
Dr Collier has been a psychiatrist in practice for 14 years. He has treated the applicant from November 2010 on referral from Dr Harris. He prepared reports for Dr Harris, the applicant’s general practitioner on 10 December 2010 (Exhibit R2, p. 61-62) and 11 October 2011 (Exhibit R2, p. 67). He also prepared a report on 23 March 2012 in response to a request from the Department of Veterans’ Affairs (DVA) (T8, p. 33-38).
In his first report to Dr Harris, Dr Collier diagnosed the applicant as suffering from a depressive disorder which likely meets the diagnostic criteria for major depressive episodes at times (Exhibit R2, p. 62). In this second report to Dr Harris, Dr Collier recorded that the applicant, having requested medication (which Dr Collier thought was reasonable) prescribed Lovan (Prozac), an antidepressant medication.
In his report to DVA, Dr Collier recorded a history from the applicant of depression, prior cigarette smoking, alcohol abuse and erectile dysfunction. He diagnosed major depressive disorder (MDD) satisfying the DSM-IV criteria. In evidence, Dr Collier said he was satisfied that the clinical onset of that condition was in the 1990s. He associated MDD with marital discord (the marriage ended in 2000 or 2001) and the erectile dysfunction. In his report, he recorded that the applicant said that his sexual dysfunction was a major factor in his marital problem (T8, p. 35).
Dr Collier reported that the diagnosis of alcohol abuse also satisfied the DSM-IV criteria because the quantities he consumed constituted a maladaptive pattern of drinking significant quantities of alcohol. It also affected his ability to work because he suffered hangovers, he was unwell, had days off from work and was inefficient and sometimes late for work. He said his alcohol abuse aggravated his depression.
Dr Collier recommended that the applicant cease employment because he was struggling, he had poor motivation and his productivity was below par. He was also aware of an episode of the applicant crying during work which he also thought was consistent with the diagnosis of MDD. He had been prescribing Lovan at 40 mg but increased it in February 2013 to 60 mg. He said 10 mg of that medication would be a minimal dose, 20 mg would be normal, 60 mg was significant.
Dr Collier was aware that Dr Rose did not find the applicant to be suffering from any psychiatric illness or disorder in 2004 and whilst he acknowledged that the applicant remains upset and mildly anxious and depressed, Dr Rose was satisfied that his range of affect was normal (Exhibit R8, p. 4-5). Despite those conclusions, Dr Collier maintained the diagnosis he had made of the applicant. He said if he was equivocal about the diagnosis he would not have continued to prescribe medication.
In cross-examination, Dr Collier said he increased the prescription of Lovan in 2012 because the applicant reported difficulties at home associated with his grandchildren who were living with him.
Dr Collier found that the depression suffered by the applicant was associated with work stressors in the 1990s, the ending of his marriage in about 2001 and the erectile dysfunction. When he referred to his clinical notes during evidence, Dr Collier said, as an explanation for the work stressors in the 1990s, that the applicant had told him that he had worked under an arrogant manager who did not like him and who had tried to have him dismissed.
Dr Collier was aware of some of the circumstances recorded in the clinical note made on 22 January 1971 (Exhibit R7) but was not aware that a diagnosis was then made of reactive depression. He said if that diagnosis was made by a medical officer, it could be valid. He thought the circumstances of his mother's distress at his alcoholic stepfather could be a potential predisposing factor to his depression. However, Dr Collier did not know the applicant's symptoms or duration of them at that time or the family circumstances. He was not prepared to say whether those events had any continuing contribution to his present depression because he was not aware whether there were any intervening circumstances. He was not prepared to consider whether the withdrawal of his fiancé from marriage, the epilepsy of his sister and drinking heavily in Sydney, which was described by the applicant as getting stoned contributed to his depression, but would not discount it, especially if he had been self-medicating with alcohol. He was not prepared to conclude that the applicant was then suffering from MDD. He was satisfied that the applicant had suffered that condition from the 1990s.
Dr Collier was aware the applicant suffered from sleep apnoea which in his experience was often associated with depression or at least was an aggravating factor.
Albert Kaplan
Dr Kaplan is a psychiatrist who examined the applicant on a medico-legal basis at the request of his solicitors in February 2013. He prepared a report dated 6 February 2013 (Exhibit A4).
Dr Kaplan reported (Exhibit A4, p. 3) a history from the applicant of first suffering depression in the mid-1990s. The disorder continued which affected his self-esteem and his ability to work in a stressful position. He noted that the applicant is currently taking Lovan at 60 mg which he regarded as a high dose and thought it was appropriately prescribed.
He concluded that the applicant suffers MDD with a differential diagnosis of chronic adjustment disorder and depressed mood. He reported the depression suffered by the applicant was related to tensions within his marriage arising out of his erectile dysfunction. He was satisfied the applicant suffered erectile dysfunction associated with cigarette smoking which he thought was likely to have arisen out of his war service.
In cross-examination, Dr Kaplan said he was not aware of the service medical record of 22 January 1971. When he read it, he said he presumed that the applicant was troubled and depressed in January 1971. He was not prepared to agree with the diagnosis then made (reactive depression) in the absence of knowledge of the applicant's symptoms. He said the prescription of Valium did not point to a diagnosis of depression because other antidepressants were then available to the medical profession.
When he was informed of the evidence given by the applicant to the VRB of being devastated by the withdrawal of his fiancé and his consumption of alcohol subsequently, including his description of being stoned on alcohol, Dr Kaplan said that information alone would not be a sufficient basis to make a diagnosis but it would be understandable that the applicant would have been devastated.
Dr Kaplan was not aware of the reports completed by Dr Collier. When he read them and was given a summary of Dr Collier's evidence concerning the applicant’s erectile dysfunction, his depression in the context of stressors at work, the lack of sympathy by one of his former managers, the ending of his marriage, apparent pressures at home associated with grandchildren and pulling his car off the side of the road and crying, Dr Kaplan said the applicant is a person who reacts to events. He thought the applicant had an underlying vulnerability, commencing with the loss of his father, the difficulty of a relationship with his stepfather and the combined absence of an effective paternal figure in his life. He thought the applicant’s depression had predated his erectile dysfunction, the latter of which was a contributing factor to the deterioration in his marriage.
Dr Kaplan dismissed the suggestion that the difficulties associated with his work and his eventual retirement in 2012 precipitated the clinical onset of the depression. He said those events intensified the condition.
Norman Rose
Dr Rose is a practising psychiatrist who examined the applicant on 2 occasions at the request of the respondent. He completed reports following each consultation, on 15 May 2004 and 22 January 2013 (Exhibits R3 and R8). In each report, he concluded that the applicant did not suffer any psychiatric illness.
Dr Rose read the medical record of 22 January 1971 (Exhibit R7) and interpreted it as indicating that the applicant was unhappy and affected by non-service events. He said the prescription of Valium was not much use in depressive illnesses and was a drug that was usually prescribed by general practitioners but not psychiatrists. He said if the applicant then had a significant depression, he would have been prescribed medication of stronger affect.
During his assessment of the applicant in 2004, Dr Rose concluded that any upset previously suffered by the applicant was within normal boundaries. He thought the poor memory suffered by the applicant and difficulty he faced concentrating was within a normal range. Dr Rose was not satisfied that the breakdown of his marriage contributed to any depression despite the applicant being devastated when his wife left him. He acknowledged that the applicant suffered erectile dysfunction but said that it would not necessarily be associated with depression because it could have its cause in either hypertension or diabetes or alcohol consumption or chronic pain.
It was his opinion that the quantities of alcohol consumed by the applicant would be regarded as moderately heavy (he added like a lot of servicemen) but was not sufficient to diagnose alcohol abuse. He was also satisfied that the applicant’s pattern of drinking was no different before and after his service in Vietnam.
In his second consultation, Dr Rose learnt that the applicant had been suffering flashbacks. He did not obtain that history in his first consultation in 2004. Additionally, he learnt that the applicant had been diagnosed with sleep apnoea which Dr Rose said was not surprising having regard to his age and weight. He found the applicant to be mildly anxious and depressed but concluded that finding did not permit a diagnosis of any psychiatric illness.
In cross-examination, Dr Rose acknowledged that he was aware that the applicant had been taking Lovan medication at 40 mg. He was not aware how long that medication had been prescribed and he was not aware that it had been increased to 60 mg. Dr Rose had been given a copy of the report of Dr Collier and did not ask to see his clinical notes (although he acknowledged they would have been helpful). He thought that 60 mg of Lovan was in the relatively high range. He maintained his opinion that the applicant did not have a psychiatric illness that was capable of diagnosis, despite being prescribed Lovan at 60 mg. He said prescription at that strength was not necessarily surprising because the applicant may have been anxious by the proposed Tribunal proceedings which in his experience were stressful for litigants.
In his second report, Dr Rose recorded that the applicant thought he had been depressed from the 1990s (Exhibit R8, p.3). Dr Rose said that he did not take a history of the symptoms then suffered but did acknowledge that it would have been important to have made those enquiries. Additionally, he was not aware of the reasons for Dr Collier advising the applicant to cease work nor was he aware that the applicant had given evidence of an occasion where he had been crying in his car during working hours. Dr Rose agreed that it would have been helpful to have known that history and of the applicant’s intention to have continued to work until the age of 65. He said that had he known, he would have been more inclined to decide he has clinical depression. Later, in cross-examination, he said that the most likely diagnosis applicable to the applicant was dysthymic disorder.
Dr Rose disagreed with a proposition put to him that Dr Collier, as the treating psychiatrist, was in a better position to determine diagnosis than he was, having assessed the applicant on two occasions only, nine years apart and then for medico-legal purposes. He said that his opinions emerged from an approach that he adopted for assessments which he described as forensic.
Concession
At the conclusion of the evidence of Dr Rose, Mr Rudge, on behalf of the respondent conceded the diagnosis of depressive disorder. The applicant accepted that concession. It was also conceded by Mr Rudge that the diagnosis of erectile dysfunction was properly made. There was no agreement between the representatives of the date of clinical onset of that condition. A diagnosis of alcohol abuse was not conceded.
STATEMENT OF PRINCIPLES
Depressive disorder
The applicant relied on factor 6(a)(vi) in Instrument N°27 of 2008, namely:
experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder;
Paragraph 9 of the Instrument defines a category 2 stressor as:
(b) experiencing a problem with a long-term relationship including: the breakup of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
The applicant submitted that his smoking during operational service caused his erectile dysfunction which resulted in the breakdown of his marriage and consequently his depressive disorder. This hypothesis involves a sub-hypothesis which must also be upheld by a SoP. The relevant SoP concerns Erectile Dysfunction being Instrument N° 17 of 2005 and the applicant relies on factor 5(b), namely:
smoking at least 10 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of erectile dysfunction;
The hypothesis connecting the applicant’s service with his depressive disorder relied on a connection between service and his cigarette smoking of at least 10 pack years which satisfied the SoP for erectile dysfunction. That condition was responsible for the breakdown in the applicant's first marriage which satisfied the definition of a category 2 stressor.
Alcohol abuse
The applicant relied on factors 6(b) and (h) in Instrument N° 1 of 2009, namely:
experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
(Factor 6(h) is identical except the word worsening substitutes the word onset).
Paragraph 7 of the Instrument records that factor 6(h) applies:
only to material contribution to, or aggravation of… alcohol abuse where the person's … alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.
The applicant relied on one of three severe traumatic events within the definition of a category 1A stressor within paragraph 9, namely:
(a) experiencing a life-threatening event;
The applicant’s hypothesis was that he experienced an event that was life-threatening during his service which resulted in his alcohol abuse.
SUBMISSIONS
Ms Ryan, on behalf of the applicant, submitted that the clinical onset of depressive disorder was in the 1990s because the erectile dysfunction precipitated the applicant suffering a category 2 stressor, being the ending of his first marriage and in 2012, in his current marriage, because he experiences a problem with a long term relationship, by erectile dysfunction. She submitted that the evidence of Drs Collier and Kaplan pointed to erectile dysfunction being a causative factor in the diagnosis of depressive disorder.
It was submitted that the applicant’s smoking habit which gave rise to the diagnosis of erectile dysfunction had its origin in service on-board Sydney. She said the applicant was anxious prior to entry into a war zone. He increased his cigarette consumption whilst serving on each tour and thereafter, continued at a rate of 30 to 40 cigarettes per day together with use of a pipe. The quantity of cigarettes the applicant smoked satisfied the SoP concerning erectile dysfunction because he had smoked for 10 pack years. She said the Tribunal should find that the material points to smoking being attributable to his service.
Ms Ryan submitted that the applicant experienced a category 1A stressor within 5 years before the clinical onset of alcohol abuse (SoP N°1 of 2009). She said the material pointed to the applicant increasing his alcohol consumption during and after his first tour because of anxiety associated with service.
It was submitted that the stressor was constituted by the sound of an explosion as the applicant was working below the waterline of Sydney. He did not know whether it was from a scare charge but was entitled to assume, reasonably, that it could have been a mine. The applicant was then in a confined space, was anxious about escape, he feared drowning and therefore, experienced a life threatening event. She said support for that hypothesis, which was submitted as being reasonable, is to be found in the Federal Court decision in Border v Repatriation Commission (No 2) (2010) 191 FCR 163.
Mr Rudge submitted that the evidence of Drs Collier, Kaplan and Rose concerning alcohol abuse should be adopted, namely there was no connection between it and service. Alternatively, the absence of any clinical evidence of the applicant being distressed by a maladaptive pattern of alcohol use prohibited a finding of the diagnostic criteria within DSM-IV being satisfied.
It was submitted that the evidence pointed to the applicant drinking significant quantities of alcohol before his first tour of Vietnam. The evidence also pointed to consumption of significant quantities of alcohol after the second tour, when he was posted to Darwin, but without any variation from the quantities consumed previously.
Additionally, it was submitted that the hypothesis advanced by the applicant of alcohol abuse arising out of service events was not reasonable. It was noted that the applicant had been a member of the Navy for five years before his first tour and he was an experienced sailor. He was familiar with Sydney and he was working in a compartment with other personnel from whom there was no evidence of any reaction similar to his or at all whilst in the boiler room. In those circumstances, the reaction of the applicant to that event could not be found to be both subjectively and objectively reasonable and a finding of it being a life-threatening event was not permissible.
It was submitted that the documented evidence of the applicant’s smoking history was unreliable. It was noted that the psychiatric record in 1964 contained a note of the applicant then smoking six cigarettes per day (Exhibit R5). Dr Harris in November 2003 recorded a history of the applicant first smoking in 1965 and was smoking 60 per day when he quit in November 1982 (Exhibit R2, p. 9). It was also noted that the smoking questionnaire at Exhibit A2 completed on 30 March 2004 recorded the applicant smoking on a regular basis, at 20-30 per day from May 1970 on service in SVN. The applicant had not commenced his first tour in May 1970. That document also recorded the applicant increasing his smoking habit in January 1971, after the completion of his first tour. The reason then expressed for that quantity of cigarettes was nervousness and it had become a habit. Another smoking questionnaire completed by the applicant in February 2012, records the applicant smoking on a regular basis in July 1970, on service and then at 20‑30 cigarettes per day and 50 grams per week of pipe tobacco (T4, p. 12-13).
CONCLUSION AND REASONS FOR DECISION
In the Full Court of the Federal Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, a four stage process was established in order to determine whether a hypothesis is reasonable.
In the present application, I am satisfied that:
a)the material points to hypotheses connecting the applicant’s illnesses with service; and
b)there are SoPs in force, being Instrument N° 27 of 2008 (concerning depressive disorder) and Instrument N°1 of 2009 (concerning alcohol abuse); and
c)the raised hypotheses are reasonable because they fit within and are consistent with the templates found in the SoPs.
It is only at the fourth Deledio stage that a finding of fact is made. Consistent with s 120(1) of the Veterans’ Entitlements Act 1986, if I am not satisfied beyond reasonable doubt that the illnesses were not war-caused, the applicant's claim must succeed.
Each hypothesis advanced by the applicant is made up of a number of links. All of the links commencing with operational service and concluding with the diagnosed illness must remain connected. If any link in the chain of connection between service and illness is broken, the claim will fail.
The service events advanced by the applicant in support of each hypothesis were his fear of entry into a war zone prior to the first voyage, his experience in the boiler room when at or near Vung Tau harbour during the first voyage and his fear of returning before and during the second voyage.
The applicant was an experienced sailor before the first voyage but he had not ever served in a war zone. Based on Mr Mulcare’s evidence, I accept that following his training as a member of Sydney prior to travelling to South Vietnam, he would have been aware that entry into Vung Tau harbour would be under escort from another Australian vessel. He would have also been aware that Sydney would have unloaded its supplies without delay and would have left the harbour without delay and returned to Australia. The records show that the time spent in Vung Tau harbour was an aggregate of 12 hours over one and a half days during the first voyage and 8 hours during the second voyage. There is no material which points to any attack on Sydney during either voyage.
The applicant gave evidence of an event whilst he was in the boiler room which he said was below the waterline. He said he heard a very loud sound which he described as deafening when he was within about 6 feet of the hull and which produced a vibration which he described as being like a 10 ton truck coming through. He said he was scared witless. He feared the hull been breached and he feared drowning. He understood that escape from the boiler room would have been difficult because it required climbing a number of ladders and he feared the entry of salt water would cause the burners to react and possibly explode.
The Captain’s log of Sydney received into evidence in this review, recorded the dropping of a scare charge as it approached Vung Tau harbour during the first tour. It is not known whether that scare charge produced the deafening noise heard by the applicant. On the basis of the evidence heard in this review, I am not satisfied that scare charges were dropped every 2 minutes, which was the history taken by Dr Collier. However, I am satisfied that there was an occasion where the applicant did hear a very loud noise and he was scared. I am also satisfied the event occurred because he subsequently experienced nightmares for many years. I also accept that prior to entry into the war zone, the applicant was fearful of attack from enemy divers or floating mines.
On balance, I am satisfied that the event in the boiler room did constitute the applicant experiencing a category 1A stressor as required under factor 6(b) in the SoP concerning alcohol abuse and which is relevantly defined at paragraph 9 as experiencing a life-threatening event.
I make that finding on the basis that the applicant's perception of the threat of death by that event was reasonably held by him and judged objectively, the event reasonably conveys the threat of death (Border at [67]). However, the links of the chain connecting operational service with alcohol abuse become disconnected because I am not satisfied on the material that the consumption of alcohol during and throughout service was connected, on the probabilities, with the event in the boiler room (that is, the category 1A stressor) or any other service event or experience. The evidence points to the applicant drinking alcohol in considerable quantities well before the first voyage to Vung Tau when he commenced operational service.
The alcohol questionnaire records the applicant starting to drink alcohol on service in 1970 and then at 6-8 beers per day more if I could get it (Exhibit A3). In another part of that questionnaire, he recorded that he started drinking alcohol when he went to sea and was in SVN waters. That recording is inconsistent with his evidence in this review and I am satisfied and find as a fact that the applicant did commence alcohol consumption before his first period of operational service. He also recorded that he started to drink to be one of the boys and also to relieve stress and anxiety (and) it also helped me to sleep and forget about where we were.
Later in the form, he was asked whether the amount of alcohol consumed changed significantly after he first started drinking. He recorded that in 1971 his consumption changed to 8-10 stubbies per day and spirits. The reason given for that increase was posted to Darwin weather was hot the culture was drinking and it had become a habit and to relieve stress. I cannot discern from his response that the increased consumption of alcohol can be found to be an aggravation, by operational service, of the pre-existing alcohol habit. The applicant makes no reference to any of his circumstances during operational service but rather associates the increased alcohol consumption with the climate in Darwin, service culture and his habit of drinking. He has recorded the word stress but its meaning in the context of his response to the question is unclear.
The references in the alcohol questionnaire to stress, anxiety and to forget where we were does not permit a finding, on the probabilities, that the applicant’s alcohol consumption was connected with service or, more relevantly, in satisfaction of a factor within the SoP. There were other stresses in the applicant's life, before the first period of operational service and therefore, unassociated with that service.
In this review and before the VRB, the applicant said his consumption of alcohol in 1970 before his first tour was associated with his fiancé then withdrawing from their marriage. That occurred after his mother and sister had travelled to Sydney for the wedding and when his sister had been diagnosed with epilepsy. The applicant told the VRB that it was at that time that he started drinking, that it was not unusual for him to become drunk on 2-3 days per week and he would get really stoned (Exhibit R4, p. 27 – 28).
The recording in the questionnaire by the applicant that he first started to drink alcohol on service 1970 must be, on the basis of the evidence heard in this review, a reference to consuming alcohol whilst in service but before he commenced operational service.
On balance, I am satisfied that prior to the applicant's first tour of South Vietnam in October 1970, his alcohol habit was well established. It does not appear that his pattern of drinking during and subsequent to the first tour was different to the amount consumed before the first period of operational service. His admission to the VRB that prior to the first tour he would get really stoned suggests a very significant quantity of alcohol was being consumed. Other reasons given for the applicant’s drinking were the weather in Darwin and consumption either by peer pressure or by prevailing culture. I cannot, therefore, find that the applicant consumed alcohol as a consequence of events in or arising out of or attributable to service nor can I find that there was an aggravation of the pre-existing alcohol habit by his operational service.
For all of the above reasons, I am satisfied beyond reasonable doubt that alcohol abuse is not war-caused.
The hypothesis concerning depressive disorder is made up of a number of links. It was advanced on the basis that the applicant suffered a breakdown in his marriage by reason of erectile dysfunction which arose out of cigarette smoking which had a connection with service. The starting point therefore, must be whether there is a connection between service and cigarette smoking.
The applicant was challenged about some of the histories that he had completed. In fairness, he admitted his memory was poor and his recollection of when he commenced smoking, more than 40 years ago was, not surprisingly, also poor.
The applicant was referred to a psychological assessment completed either on 8 September 1964 or 28 June 1965 (it is impossible to determine from the document the assessment date) (Exhibit R5). It records the applicant smoking 6 cigarettes per day. The clinical notes of Dr Harris of 11 November 2003 record the applicant commencing cigarette smoking in 1965.
The applicant was very strenuous in his denial of smoking cigarettes in 1965. He said his father had died from cigarette smoking and if he was smoking his mother would have killed him. However, the applicant did admit that he did smoke some cigarettes when he was on-board Stuart because he was told that it would keep him alert when he was on watch. He said he bought one or two packets of cigarettes only throughout the whole of his service on Stuart and did not smoke thereafter, until he joined Sydney in 1970.
An examination of the applicant’s evidence to the VRB suggests that he did smoke whilst a member of the crew of Stuart (Exhibit R4, p. 10-26). A record of the applicant’s movements shows that he enlisted on 31 July 1965 (Exhibit R1, p. 16). Both dates on the psychological notes precede the date of enlistment. The history recorded in those notes is contemporaneously accurate and without imperfections of memory. It therefore follows that the applicant was smoking cigarettes before he enlisted with the Navy. If as a fact the applicant was advised to smoke whilst on-board Stuart (and I acknowledge that the applicant on many occasions said that his memory was poor), it follows that his cigarette habit continued whilst on-board that vessel. It also follows that the histories of the psychologist and Dr Harris is inconsistent with the smoking questionnaire completed on 23 March 2004, recording the applicant commencing to smoke 20-30 cigarettes per day on service in SVN /5/1970 (Exhibit A2). The applicant’s operational service commenced on 21 October 1970. The applicant was not on service in South Vietnam in May 1970.
When the applicant was questioned by members of the VRB, it would appear, from the questions they were asking, that they had access to a smoking questionnaire which I assume was the questionnaire dated 7 February 2012 (T4, p. 12). I make that assumption because the VRB referred to an entry at page 12 of the applicant commencing to smoke cigarettes on a regular basis On service in July /5/1970. (This questionnaire was the subject of a submission by Mr Rudge that it was a virtual facsimile of the questionnaire dated 23 March 2004 (Exhibit A2). He suggested, and I now agree, that the questionnaires are virtually identical and the abbreviation SVN in the first questionnaire was interpreted in the subsequent questionnaire as being July. The entry in the most recent questionnaire is obviously incorrect because the applicant refers to first smoking in July and then records the month of May. A VRB member suggested to him that he was posted to Sydney in May 1970. The applicant said he could not remember the date he was posted but he recalled first buying cigarettes whilst on-board Sydney when we went to Vietnam (Exhibit R4, p. 13). Later, he said that he started to smoke in September 1970 (Exhibit R4, p. 14).
I do not expect the applicant to have an accurate or reliable memory of events occurring more than 40 years ago. However, the evidence before the VRB and the other documents received in evidence not only indicate that the applicant did smoke cigarettes before he enlisted, he smoked also on-board Stuart and whilst on-board Sydney before the first tour. That finding I think, can be made with some confidence not only on the basis of his evidence before the VRB but also on the basis of the contents in his own statement lodged with this Tribunal in which he recorded that he was:
…smoking approximately 30 cigarettes per day before the first tour commenced. I relate the commencement of my regular smoking habit before the first tour to my anxiety caused by the knowledge that I would be posted to service on the Sydney in the war zone.
The applicant’s evidence before the VRB also suggests that his commencement of a smoking habit was not confined to anxiety associated with his first tour of South Vietnam. The evidence that he then gave strongly suggests that he commenced smoking on a regular basis in 1970 for the same reasons he gave for drinking alcohol at about that time, namely issues associated with the withdrawal from marriage by his fiancé, his mother and sister travelling to Sydney for the wedding and the diagnosis of his sister as an epileptic.
The VRB transcript records the applicant smoking 20 to 30 cigarettes per day in July 1970. He then volunteered that he had already had some personal issues then as well. When asked what they were, he said the personal issues then were I had just – I had been due to get married and two days before the wedding, my fiancé pulled out. When he was asked whether he was then smoking 20 to 30 cigarettes a day, he said no I started smoking after that (Exhibit R4, p. 15).
The VRB transcript records a discussion between the applicant and a Member concerning the increase in his smoking habit. In summary, the applicant agreed that he was smoking 20 to 30 cigarettes before his first tour of Vietnam; during that tour he said we were constantly dropping scare charges and it scared the hell out of me; he increased smoking to 40 to 50 cigarettes per day in 1971 immediately before or during the second tour because of the anxiety of it; he was working in the boiler room during the second tour when scare charges were again going off; in 1971when he had increased smoking to 40 to 50 cigarettes per day, it had become a habit (Exhibit R4, p. 18-22).
The hypothesis of cigarette smoking arising out of operational service and concluding with depression has the intervening link of erectile dysfunction. The applicant argued that his cigarette smoking was responsible for his erectile dysfunction which in turn was responsible for the ending of his marriage. As a consequence, he suffered depressive disorder which he seeks to have accepted as war-caused.
The smoking habit of the applicant probably does satisfy factor 5(b) of the SoP for erectile dysfunction (Instrument N° 17 of 2005) namely, having smoked at least 10 pack years of cigarettes or the equivalent in tobacco products, before the clinical onset of erectile dysfunction. However, that link in the chain of causation commencing with service and ending with depressive disorder will only remain connected if the erectile dysfunction is related to the relevant service (Instrument N° 17 of 2005 at paragraph 4). The connection with service will exist only if the SoP for Erectile Dysfunction is satisfied.
Having reviewed the evidence of the applicant concerning his smoking habit, I am satisfied and find as a fact that he commenced smoking before enlistment. He also smoked cigarettes on-board Stuart. I accept that he then smoked cigarettes for a limited period and then ceased smoking for some years. He resumed smoking in 1970 before his first voyage to South Vietnam after the withdrawal from marriage by his fiancé. The applicant's reaction to that event was sufficient, for reasons expressed earlier to also cause him to heavily consume alcohol. I think the applicant's reaction was sufficient also to cause him to commence smoking at 20 to 30 cigarettes per day. It may also have been related to his apprehension of commencing his first voyage to South Vietnam. But that is not a factor within the SoP that gives him any support.
The applicant told the VRB that his best recollection of the withdrawal by his fiancé was in August 1970 and it was after that occasion that he commenced to smoke cigarettes (Exhibit R4, p. 16). That evidence points to further indications not only of an imperfect memory (earlier it was suggested the withdrawal was in early 1970) but of the difficulty interpreting the applicant's history. Despite that, there appears to be little doubt that the applicant was smoking cigarettes on-board Sydney before the commencement of operational service and after his fiancé withdrew.
I am satisfied that the applicant did not vary the quantities of cigarettes he smoked during his first tour. The evidence in this review does not point to scare charges being dropped at the rate or frequency suggested by the applicant in his evidence to the VRB or at all. I found earlier that the history taken by Dr Collier of scare charges being dropped every 2 minutes was factually incorrect and I maintain that finding. I note that the applicant has not ever recorded in any smoking questionnaire that his consumption of cigarettes was specifically associated with scare charges or his reaction to a loud noise that he heard in the boiler room during the first voyage. He did not record scare charges were being dropped every 2 minutes as he told Dr Collier (T8, p. 34) or constantly dropping as he told the VRB (Exhibit R4, p. 19). Rather he explained his reasons as either anxiety or stress or nervousness.
Each smoking questionnaire records the applicant increasing his rate of smoking to between 40-50 cigarettes per day in 1971. The first questionnaire records the increase to have occurred approx 1/1971. The second questionnaire records 1971 only. The first period of operational service concluded on 12 November 1970 and the second period commenced on 15 February 1971 and concluded on 4 March 1971. If I were to find that the applicant has accurately recorded that his cigarette consumption did increase and then at or about the occasion of the second period of operational service, there remains the continuing uncertainty of the reason for that increase. In both questionnaires the recorded reasons for the increase in smoking in 1971 was nervousness and it had become a habit. Other than the documented evidence of a scare charge being dropped as Sydney entered Vung Tau harbour during the first voyage, there is no other evidence of scare charges being dropped during the second voyage. There was no other corroborative or documented explanation advanced by the applicant for the increased smoking habit during the second tour other than a continued state of anxiety or apprehension (which he did not record in the smoking questionnaires). However, nothing points to those circumstances being any different to the circumstances that he confronted during the first voyage.
When he was before the VRB, the applicant said that when Sydney was anchored in Vung Tau, he worked in the engine room and the boiler room and all the time there, they had a defence network set up of boats, that we were constantly dropping scare charges. And I don't mind telling you that it scared the hell out of me (Exhibit R4, p. 19).
I have reached the conclusion that the applicant's history both of his service and of his cigarette consumption is so unreliable that it is not possible to make any finding on the probabilities of a connection between either or both periods of operational service and the applicant’s cigarette consumption.
Whilst I am satisfied that the applicant probably did smoke at least 10 pack years of cigarettes subsequent to his 2 periods of operational service, I am not satisfied nor can I find on the probabilities a connection between smoking and operational service.
At the conclusion of the oral submissions by both counsel, I asked for assistance in comprehending the sub-hypothesis because the respondent had accepted the condition of impotence as war-caused on 4 December 2003 when it also accepted the condition of sensorineural hearing loss of the left ear. Those findings entitled the applicant to pension at 30 per cent of the general rate.
The reasons for the decision to accept the condition of impotence in 2003 were not in the documents. Therefore, I do not know the basis for the Respondent’s decision or the factor within the relevant SoP which satisfied the respondent that impotence should have been accepted.
I was concerned that if the applicant could not satisfy the sub-hypothesis (serviceàcigarette smokingàerectile dysfunction) in this review, he may be at risk of having the finding of impotence reviewed and set aside by the respondent. Both counsel lodged written submissions on this issue for which I am grateful.
Having read those submissions and the authorities cited, I am obliged to find that each illness or injury constituting a hypothesis of connection between service and the claimed injury must satisfy an applicable SoP.
If a hypothesis is made up of a number of illnesses or diseases, each the subject of a SoP, they must all be upheld by those SoPs. The whole of the hypothesis must be upheld by SoPs, not a part of it (Repatriation Commission v McKenna (1998) 52 ALD 72 at 80-81; McKenna v Repatriation Commission (1999) 86 FCR 144 at [20]).
In this review, the hypothesis of connection between service and depressive disorder fails because the applicant is unable to establish a connection between service and erectile dysfunction, by cigarette smoking. As one of the links in the chain of connection between service and depression is not upheld by the SoP concerning erectile dysfunction, one of the links is broken and the whole of the hypothesis cannot be upheld by the SoPs.
For these reasons, I am satisfied beyond reasonable doubt that depressive disorder is not war-caused.
DECISION
The decision of the Veterans’ Review Board made on 21 August 2012 is affirmed.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
..........................[sgd].............................
Associate
Dated 20 September 2013
Date(s) of hearing 24-25 July 2013 Date final submissions received 1 August 2013 Counsel for the Applicant Ms F. Ryan Solicitors for the Applicant Williams Winter Solicitors Counsel for the Respondent Mr K. Rudge Solicitors for the Respondent Department of Veterans' Affairs Advocacy Section
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