Gorton and Repatriation Commission
[2003] AATA 196
•28 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 196
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/427
VETERANS APPEALS DIVISION ) Re RAYMOND ALLEN GORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal P.J Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
S. Webb, MemberDate28 February 2003
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution therefor decides that:
(a) The applicant’s hypertension is a war-caused disability with effect from 5 June 1996; and
(b) The matter is remitted to the Repatriation Commission for assessment of the correct rate of Disability Pension.
(sgd) P. J. Lindsay
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service –– diagnosis of hypertension with left ventricular hypertrophy – whether condition war-caused – alcohol abuse and alcohol dependence – whether veteran experienced severe stressor - decision set aside.
Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 31 of 2001 concerning Hypertension
- Instrument No.83 of 1995 concerning Hypertension
- Instrument No.76 of 1998 concerning Alcohol Abuse or Dependence
- Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence
- Instrument No. 1 of 2000 concerning Anxiety Disorder
- Instrument No.48 of 1994 concerning Generalised Anxiety Disorder, as amended by Instrument No. 275 of 1995
- Instrument No. 9 of 1999 concerning Panic Disorder
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton [2001] FCA 1194
East v Repatriation Commission (1987) 16 FCR 517
O’Neil v Repatriation Commission [2001] FCA 1492
Freeman v Repatriation Commission [2002] FCA 576
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v O’Brien (1985) 155 CLR 422
REASONS FOR DECISION
P.J. Lindsay, Senior Member
Dr M.E.C. Thorpe, Member
S. Webb, Member1. This is an application under the Veterans’ Entitlements Act 1986 (the Act) by Mr Raymond Allen Gorton (the applicant) for review of a decision by the Repatriation Commission (the Commission) dated 14 February 1997 refusing his claim that hypertension with left ventricular hypertrophy was war-caused.
2. At the hearing, Mr C. Colborne of counsel appeared for Mr Gorton and the Commission was represented by Mr J. Marsh of the Department of Veterans’ Affairs (the Department). Mr Gorton and Mr B. OKeefe, consultant Military Historian, gave evidence. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing, including the appeal book in the proceedings before the Full Court of the Federal Court in Repatriation Commission v Gorton N 378 /2001 (Exhibit A1).
background
3. The following information is provided by way of background and is not disputed.
4. Mr Gorton was born on 20 July 1934. He was a member of the Royal Australian Navy from 8 July 1952 to 14 August 1957. He served in HMAS Arunta as an able seaman from July 1953 to March 1955 and rendered operational service from 25 January 1954 to 27 October 1954. Mr Gorton was discharged from the Navy because he was “below Naval physical standard” (T3).
5. On 5 September 1996, Mr Gorton lodged a claim to have his disabilities, hypertension and heart problems, recognised as war-caused for the purpose of pension entitlements under the Act. In opening, Mr Colborne noted that hypertension is claimed to have been was caused by alcohol abuse, which in turn, was caused by a stressful event, or in the alternative by a psychiatric condition caused by a stressful event, on operational service. The stressful event is an incident in which Mr Gorton believed HMAS Arunta was attacked and strafed by an enemy aircraft in March 1954.
6. When informing Mr Gorton on 14 February 1997 of its decision to refuse his claim, the Commission advised him that it considered the medical name for his claimed condition to be ‘hypertension with left ventricular hypertrophy’ (‘hypertension’) (T2). The decision was affirmed by the Veterans’ Review Board (the Board) on 13 April 1999. Mr Gorton applied to the Tribunal for a review of the Commission’s decision. The Tribunal affirmed the decision on 11 August 2000, finding that the circumstances of the case did not satisfy the requirements of the relevant Statement of Principles (SoP) for hypertension that the Repatriation Medical Authority (the RMA) had issued.
7. Mr Gorton appealed against the Tribunal’s decision to the Federal Court on the following grounds:
[15] The applicant claimed that the AAT had erred, first in finding that there was no reasonable hypothesis raised on the material before it and, second, in failing to afford the parties procedural fairness by not giving them an opportunity to satisfy it on whether the applicant had suffered panic attacks. Gorton v Repatriation Commission [2001] FCA 286.
The appeal was allowed, the court finding error in the Tribunal’s interpretation of the relevant SoP.
8. The Commission appealed to the Full Court on the question of which SoP governs the Tribunal’s review of a decision by the Commission under Part II of the Act. The appeal was dismissed (Repatriation Commission v Gorton [2001] FCA 1194) and the matter was remitted to the Tribunal for determination in accordance with law. Allsopp J, with whose reasons Emmett J agreed, stated:
[66] If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission’s decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of “election”. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley.
[67] I see no basis either in Keeley or in the Act for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and which are revoked before the Tribunal’s review. Nothing in Keeley or the Act mandates that.
9. The parties to the current proceeding do not dispute that Mr Gorton suffers from hypertension with left ventricular hypertrophy (referred to hereafter as ‘hypertension’). Since his claim for pension relates to his operational service in Korea, the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. Pursuant to s.120(1) a decision-maker will determine his claimed condition to be war-caused, unless the decision-maker is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination. The decision-maker will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting that condition with the circumstances of Mr Gorton’s service: s.120(3). As his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the decision-maker is to assess the reasonableness of the hypothesis in accordance with the relevant SoP issued by the RMA.
evidence
10. Mr Gorton enlisted in the Navy at age 17 in May 1952 and was discharged, unfit, five years later in August 1957. He had trained as a gunner at HMAS Cerberus. He served in the Korean theatre in HMAS Arunta, a destroyer, from January 1954 to October 1954. He was the youngest crew member.
11. Mr Gorton’s evidence was that on enlistment, he was aware of the war in Korea and that Australian naval ships were involved, but he did not think about it. He knew a neighbour in the Army who was killed in Korea in 1953. He did not read the newspapers but was aware of the Korean armistice in July 1953. He did not know that HMAS Arunta had been assigned an operational tour of duty in Korean waters until arriving in Hong Kong in 1954. He had been frightened of the possibility of being hurt in hostile action on this tour.
12. Prior to joining the Navy he had not travelled. He enjoyed socialising and going dancing with his friends, but he did not drink alcohol. In 1953, while serving in HMAS Australia south of the Whitsunday Islands, he was provided with a beer issue, comprising one bottle of beer, while on “tropical routine”.. He said he gave his beer issue to his mates as he did not drink alcohol, even though it was hot work painting the ship and drinking was a part of the culture.
13. During his period of operational service, HMAS Arunta would spend three or four weeks on patrol and two or three weeks in port, in Kure or Sassabe. In port, he would go into town on leave with his mates. He said they would drink beer but he would not, initially, preferring soft drinks. He recalled practice firings while on patrol, especially drills involving surface and submarine elements. During these drills, he would assume his action station duties as an ammunition number, which involved handling munitions for a 4.7 inch gun and working with a team of several other people. While performing these duties he did not know where the gun was firing and was not particularly scared, knowing it was a drill.
14. He described an incident that occurred while he was performing duties in the paint shop in the bow. He was mixing paint using an air-driven machine that was quite noisy. He heard metallic sounds and asked two sailors in the adjoining mess deck what was going on. They had told him they were on action-stations and the ship was being attacked. He had not heard the “Red Alert” action-station announcement, there being no public address speakers in the paint shop. Initially he thought they may be joking but then he believed them, and he said that is when panic set in. He thought an aircraft was strafing the ship and the metallic sounds were bullets hitting the ship. He became very frightened and said he was unable to move for half an hour or so. He did not proceed to his designated action station. Later, the Leading Seaman for his action station abused him, calling him a coward and threatening him with court martial if he failed to attend his action station in the future. This made Mr Gorton feel worse. He remained anxious and nervous for a long time, and would jump at any sound. He endured nervous periods during which he would start to shake and would have to go out on deck to get away from people. These occurred “pretty often, about twice a week”, but he remained nervous all the time. He found it difficult to be around people after this incident because it was embarrassing and he was ribbed for being a coward.
15. He related being told by his mates, several weeks later, that the incident had not occurred, and that he was being teased. However, he did not believe them because, otherwise, he could not explain why the Leading Seaman had abused him. He had no relationship with the Leading Seaman other than when on action-stations. He still believes something happened, but has some doubts having found no reference to the incident in the operational records for the ship at the time.
16. Mr Gorton said that after the incident he tried to calm his nerves by smoking, but this did not work. He then commenced drinking alcohol, which did work. In his alcohol questionnaire completed in April 1997 (Exhibit A1, p47) he said he began regular consumption of alcohol in Japan. He went to off limit places where he would drink beer by himself or in company of Japanese who drank saki. Thereafter, he would drink beer to excess when on shore leave, HMAS Arunta being a dry ship. He said he could not drink as much as his mates, and was a “cheap drunk”. He had memory blackouts, where he would not be able to remember what had occurred while drunk. He explained “so that’s how everything happened.” He became a heavy drinker and could not tell the difference between the alcohol and his nervous shakes. Under cross-examination, Mr Gorton acknowledged that he told Dr Dinnen that he started to drink because it was a release from being cooped up aboard the ship. He agreed that he told Dr Dinnen that everyone else on Arunta was drinking, and that he did not mention the strafing incident and his resulting nervous condition as a cause of his alcohol habit. He insisted, however, that his bouts of drinking with his shipmates became frequent only on his return to Sydney, because his drinking gradually progressed. He said he had his own ideas about drinking but gradually that changed.
17. He could not recall if the nervousness had ceased by the time he returned to Australia late in 1954, but any stress would cause him “to go to drink … I didn’t have to face up to things if I did that”. He said that he continued to drink heavily. In March 1955 he was hospitalised for two and a half years with a septic arthritis in the Balmoral Naval Hospital at HMAS Penguin. He continued to drink alcohol despite this not being permitted and despite being on medications including penicillin, pethidine and nembutal. He would get alcohol from the wet mess, which was close by, or arrange for someone to bring him alcohol. The applicant stated that he reduced his alcohol consumption during this period, but continued to drink as regularly as he could.
18. He was married at 21 while in the Balmoral Naval Hospital. He said he had problems in his marriage because of his drinking and his friends left him, saying that his personality had changed.
19. Mr Gorton described himself as an alcoholic who had minimised his alcohol consumption when describing it to doctors. He had memory problems because of his drinking. However, the more he thought about events in the past, and the more people asked questions about them, the more he could remember. His mind is clearer now than it was.
Mr Brendan O’Keefe
20. Mr O’Keefe outlined his achievements as a military historian over a twenty year period and discussed aspects of his report about HMAS Arunta during the relevant period. He said that there had been very few naval casualties in the Korean theatre. He stated that there were five deaths, only two of which were during operations. Australian involvement in the post-armistice period was to protect against incursions and breaches of the armistice, there being a high level of suspicion on both sides.
21. Mr O’Keefe noted that there was no evidence in HMAS Arunta’s reports of proceedings, in the official history of Australia’s involvement in the Korean war, in the US and UK histories or in newspaper indices, about any incident involving an air attack on Arunta in March 1954. It was Mr O’Keefe’s opinion that Arunta would not have been involved in any firing on shore based targets. This would have been reported in the monthly operational reports at the time, which were very detailed.
Medical evidence
22. A number of medical reports have been presented in evidence in the earlier proceedings. It is not necessary to repeat all of that evidence here. The Tribunal notes the following statements in the reports:
·Dr Lewin, consultant psychiatrist, report dated 14 February 2002 (Exhibit R2):
I concluded that there was no doubt that Mr Gorton had abused alcohol over many years. His case had typical features of alcohol dependence. (p15)
I think it likely that Mr Gorton was suffering from a low-grade chronic Anxiety Disorder of a constitutional nature. This appears to have arisen against a background of constitutional and developmental factors which are outlined above. I think it possible that his emotional response to being in a war zone led to an exacerbation of an underlying condition in a vulnerable individual. (p16)
·Dr Richards, cardiologist, report dated 16 January 1997 (Exhibit A1):
Mr Gorton has adequate evidence to make diagnoses of hypertension and cardiomyopathy associated with alcohol consumption dating from his period of service … I am not able to conclude that Mr Gorton’s considerable alcohol consumption was caused by his service. He may simply have chosen to drink alcohol in these quantities unrelated to his service. (folio 39)
·Dr Harding Burns, consultant physician, report dated 30 September 1999 (Exhibit A1):
Mr Gorton started to drink in a harmful way, eg alcohol abuse, during his service in Korea and while he was on shore leave in Japan. His promiscuous sexual encounters were hazardous events associated with drinking … The development of alcohol dependence followed the establishment of alcohol abuse during his time in the Navy in 1955 to 1957, and it is probable that alcohol dependence was already established early in his middle 20s. It would have been well established by the time hypertension was diagnosed at the age of 44.
…
Hypertension and heart disease are consequences of Mr Gorton’s alcohol dependence and harmful drinking. (folio 99)
·Dr Dinnen, consultant psychiatrist, report dated 3 April 2000 (Exhibit A1):
I am now in a position to affirm that the patient’s diagnosis is indeed that of psychoactive substance abuse/dependence … and that that condition does satisfy the Statement of Principles as being due to service.
… the onset of [anxiety/panic disorder] can be clearly identified as the stressful experience of a young man, untested in combat, apprehensive about such an eventuality, being either ribbed by his crew mates or being mistaken, leading to a heightened degree of anxiety and apprehension leading to clinical anxiety and panic disorder at the time. (folio 106)
·Dr Schultz, consultant psychiatrist, report dated 29 November 1999 (ExhibitA1)
In my opinion Mr Gorton has evidence of long term alcohol problems that would, in the past, have been described as an alcohol abuse syndrome and it is likely that he would have also been alcohol dependent. …
It is also likely that he had experienced problems with a panic disorder in his twenties in Korea. …
The causes of alcohol abuse are often multifactorial and can be listed in Mr Gorton’s case as follows:
i. Family history …
ii. Anxiety disorder …
iii. Emotional difficulties …
I cannot make a causative link between Mr Gorton’s war related service and alcohol use if one excludes his need to resolve his anxieties about being accepted by his peers. (folios 112-113)
·Dr Schultz, report dated 28 July 2000 (Exhibit A1):
Mr Gorton has used alcohol to treat his anxiety. (folio 118).
consideration of issues
23. In reviewing the decision in question, the Tribunal is to follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
24. As to step 1, the Tribunal must take into account all the material before it. The Tribunal finds that Mr Gorton gave his evidence in a frank and candid manner, and he attempted to recall events that occurred almost fifty years ago. Mr Colborne presented a number of alternative hypotheses connecting Mr Gorton’s hypertension with service. It was submitted that Mr Gorton’s hypertension was caused by his consumption of alcohol, and that his alcohol consumption was caused, in turn, by either a stressful event on operational service, or in the alternative, by a psychiatric disorder arising from or aggravated by events on operational service. Mr Gorton’s evidence is that the stressful event which caused him to start drinking alcohol involved an incident in which he believed HMAS Arunta was under attack in March 1954. In the alternative, Mr Colborne referred to this event causing the applicant to suffer an anxiety disorder which, in turn, caused him to start drinking alcohol.
25. Mr Colborne referred to a further alternative hypothesis, namely that Mr Gorton’s stress from being in the Korean theatre combined with the perceived attack, and the way in which he was treated by the crew and ribbed about his cowardice, was sufficient to cause or cause aggravation of his psychiatric condition at that time. He referred to Mr Gorton’s evidence about the call to red alert action station incident. Mr Colborne noted Arunta’s presence in an operational zone in Korea. Mr O’Keefe’s evidence was that Arunta was present to ensure adherence to armistice conditions and that it was a time of great mutual suspicion. Mr Colborne referred to the applicant’s evidence of experiencing the threat of an attack, perceived or otherwise, such as would occur in combat. There was also the evidence of his being ribbed about cowardice prior to the incident, and his treatment by relevant officer in charge, the Leading Seaman who threatened court martial. The ribbing continued afterwards. He referred to the material about Mr Gorton’s level of alcohol consumption. He further submitted that the applicant consumed alcohol daily or to the extent of twenty standard drinks per week from his period of operational service at least until diagnosis of hypertension in 1980.
26. Mr Colborne indicated that the clinical onset of psychoactive substance abuse was prior to the end of Mr Gorton’s operational service, and this developed into dependence later on. Dr Harding Burns OAM reported that the applicant commenced drinking in a harmful way during service in Korea (Exhibit A1, folio 99) and reported markers for clinical dependence, as did Dr Lewin, who also “did not observe any clinical features which would contradict his history regarding alcohol use”(Exhibit R2, p12). In Mr Colborne’s further submission, the applicant’s evidence of abuse of alcohol during his operational service and while admitted to hospital on his return to Australia, was suggestive of substantial substance abuse by the time his period of operational service had ended.
27. Mr Colborne informed the Tribunal that clinical diagnosis of hypertension is reported by Dr Richards as occurring in 1980, when Mr Gorton was hospitalised under the supervision of Dr Freitag (Exhibit A1, folio 37). Mr Colborne pointed to the medical evidence and diagnoses of Dr Dinnen, Dr Schultz and Dr Lewin, each of whom diagnosed anxiety disorder, which they linked to his heavy consumption of alcohol. The applicant’s vulnerability was significant to them. Mr Colborne said that if Mr Gorton had a pre-existing low grade anxiety disorder, it was exacerbated by his experiences on operational service, as noted by Dr Lewin (Exhibit R2, folio 16).
28. Mr Colborne submitted that Mr Gorton’s ability to recall the detail of events not previously recorded in the earlier histories obtained by doctors, merely reflects the fact that he has moderated and controlled his alcohol consumption to the extent that his memory has improved. Mr Gorton has been forced to think clearly about his experiences because of the need to give detailed evidence in proceedings relating to his claim. Furthermore, Mr Colborne submitted, the applicant has found it difficult to mention or to discuss issues relating to his apparent cowardice.
29. For the Commission, it was submitted that there was no material before the Tribunal about an event affecting Mr Gorton that could be described as a ‘stressful event’.. Mr Marsh said that the strafing incident was either a figment of Mr Gorton’s imagination or was insignificant. He said that Mr O’Keefe reported that there was no such event in the operational records for HMAS Arunta during the relevant period. Mr Marsh interpreted Arunta’s report of proceedings for March 1954 to reveal a crew enjoying a relaxed atmosphere, in which social events were organised, including a friendly game of soccer with a Korean team (Exhibit R3, folio 25). Dr Dinnen reported that Mr Gorton’s hospitalisation was a significant stressor, expressing the view that the drinking was normal in the Navy and there was no history of stressful events in the applicant’s operational service. Dr Schultz reported significant development problems in Mr Gorton’s history, pre-service, with a family history of alcohol abuse, suicide and poverty – all of which may contribute to mental illness (Exhibit A1, folio 109). He also reported a lone panic attack and that drinking was a part of the Navy culture, noting that the veteran had never sought treatment for an anxiety disorder, although he felt anxiety about his peers (Exhibit A1, p113). Mr Marsh noted that the applicant reported symptoms to Dr Schultz that had not previously been reported to either Dr Richards or Dr Dinnen.
30. As for alcohol abuse or alcohol dependence, Mr Marsh said there had been some drinking while the applicant was in the Navy. However, the evidence was that Mr Gorton did not abuse alcohol or become dependent until after his service, noting Mr Gorton’s admission to Balmoral Naval Hospital on 4 March 1955 for two and a half years. Drinking alcohol in a military hospital was prohibited. In his submission, it would be incredible to accept that Mr Gorton was abusing alcohol to the extent he claimed while taking medications, such as pethidine and nembutal, while an in-patient. Mr Marsh said there has been an evolving story regarding alcohol consumption. In 1988, Mr Gorton made no mention of excessive alcohol consumption, but indicated that that he started drinking when he joined the Navy (Exhibit A1, folio 24). Later he gave evidence that he started drinking in Korea but made no mention of a stressful event (Exhibit A1, folio 33). Later still, he gave evidence that he drank because of peer pressure (Exhibit A1, folio 47). Mr Marsh conceded that there would have been opportunity for the applicant to drink, and accepted that he did. The question Mr Marsh posed was when did abuse or dependence start? HMAS Arunta was a dry ship. Mr Gorton stated that he drank when the ship was in port. Mr Marsh noted that the ship was only infrequently in port, being mostly on patrol. Furthermore, when the ship was in port, the applicant would not have been permitted ashore other than for periods of shore leave between his normal duties, thereby reducing further the opportunities to drink. Mr Gorton gave evidence that he drank less on his return to Australia and Mr Marsh found this to be consistent with the applicant’s extended period of hospitalisation. In summary, Mr Marsh reasoned that all the evidence points to Mr Gorton’s abusing alcohol no earlier than 1959. Dr Richards reported that the applicant’s alcohol consumption was temporally related to service but not otherwise (Exhibit A1, pp38-39). Dr Dinnen reported that the applicant’s drinking related to peer pressure as a result of being “cooped up” and he could not be sure there was any relationship to the alleged strafing incident (Exhibit A1, folio 51).
31. In Mr Marsh’s submission, the evidence concerning the existence of a psychiatric condition prior to the clinical onset of alcohol abuse was equivocal at best. The evidence indicated if there was such a condition, it was a condition that was not related to service and not related to alcohol. Mr Marsh noted that the applicant relied upon the existence of a panic disorder and referred the Tribunal to the relevant section of DSM-IV dealing with panic attack (Exhibit R4). While there was no SoP for this condition in force at the time of the Commission’s decision, Mr Marsh suggested that the Tribunal could, without being bound, refer to the SoP that was issued by the RMA subsequently, being Instrument 9 of 1999 concerning Panic Disorder. This, Mr Marsh reasoned, sets out the expert medical opinion of the RMA concerning panic disorder in reflection of the DSM-IV diagnostic criteria for this condition. On the evidence, including Mr Gorton’s own evidence, the applicant does not satisfy the diagnostic criteria for this condition, which requires repetitive panic attacks. Mr Marsh did not consider a single panic attack to be codeable under DSM-IV. In the absence of a panic disorder, in Mr Marsh’s submission, there is no psychiatric condition pursuant to DSM-IV that is attributable to service.
32. Finally, Mr Marsh submitted that Dr Lewin’s report provided only superficial support to the applicant’s case. The report read as a whole did not. Essentially, Dr Lewin found that Mr Gorton had a genetic vulnerability, possibly a low grade anxious disposition, but not a psychiatric condition pursuant to DSM-IV diagnostic criteria. His experiences on operational service may have caused a short-term transient increase in anxiety, but this was not a disorder related to service – it was a reaction to something most people would be anxious about. Mr Marsh considered that it was not possible to conclude, on the basis of Dr Lewin’s report, that the applicant suffered any mental illness, other than a delusional episode while he was in Balmoral Naval Hospital.
33. The Tribunal’s task is to examine all the material and form an opinion as to the reasonableness of the hypothesis, or in this case, alternative or sub-hypotheses. It was submitted for the Commission that the stressful event on which the hypotheses, at least in part, are raised, did not occur and is not pointed to by the whole of the material. The Tribunal notes that it is not necessary to find facts at this stage in the Deledio process and the truth, or otherwise, of the claimed event is not in question.
34. In considering all of the evidence before it, the Tribunal finds the material points to the hypotheses connecting the applicant’s hypertension with the circumstances of his operational service through his excessive drinking which was contributed to by his anxiety disorder. The first step of the Deledio formulation is passed.
35. Turning to the second step, the Tribunal finds there are SoPs in force for each of the causally related conditions. Further, the Tribunal finds that SoPs for each of the conditions were previously in force on the date of the Commission’s decision in this matter, being 14 February 1997. The Tribunal finds the relevant SoPs are:
Hypertension:
Instrument 31 of 2001, currently in force;
Hypertension:
Instrument 83 of 1995, in force on 14 February 1997;
Alcohol Abuse or Dependence:
Instrument 76 of 1998, currently in force;
Psychoactive Substance Abuse or Dependence:
Instrument 5 of 1994, in force on 14 February 1997;
Anxiety Disorder:
Instrument 1 of 2000, currently in force;
Generalised Anxiety Disorder:
Instrument 48 of 1994, as amended by Instrument 275 of 1995, in force on 14 February 1997;
Panic Disorder:
Instrument 9 of 1999, currently in force
The second step, therefore, is passed. Applying the Full Federal Court’s decision in Gorton, the Tribunal must apply the SoP in force at the time of its decision, with the applicant retaining the accrued right to rely on the SoP in force when the Commission determined the matter, should that SoP be more beneficial to him.
36. As for step 3, in forming an opinion about the reasonableness of the hypothesis connecting Mr Gorton’s hypertension with the circumstances of his operational service, requiring as it does a linking of alcohol dependence to service through his experiencing a stressful event on service, the Tribunal is not to find facts. It is said that the hypothesis, based on alcohol consumption as a causal factor of his hypertension, is consistent with factor 5(a) of SoP 31 of 2001, which reads:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
…
(b) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; or
The following terms are defined in SoP 31 of 2001:
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent;
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the continuing or past consumption of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour;
37. Is the material that is before the Tribunal that hypothesizes a relevant causal connection between Mr Gorton’s hypertension, based on alcohol dependence (or alcohol abuse), and the circumstances of his operational service, consistent with the template in SoP 31 of 2001? Firstly, the Tribunal will address the condition of hypertension, and then move on to addressing that part of the hypothesis that concerns alcohol consumption and his anxiety disorder or other psychiatric condition. At this juncture, the Tribunal notes the following passage from the Full Court of the Federal Court’s judgment in Repatriation Commission v Hill [2002] FCAFC 192:
[57] … the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.
Hypertension
38. What is the material that points to the elements that SoP 31 of 2001 makes essential for the hypothesis to be reasonable? In his report dated 16 January 1997, Dr Richards stated that clinical diagnosis of hypertension occurred in 1980 and reported a pattern of regular consumption of alcohol by Mr Gorton (Exhibit A1, p 37):
He said he had drunk beer in large quantities during his service and that following discharge from the Navy he often drank every day at the Smithfield RSL. He said that he usually drank 3-10 schooners of beer daily, and often could not remember how many schooners he had drunk. He said that in recent times he drank less frequently at the club but still often drank 3-10 beers per day at home and elsewhere.
On 22 June 1988, Dr Smith, a medical officer with the Department, recorded (Exhibit A1, folio 24) the applicant consuming:
Average 1 schooner/day, but usually nil then 6 schooners in one day … Previously had drunk 6 schooners per day for 4-5 years during 1960’s
In his report dated 8 September 1997, Dr Dinnen reported (Exhibit A1, folio 50):
About 20 years ago he attended Alcoholics Anonymous, but didn’t think it did him much good. He went for about 2 months intermittently after his wife had left, and then she came back to him.
In his report dated 26 October 1998, Dr Dinnen reported (Exhibit A1, folio 53):
He drank ten to fifteen schooners of beer each day, from his service, reducing to about nine or ten schooners of beer per week about fifteen years ago. Prior to fifteen years it is clear that his intake would have exceeded 200 grams per week, and for the past fifteen years it appears the intake would amount to something like 150 grams per week.
Dr Schultz reported on 29 November 1999 as follows (Exhibit A1, folio 110):
Alcohol continued to be used extensively and he said he would drink until he got drunk most days of the week. During this period his wife left the marriage three times for short periods.. On each occasion he would promise to go to Alcoholics Anonymous but was unable to manage attending the meetings.
39. This material indicates that Mr Gorton’s reported patterns of alcohol consumption and related behaviours are consistent with the requirements of the definition of ‘alcohol dependence’ in the SoP. The material points to a clinical diagnosis of hypertension in 1980 and to his consuming at least 200 grams of alcohol per week at that time. This being the case, the Tribunal considers the material raises a hypothesis that fits factor 5(b) of SoP 31 of 2001.
40. Clause 4 of SoP 31 of 2001 requires factor 5(b) to be related to any relevant service rendered by Mr Gorton. It is contended for Mr Gorton that his excessive consumption of alcohol is attributable to either a stressful event or events that occurred while he was on operational service in Korean waters in 1954, or, in the alternative, from a psychiatric condition arising from this event or events which are pointed to by the material before the Tribunal. This being the case, pursuant to clause 7 of the SoP, the Tribunal turns to consider whether the hypothesis is consistent with the SoP concerning alcohol dependence that is currently in force, being Instrument 76 of 1998.
Alcohol Dependence or Alcohol Abuse
41. It is convenient to set out the four possible factors in clause 5 of SoP 76 of 1998, which if they exist, would raise a reasonable hypothesis connecting Mr Gorton’s alcohol dependence and his operational service.
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; …
The definitions of ‘alcohol dependence’ and ‘alcohol abuse’ in clause 2 of the SoP are identical to the definitions of these terms in clause 8 of SoP 31 of 2001 concerning hypertension, apart from the inclusion of the diagnostic criteria for each being specified as those in DSM-IV.
The following definitions in clause 8 of SoP 76 of 1998 are also of relevance:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
“psychiatric disorder” means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
42. Submissions were made by both parties regarding the clinical onset or the clinical worsening of the applicant’s alcohol dependence or alcohol abuse.. Mr Gorton has reported a pattern of excessive alcohol consumption over a long period of time commencing while he was on operational service in the Korean Operational Zone. This evidence is reflected in the transcripts from previous proceedings in this matter and the various medical reports that are before the Tribunal. The Tribunal notes that it is not necessary to make findings of fact at this stage and is mindful of the position stated by the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 (at 533):
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
43. The Tribunal is mindful of Mr Gorton’s evidence that he started drinking after the incident in which he believed Arunta was being attacked in March 1954. He found the beer, more so than smoking, helped his nerves but he also said he was under pressure from the other sailors to be a drinker. He said he continued to drink heavily thereafter, including during the period of his hospitalisation. Furthermore, in his report dated 30 September 1999, Dr Harding Burns stated that alcohol abuse was established during service from 1955 to 1957 and that alcohol dependence was established by Mr Gorton’s mid-20s. The Commission submitted, however, that the evidence points to the clinical onset of alcohol abuse after his discharge from the Navy, subsequent to his extended period of hospitalisation, bearing in mind that consumption of alcohol was prohibited in the hospital.
44. The Tribunal’s task is to examine all the material and form an opinion as to the reasonableness of the hypothesis. In doing so the Tribunal notes that the material points to the clinical onset of at least alcohol abuse during his operational service in Korea in 1954. His evidence suggests he started drinking while on shore leave, in the initial stages often not in the company of fellow sailors, so as to deal with his nervous condition that resulted from his treatment on Arunta, in particular after the strafing incident. He then became more comfortable in his drinking and began to drink heavily with his shipmates habitually getting drunk (Exhibit A1 folio 102). Mr Gorton’s evidence is that while he was immobilised in Balmoral Naval Hospital, he was still able to obtain alcohol although his level of consumption was reduced. A wet mess was nearby and other patients would help him get beer. The material points to his taking up drinking as a result of the strafing incident and his harassment aboard Arunta, and to the clinical onset of alcohol abuse during his operational service. It also raises or points to the clinical worsening of his alcohol abuse, to the extent of the clinical onset of alcohol dependence, as defined, sometime thereafter while still on service.
45. Turning to consider the suite of sub hypotheses of connection, the Tribunal notes that each has, at its heart, an event or events that Mr Gorton claims were stressful and caused him to experience heightened anxiety. Thus, the Tribunal must decide whether the material presented about the event or events is consistent with the definition of ‘experiencing a severe stressor’ in the SoP. Thereafter the Tribunal must consider whether the sub hypotheses are consistent with factors 5(b) or (d) of the SoP, that is the experience of a severe stressor, as defined, within a two year period of the clinical onset, or clinical worsening, of either alcohol dependence, as defined, or alcohol abuse, as defined. Mr Colborne submitted that the decision in O’Neil v Repatriation Commission [2001] FCA 1492 is relevant to the interpretation of the expression ‘experiencing a severe stressor’.. That case examined SoP 49 of 1994 concerning Generalised Anxiety Disorder and the definition therein of a different expression, ‘stressful event’. The submission is rejected. Similarly, Mr Marsh’s contention that the decision in Freeman v Repatriation Commission [2002] FCA 576 is presently relevant in construing the expression ‘experiencing a severe stressor’ is rejected, that being a case about SoP 5 of 1994.
46. Mr Gorton’s evidence is that he experienced a stressful event in March 1954 while rendering operational service in the Korean Zone. The event has been described in his evidence in the earlier proceeding in this matter. Furthermore, the event is referred to in medical reports from Dr Dinnen, Dr Harding Burns, Dr Schultz and Dr Lewin that are before the Tribunal (Exhibit A1, pp 50-52, 96, 105 and 109; and Exhibit R2, pp 4-6 and 12). The Commission submitted that no such event occurred, citing the report of Mr O’Keefe. The Commission argued that it is not open to the Tribunal to create facts where no facts are raised. The Tribunal agrees with this submission. Mr Gorton’s evidence and other material including the medical reports specified, is that he experienced an event that he considered was life threatening, either to himself or other members of the ship’s crew, which caused him to suffer significant anxiety and fear. The Tribunal need not create any fact, nor make any finding of fact pursuant at this point. However, the Tribunal must consider whether the claimed event is consistent with the experiencing a severe stressor, defined in SoP 76 of 1998 as “ … an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
47. The material before the Tribunal does not point to an experience of actual death or serious injury. It does, however, point to an experience of the threat of death or serious injury, including a threat to Mr Gorton’s physical integrity and the ship’s crew, causing his intense fear and helplessness. There is no reason to give the words “experience” or “threat” other than their ordinary meaning. The New Shorter Oxford Dictionary of English (1993) offers the following relevant meanings:
“experience” 4. A state, condition, or event that consciously affects one; the fact or process of being affected.
“threat” 3. An indication of the approach of something unwelcome or undesirable; a person or a thing regarded as a likely cause of harm.
The Macquarie Dictionary (2nd Edition 1991) offers the following relevant meanings:
“experience” 1. A particular instance of personally encountering or undergoing something: a strange experience. 2. The process or fact of personally observing, encountering or undergoing something: business experience.
“threat” 2. An indication of probable evil to come; something that gives indication of causing evil or harm.
48. The material before the Tribunal points to the applicant believing that the ship was under attack and, thus, being actually affected by the perception of threat as real. The measure of the power of Mr Gorton’s belief in the threat is the strength of his immediate and subsequent response, which has been reported and commented upon by Dr Lewin (Exhibit R2, pp 12-13), Dr Dinnen (Exhibit A1, pp105-106), Dr Harding Burns (Exhibit A1, p 99) and Dr Schultz (Exhibit A1, p 113). The material points to his experiencing a severe stressor, consistent with the definition at clause 8 in the SoP. This being the case, the Tribunal turns to consider whether the material points to the occurrence of the experience within two years of the clinical onset, or clinical worsening, of alcohol dependence or alcohol abuse. Mr Gorton’s evidence is that the event, that he thought involved a threat of death or serious injury and evoked intense fear, occurred in March 1954 while he was on operational service in Korea. The Tribunal finds that the applicant’s hypothesis connecting his alcohol abuse with his operational service is consistent with the requirements of factor 5(b) and is therefore reasonable.
49. This being the case, it is not necessary to consider sub hypotheses raised in the alternative relating to a psychiatric disorder. However, the Tribunal notes, if it had been necessary to consider these sub hypotheses, there is sufficient material pointing to the existence of an anxiety disorder, which was either caused or aggravated by the specific circumstances of his experience of operational service, to find the sub hypotheses consistent with the SoP concerning Anxiety Disorder that is currently in force.
50. Consequently, the Tribunal finds the hypothesis raised on the material connecting Mr Gorton’s hypertension with his alcohol abuse and his alcohol abuse with his experience of a severe stressor while on operational service, is not obviously fanciful or untenable and has been raised by the material before the Tribunal. It is a reasonable hypothesis.
51. As to the fourth Deledio step, the Tribunal notes that the application will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
52. The hypothesis relies upon the existence of a severe stressor in March 1954. Mr Gorton submitted that the stressor involved an incident in which he was told HMAS Arunta was being attacked, which he believed. The Commission submitted that the claimed event did not occur, and argued that there is no evidence in the ship’s records of operational service, or any other records or accounts from that time of such an event occurring. The Tribunal finds that there is no evidence that HMAS Arunta came under aircraft attack as claimed. This being the case, the Tribunal is satisfied, beyond reasonable doubt, that the ship did not come under hostile aircraft fire as claimed. However, the Tribunal is mindful of the medical evidence concerning Mr Gorton’s response to the threat he perceived. The Tribunal finds that he suffered significant heightened anxiety with symptoms including a panic attack in response to the perceived threat. The evidence reveals that he may have suffered a low-grade anxious disposition of a constitutional nature. If this is true, and there is no reason to doubt it on the medical evidence, it would merely serve to increase the vulnerability of the applicant to suffer aggravation of his condition in the face of threat, and the likelihood that he would suffer an elevated fear response in a threatening situation.
53. Mr Gorton said he was the youngest member of Arunta’s company. He was ribbed for being a coward by other members of the crew both before and after the claimed event. The Tribunal accepts that, as the youngest sailor on the ship and being a shy country lad, he was not well adjusted to the naval culture. He suffered heightened anxiety as a result of his operational service in Korean waters, proximate to a former war zone. His anxiety was accentuated by his treatment and ribbing as a coward. The Tribunal finds that these factors increased his susceptibility to suffer fear on ideation of hostility, in anticipation of attack, to an extent greater than would be otherwise expected in such circumstances. Thus, his panic response to an “attack”, whether mounted by trickery or for training purposes without forewarning or amelioration, is not surprising in the specific circumstances. Thereafter, his behaviour being published to the crew and his palpable fear exposed before all, it is unsurprising that he sought relief from his embarrassment and anxiety in the ablution of alcohol. Thus, the Tribunal finds that the incident involving an “attack” was real for the applicant in which he perceived a real threat existing. The fact disproved does not, therefore, diminish the hypothesis to the extent that the claim must fail.
54. The Commission submitted that it was inconceivable that the applicant continued to consume excessive amounts of alcohol as an in-patient in a military hospital on medications for an unrelated condition. The Tribunal does not agree. Mr Gorton stated that the wet mess was close by, and that he would either walk there when he was able or make arrangement for alcohol to be delivered to him. The Tribunal finds this behaviour consistent with the behaviour of a person who is dependent upon alcohol, especially in the situation where that person was confined for treatment for over two years.
55. There is no onus of proof on either party pursuant to s.120(6) of the Act. The Tribunal finds that it is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s hypertension is war-caused pursuant to s.120(1) of the Act.
56. The Tribunal is mindful of the words of Brennan J in Repatriation Commission v O’Brien (1985) 155 CLR 422 at p 438:
If a reasonable hypothesis of entitlement arises on some of those facts, the Board or Commission must determine to grant the claim unless other facts dispel the hypothesis beyond reasonable doubt.
The Tribunal finds that the reasonable hypotheses raised in this case connecting Mr Gorton’s hypertension with his abuse of alcohol and his abuse of alcohol with his operational service are not dispelled by other facts beyond reasonable doubt.
57. The Tribunal determines that the decision under review be set aside and in substitution therefor decides that:
(a)The applicant’s hypertension is a war-caused disability with effect from 5 June 1996 and thereafter; and
(b)The matter is remitted to the Commission for assessment of the correct rate of Disability Pension.
I certify that the preceding 57 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member, and S. Webb, Member:
Signed:
..............................................................................
(Associate)
Date of Hearing 17 September 2002
Date of Decision 28 February 2003
Applicant’s Counsel Mr C. ColborneRespondent’s Representative Mr J. Marsh, Dep’t of Veterans’ Affairs.
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