Gould and Repatriation Commission - [2001] AATA 856

DECISION AND REASONS FOR DECISION [2001] AATA 856

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/234

VETERANS' APPEALS DIVISION       )
           Re      ROBERT FRANCIS GOULD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President) Brigadier R D F Lloyd (Part-time Member) Dr P A Staer (Part-time Member)

Date12 October 2001
PlacePerth

Decision      The Tribunal affirms the decision under review.
   [Sgd S P Estcourt QC]
  Deputy President
CATCHWORDS
Veterans' Appeals – operational service – reasonable hypothesis of connection to service – generalised anxiety disorder – alcohol dependence or abuse – when clinical onset – decision affirmed.
Statement of Principles Nos. 76 and 77 of 1998

REASONS FOR DECISION

12 October 2001 Mr S P Estcourt QC., (Deputy President) Brigadier R D F Lloyd (Part-time Member) Dr P A Staer (Part-time Member)

This is an application to review a decision of a delegate of the respondent of 1 February 2000, determining that the applicant's claimed condition of "stress/anxiety" was a generalised anxiety disorder but was not war-caused, which decision was varied by the Veterans' Review Board on 25 February 2000 by amending the diagnosis to alcohol abuse and affirming the decision as varied.
The applicant served in the Royal Australian Navy from 1958 to 1978 and has eligible defence service for the purpose of the Veterans' Entitlements Act 1986 ("the Act") between 7 December 1972 and 1 July 1978 and operational service, firstly with the Far East Strategic Reserve (HMAS Melbourne) between the following dates: 7 April 1960 to 28 April 1960; 6 May 1960 to 20 May 1960; 6 June 1960 to 16 June 1960; 24 March 1961 to 17 April 1961 and in the Malaysian Waters (Confrontation) between 2 June 1964 and 29 January 1965.
It is that last period of service, during which the applicant served on HMAS Curlew, that he says gave rise to his generalised anxiety disorder and/or his alcohol dependence or abuse.
The applicant gave evidence of having experienced events during that period of operational service which caused him to get "very anxious and stressed and very, very frightened". They included the following:
(a)being "dogged down" in the engine room of the HMAS Curlew with all the locks on the door down, being armed in that situation with a Petty Officer sitting with a revolver in his hand and hearing scare charges or large explosions set off to scare any divers in the water;
(b)hearing fire on numerous occasions and not knowing whether that was return fire as a result of the ship was being fired upon;
(c)seeing a fellow seaman armed with a knife and threatening to kill himself being calmed down and ultimately removed from the vessel;
(d)witnessing an incident in which the applicant was a member of a boarding party and a Malaysian policeman attached to the HMAS Curlew, suddenly set upon and punched and kicked an elderly fisherman.
Mr Gould gave evidence that from joining the Royal Australian Navy in June 1958, he enjoyed his recruit training, enjoyed his stoker training and enjoyed his years on the HMAS Melbourne touring New Zealand and the Far East. He said that was a happy time. He also said, he enjoyed his short period on the HMAS Anzac and on HMAS Albatross. His next posting at HMAS Lonsdale was driving and he said that was "very sort of laid back", and his time there was very good and he met a lot of people. He said, he believed that this deployment during this period of operational service on HMAS Curlew changed his lifestyle in that he started to increase his alcohol intake, found it extremely hard to mix with people and started to worry about everything.
Mr Gould said in evidence that he now experiences symptoms of "depression" and "anxiety" and gets "very stressed".
Mr Gould also gave evidence that the birth of his first son Richard, who was born in 1968 with a dermoid cyst of the spine added to his stress, but it was a different sort of stress, and he tried to cope because at that time he was the only one who could cope. He said that even if Richard's birth had not been attended by complications he would still have the same stress level, because he said his son is so well set up and well adjusted that he has never had a worry about him.
The applicant's wife, Mrs Patricia Gould gave evidence that she first met the applicant and married him before his deployment to the Malaya confrontation on HMAS Curlew and that on his return from that period of operational service he was different person. She said he had no confidence in himself and became withdrawn and quiet and would not talk about what was worrying him. She said that he used to get very stressed and had difficulty sleeping, that his character changed and that he found it very difficult to mix with people.
Mrs Gould said that after Mr Gould returned from his period of operational service, he had changed from a person who used to just have a social drink to a person who "just couldn't handle his liquor" and "had to drink until he was stupid". She said this pattern lasted for quite a while, but that even now if the applicant does drink he "goes over the top".
Mrs Gould stated in evidence that she wouldn't say her husband was an alcoholic and that now he only has a drink when the couple have friends over or if they go out with friends or go somewhere. She said that they have alcohol in their house, but only that which is given to them for birthdays, for example.
In his documented medical history, the only times the applicant attended for treatment were in 1970 and 1971 and these can be summarised as follows:
(a)18.5.1971: Diagnosis – anxiety state.   Comment was that he had emotional problems: child had a dermoid cyst of the spine.   Parent worried about child's future. Irritable, depressed and anxious.   Prescribed Valium.
(b)25.5.1971:   Diagnosis – anxiety state.   Note it is well controlled with Valium.
(c)5.10.1971:   Noted further episode of mild anxiety state.   Child still in hospital to undergo further surgery for dermoid cyst of the spine.   Prescribed Librium.
(d)13.10.1971:   Diagnosis – depressive episode.   Prescribed tryptanol.
(e)21.10.1971:   Diagnosis – depression.   Noted that he was much improved and felt the tablets were helping his mood.
(f)13.11.1973:   Diagnosis – anxiety and depression.   Comment:   says
he is very uptight personal problems +++ (paraplegic son).    A lack of concentration.   Unable to get off to sleep at night.   Feeling depressed. Has not had any outside activities for six months.   Prescribed Amitryptyline.
This is a case in which the reasonableness of the hypothesis connecting a condition to operational service or the reasonable satisfaction that a condition is connected to eligible defence service falls to be considered in the light of statements of principles issued by the Repatriation Medical Authority.
In this case, the relevant Statement of Principles are Nos. 76 and 77 of 1998 in respect of alcohol dependence or alcohol abuse and Nos. 48 and 49 of 1994 as amended, in the case of generalised anxiety disorder. In relation to alcohol abuse, the statements of principle require, in each case, that a factor which must as a minimum exist before it can be said that a reasonable hypothesis has been raised or before it can be said that on the balance of probabilities alcohol dependence or alcohol abuse is connected with the circumstances of a person's relevant service is this;
"Experiencing a severe stressor within one year (or the two years) immediately before the clinical onset of alcohol dependence or alcohol abuse".
In the case of generalised anxiety disorder, a factor which must exist as a pre-requisite to the connection with relevant service is of;
"Experiencing a stressful event not more than one year (or the two years) before the clinical onset of generalised anxiety disorder".
The relevant SOP defines both "experiencing a severe stressor" and "stressful event".
In this case the Tribunal, even assuming that the applicant has for some time and still suffers from a generalised anxiety disorder or from alcohol abuse, or both, and even assuming the events described by the applicant whilst he was serving on HMAS Curlew amount respectively to experiencing a severe stressor or to a stressful event, the Tribunal is of the view that the "clinical onset" of alcohol dependence or alcohol abuse or the "clinical onset" of generalised anxiety disorder cannot be said to have occurred within the two years immediately after experiencing those events.
As to generalised anxiety disorder, the applicant's contemporary medical records do not show any complaint prior to 18 May 1971 and that complaint when made was not related even remotely by the applicant as connected to his service on board HMAS Curlew.
It should be noted that the applicant said in evidence that he "has a thing about doctors", and did not really like going to doctors, and tried to handle things by himself and by drinking. It is clear however, that when he found himself irritable, depressed and anxious in relation to his son Richard's problems in May 1971, he reported to the doctor. From that the Tribunal infers that had he been irritable, depressed and anxious over the events, which occurred during operational service on HMAS Curlew, equally he would have reported to the doctor.
As to alcohol dependence or abuse, the applicant's service records show no indication that the applicant was dependent upon or abused alcohol within the meaning of the Statement of Principle within two years of perceiving the events he described and the Tribunal is not able to accept from the applicant's evidence or that of Mrs Gould that the "clinical onset" of any alcohol dependence or abuse occurred within the two years of experiencing any severe stressor.
It follows that in the Tribunal's view, the applicant does not suffer from alcohol dependence or abuse or from a generalised anxiety disorder which could be said to be war-caused or defence-caused.
Accordingly, the decision of the Tribunal is that the decision under review be affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Brigadier R D F Lloyd (Part-time Member)
Dr P A Staer (Part-time Member)
Signed:         .K L Miller........................................................
  Personal Assistant
Date/s of Hearing  14 September 2001
Date of Decision  12 October 2001
Counsel for the Applicant        Mr China Hamel
Solicitor for the Applicant         Veterans' Welfare Assoc. of WA
Counsel for the Respondent    Mr Carl Ponnuthuria
Solicitor for the Respondent    Dept of Veterans' Affairs