Gray and Repatriation Commission
[2004] AATA 61
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 61
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1004
VETERANS' APPEALS DIVISION )
Re PETER GRAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date23 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – entitlement – depressive disorder – whether connection can be established between depressive disorder and war service – no reasonable hypothesis established – decision affirmed
Veterans’ Entitlements Act 1986, ss 9, 70, 120, 120A, 120B, 196A, 196B(2)
Repatriation Commission v Smith (1987) 7 AAR 17
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Cooke v Repatriation Commission (1998) 160 ALR 17
Repatriation Commission v Deledio (1998) 83 FCA 82REASONS FOR DECISION
23 January 2004 Mr IR Way, Member 1. This is an application by Peter Gray for review of a decision of the Repatriation Commission dated 21 May 2001, affirmed by the Veterans’ Review Board (“VRB”) on 7 August 2002, which rejected the applicant’s claim for depressive disorder pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) and section 70 of the Act.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T26) and other documentary evidence as follows:
Exhibit A1 Report of Dr TM Grotowski dated 24 June 2003
Exhibit A2 Alcohol questionnaire dated 23 July 2003
Exhibit A3 Statement of Peter Forbes Gray dated 18 February 2003
Exhibit A4Statement of applicant listing traumatic experiences dated 13 January 2003
Exhibit A5Letter from applicant/statement – reply to Historical Research dated 28 August 2003
Exhibit A6Statement of applicant dated 18 August 2003
Exhibit R1Writeway Research Report dated 15 August 2003 – JT Owens
Exhibit R2Applicant’s annual evaluation reports 1973 – 1975
3. The applicant was represented by Mr R Clutterbuck of Counsel and the respondent by Mr B Williams, Departmental Advocate. The applicant and the applicant’s wife, Joan Gray, gave oral evidence and Dr T Grotowski, Psychiatrist, gave evidence by telephone.
4. The applicant was born on 29 January 1934 and served in the Royal Australian Air Force (“RAAF”) from 29 January 1950 to 10 December 1965 and from 24 January 1967 to 1 July 1977. His service included operational service in Singapore from 3 January 1955 to 11 May 1955 and from 15 June 1955 to 21 October 1956. His service from 7 December 1972 until his discharge in 1977 constitutes defence service pursuant to section 70 of the Act.
5. The applicant’s accepted service-related disabilities are:
§Psoriasis
§Solar skin damage with malignant change
§Bilateral sensori-neural hearing loss
6. His non-service-related disability is depressive disorder, the subject of this review.
7. During his service in Singapore, the applicant served with 1 Squadron RAAF (Lincoln Bombers) at Royal Air Force Base Tengah, where his mustering was motor transport fitter, a trades stream in which he remained until his discharge in December 1965. On rejoining the RAAF in January 1967, the applicant entered the clerical stream and continued in that stream until his final discharge in 1977.
8. The veteran’s service documents record the reasons for his discharge on 10 December 1965 as “termination of period of enlistment”; and with respect to his discharge on 1 July 1977, “on request after 20 years pensionable service”.
9. The hypothesis put forward by the applicant is that during his operational service in Tengah he suffered severe stressors such that he developed a psychiatric condition of alcohol dependence and that this psycho-substance abuse, along with stressors in the workplace in the early 1970s, led to his developing depressive disorder.
Legislative Framework
10. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…”
11. The relevant provisions of the Act relating to the standard of proof with respect to operational service are as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
12. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
13. With respect to the applicant’s defence service, the Act relevantly provides as follows:
“70 Eligibility for pension under this Part
(1)Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994;
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2)If the Repatriation Medical authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
14. The standard of proof with respect to the applicant’s defence service is set out in sub-section 120(4) of the Act and requires the Tribunal to determine this matter to its reasonable satisfaction, that is on the balance of probabilities (see Repatriation Commission v Smith (1987) 7 AAR 17).
15. There is no disagreement between the parties and the Tribunal accepts that the RMA, pursuant to the Act, has determined the following SoPs which may be applicable in this matter.
§Operational Service: Instrument No 58 of 1998 – Depressive Disorder and Instrument No 76 of 1998 – Alcohol Dependence or Alcohol Abuse
§Defence Service: Instrument No 59 of 1998 – Depressive Disorder and Instrument No 77 of 1998 – Alcohol Dependence or Alcohol Abuse
16. The relevant paragraphs of the above SoPs are referred to later in these Reasons for Decision.
Applicant’s Evidence
17. It was the applicant’s evidence that he suffered the following traumatic experiences during his operational service in Singapore (Exhibit A4).
“FIRST EXPERIENCE
Whilst conveying the Orderly Officer (O/O) on his inspection round of the Base, we were shot at by a Malay security guard. This happened as I was driving between two hangars. Despite my warning to him that the guard might be in this vicinity, the O/O ordered me to proceed. This I did, this guard then challenged us, fired a warning shot near the vehicle and demanded identification. I then left the vehicle and provided the guard with the necessary identification. In the meantime, the O/O was down behind the dash of the vehicle.
SECOND EXPERIENCE
When I was towing an aircraft off the tarmac into its dispersal position, I turned too sharply and accidentally caused damage to this aircraft. This meant that this aircraft was not serviceable until the necessary repairs had been carried out.
THIRD EXPERIENCE
This happened when I was waiting for the armanent [sic] personnel to complete the loading of fourteen (14) one thousand (1000) pound bombs into the bomb-bay of an aircraft. I was waiting in the very near vicinity of this aircraft to remove the empty bomb trolleys. When a circuit check of the bomb carriers was carried out, these bombs were accidentally dropped back onto the trolleys, complete with the carriers. Without thinking, I immediately vacated the area at top speed; completely forgetting that in this particular circumstance that the bombs were ‘safe’.. Only when I saw other people laughing at me when I was a considerable distance from the aircraft did I remember this fact.
….
These incidents happened to me when I was on my first ‘operational’ posting and left me with a feeling of inadequacy in my job.”
18. In his oral evidence the applicant said he was apprenticed as a motor transport fitter on joining the RAAF in 1950 and completed his apprenticeship at Wagga in December 1953. After a 12 month posting at Mascot he was posted, in his trade, to 1 Squadron RAF Base Tengah in Singapore, as a LAC.
19. He described his duties at that time as maintenance/servicing of vehicles and ground support equipment and tarmac/tractor driver moving aircraft, ground equipment and bomb trolleys (full and empty).
20. Further to the stressors mentioned above, the applicant said he had been required to work 10 to 12 hours per day and hence was not working within safety regulations; work was heavy and arduous; and there had been another incident where he had to remonstrate directly with someone “clearing” the turret guns of a bomber aircraft while pointing them down at the tarmac rather than pointing them up.
21. He said he overcame the stress and relaxed by drinking too much and whereas he was drinking beer on finishing his apprenticeship he now started drinking scotch, the level of consumption being one bottle a day. He also said there was not much else to do and that his heavy drinking developed over a period while he was in Singapore.
22. The applicant was taken to the alcohol questionnaire he had completed in July 2003 (Exhibit A2). He confirmed the contents of that questionnaire. The Tribunal notes that the applicant stated that he consumed 2 to 3 middies a day from 1961 until 1972 when his alcohol consumption increased significantly. He put this increase down the stress of working in Melbourne where he did not want to be and where he was under the command of Flight Lieutenant Bull, with whom the applicant did not get along and who, he claimed, gave him adverse annual reports such that he destroyed his career prospects in the RAAF.
23. In a letter dated 16 January 2002 (T17), the applicant stated (at 96):
“ELIGIBLE SERVICE
1973-1975I was subjected to administrative harassment by a superior officer. This harassment lasted for the two (2) years that I served under this individual. This resulted in three (3) consecutive negative Annual Reports being submitted against me. This spiteful, vindictive behaviour by him ‘killed’ my career. My previous excellent Reports and accelerated rate of promotion was completely nullified. This officer held a grudge against me, over incidents that occurred in 1964, while we were both Corporals serving in Darwin.
….
June 1977I elected discharge, in view of the fact that there was no hope of promotion or transfer. This was confirmed by the Air Office in reply to my query in April of that year. Their reply was ‘you will not be promoted/transferred in the foreseeable future and this will only occur when we see fit’. This meant that my career was completely finished after nearly twenty-seven (27) years of service. It also meant that over one hundred (100) years of service by my family to the RAAF ceased.”
24. The Tribunal notes that the applicant’s annual reports for 1973, 1974 and 1975 are contained in Exhibit R2 and that the applicant has provided a further evaluation report signed in April 1976, and that attached to this report is a graph drawn by the applicant showing his evaluation point scores for the second period of his service (Exhibit A3). The applicant told the Tribunal that he had taken these scores from copies of the various annual reports he had received from the RAAF on his request, after his period of service.
25. Mrs Joan Gray, the wife of the applicant, told the Tribunal that she was born on 29 June 1935 and married the applicant on 25 February 1961. She said her husband was drinking heavily when she met him in 1960. However, after they were married his alcohol consumption reduced although he would have liked to have had more. She put his reduced drinking down to a lack of money and her being, at that stage, not a drinker. It was Mrs Gray’s evidence that her husband would have been drinking a carton of beer a fortnight and this level of consumption continued until he was posted to Melbourne in 1972 when the stress of that posting got to him. She said his alcohol consumption then increased to 1½ cartons per fortnight although later in her evidence she said she was not sure how much her husband was drinking or whether there had been a dramatic increase in the level of his consumption. She described a carton of beer as 12 large bottles of full strength beer.
26. Mrs Gray said that her husband’s stress started in 1972 and he became short-tempered, found fault with everything she did and would mention “this damn flight lieutenant”. It was Mrs Gray’s evidence that her husband presently would drink at least 3 or 4 glasses of wine before dinner every day, have some with dinner and, after dinner, 4 to 6 large bottles of beer. She also said her husband brewed his own beer. She said that occasionally they would both drink scotch. She said that she started drinking 10 years ago.
27. In cross-examination, Mrs Gray said she had obtained a job when her husband had moved to Melbourne and that money was more readily available for the purchase of alcohol and this led to an increase in her husband’s drinking. She also said that her husband had been promoted to Sergeant at this time and had become a member of the Sergeant’s Mess where there was a lot of drinking at the various Mess functions and during the various Mess activities.
Medical Evidence
28. Dr Grotowski, the applicant’s treating psychiatrist, first saw the applicant on 19 March 2001. Dr Grotowski provided three written reports, one dated 12 April 2001 (T10/66-69), one dated 23 December 2001 (T16/91-92) and one dated 24 June 2003 (Exhibit A1).
29. In her first report, Dr Grotowski diagnosed the applicant as suffering major depressive disorder (as per DSM-IV) and stated his symptoms were of a moderate nature and clearly of chronic duration. In the history she took at arriving at this diagnosis, Dr Grotowski made no reference to the applicant’s service in Singapore. She recorded the applicant telling her about the problems at work in both the 1960s and 1970s, and in particular being harassed by an officer and having his promotion prospects stopped.
30. Dr Grotowski recorded:
“Mr Gray says he drank two long necks of beer a night in the early 1970’s when he was under stress but drinks less than two standard drinks a day for the last fifteen years.”
31. The Tribunal notes that when the applicant was asked if he could explain the inconsistency between his evidence about alcohol consumption and Dr Grotowski’s record, he said “she didn’t ask the right questions”.
32. The Tribunal also notes that Dr Grotowski, in her report of 23 December 2001, stated:
“He has three standard drinks two to three times a week, so is not drinking heavily.”
33. The applicant told the Tribunal that he had made a rebuttal about Dr Grotowski’s record of his drinking before going to the VRB. However, he said he does not have a copy of his letter. He said that what she had recorded was not what he had told her. He was not able to identify where this rebuttal was mentioned in the VRB decision.
34. The Tribunal is mindful that Dr C Macdonald has also reported on the applicant (T15/88-90). In that report Dr Macdonald said:
“Mr Gray has been attending my surgery since October 2000 for assessment and management of service related disorders and claims (his local family doctor treats general medical problems).
…
Unfortunately, Forbes became convinced that the lack of support from the RAAF hierarchy both when he left in the 60’s and subsequently in the early 70’s were the cause of his psychiatric problems. It was only careful investigation into prior incidents that has led me to the conclusion that Forbes depressive disorder is actually the main presenting symptoms of a post traumatic stress disorder relating to his eligible service at Singapore (Tengah) in 1955.
…Since my main expertise is with Army combat veterans and Navy veterans (especially with my own Naval experiences) it is often difficult for me to identify the severity of trauma suffered by RAAF ground crews.
Such was the case with Forbes and only after painstakingly going over Forbes’ early experiences was I able to understand the significance. I will now properly document the experiences. …”
Dr Macdonald then goes on to describe the stressors the applicant claims he suffered (as set out above).
35. At no point in his report does Dr Macdonald refer to the applicant suffering an alcohol problem.
36. Also in her report dated 23 December 2001, Dr Grotowski addresses her assessment of the stressful events the applicant claims to have suffered during his service in Singapore (as elucidated by Dr Macdonald). With these events in mind, she reviewed the applicant on 3 December 2001 and stated:
“Mr Gray describes becoming anxious when he remember [sic] these events. However, the times he does this is when he is closely questioned about them or when he watches military shows. At other times he denies flash backs or nightmares. He has no problems hearing planes flying by. He does not react to gunshots on television or to sharp noises. He is actively involved with Veterans. The cues to the traumatic events discussions of that event and not are an every day occurrence by any means, but experienced only once or twice a year if that. At those times Mr Gray does experience physiological reactivity. He does not avoid discussing the events or to discuss any part of his circumstances. He is not limited in his behaviour to avoid planes etc. He goes to a reunion once a year keeps in touch with fellow servicemen.
He does not deny any sense of for-shortened future, nor does he actually have trouble remembering those events, he just chose not to discuss them. He has no trouble recalling the trauma. He has not stopped activities. He does not have a restricted range of aspect and he certainly does not have a sense of for-shortened future. Mr Gray does not have hyper-vigilance or exaggerated startled responses. He has had difficulty falling asleep, irritability and difficulty concentrating, but these are part of his depressive illness. Nor has Mr Gray had these symptoms except in occasional bursts.
It is my opinion that whilst Mr Gray has experienced significant trauma, he has not developed Post-Traumatic Stress Disorder as a consequence of this, but has a major depressive illness. Both he and his wife state that when he is not dealing with Veterans’ Affairs or being asked to actively recall these events they are not causing concern to him.”
37. In her report dated 24 June 2003 (Exhibit A1), Dr Grotowski expressed the view that the three events the applicant had recounted with respect to his service at Tengah filled the criteria for severe stressors concerning alcohol dependence. However, when presented with the applicant’s evidence of a long period (between 1961 and 1972) of only drinking 2 or 3 middies of beer a day, she said, in effect, that this break in the continuum of drinking was sufficient to negate the causal connection of any alcohol dependence the applicant now suffered, with his service in Singapore.
38. Based on the applicant’s tolerance of 100 grams plus of alcohol a day, Dr Grotowski is of the opinion that the applicant has alcohol dependence as set out by DSM-IV. Dr Grotowski also opined that the veteran has a depressive disorder as described in DSM-IV as a result of his service experiences. With respect to the clinical onset of the applicant’s depressive disorder, Dr Grotowski had difficulty in being precise. However, it was her opinion that the applicant had suffered from depressive disorder from sometime in 1973 to 1974.
39. In her report (Exhibit A1), Dr Grotowski put the applicant’s reluctance to initially discuss his alcohol problem down to his embarrassment and the perception that it was irrelevant. Given the applicant’s evidence before the Tribunal, Dr Grotowski expressed the opinion that the applicant was obviously not a reliable historian about his alcohol consumption. However, she considered that his inaccuracies in this regard did not reflect on his veracity in respect of his other oral evidence.
Submissions and Consideration
40. The Tribunal accepts the opinion of Dr Grotowski that the applicant is suffering from a depressive disorder. The Tribunal also accepts Dr Grotowski’s opinion that the applicant does not suffer from PTSD. In so doing, the Tribunal has given little weight to Dr Macdonald’s opinion that the applicant suffers from PTSD, preferring the opinion of the applicant’s psychiatrist.
41. The Tribunal is satisfied that the applicant’s depressive disorder had a clinical onset in the early 1970s, some time between 1973 and 1975 when the applicant was rendering defence service.
42. The relevant SoP for this condition in the first instance is Instrument No 59 of 1998.
43. This SoP relevantly provides:
“Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that depressive disorder and death from depressive disorder can be related to relevant service rendered by veterans or members of the Forces.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
(b) having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder; or
(c) having a major illness or injury within the one year immediately before the clinical onset of depressive disorder; or
(d) suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
…
Other definitions
8. For the purposes of this Statement of Principles:
‘clinically significant’ means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or General Practitioner;
‘major illness or injury’ means a serious illness or injury, that is life threatening, or seriously disabling;
‘psychiatric condition’ means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV;
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
44. In order for the applicant’s depressive disorder to be causally connected to his relevant service, one of the factors set out in the SoP must exist. The applicant has not made a case for clinical worsening of depressive disorder or an inability to obtain appropriate clinical management for a depressive disorder and the Tribunal accepts the factors which must be considered are those set out above.
45. The first question before the Tribunal is whether the applicant experienced a severe psychosocial stressor or stressors within the one year before the clinical onset of depressive disorder. Given the difficulty in establishing an exact date of clinical onset, the Tribunal has, in the first instance, taken the view that it should review all of the evidence which bears on stressors during the early 1970s and up to and including 1975.
46. Firstly the Tribunal has looked carefully at the question whether the applicant suffered a severe psychosocial stressor within the relevant period.
47. The Tribunal is not satisfied that the applicant’s claim of administrative harassment by Flight Lieutenant Bull can be accepted. Firstly, as the applicant recognised at the hearing, he is incorrect in stating that Flight Lieutenant Bull was his Officer Commanding in September 1972. A Flight Lieutenant Baker compiled and signed his annual report on 12 June 1973 and accorded a Part III score of 34 points (out of 48), a score affirmed by his Commanding Officer, Wing Commander Nixon. In that same report he was assessed as fit for promotion.
48. Subsequently, Flight Lieutenant Bull signed the applicant’s annual report on 11 June 1974 and assessed him at 41 points (a significantly higher score than that of Flight Lieutenant Baker). This score was affirmed by his CO, Squadron Leader McComchie when he was again assessed as fit for promotion. In the next year, Flight Lieutenant Bull recorded a score of 39 (and fit for promotion). This is only marginally lower than the previous year. However, the Tribunal notes that the applicant’s CO at that time, Squadron Leader Eddy, saw fit to amend Flight Lieutenant Bull’s score to 37 points.
49. Also of considerable importance in assessing the applicant’s performance is the word picture given by the applicant’s OC. Flight Lieutenant Bull’s comments on the applicant in all cases (Exhibit A2 and Exhibit A6) can only be described as complimentary.
50. There is no evidence before the Tribunal apart from that of the applicant and his wife to support the applicant’s claim of harassment by his immediate superior, Flight Lieutenant Bull. The Tribunal is satisfied that the official records accurately reflect the circumstances at the time and while the applicant may have had personal differences with Flight Lieutenant Bull, the applicant’s career was not jeopardised by Flight Lieutenant Bull’s actions. The Tribunal also notes that the applicant was discharged from the RAAF on 1 July 1977 some years after the clinical onset of depressive disorder.
51. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that factor 5(a) of Instrument No 59 of 1998 does not exist.
52. Turning then to factors 5(c) and 5(d). On the material before it, the Tribunal is satisfied that the applicant was not suffering from a major illness or injury (as defined) within the relevant period. Nor was the applicant suffering from chronic pain. The Tribunal is therefore satisfied that factors 5(c) and 5(d) do not exist.
53. It follows that for the applicant’s claim to succeed, he must have suffered from a clinically significant psychiatric condition in the relevant period (factor 5(b)).
54. The sub-hypothesis put forward is that the applicant suffered war-caused alcohol dependence because of his operational service in Singapore and that this constitutes satisfaction of factor 5(b) of Instrument No 59 of 1998.
55. An alternative hypothesis that must be considered is that the applicant suffered alcohol dependence because of his defence service thereby satisfying the nexus between depressive disorder and service. Dealing with this alternative proposition in the first instance. The relevant SoP is Instrument No 77 of 1999 – alcohol dependence or alcohol abuse. The relevant provisions of this SoP are:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse is connected 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 one year 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 one year immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
…
Other definitions
8. For the purposes of this Statement of Principles:
‘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.”
56. The first question is whether the applicant experienced a severe stressor during his defence service. There is no suggestion that the applicant experienced or was confronted with an event or events that involved threat or death, or a threat to physical integrity, either objectively or subjectively and therefore the Tribunal is satisfied that factor 5(b) does not exist (see Stoddart v Repatriation Commission [2003] FCA 334 at paragraph 55; and Repatriation Commission v Stoddart [2003] FCAFC 300). Nor is there any evidence that factors 5(d) or 5(e) exist and the Tribunal so finds.
57. This then leaves the question as to whether the applicant suffered from a service-related psychiatric disorder at the time of the clinical onset of alcohol dependence. In this case it is open to the Tribunal to find that the applicant suffered from depressive disorder at the time of his alcohol dependence and, therefore, if this depressive disorder was service-related, so would be his alcohol dependence.
58. Clearly, the argument becomes somewhat circular at this point.
59. The resolution of the matter is best addressed by considering firstly the applicant’s contention that as a result of his war service in Tengah he suffered the psychiatric condition of alcohol dependence.
60. In considering this matter, the Tribunal must be reasonably satisfied that the applicant suffers, or suffered from, alcohol dependence or alcohol abuse (see Cooke v Repatriation Commission (1998) 160 ALR 17). This brings into serious question the reliability of the applicant’s evidence about his alcohol consumption. The Tribunal accepts Dr Grotowski’s assessment that the applicant is not a reliable witness in respect of his alcohol consumption and notes her opinion that, for the applicant to be suffering from war-caused alcohol dependence, she would expect him to have been a heavy consumer of alcohol on a continuous basis from the time of his service in Singapore. Clearly, the applicant, in his alcohol questionnaire, in his oral evidence and on the evidence of his wife, was drinking very lightly from 1961 to 1972.
61. The diagnostic criteria for alcohol dependence and alcohol abuse are specified in DSM-IV and set out in the relevant SoPs as follows:
“‘alcohol dependence’ means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
‘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.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.”
62. After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the applicant did not suffer from alcohol dependence or alcohol abuse during his first period of service. Furthermore, the Tribunal, on balance, accepts that the applicant is now alcohol dependent and that this condition had its clinical onset in the early 1970s. In arriving at this conclusion the Tribunal has taken into account that the diagnostic criteria specified in DSM-IV make no mention of the need for a “continuum” of drinking.
63. In determining a claim pursuant to section 120(1) and 120(3) of the Act, the following steps as set out in Repatriation Commission v Deledio (1998) 83 FCA 82:
“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 s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 s196B(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 s120(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.”
64. In this case, the Tribunal has found the applicant suffers from alcohol dependence with a clinical onset in the 1970s and, insofar as operational service is concerned, Instrument No 76 of 1998 is relevant.
65. The applicant’s hypothesis must fit the template of this SoP to be a reasonable hypothesis.
66. The hypothesis put forward is that the applicant meets factor 5(b) of the SoP, namely, he experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence which, as the Tribunal has already determined, was in the early 1970s. The definition of “experiencing a severe stressor” in Instrument No 76 of 1998 is the same as in Instrument No 77 of 1998, as set out in paragraph 55 above. Clearly, the stressors relied upon by the applicant occurred in the mid-1950s and as such the raised facts in this case do not fit this factor and, therefore, the hypothesis is not a reasonable hypothesis. There being no other raised facts to fit the template of the relevant SoP, the Tribunal finds that a reasonable hypothesis has not been raised connecting the veteran’s alcohol dependence with his war service and the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant suffers from war-caused alcohol dependence.
67. That being so, the Tribunal is satisfied that the applicant did not have a clinically significant war-caused psychiatric condition of alcohol dependence (or alcohol abuse) in the early 1970s and that factor 5(b) of Instrument No 59 of 1998 (Depressive Disorder) namely:
“having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder;”
does not exist.
68. In summary then, while the Tribunal is reasonably satisfied that the applicant suffers from depressive disorder and alcohol dependence, with the clinical onset of these conditions being in the early 1970s, the Tribunal finds that neither of these conditions are causally connected with either his defence service or his eligible war service.
69. In view of the above findings, it is not necessary for the Tribunal to consider whether the stressors which the applicant claims he experienced in Singapore were severe stressors within the meaning of that term in the relevant SoPs.
70. The Tribunal affirms the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 1 December 2003
Date of Decision 23 January 2004Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
For the Respondent Mr B Williams
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