Groombridge and Repatriation Commission
[2002] AATA 361
•17 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 361
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/123
VETERANS' APPEAL DIVISION )
Re RODNEY JAMES GROOMBRIDGE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe, Senior Member
Date17 May 2002
PlaceBrisbane
Decision The Tribunal decides: (a) The decision under review is varied; (b) The following conditions are defence related: (i) Post Traumatic Stress Disorder; (ii) Hypertension; (iii) Diabetes Mellitus; and (iv) Psychoactive Substance Abuse or Dependence (Alcohol); and (c) The matter is remitted to the respondent for assessment.
..............................................
Senior Member
CATCHWORDS
VETERANS' – Veterans' Entitlements – Disability Pension – whether PTSD, hypertension, diabetes, substance abuse, defence related disabilities.
Veterans' Entitlements Act 1986
Arnott v Repatriation Commission (2001) 32 AAR 445
REASONS FOR DECISION
17 May 2002 Mr K L Beddoe, Senior Member
By a determination notified on 20 November 1998 the respondent refused the applicant's claim for disability pension in respect of:
(a) Post Traumatic Stress Disorder ("PTSD")
(b) Hypertension
(c) Irritable Bowel Syndrome
(d) Diabetes Mellietus
(e) Psychoactive Substance Abuse or Dependence (alcohol)
(f) Bilateral Tinnitus
(g) Deafness (Diagnosis not confirmed)
(h) Gastric Reflux (Diagnosis not confirmed)
By a section 31 review decision notified on 29 July 1999 the respondent accepted "anxiety Disorder due to ta General Medical Condition" as being service related.
By a decision notified on 11 November 1999 the Veterans' Review Board further varied the decision under review by accepting that Bilateral Tinnitus was now caused in accordance with section 9 of the Veterans Entitlements Act 1986 ("The Act").
On 23 November 1999 the applicant applied for review in this Tribunal. At the hearing of this matter I was told that the claim for Irritable Bowel Syndrome is withdrawn. At the time of hearing, the applicant's accepted disabilities were:
(a) Bilateral Benign Pleural Plaques of Asbestos;
(b) Anxiety Disorder due to a General Medical Condition, and
(c) Bilateral Tinnitus.
At the hearing Mr Honchin appeared for the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Ms Rigano a Clinical Psychologist and Dr Likely a Consultant Psychiatrist.
The applicant was born 24 December 1951 and enlisted in the Navy on 3 January 1968 being 16 years of age on enlistment. He commenced duty at HMAS Leeuwin for 12 months and was then posted to HMAS Sydney on 5 January 1969 for six months. During his posting to Sydney the applicant had two periods of operational service:
(a) 8 February 1969 to 25 February 1969; and
(b) 8 May 1969 to 30 May 1969.
The applicant had a number of other postings the relevant one being on HMAS Vampire from 9 July 1973 to 9 August 1976. The service on Vampire constitutes defence service for the purposes of the Act.
Relying in particular on the applicant's statement (Exhibit A) and his oral evidence I find that the applicant experienced two short trips to South Vietnam on HMAS Sydney. Both trips seem to have involved Sydney being anchored in Vung Tau Harbour for a few hours. On the first occasion the ship arrived before dawn, the applicant was on deck as a member of a cargo party and the ship was the subject of an overhead illumination flare. This caused anxiety to the applicant because there was a perception that the ship was under attack. This apprehension was assuaged by a ship's announcement to the effect that the flare was American and was for the purpose of assisting anchorage of the Sydney. I am satisfied that whatever apprehensions may have resulted from the surprise firing of the flare, those apprehensions were short-lived and the use of the flare was explained to the crew of Sydney.
Prior to entering Vung Tau Harbour the crew of Sydney was briefed to expect precautionary measures to be taken to secure the ship while in Vung Tau Harbour. These included boat patrols and percussion grenades being dropped around the hull to deter any underwater attack by divers.
10. While the applicant suggests that these measures show that HMAS Sydney was in danger of actual attack, I am satisfied that the measures were taken as precautions against attack of any kind as distinct from an imminent attack. It is also relevant to note that Sydney was in Vung Tau Harbour for less than half a day so that any apprehension of possible enemy attack was confined to a relatively short space of time. It is not suggested that Sydney was the subject of enemy attack while moored in Vung Tau Harbour.
11. As to the claim that the applicant was anxious about Australian soldiers being ferried to and from South Vietnam, I accept that the applicant had grounds for being anxious for the welfare of these soldiers. He does not however relate any traumatic events experienced by him in relation to the soldiers but does relate that soldiers known to him suffered injuries while in South Vietnam.
12. As already noted, the applicant served in HMAS Vampire for three years. That service is defence service. The applicant says that he experienced a traumatic event when HMAS Vampire collided with a Royal Navy tanker while refuelling at sea. He says he was reminded of the Voyager disaster but does not claim that Vampire was damaged to such an extent as to make it unseaworthy. It was able to return to port under its own steam but did require repairs. He does say that because the ship was being closed up for the collision, a hatch was closed on top of him and another sailor. In response the applicant singlehandedly reopened the hatch to escape from being trapped below deck. It seems that it was that event, which concerned the applicant rather than the actual collision between the ships.
13. Two other events, which I accept, involved possible danger to the applicant while on Vampire are also related by the applicant. One involves a problem with a ship's boiler for which the applicant was responsible. On two occasions the boiler seriously over heated requiring it to be shut down. There is nothing in these events, as they happened. It may have been different if the applicant had failed to deal with the overheated boiler, but he recognised the problem and took appropriate action to resolve the situation.
14. More dangerous was a fire in the boiler room which had the potential to devastate Vampire. Once again the fire was dealt with, including a flare up, so that no actually traumatic event occurred while working in the boiler-room of the ship. I accept working in the boiler room is a very hot and uncomfortable duty in humid conditions, it was the practice to take salt tablets and/or a supplement drink called "Limers". The applicant asserts and I accept that Limers was freely available to boiler-room ratings because of the work environment and that it was formulated to prevent dehydration causing fluid and salt loss in the body.
15. While Vampire was in dry dock the applicant experienced the death of a sailor who fell from HMAS Brisbane into the dry dock in the early morning. The fall was such as to cause the applicant to think that a gun had been discharged. He went into the dry dock to assist with other sailors from the Brisbane. The applicant was told that he had heard the deceased sailor's head hitting concrete.
16. I accept the applicant's evidence that he commenced drinking beer while on board HMAS Sydney. Consumption accorded with the Navy ration of two or three large cans per day. Excessive drinking seems to have manifested when the applicant was stationed at HMAS Kuttabul and in the vicinity of Kings Cross.
17. During his naval service the applicant also witnessed two serious motor vehicle accidents in circumstances not related to the applicant's service.
18. As to his obesity there is evidence to show that the applicant increased his body weight as he increased his consumption of alcohol after his service on HMAS Sydney. There was a further increase in body weight immediately after ceasing defence service also attributed to increasing consumption of alcohol.
The Medical Evidence
19. Document T12 is a report by Dr Braganza, Consultant Psychiatrist, dated 18 September 1998 and addressed to the Veterans' Advocacy Service. Dr Braganza sets out a detailed history, which he obtained from the applicant. That history refers to incidents, which have not been included in the evidence of the applicant. There is no explanation. In other respects the reported history is consistent with the applicant's evidence. I am prepared to accept that the applicant exaggerated the history given to Dr Braganza.
20. In the result Dr Braganza diagnosed PTSD and Alcohol Abuse, which he said were related "in particular" to the applicant's service on HMAS Sydney. Dr Braganza made two further reports dated 19 January 1999 and 19 May 1999. On the final report Dr Braganza seems to attribute excessive consumption of alcohol to anxiety following the diagnosis of Benign Pleural Plaque of Asbestos.
21. The applicant's solicitors attained a report from Dr Tan, Endocrinologist, dated 5 October 2000 (Ex. D). Dr Tan described factors relevant to hypertension and Diabetes Mellitus. He described both conditions as not controlled, set out a basis for control with lifelong treatment being required.
22. The Department of Veterans' Affairs obtained a report dated 20 November 1998 from a general practitioner, Dr Lad. He said, inter alia, that Hypertension had been diagnosed in December 1969 which he described as benign essential hypertension and which he suggested could be attributed to prolonged over-use of alcohol, stress and depression. He also found Diabetes Mellitus, which he thought, was under reasonable control and which had been diagnosed in August 1997.
23. Exhibit C is a copy of a report by Ms Rigano, Clinical Psychologist, dated 21 December 2000 on the letter-head of the Vietnam Veteran Counselling Service. She describes a generally deteriorating psychological situation and concludes that the applicant is no longer fit for remunerative employment. In her oral evidence Ms Rigano said that she thought the applicant should give up employment because of stress and that she did not consider rehabilitation for the applicant.
24. Exhibit B is reports by Dr Likely, Consultant Psychiatrist, dated 1 August 2000, 14 November 2000, 11 December 2000 and 4 May 2001 obtained by the applicant's solicitors. Dr Likely reiterates a history generally consistent with the applicant's evidence to the Tribunal.
25. Dr Likely diagnosed three separate Axis i conditions namely:
(a) PTSD (chronic)
(b) Panic attacks; and
(c) Alcohol Abuse.
26. He found no Axis ii conditions, noted the Axis iii conditions and found stressor of chronic mental health as the Axis iv problem. In his further report of 14 November 2000 Dr Likely attributes the psychiatric conditions to the applicant's "war service".
27. In his oral evidence Dr Likely explained that in effect the service on HMAS Sydney was the relevant service because there was a marked change in the applicant after his trips to South Vietnam. Subsequent events such as two motor vehicle accidents were to be seen as exacerbating an existing condition. Dr Likely was also of the opinion that the applicant should cease remunerative employment and as a result the applicant ceased work in May 2001.
The Applicant's Submissions
28. The tribunal is required to consider the Statements of Principle for both operational and defence service and also to consider the Statements of Principle in force at the time of the Commission's decision unless a later Statement of Principle ("SoP") will be of advantage to the applicant.
29. There are five relevant incidents to consider:
HMAS Sydney (operational service)
(a) The overhead flare;
(b) The use of percussion charges while in Vung Tau harbour;
HMAS Vampire (defence service)
(c) The dry-dock incident;
(d) The collision with the refuelling ship; and
(e) The fires in the boiler room.
30. As to (a) and (b) the applicant suffered a severe stressor as defined in the relevant SoP's. While it cannot be said there was an objective threat to the applicant's physical integrity there was a subjective belief that this was the case. The authorities indicate that whether a person experienced a severe stressor is to be determined on an objective/subjective basis ie, the applicant must experience the event so that there is a subjective element to the text. The applicant's circumstances were such that the explosions were undefined as to origin. In any event a purely objective test is satisfied in this case.
31. As to (c) and (e) these were also traumatic event resulting in severe stressors experienced by the applicant. The necessary connections with service are to be found in the reports of Dr Likely so that there is a reasonable hypothesis in relation to PTSD and the operational service in South Vietnam. Further, the Tribunal should be reasonably satisfied that all the claimed conditions arose out of the applicant's defence service. The necessary connections are explained in the medical reports, which show that the required factors are established and related to the defence service.
The Respondent's Submissions
32. The SoP's in force at the time of the respondent's determination are the relevant SoP's to be applied in this case.
33. The stressors are to be objectively assessed and Tribunal decisions suggesting a subjective element is to be taken into account should not be followed.
34. The flare incident arose because a flare was put over the anchorage rather than HMAS Sydney. As to the percussion charges, the applicant must be taken to have known the nature of the resulting explosions.
35. The drydock incident should be seen as unremarkable in the applicant's experience.
36. The collision in the HMAS Voyager disaster was not similar in any way to the collision between HMAS Vampire and the Royal Navy tanker during refuelling operations.
37. The boiler room incidents should not be seen as serious episodes resulting in severe stressors.
Consideration
Operational Service
38. The applicant relies on incidents, which he said occurred while on board HMAS Sydney in Vung Tau Harbour. I accept they did occur.
39. Dr Likely's hypothesis is that the events in Vung Tau Harbour resulted in the applicant being extremely tense, on edge and vigilant all the time the ship was in Vung Tau Harbour. Dr Likely acknowledges that the applicant knew the purpose for the percussion charges being dropped overboard and he acknowledges that it became clear after a short period of time as to the reason for firing the flare ie, to assist in docking the Sydney.
40. In my view such a hypothesis, although it must be considered on the raised facts, will be too tenuous if it only suggests momentary anxiety in relation to the flare incident and the percussion explosions. That seems to be the situation with Dr Likely's hypothesis. While I can accept that it is hypothetically likely that the flare incident caused the applicant to be anxious and while there may have been a subjective belief for the moment that the flare was an enemy flare that was unlikely to be more than momentary because nothing further happened to endanger the shop. The hypothesis is too tenuous because it does not admit of anything more than momentary anxiety at its highest.
41. I have therefore come to the view that the hypothesis is untenable in so far as it seeks to suggest events that were likely to have some lasting adverse effect on the applicant. The events were of the moment only and easily understood as to their effect ie, there was no lasting adverse effect on the applicant.
42. There is, in my view, no hypothesis capable of connecting the applicant's operational service with any of the claimed conditions.
Defence Service
43. Different considerations apply in relation to the applicant's defence service.
44. Because of the operation of subsection 120(4) of the Act I must be satisfied to my reasonable satisfaction that the claimed conditions are related to the defence service.
45. Section 120B of the Act in effect requires that to be reasonably satisfied that a condition is defence caused, the material must raise a connection between the condition and defence service and where there is an SoP in force that upholds the contention that the condition is, on the balance of probabilities, connected with the defence service.
46. I turn now to each of the conditions claimed.
Post Traumatic Stress Disorder
47. The incident involving HMAS Vampire and the refuelling ship colliding at sea was by itself probably nothing more than an unfortunate incident. However the applicant was below decks at the time performing duties which required him to organise evacuation of crewmembers in the course of preparing the ship for collision. He and another sailor were, I accept, inadvertently left below decks when the hatches were being closed. This made the applicant extremely anxious and resulting in him single handedly lifting the hatch before it had been secured so as to escape from being locked below decks. That was, in my view an incident likely to cause extreme anxiety with lasting effect. Dr Likely describes the applicant's response as being of intense helplessness and fear. In fact the applicant was able to extricate himself from the situation quickly but I am satisfied that it was the extreme fear of being locked below decks in a colliding ship that motivated him.
48. The incidents of two fires in the boiler-room can also be seen as incidents having an effect on the applicant so as to make him unduly anxious with a fear of injury or death if the situation got out of control. It is a matter of historical fact that below decks fires on ships can have very serious consequences.
49. I am also satisfied that the incident in the dry dock was such as may be likely to cause undue anxiety in a witness. The applicant witnessed the sailor's death in that he heard the sailor hit the floor of the dry dock and then saw the body on the floor of the dry dock.
50. The respondent made its determination on 20 November 1998. At that time the relevant SoP in relation to PTSD was Instrument No 16 of 1994. The applicant is entitled to have his claim determined in accordance with the SoP in force at the date of the Commission's determination.
51. In the light of Dr Likely's reports I am satisfied that the applicant suffers PTSD as defined in the SoP. I am also satisfied that the applicant experienced a stressor in the course of his defence service prior to the clinical onset of the PTSD and that stressor was caused by the threatened locking below decks in the collision incident.
52. I am satisfied that the below decks incident was, on an objective basis, such as to be within the definition of "experiencing a stressor" and that the applicant did experience the stressor.
53. It follows that I am reasonably satisfied that the applicant's PTSD arose out of his defence service.
Psychoactive Substance Abuse or Dependence (Alcohol)
54. At the time of the Commission's determination the relevant SoP was No 5 of 1995. The applicant says that the Tribunal should consider the SoP in Instrument No. 76 of 1998 which is dated 1 December 1998 a date after the date of the respondent's determination (but before the date of the respondent's section 31 review).
55. In Arnott v Repatriation Commission (2001) 32 AAR 445 at 449-450, Merkel J said (Spender and Marshall JJ concurring):
"At the AAT hearing the appellant and the respondent agreed that the applicable SoP was the 1999 SoP which, accordingly, was applied by the AAT. Subsequently, a Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108; 31 AAR 150 held that, subject to a contrary intention, it is to be presumed that the SoP to be applied is that in force at the time of the Commission's determination which, in the present case, was the 1195 SoP. The Full Court concluded that, as rights accrue under an SoP, where the SoP applicable at the date of the Commission'' decision is more beneficial that the SoP that replaces it, the earlier SoP is to apply unless a contrary intention is clearly disclosed. Lee and Cooper JJ at 123 [46] said that in respect of beneficial legislation, such as the VE Act, it may be concluded that Parliament
'intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked.'
See also at 131-132 [80]-[81]; 173 [80]-[81] per Kiefel J.
It seems to be implicit, if not explicit, in the approach of the Full Court in Keeley that a contrary intention might be found if the terms of the later SoP are more beneficial to a claimant than the terms of the SoP which it replaced. Of course, the contrary intention must be discerned from all of the terms of the later SoP and not just particular aspects of it.
Applying the reasoning in Keeley to the present case, subject to contrary intention, the applicable SoP was the 1`995 SoP, being that in force at the time of the Commission's decision. The appellant contended before the primary judge that the 1999 SoP applied by the Tribunal was more onerous than the 1995 SoP and that the 1995 SoP ought to have been applied, notwithstanding the appellant's agreement at the AAT that the 1999 SoP was applicable. Before this Court the appellant contended that the 1999 SoP was more beneficial and therefore was properly applied by the AAT."
56. After considering the differences between the two SoP's, his Honour stated that he would have some difficulty in determining which SoP was applicable to the Tribunal's decision in that case.
57. Like his Honour I have found it difficult to determine but I am not satisfied there is a contrary intention in Instrument No 76 of 1998 indicating that the applicant is to have the benefit of that SoP.
58. The applicant commenced drinking alcohol while posted to HMAS Sydney. It is not open to find that he commenced drinking because of experiencing a stressful event. He commenced drinking because that was something others were doing.
59. I have already found that the applicant experienced events that can be accepted as stressful events during the course of his defence service. It is likely that those stressful events were prior to the onset of psychoactive substance abuse or dependence.
60. I am satisfied, on the balance of probabilities that the terms of Instrument No 5 of 1995 have been satisfied.
61. I am also satisfied, on the balance of probabilities, that as a matter of fact, there is a direct link between the substance abuse and the incidents in the course of the applicant's defence service.
62. It follows that Psychoactive Substance Abuse or Dependence (Alcohol) should be accepted as a defence caused disability.
Diabetes Mellitus and Hypertension
63. Dr Lad diagnosed diabetes in 1996 according to Dr Tan (Ex D) Hypertension was also diagnosed in 1997 (Ex D)
64. Dr Tan reports a link between excessive use of alcohol and the diabetes and hypertension. He describes lifestyle factors as being relevant to reduction of risk from these conditions but makes it clear that there is a positive link between excessive use of alcohol and the two conditions.
65. The applicant says I should consider SoP 83 of 1999 in relation to Diabetes and SoP 26 of 1999 or 84 of 1995 in relation to Hypertension.
66. I accept the applicant's submission that No 83 of 1999 is more favourable to the applicant so that it should be accepted that there is a relevant contrary intention pointing to this SoP being the appropriate SoP.
67. The applicant submits and I agree that paragraph 5 (b) of the SoP is satisfied in this case. I am also satisfied that it is more likely than not that the applicant was suffering from obesity for a period of at least 10 years before the clinical onset of diabetes mellitus. I am reasonably satisfied that diabetes mellitus is related to the applicant's defence service.
68. In relation to Hypertension, I accept that the applicant was diagnosed with Hypertension by December 1989. Dr Lad reported blood pressure at 160/100 and the applicant's weight at 84kg. Dr Lad described the condition as benign essential hypertension but did give likely contributors as overuse of alcohol, stress and depression.
69. On examination by Dr Tan in September 2000 the blood pressure is recorded as 150/100 supine and 140/100 standing. Weight recorded was 88kg. Hypertension was diagnosed (Ex D).
70. I am satisfied that the applicant has hypertension within the terms of SoP No. 26 of 1999. Factor 5(b) of that SoP is satisfied. I would come to the same conclusions under SoP 65/1998, which contrary to Mr Honchin's submission is, in my view, the appropriate SoP.
71. Irrespective of which SoP applies and taking into account the alcohol abuse by the applicant stretching back to his defence service, I am satisfied, on the balance of probabilities, that the condition hypertension is related to the applicant's defence service. In coming to that conclusion I have noted the evidence about salt ingestion but have not come to any conclusion as to whether that is a relevant factor.
Gastro-oesophageal Reflux Disease
72. Dr Lad linked the use of alcohol with this condition but said the condition had not been properly investigated. Dr Likely did not list the condition as an Axis iii Condition in his report.
73. On the material before me I am unable to come to any conclusion about the condition and in particular, whether the applicant comes within the terms of SoP 122 of 1995 as amended by SoP 123 of 1995.
74. The decision under review will be varied and a decision made accepting the following disabilities as being defence related:
(a) PTSD
(b) Hypertension
(c) Diabetes Mellitus (type 2)
(d) Psychoactive Substance Abuse or Dependence (Alcohol).
75. The matter will be remitted to the respondent for assessment.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member.
Signed: ……………………………………………
AssociateDate of Hearing 19 September 2001
Date of Decision 17 May 2002
Counsel for the Applicant Mr Honchin
Solicitor for the Applicant Purcell Taylor Lawyers
Solicitor for the Respondent Mr Stoner
0
3
0