Harp and Repatriation Commission

[2007] AATA 1612

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1612

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/526

VETERANS' APPEALS DIVISION		)
Re		NEVILLE HARP

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott, RFD
Brigadier Dr GJ Maynard, Member

Date31 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd]..............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – service in Royal Australian Navy – disability pension – claim for depressive disorder and alcohol abuse – applicant suffered an injury to his back prior to his operational service – Repatriation Commission has previously accepted claim for cervical spondylosis and lumbar spondylosis – Administrative Appeals Tribunal able to consider those facts afresh without affecting the applicant’s entitlement from the earlier determination – whether applicant’s back pain is connected to his depressive disorder – Statement of Principles – clinical onset – medical evidence – decision affirmed

Veterans’ Entitlements Act (Cth) s 120

Repatriation Commission v Cooke (1998) 52 ALD 1

Repatriation Commission v Smith (1987) 15 FCR 327

Langley v Repatriation Commission (1993) 30 ALD 8

REASONS FOR DECISION

31 July 2007      Senior Member P McDermott, RFD
     Brigadier Dr GJ Maynard, Member

Introduction

1.      Mr Neville Vincent Harp has made a claim that his conditions of depressive disorder and alcohol abuse are service related. We have to decide whether these conditions are service related.

Service

2.      Mr Harp served in the Royal Australian Navy from 10 February 1961 until 9 February 1981 and also from September 1988 until 26 June 1992.

3.      He has eligible war service from 19 August 1966 until 8 September 1966 in respect of his service in Malaysia, Singapore and Brunei.

4.      Mr Harp also rendered eligible defence service from 7 December 1972 until 9 February 1981 and from September 1988 until 26 June 1992.

Accepted conditions

5.      Mr Harp has accepted service-related conditions of cervical spondylosis and lumbar spondylosis.

6.      It would appear that the acceptance of his cervical spondylosis and lumbar spondylosis as being service related was based on an assumption that there must have been aggravation of the conditions during subsequent service.  This is despite the fact that there is no report in the comprehensive medical records of an event that could be regarded as an aggravating factor. 

7.      What is reported at the medical examinations that were conducted for various reasons during service is a chronology of the natural history of the cervical spondylosis and lumbar spondylosis.

Background

8.      Mr Harp contends that his depression and alcohol abuse conditions have arisen from his experiencing chronic pain in the neck and lower back that was caused by an accident in July 1966 when he had a fall on HMAS Parramatta while at Jervis Bay and injured his vertebral column.  The injury, for which he was hospitalised, resulted in conditions of cervical spondylosis and lumbar spondylosis.

9.      The applicant contends that he used alcohol to ease the pain in his back that resulted from his fall.

10.     The accident that resulted in his spinal conditions occurred in July 1966 during his non eligible service.  There is also a series of football injuries and some injuries sustained during fights recorded in his medical records.

11.     Mr Harp worked for a courier business in the time between his two periods of service and he says he drove for considerable distances of up to 1,100 kilometres per day in a van.  He gave evidence of one severe injury to his back during this period.  One could view the extended driving over country roads as causing an increase in back problems, or that the pain in his back was not severe enough to inhibit his driving.

12.     Mr Harp left the Navy on completion of his second engagement in 1992 and went to work at the Tattersall’s Club in Sydney. Any back pain did not prevent his employment at the club. He again re-injured his back while working at the Club. He had to retire in May 1995.

Orthopedic evidence

13.     Dr Tony Blue FRCS, an orthopedic surgeon, made his report on 11 January 1996. Dr Blue felt that the condition of the spine as revealed in an x-ray examination may be a result of the injury in 1966 or may have just been the result of aging.  He felt that the injury at the Tattersall’s Club had produced some temporary aggravation to the spinal condition lasting no longer than a maximum of a few weeks.  Dr Blue felt the applicant was capable of moderate physical work that did not require him to do any repetitive bending. Dr Blue considered that any such work should not involve lifting nor the prolonged maintenance of fixed abnormal spinal postures.

14.     Dr Philip Marnie FRCS, in his report of 3 August 1995, considered that the heavy work at Tattersall’s Club had aggravated his pre-existing back symptoms. Dr Marnie also opined that his symptoms were possibly aggravated when he worked as a courier.

15.     Dr Keith Adam, specialist in occupational medicine, in a report dated 16 April 1996, stated that the applicant was incapacitated for work that required heavy lifting, sustained or repetitive bending, and stooping or prolonged sitting.  He was of the opinion that the applicant could manage lighter work similar to that which he had performed when he first worked at the Tattersall’s Club.

Consideration

16.     We have to initially give consideration to the appropriate diagnosis of the conditions of Mr Harp.

17.     We are bound by a decision of the Full Court of the Federal Court of Australia that the issue of whether a disease exists is to be decided to the reasonable satisfaction of the decision-maker: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Veterans’ Entitlements Act 1986, which is the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327.

18.     In May 1997 Dr Majumdar made a diagnosis of major depressive disorder and alcohol dependence. Dr Majumdar noted in this report that “Mr Harp reported being depressed since his thyroid operation in June 1995”. Dr Majumdar gave the same diagnosis in July 1999. In October 2000 Dr Troup diagnosed depression and substance abuse.

19.     There is, in our opinion, ample medical evidence that Mr Harp suffers from depression and alcohol abuse. It would appear that his alcohol abuse condition is presently in remission.

20.     We next have to consider whether the contentions of Mr Harp satisfy the following Statements of Principles (SoPs):

·     Alcohol Dependence or Alcohol Abuse, Instrument No 77 of 1998.

·     Depressive Disorder, Instrument No 18 of 2007 (replacing Instrument No 59 of 1998).

21.     We will initially consider the Alcohol Dependence or Alcohol Abuse SoP.

22.     Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP at least one of the factors set out in clause 5 must be related to the relevant service rendered by the veteran.

23.     In Clause 5 the relevant factor which is in contention is factor 5(a) which refers to the veteran suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. The difficulty which is faced by Mr Harp is that the clinical onset of depressive disorder appears to have occurred in 1993 or 1994: see report of Dr Mulholland, 3 April 2006, para. 7.4 [ex. R1]. An early record of what may pertain to a depressive disorder was when he presented at the Princess Alexandra Hospital in 1995 [ex. A, T4, fol 37]. 

24.     We have reviewed the extensive service medical records which have been admitted in evidence before us and we can find no report of depressive disorder whilst he was in the service [ex. R2]. We appreciate that Mr Harp has contended that he was depressed in the service. However, we make the observation that Mr Harp extensively consulted the service medical officers for a wide range of complaints. We have read the extensive service medical records. We have found no record of any condition which relates to his depressive condition.

25.     We consider that the clinical onset of depressive disorder certainly appears to have occurred well after Mr Harp had developed a habit of heavy alcohol consumption. Mr Harp stated that his heavy drinking occurred during his first period of service when he was posted to HMAS Nirimba. In his statement he stated that he used alcohol as a form of self-medication to deal with the pain that he experienced from his neck and back injuries [ex. A1, para. 7].

26.     After considering the material which has been placed before us we conclude that the material does not fit the template of factor 5(a).

27.     We will next examine the Depressive Disorder SoP, Instrument No 18 of 2007 (replacing Instrument No 59 of 1998).

28.     The relevant factor which is fairly in contention is factor 6(h) of the 2007 SoP which refers to a veteran “having chronic pain of at least six months duration at the time of the clinical onset of depressive disorder”. As the 1998 SoP was in force at the time of Mr Harp’s claim, Mr Harp is also entitled to have his claim assessed by reference to the earlier SoP. The 1998 SoP contains factor 5(d) which is in the same terms as factor 6(h) of the 2007 SoP.

29.     We have concluded that the material which is before us does not meet the template of factor 6(h) of the 2007 SoP (as well as factor 5(d) of the 1998 SoP). This is because there is no evidence which shows that the applicant was suffering from chronic pain of at least 6 months duration at the time of the clinical onset of depressive disorder which we have already concluded was in about late 1993.

30.     We make the observation that there is a contention that the experience of Mr Harp on the 1972 Code of Conduct course was a significant stressor as a cause of his depression but it seems that the diagnosis was made some years after he left the services. Mr Harp has always contended that it was his back pain that caused his drinking and alcohol abuse.

31.     After reviewing the whole of the material before us, we consider that Mr Harp should not have had his spinal conditions accepted. This injury occurred during his non eligible service. There is no evidence that there was aggravation of the back conditions during eligible service.  The recorded episodes of back injury occurred whilst in civilian employment. Our view on this question does not prejudice his entitlement under the earlier determination: see Langley v Repatriation Commission (1993) 30 ALD 8 at 15.

32.     We affirm the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD and Brigadier Dr GJ Maynard, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  23 April 2007
Date of Decision  31 July 2007
Counsel for the Applicant         Mr R Anderson
Solicitor for the Applicant          Mr T O'Connor
For the Respondent                  Mr J Stoner, Departmental Advocate