Hayward and Repatriation Commission
[2003] AATA 1106
•4 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1106
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/47
VETERANS' APPEALS DIVISION ) Re WILLIAM CHARLES JOHN HAYWARD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell
Dr ET Eriksen (Member)Date4 November 2003
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – Disability Pension – operational service – defence service – whether applicant’s conditions of psychiatric condition/anxiety disorder and alcohol dependence/abuse are caused by operational and/or defence service - whether applicant’s hypertension and gastro-oesophageal reflux arises from alcohol dependence/abuse – standard of proof – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A, 120B
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 77 of 1998
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 2 of 2000
Statement of Principles Instrument No 31 of 2001
Statement of Principles Instrument No 32 of 2001
Statement of Principles Instrument No 62 of 1999
Statement of Principles Instrument No 63 of 1999REASONS FOR DECISION
4 November 2003 Senior Member WJF Purcell
Dr ET Eriksen (Member)1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 21 June 2001, insofar as it rejected a claim for payment of Disability Pension for anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, and hypertension. The Veterans’ Review Board (VRB) affirmed the decision on 4 December 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower appeared as Counsel for the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, his brother, Lieutenant Commander A Hayward, and Mr C Alexander, a fellow crew member on HMAS Melbourne (the Melbourne), as witnesses. Lieutenant Commander Hayward and Mr Alexander gave evidence by way of telephone link-up. Mr Crowe represented the Commission, which called Captain H Stevenson, Historian, as a witness. Captain Stevenson gave evidence by way of telephone link-up.
3. The applicant, who is 57 years of age, served in the Royal Australian Navy (the Navy) for more than 21 years. He was 17 years of age when he enlisted on 6 May 1963. When he resigned on 7 December 1984, he was 38 years old. He has operational service on the Melbourne, for the Far East Strategic Reserve, from 24 February 1965 to 7 April 1965, and from 21 April 1965 to 7 May 1965; and in Vietnam, on the Melbourne, from 31 May 1965 to 22 June 1965. He has eligible defence service from 7 December 1972 to 7 December 1984.
4. The applicant asserts that his conditions relate to his operational service or to his defence service. For operational service, the appropriate standard of proof is that of reasonable hypothesis, in accordance with section 120(1) of the Veterans’ Entitlements Act 1986 (the Act). In respect of eligible defence service, section 120(4) of the Act applies, and the Tribunal is to determine this matter to its reasonable satisfaction. Section 120, as far as is relevant for the purposes of this review, provides:
“120Standard 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.
Note: This subsection is affected by section 120A.
(2) …
(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.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
5. Section 120A of the Act, as far as is relevant for the purposes of this review, provides:
“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.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(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.
Note: See subsection (4) about the application of this subsection.
…”
6. Section 120B of the Act provides:
“(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.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
…
(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.
…”
7. The hypothesis propounded by the applicant is that his conditions of anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux, and hypertension, relate to his operational service, in that on the whole of the material, the traumatic events which he experienced during his operational service connect his conditions with his relevant service. In our view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles, at least one of the Factors set out in clause 5 of the respective Statements of Principles must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
8. The appropriate Statements of Principles for the condition of alcohol dependence or alcohol abuse are Instrument Nos 76 of 1998, and 77 of 1998 for operational service, and eligible defence service respectively. The applicant contends that Factor 5(a) or (b) of Instrument No 76 of 1998 (the Operational Service Alcohol Dependence SoP) is satisfied:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
He contends that Factor 5(a) or (b) of Instrument No 77 of 1998 (the Defence Service Alcohol Dependence SoP) is satisfied:
“(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;”
9. “Experiencing a severe stressor” is defined in both the Alcohol Dependence SoPs as:
“… 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;”
10. The applicant contends in relation to Factor 5(a) of the Alcohol Dependence SoPs that the psychiatric disorder is “anxiety disorder”.
11. The appropriate Statements of Principles for the condition of anxiety disorder are Instrument No 1 of 2000 for operational service and Instrument No 2 of 2000 for eligible defence service. The applicant maintains that Factor 5(a)(ii) of Instrument No 1 of 2000 (the Operational Service Anxiety Disorder SoP) is satisfied:
“(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
…”
12. In relation to Instrument No 2 of 2000 (the Defence Service Anxiety Disorder SoP) he maintains that Factor 5(a)(i) is satisfied:
“(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder;
…”
“Severe psychosocial stressor” is defined in both Anxiety Disorder SoPs as:
“ 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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
13. The appropriate Statements of Principles for hypertension are Instrument No 31 of 2001 for operational service, and Instrument No 32 of 2001 for eligible defence service. The applicant maintains that Factor 5(b) of Instrument No 31 of 2001 (the Operational Service Hypertension SoP) is satisfied:
“(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension;”
He maintains that Factor 5(b) of Instrument No 32 of 2001 (the Defence Service Hypertension SoP) is satisfied:
““(b)suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; “
14. In relation to gastro-oesophageal reflux disease, the appropriate Statements of Principles are Instrument No 62 of 1999 for operational service and No 63 of 1999 for eligible defence service (the Gastro-Oesophageal Reflux SoPs). The applicant maintains that paragraph 5(g) of the Gastro-Oesophageal Reflux SoPs is satisfied:
“(g)suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of clinical onset of gastro-oesophageal reflux disease;”
15. The applicant, upon enlistment, undertook an 8-month electrical training course, and then joined the Fleet Arm. He and another recruit topped the class of 27 in the airman’s course. He chose then to become an armourer. He said in evidence that the armoury branch was a small branch, that the personnel seemed a fit and interesting group. He became a Petty Officer Air Technical Weapons Ordinance in 1977/78, and he remained an armourer for the balance of his naval career until he came to Adelaide at the end of 1981, and was involved then in office duties at the Navy’s Recruitment and Training Centre in Pirie Street.
16. The applicant joined the Melbourne on 28 December 1964 as one of 4 members of its explosives party, responsible for arming, maintaining, fusing and defusing explosives. He maintains that in the course of his service, in particular in the first 2 periods of his operational service between February and May 1965, he experienced a number of stressors:
(a)Observing a pilot crash a Gannet aeroplane and subsequently die (the Gannet aeroplane crash incident).
(b)Working in confined areas cleaning and repairing various charges, rockets and other defensive weapons, whilst the ship was at action stations. This occurred during transit in the Sunda Strait (the toxic fumes incident).
(c)Working on the Melbourne when a depth charge being fixed to a Gannet came loose and landed on a fellow seaman. He had to defuse it (the depth charge incident).
17. The applicant maintains that as a consequence of these stressors he experienced excessive anxiety and worry, and developed an anxiety disorder which persisted after his first 2 periods of operational service; and that it was only then, that he took to abusing alcohol and became dependent on alcohol.
18. The Commission contends that at no time during his operational or defence service, did the applicant experience a “severe stressor” or a “severe psychosocial stressor” as defined in the Alcohol Dependence or the Anxiety Disorder SoPs. There is no credible evidence that the onset of the applicant’s alcohol dependence, or anxiety disorder, occurred within 1 year or 2 years of any of these alleged stressors. The conditions of gastro-oesophageal reflux disease and hypertension are dependent upon the success of the applicant’s alcohol dependence claim; and the Commission concedes that if the applicant’s alcohol dependence claim is successful, then the remaining 2 conditions must be accepted as service related.
19. The applicant gave lengthy oral evidence. He was an unimpressive witness. We consider that he tailored his evidence in an attempt to satisfy the relevant Statements of Principles. The inconsistencies in the history he provided to the Commission, to Dr Ewer, and in his oral evidence, are such as to render much of his evidence unreliable. This does not mean that we disregard the whole of his testimony, but that we prefer to rely upon other more acceptable evidence in areas of dispute in the evidence.
20. Dr Ewer proceeded on the assumption that the applicant’s version of events was reliable. We have taken that into account when deciding upon the weight to be given to Dr Ewer’s evidence and opinions. The applicant’s brother, Dr Hayward, gave helpful evidence as to the history of the culture of the Navy in relation to alcohol consumption and stress related conditions, but he saw his brother infrequently during his naval service. The applicant called Mr Alexander, a fellow armourer, who did his best to support the applicant. The Commission called Captain Stevenson, who we consider to be a witness of truth, and we prefer his evidence to that of the applicant in any areas of dispute in the evidence.
21. The applicant was discharged from the Navy on 7 December 1984. One week beforehand, on 26 November 1984, he lodged a claim for, inter alia, medical treatment and pension in relation to “periods of anxiety state – increased blood pressure” [T6/200], the symptoms of which he stated he first noticed in 1981, and which he considered were related to his defence service – “Initial problem occured [sic] – 1981 – whilst the service accomated [sic] removal to South Australia – activities as a careers adviser field recruiting required periods of absence during my wife’s recovery from major surgery this aggravated my anxiety state” [T6/202]. At T7/208 and 210, there is a handwritten history taken by Dr Ness Lian-Lloyd and signed by the applicant on 17 May 1985. It reads in part:
“…
It is pretty good lately. I still feel a bit uptight at times. When I feel intense – then I feel a miss beat and gets the headache. This happens if I have a run in with the boss or frustration if I run in late. If I have been having a heavy day, it takes me a long time to wind down. I just can’t go straight to bed.
Working back, talking to my family, I have always been a nervous and tense person. It came to a head when my wife got very sick. At end of 1981 – I was sitting in the couch, dozed off with head tilted to L side. Woke up with dizzyness – panicked, stood up Õ worse. Hyperventilated because thought I might have had a heart attack. I was admitted to the intensive care ward. It was fairly bad with my nerves for 6 months. Having a good sleep with tranxene helped me to overcome the nervous problem.
I was in NSW with my wife then. She had been treated as Multiple Sclerosis for five years 1977-1981 – with weakness in the L leg, headaches & nausea – progressively worse. Diagnosed as brain tumor – when she had 2 grand mals – operated at Sydney – Prince Henry operated. She had come home when I had the collapse. She was ill last year – Grand Mal seizure at Sidney [sic] Dec 1984. Now – mentally she is OK. But her left side is pretty useless. She has to throw her hip to walk – she uses the stick.
I feel that the service contributes to the anxiety. I was sent to the USA 2/52 after we got married in 1967 – for 4-5/12. My wife stayed behind.
In 1975 she suffered a drop foot. Off and on she was ill. I went to UK for 6/12 without my wife (in 1977). ?/52 after I came back, she collapsed because she couldn’t walk. Diagnosed as MS. The 6/12 I was away must have been the catalyst of her collapse.
I don’t even know whether I can blame the service or not. The work consists a lot of travelling. In 1982-83 – I was travelling a lot in the SA as a councillor. It is a choice of working conditions really.
…” [T7/208-210]
22. Dr Lloyd referred the applicant to Dr LC Hoff, Psychiatrist. The referral note reads:
“N/C – Anxiety State, increase Blood Pressure
This veteran was diagnosed as having acute anxiety attacks following his wife’s discharge from Sydney hospital with removal of frontal meningioma in 1981 after wrongly diagnosed as M.S. in 1977. He claims that the periods of separation from his wife during her recovery – as a field recruiting careers adviser – aggravated his anxiety state.
Your opinion please re diagnosis, severity and probable aetiology of the disability. If he suffers from anxiety, would it be materially aggravated by the periods of separation from his wife.” [T7/213]
23. Dr Hoff reported on 17 May 1985 as follows:
“17 May 1985 seen at interview.
This man undoubtedly suffered an Anxiety State in 1981/82.
Severity – mild to moderate. He had several short hospitalisations, was treated with Valium & Serepax, was not referred to a specialist psychiatrist and continued his career.
Probable Aetiology – As he describes it, he must have had a lot of worry about his wife’s health – also the stress was accumulative. In my opinion, there was sufficient stress from that cause alone to precipitate an Anxiety State.
When seen at interview, he is not currently suffering from Anxiety – he is in full time civilian employment and not on any medication.
In my opinion, his past history of Anxiety would not have been materially aggravated by the periods of separation from his wife.” [T7/213]
24. On 25 November 1985, the Commission rejected the applicant’s claim, and in the course of it’s Reasons for Decision stated:
“… In addition his acute anxiety state was a reaction to his wife’s ill health and was not aggravated by service during the eligible period, his labile hypertension was due to his advancing age and his anxiety state, his gastroesophageal reflux was due to a congenital abnormality of his sphincter and his dental caries have been caused by inadequate oral hygiene. While all of these conditions were manifest during the eligible period of service none of them were directly attributable to that service and the nature and conditions of that service were not factors further aggravating or contributing to these conditions in any material degree.” [T12/233]
25. On 23 December 1997 the Minister for Defence, Industry, Science and Personnel determined that the applicant’s service on the Melbourne in the Far East Strategic Reserve from 24 February 1965 to 7 April 1965, and from 21 April 1965 to 7 May 1965; and in Vietnam from 31 May 1965 to 22 June 1965, was to be taken now to be operational service for the purposes of the Act.
26. On 20 October 2000 the applicant lodged a further claim for payment of Disability Pension for, inter alia, emotional behavioural problems and substance abuse. In relation to the emotional problems, he stated that he first became aware of the symptoms “mood swings, communication difficulties, claustrophobia, memory loss”, in 1979, and he attributed them to “stress of active service duties” [T5/183]. His treating general practitioner stated that the applicant first consulted him in relation to this condition on 18 October 1989. In relation to the condition of substance abuse, the applicant stated that he first became aware of the symptoms in 1966, and that they were due to the “stress of active service duties”. His treating general practitioner stated that the applicant first consulted him in relation to this condition on 21 July 1983.
27. The Commission requested that Dr Ewer, Psychiatrist, interview the applicant. Dr Ewer reported on 20 March 2001, in part, as follows:
“…
1.In 1965 Mr. Hayward witnessed a Gannett land on the deck. It broke the brake wire and crashed off the edge of the ship. Mr. Hayward looked overboard and he saw a shark’s fin and a pilot’s helmet floating. The pilot died but two others were saved. Mr. Hayward knew two of the men on the plane and in particular he knew the man who died. This distressed Mr. Hayward considerably.
2.In 1966 Mr. Hayward’s father was tragically killed in a train accident. The Captain of the Melbourne refused Mr. Hayward leave which distressed him greatly. His younger brother was also on the ship and he felt that he had to suppress his own feelings in order to look after his brother.
3.In 1966 an aircraft crashed on the flight deck of the Melbourne. The plane crashed into the crash barrier and Mr. Hayward saw the cord of the crash barrier whiplash. It struck a Fireman in the head and Mr. Hayward said “I just saw red. I thought he had been decapitated”. Mr. Hayward was horrified and it was fifteen minutes before he was informed the man was not killed.
4.On another occasion Mr. Hayward saw a man fall down a lift well on the Melbourne. He thought the man was seriously injured but he’d only broken an arm.
5.Mr. Hayward’s wife developed various neurological symptoms in 1977. Mr. Hayward was in England for six months on Naval duties at this time. His wife was diagnosed as suffering from Multiple Sclerosis. This distressed Mr. Hayward considerably.. In 1981 it was discovered that Mr. Hayward’s wife had been misdiagnosed and that she was actually suffering from a frontal meningioma which was subsequently operated on. Mr. Hayward felt very guilty that he had not been in Australia in 1977 when his wife was initially unwell. He felt that if he were in Australia he would have pushed for further tests to ensure the condition was appropriately diagnosed. Consequently he felt very stressed and anxious.
PSYCHOLOGICAL EFFECTS OF SERVICE
Mr. Hayward experienced anxiety and distress during the above stresses. In the period that followed Mr. Hayward experienced considerable anxiety. He recalls experiencing these feelings in the mid to late 1960s after the events I have described. He recalls feeling the need for more emotional support. He was worrying excessively and he had difficulty sleeping. He was often troubled by episodes of “gastroenteritis” which upon reflection seemed related to anxiety. He continued to abuse alcohol.
…
FORENIC HISTORY
Between 1964 and 1966 Mr. Hayward was incarcerated on four occasions in the Navy in relation to alcohol abuse. He was sentenced to solitary confinement. He showed me his medical notes which refer to his excessive alcohol use. He was not recommended any treatment for his alcohol abuse.
…
THE RELATIONSHIP OF HIS PSYCHIATRIC CONDITIONS TO HIS WAR SERVICE
I believe that Mr. Hayward’s Generalized Anxiety Disorder is clearly and directly related to his war service. Firstly, Mr. Hayward denied experiencing feelings of anxiety prior to his active service. Secondly, there is a temporal relationship between the stresses described and the development of his Generalized Anxiety Disorder in the sense that the latter came on directly after the former. Furthermore, Mr. Hayward’s Generalized Anxiety Disorder can be well understood in the context of the stresses I have described. I note in particular Mr. Hayward’s stressors meet the definition of severe psychosocial stressors mentioned in the Statement of Principles.
I also believe Mr. Hayward’s Alcohol Abuse can be related to his eligible service. I note Mr. Hayward was abusing alcohol prior to the subject stressors. However the Statement of Principles mentions that Alcohol Abuse can be related to eligible service if a Veteran was denied treatment. I note Mr. Hayward’s Alcohol Abuse was recorded on a number of occasions but no treatment was offered. Instead he was punished. Consequently there would seem to be a link between Mr. Hayward’s Alcohol Abuse and his Naval service.
…” [T14/237-240]
28. On 21 June 2001 the Commission refused the applicant’s claim, and he sought the assistance then of Mr Coxon, an advocate with the Vietnam Veterans’ Association. On 6 July 2001 he applied to the VRB for review of the decision, and on 17 September 2001 Mr Coxon requested a further report from Dr Ewer. Dr Ewer reported on 5 November 2001, in part, as follows:
“…
Mr. Hayward made the point that he was incarcerated in 1864 [sic]. He told me this was not directly related to a problem with alcohol but rather it was a reflection of his interest in the opposite sex. Mr. Hayward asserted that he was not abusing alcohol prior to 1965. He told me that he started abusing alcohol during the second half of 1965 which I note was after some of the subject stressors. He continued to abuse alcohol after this time and Mr. Hayward told me that he has evidence to support this assertion. He said that he did smuggle one bottle of beer on the ship prior to 1965 and that he was charged regarding this offence.
Mr. Hayward told me that his anxiety began in 1965. He tried to cover his anxiety using alcohol as he felt uncomfortable and ashamed of his symptoms. He also tried to get away from the Navy for the same reason. …
…” [T21/321]
Dr Ewer concluded that the applicant’s generalized anxiety disorder was directly related to his eligible service, and said:
“…
I also believe Mr. Hayward’s Alcohol Dependence is related to his eligible service. When I review [sic] Mr. Hayward he denied a problem with alcohol abuse prior to the subject stressors. He states his alcohol abuse came on after the subject stressors and he states he had evidence to support this assertion. Therefore, there would appear to be a temporal relationship between the subject stressors and Mr. Hayward’s alcohol abuse in the sense that the latter came on directly after the former. Furthermore, Mr. Hayward gives a history of using alcohol to cope with the anxiety he experienced. Furthermore, Mr. Hayward alleges that he was denied treatment for his alcohol abuse in the Navy.
The question needs to be asked as to whether Mr. Hayward’s wife’s health problems played a substantial role in precipitating Mr. Hayward’s Generalized Anxiety Disorder. I do not think it did because Mr. Hayward’s Generalized Anxiety Disorder and Alcohol Abuse were both present prior to his wife’s problems. Furthermore, both Mr. Hayward and his wife indicate that he was not particularly involved or troubled by his wife’s illness but rather that he was busy with his career. He was also distracted from his wife’s problems by alcohol abuse.
…” [T21/322-323]
29. On 4 December 2001 the VRB affirmed the Commission’s decision, and said in relation to the applicant’s anxiety disorder that the Gannet aeroplane crash incident was the only occurrence which might amount to a severe psychological stressor. In the course of its Reasons for Decision, the VRB said:
“…
The Board has paid careful attention to the opinion of Dr Ewer concerning the onset of symptoms of anxiety. However the Board also notes:
· In a statement made at discharge the veteran says: “Looking back, talking to my family I have always been a nervous and tense person. It came to a head when my wife got very sick at the end of 1981”.. (folio 108). The Board notes there is no mention of any event arising during service.
· In Naval outpatient records:
Dr Burston, a physician, reports in January 1982 “he appears to have been reasonably healthy in the past but always somewhat anxious and has had more trouble in the past 18 months following his wife’s surgery to remove a meningioma…” (folio 26)
Dr Rawson, a psychiatrist reported in August 1982 “Gave history of typical acute anxiety attacks dating back 12 months previously, when his wife was discharged from a Sydney hospital following resection of a [sic] extensive frontal meningioma.” At that time he “was bitter that the diagnosis had not been made at an early stage.” The veteran says this refers to his anxiety but the Board is satisfied that this remark refers to his wife’s condition.
At folio 27 the veteran contends that his interview with Dr Rawson was an attempt to address his over all problems under the guise of another circumstance. That is not the view taken of the evidence by the Board.
There is no mention in service medical records of anxiety symptoms associated with events occurring during service. Anxiety arises as an identified condition in 1981 – some 16 years after his eligible service.
…
The weight of evidence before the Board is that the veteran is and was an anxious person. He was concerned to “keep up appearances” before his peers. Excessive alcohol consumption aggravated his gastrointestinal problems that are also made worse by worry. What is clear is that while the Gannett accident, and the nature of his employment as an armourer, must have been stressful his anxiety as a disorder of some magnitude first became obvious during his wife’s illness and cannot be related to any earlier service occurrence.
…” [T2/10-12]
30. The VRB said in relation to the applicant’s alcohol dependence, in part, as follows:
“…
The Board notes that the veteran was in trouble before his eligible service. According to Dr Ewer it was all of the stressors that gave rise to the veteran’s alcohol abuse but only one of those stressors, the Gannett accident, can meet the requirements of the SOP as the cause of the condition. It is relevant that the veteran’s disciplinary problems associated with alcohol arose early in his career and at least on one occasion in 1964 before his eligible service. It is also relevant that at no time before the veteran saw Dr Ewer did the veteran’s association with the Gannett accident come to light. In the opinion of the Board if the Gannett accident had materially affected the veteran’s behaviour it would have been identified – at least by 1980-81. The veteran says his heavy drinking arose after his sentence for AWOL finished early in 1966. It is relevant that Dr Ewer apportions impairment at 95% for anxiety and 5% for alcohol abuse (folio 116). Although Navy medical staff record a number of instances of heavy drinking associated with stomach upset there is nothing in the materials to suggest that the veteran had an alcohol problem that was of medical concern to his service. The veteran’s career progressed very satisfactorily until his discharge. He says his problems were essentially personal and family in nature. It is well recognised that there was a culture of excessive drinking in all the services during the period in service messes, at service social functions and, in the case of the Navy, when ashore during and after voyages. The Board cannot identify any material that might show that his drinking habits are connected with the Gannett accident.
…” T2/13-14]
31. The applicant has applied to this Tribunal for review of the Commission’s decision.
32. Turning to the alleged stressors:
(a) The Gannet Aeroplane Crash Incident
33. The applicant gave evidence that he was in the 2 Echo Port Sponsor charge pistol workshop, which is just below the flight deck, at 4.30am on 24 March 1965, when a Gannet plane landed on the deck of the Melbourne, but crashed over the side, resulting in the presumed death of the pilot, Acting Sub-Lieutenant Hutchinson, whom the applicant had met previously. The applicant said in evidence that he did not see the aeroplane crash, but “saw sparks”. In his statement dated 18 July 2001 [Exhibit A2] he said that he “witnessed” a Gannet aeroplane crash off the edge of the flight deck and fall into the ocean. He stated that he recalled that the ship then turned around and set about rescuing the aircrew, and he recalled seeing the pilot’s helmet in the water. This would have been 10-15 minutes after the crash. He said in evidence however, that he saw a helmet and a shark’s fin; and that he then went back to his work. He said that this incident had the most profound effect upon him of the stressors he suffered during his operational service.
34. Dr Ewer in his oral evidence reiterated the views outlined in his written reports, that the applicant told him that he saw the Gannet crash, and saw later the pilot’s helmet and the shark fin; that he had been free of anxiety before this incident, and had become anxious and unwell soon after. He had experienced anxiety, shortness of breath, feeling terrified and out of control. Dr Ewer considered that the applicant had been drinking excessively prior to this stressful event; had been unable to get treatment, and that his alcohol condition worsened after the events in 1965, and his drinking started to cause problems in the second half of 1965. Dr Ewer gave evidence that on the basis of the applicant’s version of events, he diagnosed the anxiety disorder, and as the applicant tried to cover up the anxiety with alcohol, this led in turn to his alcohol dependence. Dr Ewer considered that this incident satisfied the definition of a “severe stressor”, or a “severe psychosocial stressor” in the relevant Statements of Principles.
35. Captain Stevenson was for 35 years a marine engineer. He said in evidence that the Melbourne would have been sailing at about 20 knots, and that it would take between 20 and 30 minutes to turn her around and return to the scene. He said also that the applicant would not have been on the flight deck, which was a forbidden area during aircraft landings.. We accept Captain Stevenson’s evidence.
36. The applicant does not maintain that he was a friend of the pilot of the Gannet, but that he knew him as one of the pilots on board the Melbourne.. He does not claim now, that he saw the Gannet crash onto the flight deck and fall into the sea, only that he saw “sparks”, and that he might have seen a splash. It is clear on the evidence, that it was in the vicinity of 20 to 30 minutes before the Melbourne returned to the scene; and the applicant says that he thinks he went up onto the flight deck. There were lights being shone onto the water. He looked over the side and saw the helmet and the shark’s fin. He gave no evidence of his subjective reaction to the event; but said that he had witnessed at least 2 other crashes whilst aboard the Melbourne, but that these had not worried him; that in relation to this crash he thought about the futility of it all, and went back to his duties.
37. We are satisfied, on the whole of the evidence, that neither the circumstances of this event, nor the applicant’s reaction to the event, was of such a nature as to satisfy the definition of experiencing a “severe stressor” or a “severe psychosocial stressor” in accordance with the Alcohol Dependence SoPs or the Anxiety Disorder SoPs.
(b) Toxic Fumes Incident
38. The applicant said in evidence that he was required to work in a confined space on the Melbourne whilst it was at action stations located off the Sunda Strait. He was preparing depth charges, rockets and other defence weapons, which was dangerous work. It was the first time he had undertaken that type of work in a combat type situation. A lot of his work involved cleaning and painting the magazines in which the explosives were stored. They used potent cleaning materials, including acid, and the rust preventative, chromate, but were not provided with any protection, and there was virtually no ventilation. He said that he was often overcome by the fumes, and he recalls one occasion when he was accused by a Naval Officer of being intoxicated because of the way he presented. On another occasion, he says that he fell down a ladder and injured himself as a consequence of the effect of the fumes. He says also, that during his service in Vietnam he was forced to work in confined areas, preparing bombs and rockets to be loaded onto aircraft and performing rust control and painting duties. He said in evidence that throughout his career in the Navy he performed all of these same duties, whether he was involved in operational service or not.
39. Captain Stevenson gave evidence that during his long career as an aircraft armourer, the applicant’s duties would have included all of those described; and that the preparation of bombs and rockets would have been exercised regularly in keeping with the ship’s ongoing exercise program. We accept Captain Stevenson’s evidence.
40. We consider that the toxic fumes incident was part of the applicant’s normal duties throughout his career; and we are satisfied on the evidence that there is nothing in these sometimes unpleasant duties that could satisfy the definition of a “severe stressor” or a “severe psychosocial stressor” in accordance with the Alcohol Dependence SoPs or the Anxiety Disorder SoPs.
(c) Depth Charge Incident
41. The applicant said in evidence that although he could not recall the exact date, this incident must have occurred during his operational service, because they were using live explosives. He saw his shipmates loading a 250 lb depth charge onto the bomb rack, in the bomb bay of a Gannet aeroplane. The depth charge was released, and rolled and fell firstly onto Mr Alexander’s back, and then fell about 2½ to 3 feet onto the flight deck. He said that he was concerned that the depth charge might explode, as it had been fused for loading on the Gannet. The Petty Officer assisted then in the defusing process at the front of the ship, by pushing the depth charge up onto the skid. He was concerned and apprehensive that the depth charge had been damaged and could explode and injure him, although he did not know of any occasion when this had happened.
42. Mr Alexander gave evidence that he was also an aircraft armourer, and as a member of an armouring party of 3, he was underneath the bomb rack when the mine came loose and fell on the middle of his back. He did not hear a noise as the mine hit the deck. He was shocked, and not quite sure how badly he was injured. He did not seek medical attention. He said that they had been taught to handle these armourments with great care, and not to cause an impact, as it was possible that it could explode. Although he did not know of any situation where this had happened, Mr Alexander said that weapons can go off in error, and that is what one lives with as an armourer. He took no part in the defusing of the depth charge, which he assumes was disposed of over the side, as was the usual practice.
43. Captain Stevenson gave evidence that the risk of explosion was fairly low. He knew of no record of a depth charge exploding after hitting the deck, and in addition, the detonation system is activated only immediately before release. He said that he had consulted with others with more experience, including the Commanding Officer of the Fleet, and they confirmed that they had not heard of such an event occurring. Captain Stevenson said also that as an aircraft armourer, it was part of the applicant’s training and experience to be involved in the defusing process. We accept Captain Stevenson’s evidence.
44. It is clear on the evidence that the applicant chose a career as an armourer, and that he continued to perform those duties for most of his nearly 20 years of service. He gave evidence that events of this type occurred from time to time; they were part of the job, and on his evidence he continued on with his duties after the mine was defused. We are satisfied on the whole of the evidence that this incident does not satisfy either the subjective or objective test for the definition of a “severe stressor” or a “severe psychosocial stressor” in accordance with the Anxiety Disorder SoPs or the Alcohol Dependence SoPs.
45. We are satisfied on the evidence therefore, and find as a fact, that the applicant did not suffer a “severe psychosocial stressor” during his operational service, and Factor 5(a)(ii) of the Operational Service Anxiety Disorder SoP is not satisfied. We are satisfied on the evidence, and find as a fact also, that the applicant did not suffer a “severe stressor” during his operational service and that neither Factor 5(a) or 5(b) of the Operational Service Alcohol Dependence SoP is satisfied.
46. In relation to the Statements of Principles applicable to the applicant’s defence service, no evidence was led in the course of the Hearing as to any stressors alleged to have occurred during any period of service, other than operational service. In the course of his closing address, Mr Ower conceded that he had led no evidence, but said that he was not abandoning this submission. We are satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe stressor” or a “severe psychosocial stressor” in the course of his defence service, as defined in either the Defence Service Anxiety Disorder SoP, or the Defence Service Alcohol Dependence SoP.
47. In the light of our findings of fact, it is not necessary for us to make findings in this matter as to the date of the onset of either the applicant’s alcohol dependency, or anxiety disorder. We consider it appropriate however, in view of the considerable volume of evidence devoted to these topics, that we state that, had we been satisfied that the applicant suffered a “severe stressor” or a “severe psychosocial stressor”, during his operational service, we would not have been satisfied on the whole of the evidence, that the clinical onset of either of his conditions of alcohol dependency or anxiety disorder occurred within 1 or 2 years of the occurrence of any of the alleged severe stressors or severe psychosocial stressors. Factor 5(a)(ii) of the Operational Service Anxiety Disorder SoP would not have been satisfied; nor would either Factor 5(a) or 5(b) of the Operational Service Alcohol Dependence SoP have been satisfied.
48. In relation to the anxiety disorder condition, the applicant maintains now, that he had symptoms of stress and anxiety in 1965, but this is not supported by objective medical data. He was admitted to hospital with breathing difficulties in the 1960s, which he asserts were due to stress and hyperventilation; but the documentary evidence discloses that he was administered Ventolin, indicative of broncospasm, rather than hyperventilation. On another occasion, he had an episode of breathing difficulty and altered state of consciousness, which was attributed to sulphuric acid to clear rust-chromate paint, oil-based paint and poor ventilation in the magazines. There is no record of these difficulties being anything more than mild and temporary with no sequelae. The applicant may well have been of a “nervous disposition”, but it is clear on the evidence that after a somewhat shaky start, which led to his being AWOL in late December 1965/January 1966, and after he became eligible for promotion, he was rapidly promoted. By 1972 he was a leading hand, supervisor of loading explosives in Sky Hawk aircraft, becoming Chief Petty Officer in 1977/78, and continued to be able to fulfil increasingly technically demanding senior positions.
49. A perusal of the documentary evidence discloses an acute onset of the anxiety disorder in late 1981. This was accompanied by acute chest pain. He was admitted to the intensive care ward with a possible heart attack. No cardiac dysfunction was present, but an acute anxiety disorder was diagnosed. There was a clear temporal relationship with his wife’s life threatening neurological disorder. Although her condition was improved by surgery, there has been progressive neurological deterioration since then, with his wife now more recently requiring a wheel chair. In the course of his evidence relating to his wife’s condition, the applicant presented as a caring and compassionate husband, strongly devoted to his wife, who has ongoing medical morbidity. Subsequently, in October 1981 the applicant obtained a transfer to Adelaide, and took on less demanding duties in the Recruitment Office until he left the service in 1984.
50. In relation to the applicant’s alcohol dependency, a perusal of the documentary evidence discloses periodic increased alcohol intake. He was on 4 occasions early in his service, and before his operational service, disciplined and incarcerated, but he said in evidence that only one of these occasions related to alcohol, when he smuggled a bottle of beer on board and was given 5 days’ detention. In his oral evidence the applicant described these events as “exuberant social behaviour”.. When he lodged his first claim for Disability Pension in November 1984, he made no claim for any alcohol condition. In the course of Dr Lian-Lloyd’s examination on 17 May 1985, he noted that the applicant said that at sea he drank one can per day. “On land – a few more socially. But reduced since has been out of the Navy” [T7/212]. We consider that the applicant’s assertions in relation to his drinking habits have more to do with an attempt to satisfy the Statement of Principles than being a reliable history of the condition.
51. It was agreed between the parties that the conditions of gastro-oesophageal reflux disease and hypertension are dependant upon the success of the alcohol dependence claim, but in any event, a perusal of the documentary evidence discloses that the applicant’s hiatus hernia with reflux oesophasitis, was diagnosed on 18 September 1975, and is treated with medication. Hypertension was first diagnosed in 1981, with no factors present in the aetiology except for alcohol dependence/abuse that would relate to the Hypertension SoPs.
52. In our opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting any of the applicant’s conditions with the circumstances of the particular service he rendered. We are satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, and hypertension were war-caused.
53. For these reasons the Tribunal affirms the decision under review.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr ET Eriksen (Member)
Signed: .......................................................................................
AssociateDate/s of Hearing 26/27/28 February 2003
Date of Decision 4 November 2003
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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