Hicks and Repatriation Commission
[2004] AATA 266
•10 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 266
ADMINISTRATIVE APPEALS TRIBUNAL N 2002/1709
VETERANS APPEALS DIVISION
Re: Francis John Hicks
Applicant
And: Repatriation Commission
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member, Dr J. Campbell, Member
Date: 10 March 2004
Place: Sydney
Decision:The decision under review is varied by finding that the applicant does not suffer from anxiety disorder and post traumatic stress disorder, but the diagnosis should be changed to alcohol dependence with physiological dependence which is not determined to be war-caused. In all other respects the decision is affirmed.
. . . . . . . . .. . . . . . . . . . . . . . . .
Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service – diagnosis of psychiatric symptoms - diagnosis varied to alcohol dependence with physiological dependence ALONE - decision under review otherwise affirmed
Veterans’ Entitlements Act 1986 – ss. 120, 120A, 196B
Repatriation Medical Authority Statements of Principles:
- Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder as amended by Instrument No. 54 of 1999.
- Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse.
Repatriation Commission v Hill (2002) 69 ALD 581
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Deledio (1998) 49 ALD 193
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith [1987] 74 ALR 537
Woodward v Repatriation Commission (2003) 200 ALR 332
Repatriation Commission v Stoddart [2003] FCAFC 300
Lees v Repatriation Commission (2002) 74 ALD 68
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Parr [2003] 970
REASONS FOR DECISION
P.J. Lindsay, Senior Member, Dr J Campbell, Member
1. Francis John Hicks has applied to the tribunal under the Veterans’ Entitlements Act 1986 (the Act), for review of a decision made on 7 February 2002 by the Repatriation Commission, as varied by the Veterans’ Review Board. On 11 October 2002 the Board varied the Commission’s diagnosis of a condition, anxiety disorder, to anxiety disorder and post traumatic stress disorder (PTSD). However, the Board affirmed the Commission’s decision that Mr Hicks’ anxiety disorder and PTSD, alcohol abuse and impotence were not war-caused diseases under the Act.
background
2. Mr Hicks served in the Royal Australian Navy from 1 June 1968 to 16 June 1992. He had two periods of operational service in Vietnam: from 22 February 1970 to 1 March 1970 and from 22 February 1971 to 1 March 1971 and a period of defence service from 7 December 1972 to 16 June 1992 (T2-7).
3. On 13 November 2001, Mr Hicks lodged an application with the Commission for disability pension for incapacity from loss of hearing due to tinnitus, impotence and anxiety / PTSD. Mr Hicks noted in the claim form that he first became aware of his PTSD in 1969 (T4-21). On 7 February 2002 the Commission accepted his claim in respect of hearing loss but refused the claim for anxiety disorder, alcohol abuse and impotence on the grounds that the conditions were not related to service.
evidence
4. Mr Hicks was born in Broken Hill on 7 January 1951 and lived there until aged 11 when his family moved to Peterborough in South Australia. He said he had clear recollections of his childhood. His father was a heavy drinker and a firm disciplinarian. His parents argued frequently and they separated on a number of occasions. Mr Hicks left school when 14. At the time he was living with his mother and siblings. Although his parents reconciled about eighteen months later, he did not resume living with his family.. Instead he moved in with a sister and her husband. The applicant’s first jobs were labouring and working for the railways. At 17 he joined the Navy “to get away from it all”.
5. Following his basic training, Mr Hicks began work as a radio operator in HMAS Sydney. He completed his radio operator’s course and requested a transfer to HMAS Yarra. He joined Yarra the day it sailed for seven months deployment in the Far East. It was during this time that Mr Hicks had his first period of operational service, from 22 February 1970 to 1 March 1970, while the Yarra escorted HMAS Sydney during its supply mission to South Vietnam. In evidence he said that on entering Vung Tau harbour he felt trepidation because it was a war zone and he was unsure of the possible outcomes. It was while Yarra was at anchor in Vung Tau harbour that he first heard explosions from scare charges that were in regular use to deter enemy divers. Their use made him “quite fearful” and he thought Yarra was vulnerable. Mr Hicks was not sure how long Yarra stayed in Vung Tau harbour. He thought it might have been a couple of days, or possibly as long as six days. During cross-examination, however, he accepted that Yarra was anchored in Vung Tau harbour for a total of only four and a half hours, one morning.
6. On escorting Sydney from Vietnamese waters, Yarra proceeded to Singapore where Mr Hicks enjoyed a day of shore leave. He said he went drinking.
7. The applicant’s second period of operational service occurred exactly a year later, 22 February 1971 to 1 March 1971, with Yarra acting as Sydney’s escort ship. Before the operational service commenced, Yarra was on exercises in the Philippines. On finishing the exercises, Mr Hicks had shore leave in Manila. An incident happened one evening while he was waiting on the wharf for a launch to take him back out to his ship. He heard a gunshot. He established that a United States serviceman, about 100 metres from him, had been shot. When it was apparent the shooting had finished, Mr Hicks said he approached the victim who was on the ground bleeding. Mr Hicks said he was pretty shaken by the incident (the Manila wharf incident) and did not know what would happen next.
8. Mr Hicks said he was fearful of the unknown during his second visit to Vung Tau harbour on 25 February 1971. He added that he had not been specifically trained to fight a war. According to the ship’s log for 25 February 1971 (Exhibit R2), Yarra anchored at 0700. He recalled the use again of scare charges and that guards with rifles patrolled the upper deck because Yarra was on a high state of readiness. He was not able to remember what work he did while Yarra was at anchor but assumed he worked in the radio operators’ department. He said he tried to get some sleep after completing his shift but the explosions from scare charges made him fearful and he thought he was in a vulnerable position and could be trapped if the ship were attacked.
9. At 1445 hours on 25 February 1971,Yarra left Vung Tau harbour (Exhibit R2). About an hour or two later, Mr Hicks decided to do some physical training in an area on Yarra’s upper deck where there were weights and a bench. Mr Hicks said he was the only person in the exercise area until a leading seaman, who operated the Sea Cat launcher that was located adjacent to the exercise area, asked him whether he was aware that the ship was at action stations. Mr Hicks answered in the negative. He asked the leading seaman what was going on and what he should do. The leading seaman did not say why the ship was on alert but he told the applicant to go to his action station because it was not an exercise. In answer to Mr Winship, the applicant explained that he did not hear a piped message to action stations or other alarm because the exercise area was close to a large and noisy intake fan.
10. Mr Hicks said that he was terrified when he learnt that Yarra was at action stations because he had no idea what was going on. He thought the ship was still in Vietnamese waters and it was under threat of attack. He feared for his own safety. He was wearing sports attire whereas the leading seaman was getting into his action working dress. Mr Hicks said he tried to proceed to his action station, the transmitter room located inside the ship between decks and to the aft. He proceeded to the quarter deck and tried to get through the door to his action station but it was dogged down, that is, the external handles securing the door were closed. He found it hard to open the door so he proceeded to the rear of the ship near the mortar bay and tried another door. He described trying to open the door, unsuccessfully, then attempting to get shelter. By the time he managed to open this door, action stations had been relaxed.
11. The duration of the action stations incident is recorded in Yarra’s log (Exhibit R2) as 15 minutes. Mr Hicks was not disciplined for not being at his action station.
12. On the return passage to Australia, he had shore leave in Singapore. Mr Hicks said he was still fairly shaken by the incident, so he drank excessively because the beer calmed him. Despite his heavy drinking he said he would wake at around 2 am or 3 am and would be trembling, breathing rapidly and sometimes would have vivid dreams. Mr Hicks’ evidence was that it was around the time of Yarra’s return from Singapore to Australia, that he began to have trouble sleeping. There was no access to alcohol, so he could not induce sleep and could not stay asleep.
13. Shortly after reaching Sydney he went on annual leave. He spent a brief period with his parents and then went to stay in Adelaide with a Navy friend. He told his friend about the action stations incident. He also told him that he intended to run away from the Navy. Mr Hicks said he wanted to leave the Navy because he was scared of returning to Vietnam. However, he soon learnt he had been given a shore posting to HMAS Albatross and decided not to go ahead with his plan. During this annual leave he went to the pub every day it was open and would drink excessively, which he explained was not his normal behaviour. He said he sought solace from alcohol, because the memory of the action stations incident still troubled him.
14. Commodore P. Mulcare of Writeway Research Service, who prepared a report dated 20 March 2003 (Exhibit R2) exploring the applicant’s account of the action stations incident, gave evidence at the hearing. In preparing the report Commodore Mulcare called on his own service experience in Yarra in 1965-66 and her sister ship HMAS Parramatta from 1970 to 1972. Commodore Mulcare told the tribunal that he had periods of service in Vung Tau harbour.
15. Commodore Mulcare said that Yarra’s company would have been briefed about potential dangers while in Vung Tau harbour. Principally, these were from underwater mines and swimmers or possible rocket attack from small watercraft. In his view, briefing would not refer to air attack or attack by a ship, because the enemy forces did not have such capacity.
16. Commodore Mulcare’s report clarified that Yarra went to action stations on 25 February 1971, that is during the applicant’s second period of operational service, and not the earlier period as Mr Hicks stated in his evidence before the Board and in the histories he has given to doctors. From calculations Commodore Mulcare made based on the Yarra’s leaving Vung Tau harbour at 1445 hours, the ship would have been about 50 to 60 kilometres out to sea south of Vung Tau at the time of the action stations incident. Commodore Mulcare informed the tribunal that he had referred to the Sydney’s log for 25 February 1971, a document that was not in evidence. According to the log, Yarra was requested to investigate an unidentified ship about seven miles away. At 1652 hours, that ship, the cause for Yarra’s being sent to action stations, was identified as the USS Energy.
17. Commodore Mulcare noted that at the time of this incident, Mr Hicks was the equivalent of an Able Seaman with 16 months experience in Yarra.. By that stage he would have completed a large number of action stations exercises and damage control exercises. In fact Yarra had participated in Exercise FEBEX, an extensive, high-pressure exercise from 11-16 February 1971 which he said would have increased the applicant’s familiarity with action stations and other damage control procedures. By reference to Yarra’s Reports of Proceedings (RoP) from August 1970 to February 1971, Commodore Mulcare found that Mr Hicks had taken part in many action stations exercises (Exhibit R3). In Commodore Mulcare’s opinion, Mr Hicks would have been familiar with the ship, its doors and hatches, watertight integrity control, and the fact that none of the doors giving access into the ship would be locked at any stage while at sea. In his opinion, it would have taken 1½ to 2 minutes to undo the clip on a door, go through and close it. He said it was “ludicrous” to suggest that a sailor would not be able to undog the door. He also stated that Mr Hicks probably was as well informed as most of the ship’s company, including the Sea Cat operator, concerning the reason for going into action stations.
18. A statement by Captain J H Gault RAN Rtd was attached to Commodore Mulcare’s report. Captain Gault was a gunnery officer with experience in frigates similar to Yarra.. Captain Gault’s opinion was that it would be “inconceivable” for a sailor with 16 months service in Yarra not to have been fully aware of the routes from the upper deck to the aft section. He added “I cannot see how this particular claim can be supportable – indeed it seems ludicrous to me. He certainly could not have tried very hard to open any of the accesses into the ship or go up and report his problem to the bridge or one off the manned upper–deck positions.” In evidence Commodore Mulcare agreed with this observation. Captain Gault also stated that doors and hatches were not locked during action stations.
19. The applicant’s evidence was that he continued to drink on a daily basis for the two years while posted to Albatross and later when he was transferred to Singapore in February 1973. He said that during his posting to Singapore he still recalled the action stations incident, which was a constant that would come to the forefront every now and again. Any mention in conversation of action stations served to trigger his recollection of the incident. He said he suffered a great deal of anxiety from the action stations incident. It caused him to drink to stifle emotions of moodiness and social withdrawal, and then he fell into a culture of drinking. Mr Hicks said his excessive drinking led to his divorce from his first wife in 1981. He has continued to drink heavily from 1971 till early in 2003 when he said he started to try to cut back but even now he can have very bad days when he drinks twenty schooners of beer. He brews beer at home.
20. Despite his excessive drinking, Mr Hicks had a very successful career in the Navy. He has been promoted steadily, achieving the highest non-commissioned officer’s rank of Chief Petty Officer. His Navy employment record (Exhibit R2) showed that his work was graded above average while serving in Yarra and later in Albatross.. Away from his duties he has also worked assiduously. In 1981 he completed the Higher School Certificate as a mature student.
21. Mr Hicks said that after leaving the Navy in 1992 he was headhunted to work for the communications branch of the Australian Secret Intelligence Service (ASIS). This work took him overseas to New Guinea and Taiwan. He remained with ASIS until 1998. He said he first became aware of his drinking problem in around 1998. Prior to then he was able to keep the effects of hangovers under control and perform the work that was required of him.
22. Mr Hicks was referred by his G.P. to a consultant psychiatrist, Dr M Robertson, in 1998. He was prescribed Cipramil, an anti-depressant.
23. Dr Robertson submitted a report to the Department of Veterans’ Affairs subsequent to the applicant’s lodging a claim for disability pension. The report dated 30 November 2001 (T7) referred to the applicant’s unhappy childhood and his parents’ unstable marriage. Mr Hicks described longstanding psychological symptoms, including periods of severe depression associated with vague suicidal ideation, as well as his daily consumption of 4-5 large bottles of beer. He presented as quite depressed at their two interviews. The applicant recounted the incident aboard Yarra when he was stranded during the action stations and his experience in Manilla when the US serviceman was shot. In relation to his six years undercover service for ASIS, which he described as operations assistance to intelligence, Dr Robertson reported that the applicant’s three months operation in Taipei was extremely stressful. Dr Robertson reported that “ … [the applicant’s] alcohol abuse became more consistent whilst in ASIS but he certainly had consumed excessive amounts of alcohol whilst in the Navy.”
24. Dr Robertson diagnosed alcohol abuse, anxiety disorder not otherwise specified and possibly major depressive episode recurrent currently in remission, and made the following comments regarding their connection to service:
The Veteran nominates two or three incidents that were distressful. The murder of the soldier appears to be a necessary and sufficient stressor and does feature significantly in his intrusive symptoms. Whilst his being called to action stations and being trapped on the deck was distressing does not appear to, at least on objective assessment, be a severe service stressor. Despite this the Veteran does attribute much of his distress to this memory. Also interestingly the veteran sees his service with ASIS as being the most difficult period of his military service although this was clearly a quasi military post. I suspect that in the balance of probability this Veteran’s anxiety symptoms do have a service relationship although the nature of some of the traumatic stressors does seem controversial.
25. Mr Hicks said he thought Dr Robertson did not have his best interests at heart because the doctor wanted to discuss his experiences in ASIS excessively. Mr Hicks said that when he stopped taking Cipramil, the anxiety, anger and withdrawal returned. At the suggestion of a veteran’s association, Mr Hicks consulted Dr K Koller, psychiatrist, in July 2002.
26. Dr Koller noted in his report of 18 July 2002 (T14-72) that the applicant complained of nightmares and restless sleep, depression and anxiety, arousal of thoughts by media reports of war, misuse of alcohol, irritability and anger in social relationships, poor concentration, a sense of estrangement and impotence. As to his experiences on operational service, Mr Hicks recalled the action stations incident as “very scary”, since he was stranded for half an hour in sports clothes while the ship’s company prepared for action stations. Mr Hicks recalled that the constant dropping of scare charges was extremely stressful. He referred also to the shooting incident on the wharf in Manilla. Dr Koller diagnosed PTSD as the result of traumatic stress experience in Vietnam, not the incident in Manilla. Dr Koller reported that Mr Hicks left the ASIS position in Canberra because he was not enjoying it, sold up and moved to Forster. Dr Koller attributed this decision to PTSD. Further, Dr Koller noted:
He was exposed to traumatic events in which he experienced and was confronted with an event that threatened his physical integrity. His response was intense fear, helplessness and horror.
He appreciates that as time passes and he has aged that the symptomatology of PTSD has intensified and accompanied by alcohol dependence.
Thus he complains of ruminations, thought intrusions, sleep disorder, nightmares, angry irritability, social avoidance. There is distress in situations that are or symbolise RAN trauma. There is a feeling of detachment and estrangement from others even to making conversation with others.
27. For the purpose of these proceedings Mr Hicks was referred by his solicitors to Dr A Hordern, consultant psychiatrist. A report dated 24 March 2003 (Exhibit A1) was prepared of the two interviews that Dr Hordern had with Mr Hicks in February 2003. The applicant’s early history referred to his poor relationship with his father and the constant arguments between his parents. Mr Hicks left school after a difficult year during which his parents separated. He had missed a lot of school because he was working odd jobs in order to contribute to the household finances. At 16 he left home to live with an older sister and her husband in Queensland but it was very unhappy time for him. He enlisted in the Navy at 17.
28. The history referred to the first tour, when Mr Hicks said he was anxious because of the constant explosions from the scare charges, he slept poorly due to the noise of the explosions and he feared being trapped in the ship and drowning. He described feeling cut off and alone during the action stations incident. Dr Hordern reported, mistakenly, that Mr Hicks was in Vung Tau harbour for six days during his first tour and that the action stations incident happened during this period. During his evidence Mr Hicks clarified the matter by acknowledging that the action stations incident happened during his second period of operational service. On shore leave in Singapore he drank to excess and became drunk. The incident on the wharf in Manila was a shock to him but he subsequently thought no more about it. Mr Hicks said he was “pretty nervous” when Yarra was in Vung Tau harbour on his second tour.
29. Following the second period of operational service, Mr Hicks said he started to drink excessively and progressively became unsociable. He went to Singapore in 1973. Dr Hordern was given a history of drinking and partying there, and the applicant’s wife’s eventually becoming fed up with his activities. His drinking and unsociability led to the failure of Mr Hicks’ first two marriages. Mr Hicks enjoyed his six years at ASIS because it was a ”family” to him. However, he found overseas postings stressful. He left ASIS in 1998 not long after his third wife gave birth to twins. Dr Hordern reported that Mr Hicks has dreams of being alone on the upper deck of HMAS Yarra in Vietnamese waters. In the dream, he experiences anxiety and a fear of being cut off from his companions.
30. Dr Hordern reported that the incidents experienced during the periods of operational service “ … do not appear to have been very severe, [but] it is noteworthy that when he experienced them he was only 19 years old and was psychologically vulnerable because of his unsettled childhood.” Dr Hordern referred to the study by Alexander McFarlane published in 1989 in the British Journal of Psychiatry, which was admitted in evidence as Exhibit A3. The study found that the vulnerability of the individual was at least as important, if not more important, than the severity of the precipitant stressor. Dr Hordern diagnosed PTSD resulting from the experiences Mr Hicks had on his second period of operational service, and alcohol dependence in association with the PTSD. He summed up:
In my opinion Mr Hicks, by reason of his unsettled childhood, was ‘vulnerable to experiencing a severe stressor’ in that, when he felt abandoned on the deck of HMAS Yarra on or about 1 March 1970, he feared that he would lose his life.
I think that the severe anxiety Mr Hicks experienced on the deck of HMAS Yarra on 1/3/70 when he felt that he had been abandoned and could lose his life may well have re-activated the feelings that he had when his father left home when he, Mr Hicks, was 14 years old. Later, the fear of being abandoned appeared in Mr Hicks’ dreams as part of his symptoms of the Post Traumatic Stress Disorder (PTSD) that he began to experience almost immediately after his traumatic experience on 1.3.70. In order to relieve these he started to drink and to smoke heavily, persisting in the former pursuit until the present day. (Exhibit A1)
31. At the Commission’s request, Mr Hicks was assessed on 10 March 2003 by Dr Delaforce, psychiatrist, who prepared a report dated 14 March 2003 (Exhibit R1). Dr Delaforce did not regard the incident on the wharf in Manila as a significant stressor since the applicant was some distance from the victim and did not know the victim. In describing how he felt during the action stations incident, Mr Hicks said he was “pretty fearful” and “fairly stressful” and thought of the possibility that he could die. For Dr Delaforce the action stations incident was potentially a stressor, but he had considerable doubts that the experience would qualify as a severe stressor according to the SoP for alcohol dependence or alcohol abuse. Dr Delaforce expressed the opinion that the anticipation of a stressful event is distinct from the event actually happening and resulting in intense fear, helplessness or horror. Apart from Mr Hicks’ increased level of drinking, there were no other symptoms directly related to the incident. In common with Dr Robertson, he thought the applicant’s three month’s service for ASIS in Taiwan was more stressful. Further, Dr Delaforce noted that the greatest increase in the applicant’s consumption of alcohol was from 1991, and was associated with work and marital strains which led to an eighteen month separation from November 1991.
32. Mr Hicks told Dr Delaforce that he thought there was a change in his mental health in about 1991 when he was depressed. Before then, he had not experienced significant depressive symptoms. It was around this time that Mr Hicks was posted to Canberra to work on communications during the Gulf War. He worked 18 hour days and drank very heavily. This change to his pattern of work caused major problems in his relationship with his wife. He found that his separation that occurred then, and later on in 1998 when he finished his employment with ASIS, put him into a depressed mood, causing problems with concentration and reduced energy. Mr Hicks told Dr Delaforce about sudden and unexpected onset of symptoms including shortness of breath, chest tightness, sweating and feeling unsteady, which are immediately followed by a headache, that he has suffered from around 1998. Mr Hicks has been advised that these symptoms could be caused by his excessive intake of alcohol. The history referred to nightmares, starting in the 1970s, which Mr Hicks said he “supposed” might have been related to the stressful incidents during operational service but did not involve ships or gunfire. However, his history was not clear on this subject because he also told Dr Delaforce that the nightmares began in 1991 to 1992. The applicant was certain that he does not have flashbacks and there was no avoidance of things related to his service experiences.
33. Dr Delaforce reported that Mr Hicks’ pre-service alcohol consumption was two standard drinks a week. Mr Hicks informed Dr Delaforce that he was charged in 1969 for attempting to take alcohol on board his ship. Following the action stations incident, his drinking increased to 5-8 standard drinks a day, and from mid 1971 it rose to 10 or more standard drinks daily, which Mr Hicks attributed to his expatriate lifestyle in Singapore, the availability of alcohol in Singapore and his working irregular shifts. There was substantial increase in 1991 to thirty schooners a day. From about 1991 Mr Hicks said he has suffered from alcohol related impotence, which was a cause of domestic stress because he and his wife were actively trying to conceive during the early to mid 1990s. His current high blood pressure is also related to excessive drinking.
34. Dr Delaforce noted that, although Mr Hicks left employment in 1998, he does not consider himself as retired. Indeed he feels he could take on anything and has applied for a couple of positions in the field of communications.
35. In accordance with the diagnostic criteria stipulated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) Dr Delaforce’s primary diagnosis was alcohol dependence with physiological dependence. The alcohol dependence has been present since around the early 1990s. It follows alcohol abuse during the 1970s, and the much greater consumption of alcohol from 1991. Dr Delaforce recorded the onset of depressive symptoms and nightmares from 1991 and anxiety symptoms from 1998. He considered that the applicant’s very excessive consumption of alcohol since the early 1990s is inducing the symptoms of depression, impotence and anxiety. Dr Delaforce could not attribute his diagnosis to service because he felt that the action stations incident, being an anticipated as opposed to actual event that led to intense fear, was not a severe stressor. Further, Dr Delaforce stated that the sleep related problems are also alcohol induced. He criticised the diagnosis of PTSD made by Dr Koller, which he thought contained scant details of symptoms and lacked detail about their onset.
36. Lengthy evidence was provided by Dr Hordern and Dr Delaforce during the session of concurrent evidence. They challenged each other’s diagnosis but neither changed his opinion. Dr Hordern’s diagnosis of PTSD hinged on the impact of the surprise trauma, the action stations incident, acting on an individual who was vulnerable to stress due to an insecure childhood that lacked affection. He did not find it remarkable that Mr Hicks was terrified by the incident and he considered Mr Hicks had a reasonable perception of imminent danger. Dr Hordern pointed out that Commodore Mulcare’s attitude was that of a very experienced sailor and not typical of a 19 year old seaman. Dr Hordern acknowledged that he did not specifically address par F of the diagnostic criteria for PTSD in DSM-IV which states: “The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.” Dr Hordern noted, however, that Mr Hicks drank and partied excessively while on transfer to Singapore in 1973 and his behaviour created serious tension in his marriage. He also mentioned that Mr Hicks told him he does not experience flashbacks, which is required by diagnostic criterion B “The traumatic event is persistently re-experienced … “.
37. Dr Delaforce on the other hand accepted, more as a truism, that a vulnerable personality can be more susceptible to the effects of stress and consequential development of psychiatric symptoms. To Dr Delaforce, the nature of the stressor remains crucial to diagnosis. Dr Delaforce, who was present in the hearing room while the applicant gave evidence, said that Mr Hicks did not then, or during their interview, give any sign, whether through language, gesture, stammer, crying or other behaviour, that would suggest to him that the action stations incident was a severe stressor.
38. Dr Delaforce pointed out that he specifically asked Mr Hicks about his mental health prior to joining ASIS. Mr Hicks informed him that he “had no particular problem” and “wasn’t aware there was anything wrong”. After hearing the applicant’s testimony concerning the impact of the action stations incident on his sleep, distressing memories, breathing problems, commencing to drink excessively because of the experience and waking with panic like symptoms, Dr Delaforce said he found it difficult to reconcile that evidence with the account he recorded at interview. In addition, Dr Delaforce said the applicant’s oral testimony about his struggling to open doors to allow him to get to his action station was inconsistent with his notes of the applicant saying that he was trapped on the upper deck and so took shelter in a three sided structure.
39. In answer to a question by Dr Campbell regarding a possible diagnosis of generalised anxiety disorder with self therapy through alcohol, Dr Delaforce’s response was that he would not make such a diagnosis because it was not until around 1998 that the applicant’s symptoms included excessive worry and he developed sweating, chest tightness and anxiety.
40. Dr Hordern’s diagnosis was that the applicant has become alcohol dependent because of his PTSD. While he agreed with Dr Delaforce that Mr Hicks’ alcohol dependence eventually caught up with him during the 1990s, he considered the applicant’s principal psychiatric condition was PTSD and not alcohol dependence. Dr Delaforce emphasised that the history he was given was of a considerable increase in alcohol consumption in the early 1990s. This was a period when Mr Hicks was working long hours on the Gulf War operations. There was consequent stress in his third marriage. He was concerned about his impotence and difficulties with his wife conceiving. Indeed he left the Navy because his wife would not tolerate his behaviour and they separated in 1991. If the applicant’s account of the action stations incident and his reaction to it, including the fear that he would die, were accepted, then Dr Delaforce would accept it as a possible stressor.
consideration of issues
41. In his opening address Mr B. Winship, solicitor appearing for the applicant, said the applicant’s case was that during the second period of operational service Mr Hicks experienced a couple of stressful incidents. Mr Hicks was said to have been vulnerable to the impact of these incidents due to an unsettled childhood and early adolescence, and because his first period of operational service gave him a sharper apprehension of danger. Mr Winship said the two incidents give rise to the conditions of PTSD and alcohol abuse or alcohol dependence. The parties agreed that if the Tribunal were to find for the applicant on issues of entitlement, the matter should be remitted to the Commission for assessment. The question whether the applicant’s condition of impotence was war-caused, was not argued at the hearing.
42. Mr Hicks’ claim for pension is related to a period of operational service. Accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. The tribunal will determine, pursuant to s.120(1), that his PTSD and or some other psychiatric condition for which a diagnosis may be made, was war-caused, unless satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination. The tribunal will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting the psychiatric condition with the circumstances of his service: s.120(3). Pursuant to s.120A of the Act, the tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA). Reference will be made to the relevant SoPs in force at the time of decision and, if necessary to SoPs in force on 7 February 2002, the date of the Commission’s decision.
43. Having regard to ss. 120 and 120A of the Act and the principles expressed in cases including Repatriation Commission v Hill (2002) 69 ALD 581, Benjamin v Repatriation Commission (2001) 34 AAR 270, Repatriation Commission v Budworth (2001) 66 ALD 285, Repatriation Commission v Deledio (1998) 49 ALD 193, in this case we must undertake the following steps in the following order:
·characterise or identify the psychiatric problems exhibited by the applicant (Benjamin at 283) on the basis of our reasonable satisfaction under s.120(4) of the Act (i.e. on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363, Repatriation Commission v Smith [1987] 74 ALR 537). SoPs made under the Act are not relevant to the question of diagnosis (Benjamin at 280);
·identify the hypothesis connecting the condition so identified with the circumstances of the particular service rendered by the applicant;
·consider if there is material pointing to the hypothesis; and
·consider if the hypothesis is reasonable taking into account, if applicable, the relevant SoP in force at the time that the Tribunal undertakes the review of the decision. If other SoPs were in force at the time the claim was lodged, the hypothesis must be considered against those SoPs if the applicant is not successful when considered against the current SoP.
If the hypothesis is reasonable, it is taken to be reasonable for the purposes of the Act unless:
·any one or more of the facts relied on in the material pointing to the hypothesis is disproved beyond reasonable doubt; or
·the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
44. The initial question is whether Mr Hicks suffers from a disease and, if so, what disease: Hill at [61] and Fogarty at [37]. In characterising the symptoms, the tribunal is to:
… identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional label to the collection of symptoms. … Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s.120(1) as qualified by s.120(3). (Budworth at 292).
Where the tribunal determines that the symptoms constitute a disease, the next step is to determine whether a SoP is in force in respect of the disease.
45. We find that the Manila wharf incident did not happen during a period of operational service and so it can be disregarded when considering whether any psychiatric condition is war-caused.
PTSD
46. In terms that are very close to the definition set out in DSM-IV, clause 2(b) in SoP 3 of 1999 concerning Post Traumatic Stress Disorder defines PTSD to mean:
a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning,
attracting ICD-9-CM code 309.81.
47. Dr Koller diagnosed PTSD on the basis that Mr Hicks was exposed to traumatic events, being the action stations incident, and the stress he suffered due to the noise and explosions of the scare charges.
48. Addressing firstly the scare charges, we note that neither Dr Robertson nor Dr Delaforce refers to their use being traumatic events for the applicant. Dr Koller, however, mentioned the use of scare charges every 2 to 3 minutes and sentry duties being extremely stressful. Dr Hordern refers to the use of scare charges over a six day period, but that history is mistaken because Yarra was in Vung Tau harbour for less than 8 hours on each of the applicant’s tours. In the histories that he has given the doctors, Mr Hicks has not consistently adverted to the impact, psychological or otherwise, of the use of scare charges. His evidence was that he was “quite fearful of the whole situation”. He referred to a general apprehension or fearfulness of possible enemy divers potentially placing mines on the ship’s hull, as opposed to being exposed to specific traumatic events. Furthermore, the fear he expressed of attack by divers does not appear to us to be a response of intense fear, helplessness or horror. We are reasonably satisfied on the material before us that the applicant’s experience of scare charges while Yarra was in Vung Tau harbour, did not evoke the response associated with exposure to a traumatic event.
49. Dr Koller reported that Mr Hicks currently suffers from excessive worry and anxiety, as well as depressive mood spells, which he attributed to PTSD. We consider Dr Koller’s brief report to be less analytical than the reports prepared by Dr Hordern, Dr Delaforce and Dr Robertson. We prefer the opinions of those specialists to Dr Koller’s.
50. Dr Hordern identified the action stations incident as a traumatic event, and added that while it appeared not to have been very severe, Mr Hicks was a psychologically vulnerable sailor. Dr Hordern saw Mr Hicks’ increase in alcohol consumption following the action stations incident as being a consequence of the PTSD. He noted that the heavy drinking, especially during the posting to Singapore, had a detrimental impact on Mr Hicks’ marital relationship. In Dr Hordern’s opinion this behaviour belied any suggestion that the action stations incident did not cause significant distress or impairment socially, occupationally or in other important areas of functioning. However, Dr Hordern did allow that some of the diagnostic criteria for PTSD are absent, for example, Mr Hicks’ symptomatology does not include flashbacks.
51. Neither Dr Robertson nor Dr Delaforce found the action stations incident to have been a particularly severe or traumatic event. Dr Robertson recorded symptoms that include protracted periods of helplessness, severe depression and panic type anxiety symptoms. There were regular nightmares, which Dr Robertson considered to be an intrusive PTSD type symptom but he did not diagnose PTSD. He conducted psychometric testing and a structured interview for PTSD and found that the DSM-IV diagnostic criteria were not satisfied.
52. Dr Delaforce also thought PTSD was not an appropriate diagnosis. In his opinion it was not easy to reconcile Mr Hicks’ promotions in the Navy and his career in ASIS. It was significant to him that there were neither flashbacks of service experiences nor avoidance of service related experiences.
53. Although faced with conflicting expert opinion, we are on balance reasonably satisfied that PTSD is not the appropriate diagnosis of Mr Hicks’ symptoms. The opinions of Dr Delaforce in particular, and Dr Robertson to a lesser extent, emphasise the role that alcohol has played and continues to play in contributing to Mr Hicks’ symptomatology. We prefer their diagnostic approach to that of Dr Hordern, whose diagnosis of PTSD is inconsistent with pars B, C and F of the diagnostic criteria. Further support for not accepting Dr Hordern’s diagnosis of PTSD with immediate onset is found in the note of Dr R G Myers, consultant psychiatrist, who examined Mr Hicks in December 1988 regarding psychological sequelae if treatment for his infertility was unsuccessful (T3-16). Dr Myers found Mr Hicks to display “a stable personality” and his attitude to possible failure of surgery was “rational and mature”. We agree with Dr Delaforce. Mr Hicks’ successful career is at odds with the action stations incident having caused clinically significant distress in any of the behavioural areas referred to in criterion F. Considering Mr Hicks’ accomplishments while in the Navy and later on joining and remaining with ASIS for six years, during overseas postings that he described as extremely stressful, we are reasonably satisfied that a diagnosis of PTSD is not appropriate.
Generalised anxiety disorder
54. As he had recorded panic and anxiety symptoms, Dr Robertson preferred a diagnosis of anxiety disorder not otherwise specified, in addition to the condition of alcohol abuse. Tribunal member Dr Campbell asked Dr Hordern and Dr Delaforce during the concurrent evidence session whether they would diagnose generalised anxiety disorder. Dr Hordern was not prepared to alter his diagnosis of PTSD, observing that PTSD is a form of anxiety disorder. Dr Delaforce considered that the panic attacks associated with headaches and the severe anxiety symptoms did not fit a diagnosis of anxiety disorder related to service, because he noted their onset was in 1998. More importantly, Dr Delaforce thought that these symptoms were alcohol induced. He gave a thorough explanation of his view. During his evidence he referred the tribunal to DSM-IV’s discussion of substance induced panic attacks. That work comments that panic attacks suffered with headaches by persons 45 and over, suggest that a general medical condition or substance, such as alcohol in Mr Hicks’ case, may be causing the panic attacks. Dr Delaforce regards alcohol as inducing Mr Hicks’ panic attacks, a term he uses to encapsulate anxiety symptoms. Having had the benefit of hearing his evidence, we prefer his diagnosis of alcohol induced anxiety disorder with panic attacks to that of Dr Robertson’s diagnosis of anxiety disorder not otherwise specified.
Alcohol dependence / alcohol abuse
55. We find Dr Delaforce’s overall assessment of Mr Hicks’ symptoms to be convincing. The history that Dr Delaforce obtained was that Mr Hicks noted a change in his mental health in 1991. Prior to then, he had “no particular” problems (exhibit R1). During 1991 he experienced a month of depression associated with marital difficulties. Mr Hicks’ communications work as part of the Gulf War was very stressful and required him to work long hours. He began his work at ASIS in the following year. At home there was anxiety associated with by the couple’s attempts to conceive which was compounded by his impotence, he had problems sleeping and ultimately there was an 18 month separation from November 1991. Around this time, his consumption of alcohol increased substantially, drinking up to thirty schooners of beer a day. His social life gravitated around male colleagues and drinking was their principal form of relaxation. When he began working for ASIS in 1992, he became subject to different pressures but still turned to alcohol for release.
56. Dr Delaforce said the insidious effect of excessive consumption of alcohol over the previous two decades eventually caught up with Mr Hicks. On this point, Dr Hordern agreed. Mr Hicks’ career did not advance during the 1990s as it had done previously. By the time of his leaving ASIS there had been a deterioration in Mr Hicks’ overall ability to cope. He left ASIS in 1998 because he had “had enough” (exhibit A1). Dr Delaforce explained that the alcohol consumption was contributing to Mr Hicks’ high blood pressure, his impotence, his sleeping problem including the vivid, anxiety related dreams and his panic attacks.
57. The preponderant view among the specialists (Dr Hordern, Dr Delaforce and also Dr Koller) is that Mr Hicks suffers from alcohol dependence. Dr Delaforce, expressly, and Dr Hordern by implication, accepted that initially Mr Hicks suffered from alcohol abuse and with the passage of time his pattern of consumption suggested alcohol dependence. In Dr Delaforce’s case, he thought that the alcohol dependence had its onset during the 1990s. Dr Robertson, however, diagnosed the applicant’s current symptoms as alcohol abuse.
58. There are definitions of alcohol dependence and alcohol abuse, each based on the diagnostic criteria in DSM-IV, in SoP 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The definitions state:
“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;
59. Mr Hicks acknowledged that he had been advised that his impotence and high blood pressure were attributable to his excessive drinking, yet he continues to drink heavily. At times he starts to drink from 9am. While no longer suffering from the stress of working at ASIS, Mr Hicks told Dr Hordern that his loneliness and depression have caused him to drink excessively. Despite his efforts to reduce consumption since 1998 when he began experiencing sudden symptoms of panic, chest tightness, breathing problems and feeling unsteady, he said in evidence that he will still drink up to 20 schooners on some days. We are reasonably satisfied that Mr Hicks has suffered from alcohol dependence and accept the diagnosis of alcohol dependence with physiological dependence made by Dr Delaforce. We are also reasonably satisfied on the basis of Dr Delaforce’s diagnosis, that the alcohol dependence has developed from symptomatic alcohol abuse. Accordingly, we will consider firstly whether there is a reasonable hypothesis connecting the alcohol abuse with service, before turning to consider whether the alcohol dependence is service related.
60. Mr Hicks’ evidence was that he drank to inebriation when Yarra was in port at Singapore on the return voyage from Vietnam. He said he was still shaken by the action stations incident. He said the alcohol had a calming effect and he would drink to the state of drunkenness in order to fall asleep. He continued to drink heavily in Australia and was contemplating desertion because he said he did not want to return to Vietnam. In evidence he said he continued to drink heavily during his posting at HMAS Albatross.. Mr Hicks said the shore posting allowed him greater access to alcohol and every day the wet canteen was open he would drink large amounts of alcohol. Discussions with colleagues about their experiences during calls to action stations would trigger recollections of the incident. Dr Hordern reported that his drinking and partying while posted to Singapore led to problems in his marriage. Mr Hicks said that the action stations incident remained a constant. He attributed his eventual divorce in 1981 to his unabated habit of excessive drinking. There is material before us, therefore, that raises a hypothesis connecting alcohol abuse with Mr Hicks’ operational service.
61. At the third stage in the decision making process laid down by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, the tribunal must form the opinion whether the hypothesis is reasonable. 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 ss 196B(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. (at 206)
62. Mr Winship submitted that the hypothesis connecting alcohol dependence to service through the applicant’s service related alcohol abuse, is consistent with factor 5(a) and factor 5(b) of the template in the SoP. Those factors read as follows:
The factors that must as a minimum exist before it can be said that reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse 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 two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
Clause 8 of the SoP contains the following definition:
“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;
63. Our finding that we are reasonably satisfied that Mr Hicks does not suffer from PTSD or an anxiety disorder and has not suffered from such a condition excludes the potential application of factor 5(a). As for factor 5(b), it was submitted that there is material supporting the hypothesis that Mr Hicks experienced a severe stressor at the time of the action stations incident. Although proof of facts is not an issue at this stage of the tribunal’s decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis. Mr Winship referred to Mr Hicks’ evidence that he was terrified when stranded on deck during the incident, which he thought continued for thirty or so minutes. In evidence to the Board, Mr Hicks said “I was very shaken by the whole event, pretty much reluctant to go on the upper deck again for the remainder of the deployment. … I was in a fairly agitated state as I recall so time was irrelevant.” (Exhibit R5) At the tribunal’s hearing he described feeling “terrified”, in amplification stating that it was a real threat, as opposed to an exercise. Mr Winship submitted that Mr Hicks’ reaction to the call to action stations ought lead the tribunal to find that the applicant experienced a severe stressor, as that expression has been interpreted by the Full Federal Court in Woodward v Repatriation Commission (2002) 200 ALR 332.
64. For the Commission it was submitted that Mr Hicks has changed his account of the action stations incident at different times. Mr Ryan, who represented the Commission at the resumed hearing, submitted that Mr Hicks’ credit was in issue. It was significant that, until the tribunal’s hearing, Mr Hicks had been in error in informing the Department, the Board and various medical specialists that the incident happened during his first period of operational service. His evidence that he was unable to proceed to his action station because he could not undog the access door was unconvincing in light of the evidence of Commodore Mulcare and Captain Gault. Mr Ryan also referred to Dr Delaforce’s evidence that the testimony given by Mr Hicks describing his actions during the action stations incident, contradicted the history he had been given.
65. HMAS Yarra’s ships log of 25 February 1971 (Exhibit R2) records the ship’s hands being sent to action stations at 1642 hours as Yarra closed on an “unidentified warship”. Mr Hicks said his only information was what he was told by the Sea Cat operator, ie it was not an exercise. Mr Hicks thought Yarra was still in hostile waters and he was fearful for his own safety. His evidence was he was stranded, not at his own action station, not wearing protective clothing but able to find some shelter when he was unable to open the access door. He said “I thought we were under threat of attack, imminent threat of attack and I was fearful of my own safety.”
66. In Woodward the Full Federal Court examined the definition of ‘experiencing a severe stressor’ in SoP 3 of 1999 concerning PTSD. After observing that the definition in clause 8 of SoP 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse “ … is in essentially the same terms, although it contains the qualification that the event or events might evoke intense ‘fear, helplessness or terror’”, the Full Court said that the expression ‘experiencing a severe stressor’:
… extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc.), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation. (at 357)
67. In the subsequent Full Court decision in Repatriation Commission v Stoddart [2003] FCAFC 300, Carr, Finn and Sundberg JJ agreed with the passage from Woodward quoted above and said that the definition of ‘experiencing a severe stressor’ “ … did not require there to be an actual threat judged objectively and with full knowledge of all the circumstances.” (at [30]) However, it remains a matter for the tribunal to address “ … whether the ‘threat’ perceived by the [veteran] was in the circumstances capable of satisfying the requirements of the definition, notwithstanding there was no actual threat as such.” (at [31])
68. The material before us includes the opinion of Dr Robertson (T7) who considered that while being trapped on the deck during action stations could be distressing, the incident “ … does not appear to, at least on objective assessment, be a severe service stressor.” The nature of the stressor was “controversial”, in Dr Robertson’s opinion. As well there is the view of Dr Delaforce who had “considerable doubts” that the incident would qualify as experiencing a severe stressor. In assessing whether the action stations incident acted as a stressor inducing the onset of excessive alcohol consumption, Dr Delaforce thought it relevant that there were no other significant symptoms related to it. To the same effect was Dr Hordern’s opinion that the trauma from the action stations incident does not appear to have been very severe, but he qualified the comment in observing that Mr Hicks was then 20 years old and psychologically vulnerable due to his unsettled childhood.
69. While taking account of the opinions of Dr Delaforce and Dr Robertson, there is nevertherless Dr Hordern’s cogent explanation for the incident having been terrifying for Mr Hicks. He emphasised the applicant’s age and insecurity arising from his unsettled and unhappy childhood. These personal characteristics, in combination with the surprise nature of the call to action stations that caught the applicant in a place and in a state where he was ill-equipped to respond in a manner for which he had been trained, led Dr Hordern to conclude Mr Hicks had a reasonable perception about the threat to him from an imminent enemy attack. There is evidence, therefore, that points to Mr Hicks’ perception of the action stations incident constituting a threat of death or serious injury being reasonably held.
70. The next stage of the Deledio process is whether there is material pointing to Mr Hicks having experienced the severe stressor “within the two years immediately before the clinical onset of alcohol abuse”. SoP 76 of 1998 contains the following definition of ‘alcohol abuse’:
“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.
71. The Full Federal Court in Lees v Repatriation Commission (2002) 74 ALD 68 approved the following meaning given to the expression ‘clinical onset’ in Re Robertson and Repatriation Commission (1998) 50 ALD 66
… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.
The Full Court also stated that all of the symptoms referred to in the relevant SoP must be present and revealed within the two year period following the stressor (at 73). Thus we are required to “ … address the question of when the identified symptoms or features” of alcohol abuse had manifest themselves (Repatriation Commission v Parr [2003] 970 at [14]).
72. Dr Delaforce had taken a history of Mr Hicks consuming 10 or more alcoholic drinks a day from about mid 1971. He stated that onset of alcohol abuse was “during the 1970s” (exhibit R1). During his concurrent evidence he reiterated this conclusion, citing the marital problems that Mr Hicks experienced during the 1970s as meeting one of DSM-IV’s diagnostic criteria. Mr Hicks was married in 1972. A daughter was born in January 1973. He was posted with his family to Singapore from February 1973. He told Dr Hordern (exhibit A1) that his excessive drinking and partying in Singapore was a cause of marital discord. His wife “got fed up” with his behaviour. This evidence points to behavioural problems, in the form of recurrent interpersonal problems caused or exacerbated by the effects of alcohol. It appears that their relationship had its ups and downs. There was another child born in 1975. Mr Hicks was still drinking heavily when he was posted to Canberra in 1976 and the relationship deteriorated. The evidence suggests a maladaptive pattern of alcohol consumption that persisted despite the marital discord it was causing. Eventually, there was a separation in 1979 and divorce in 1981.
73. Problems associated with the applicant’s drinking do not appear to have manifested themselves in other areas. The service records, for example, contain no material that suggests his use of alcohol indicated cognitive problems or resulted in poor work performance or similar adverse effects. On the contrary, the records note (exhibit R2) that in June 1971, while Mr Hicks was posted to HMAS Albatross, he was rated above average in his job. In evidence Commodore Mulcare concluded that Mr Hicks’ progress from a Leading Seaman in November 1973, while he was posted to Singapore, to Petty Officer in November 1976, was “not bad progress”. Similarly there is no material indicating symptoms that suggest the presence of the diagnostic criteria in pars A(2) or A(3) at any stage, let alone within two years of experiencing the stress of the action stations incident.
74. In Repatriation Commission v Cornelius [2002] FCA 750 the Federal Court stated that the material before the tribunal must be “ … capable of pointing to, as distinct from not excluding beyond reasonable doubt” (at [36]) the clinical onset of a condition within the requisite period. There is no evidence that the alcohol related marital problems began immediately on arrival in Singapore. Nor is there evidence of the point when the recurrent interpersonal problems, in the form of marital disharmony, had become evident. Given his posting to Singapore was from 1 February 1973 (exhibit R2), there is an absence of material before us that points to clinical onset of alcohol abuse within two years of Mr Hicks’ experiencing the severe stressor on 25 February 1971. We do not consider that there is material that would allow a clinician to say that symptoms of alcohol abuse were present by 25 February 1973. Thus the hypothesis connecting alcohol abuse does not fit the template in SoP 76 of 1998 and so is not a reasonable hypothesis.
75. Alcohol dependence has been diagnosed by Dr Delaforce as having its onset by the 1990s. He associated its development at that period with Mr Hicks’ greatest decline in his mental health, made apparent through the onset of depression. Clinical onset of alcohol dependence at this time similarly does not satisfy factor 5(b). Accordingly, a hypothesis connecting alcohol dependence with service, is not upheld by the template in the SoP.
76. The decision under review should be varied by our finding that Mr Hicks does not suffer from PTSD, anxiety disorder or alcohol abuse, but instead the diagnosis should be changed to alcohol dependence with physiological dependence which is not determined to be war-caused. In other respects, however, the decision is affirmed.
I certify that the preceding 76 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member and Dr J. Campbell, Member:
Signed:
..............................................................................
(Associate)
Date of Hearing 4 August and 9 October 2003
Date of Decision 10 March 2004
Applicant’s Representative Mr B. Winship, solicitorRespondent’s Representatives Mr P. Godwin and Mr D. Ryan, Dep’t of Veterans’ Affairs.
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