Holt and Repatriation Commission
[2007] AATA 1546
•13 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/543
VETERANS' APPEALS DIVISION )
Re LAURIE JAMES HOLT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr RG Kenny, Member
Date 13 July 2007
Place Brisbane
Decision
The Tribunal affirms the decision under review.
...........[Sgd]...........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – generalised anxiety disorder and alcohol dependence diagnosed – severe psychosocial stressor – reasonable hypothesis of relevant relationship to service raised – no clinical onset of anxiety disorder within two years – anxiety disorder not war-caused – no increase in alcohol consumption after alleged stressor – alcohol dependence not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 69, 120, 120A
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
White v Repatriation Commission [2004] FCA 633
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission and Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691
Hardman v Repatriation Commission (2004) 82 ALD 423
Woodward v Repatriation Commission (2003) 75 ALD 420
Repatriation Commission v Stoddart (2003) 134 FCR 392REASONS FOR DECISION
13 July 2007
Mr RG Kenny, Member
Background
1. Laurie Holt (the applicant) served in the Royal Australian Navy (the RAN) from 8 February 1969 until 7 February 1989. On 12 May 2004, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “mental/anxiety stress complaints” which he contended were related to his RAN service. On 28 May 2004, the respondent accepted that Mr Holt suffered from generalised anxiety disorder and alcohol dependence but determined that these conditions were not related to his service. On 26 April 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr Holt seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).
Service and Standard of Proof
2. During his RAN service, Mr Holt rendered eligible war service in the form of operational service, as provided for in s 7 and s 6C, respectively, of the Act as follows:
from 16 November 1969 until 29 November 1969;
from 13 May 1971 until 1 June 1971;
from 20 September 1971 until 16 October 1971;
from 26 October 1971 until 18 November 1971;
from 24 November 1971 until 17 December 1971;
from 14 February 1972 until 9 March 1972; andfrom 1 November 1972 until 30 November 1972.
The first of those voyages was on HMAS Duchess and the others were on HMAS Sydney. Each of them involved a return voyage from Australia to South Vietnam. He also served a period of defence service, in accordance with s 69 of the Act, from 7 December 1972 until his discharge in 1989.
3. The standard of proof for determining diagnostic matters under the Act is provided for in s 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335; Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634; and Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373. That standard also applies to issues of causation in relation to defence service. The standard of proof applicable to issues of causation for operational service is set out in s 120(1) of the Act which reads:
“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.”
4. The application of that provision is affected by the terms of s 120(3) and also by s 120A of the Act which requires that consideration be given to any relevant Statements of Principles that have been published by the Repatriation Medical Authority (RMA). Under s 9(1)(b) of the Act, a condition will be war-caused if it arose out of, or was attributable to, any eligible war service rendered.
Contentions
5. Mr Anderson submitted that, whilst on the Sydney in Vung Tau Harbour during the last of his periods of operational service in November 1972, Mr Holt witnessed an explosion on and the consequential destruction of a local boat, or sampan, causing the death of the two persons on board. These were a woman who was in control of the vessel and a young child who was sitting at the front of it. Mr Anderson submitted that this caused Mr Holt to develop generalized anxiety disorder with the full array of symptoms for that condition developing within two years of the incident. He also submitted that the incident caused him to become alcohol dependant within that time-frame or, alternatively, that it materially worsened an existing alcohol dependence. A further alternative submission was that the anxiety disorder caused him to develop the alcohol dependence.
6. Mr Kelly submitted that, on the basis of a complete absence of any record of it, the sampan incident is unlikely to have occurred. However, he conceded that, if it had occurred in the manner described by Mr Holt, the incident may constitute a severe stressor and/or a severe psychosocial stressor as those terms are used in the relevant Statements of Principles. He also conceded that Mr Holt was alcohol dependant by the end of 1974, which was within two years of the alleged sampan incident. However, he submitted that Mr Holt had a well entrenched heavy alcohol consumption habit prior to November 1972 and that, therefore, any alcohol dependence from which he subsequently suffered was unrelated to any November 1972 incident. He also submitted that there was no evidence of the clinical onset of anxiety disorder within the two years of the alleged sampan incident. Further, he submitted that Mr Holt’s anxiety disorder probably developed as a result of the effects upon him of alcohol dependence.
Issues
7. The first issue for determination in this matter is the appropriate diagnosis to apply to Mr Holt’s present psychiatric state. The second issue is whether any such condition is related to his eligible war service. It is not in dispute and I am satisfied that defence service played no role in the development of any psychiatric condition in Mr Holt.
The Applicant
8. Mr Holt gave the following evidence. He was a stores rating when he served on the Sydney. This gave him access to the many storage areas on the vessel. When the Sydney was in Vung Tau Harbour in November 1972, he took a break from his storeman duties and went to the starboard side of an upper deck, possibly to have a cigarette. He noted a high level activity on the harbour. This included vessels and helicopters involved in the unloading and transfer of supplies from the Sydney to the shore as well as various local vessels. He noticed a sampan moving parallel to the Sydney at a distance of approximately 100 to 150 metres. At the stern, a woman was operating the steering mechanism and a young child, possibly three or four years of age, was sitting at the front. He was aware that precautions were being taken to protect the integrity of the Sydney. These included armed watches and the use of scare charges which were detonated in the water to deter intervention from enemy divers. He was surprised that such a vessel as the sampan would be permitted to be within that proximity of the Sydney. While he observed it, it suddenly exploded and disappeared leaving debris on the water.
9. After the explosion, Mr Holt left the deck almost immediately. He returned to his mess deck and felt that he had "gone to pieces" because of the incident. He remained there and he consumed alcohol. He got drunk on methylated spirits and orange juice. He did not return to duty that day. He did not discuss the matter with anybody and did not report what he had seen to anyone.
10. Mr Holt described his alcohol consumption patterns. Prior to November 1972, he drank alcohol every day. He described himself as a "loner" who often drank by himself. On occasion when he went ashore, he would usually consume about 10 large (26 ounce) cans of beer or some 10 to 16 small cans in a session. He would also consume that level of alcohol when he was on the Sydney but would not do so when he was on duty. He also consumed alcohol which he secreted in various store areas on the Sydney. He did this on all of the return voyages to South Vietnam including the six which were completed prior to November 1972. The secreted alcohol comprised bottles of spirits such as whiskey, ouzo and methylated spirits. His evidence was that he would consume these with orange juice to minimize the prospect of detection of the alcohol on his breath by his superiors. He also consumed medical alcohol. He considered that his alcohol consumption levels at that time did not have an impact on his personal or working life. After the November 1972 incident, he increased his level of alcohol consumption. He was able to do this because he was responsible for distributing beer issues. He increased his level of consumption of spirits as well as beer. He felt that he began to perform his duties less effectively in that he increasingly relied upon the assistance of others in order to carry out his work obligations.
11. When he was on the Sydney, Mr Holt had the rank of ordinary seaman. He left that the vessel in 1973 and, thereafter, served on shore based establishments such as Cerberus and Harman. He limited his drinking to beer at lunchtime and after work. Typically, this would comprise six to eight schooners of beer on each occasion before he went home. He rarely drank at home but would often arrive in an intoxicated state which had a significant impact on his relationship with his wife. Nevertheless, he was able to progress through the ranks to able seaman, leading seaman, petty officer and chief petty officer. He attributed his ability to gain promotion to the willingness of those around him, with whom he imbibed alcohol, to support him.
12. In evidence was an alcohol questionnaire completed by Mr Holt in 2006. Therein, he declared that he commenced alcohol consumption in 1969 and that, at that time, he was drinking beer and rum. He described the consumption of 12 cans of beer per day for two days per fortnight. He also described his consumption levels as increasing after he was in Vietnam and nominated the end of November 1969 as the date of change. He nominated the new consumption level as being twelve 26 ounce cans per day and two 40 ounce bottles of rum per week. In evidence, he agreed that this was correct and said that he would consume anything at that time including vodka and gin.
13. The transcript of the proceedings at the Board was also in evidence. Therein, Mr Holt is recorded as having stated:
“…. in 1969, we were on HMAS Cerberus when I joined the Navy. We spent one month on HMAS Cerberus, and then after a fortnight, we were given weekend leave to go to White Ensign Club in Melbourne. We got the train, they dropped us off, we were told to stay there. There was a bar there, there were strippers there. They said "Don't leave" and you spent a weekend there. There was a bar -- as I say, there was a bar there, and all you could do was drink and spew and carry on. And it was a terrible -- and when you look back on it, it was a terrible time. It was the start of alcoholism. And after a while, we used to sneak out. And I used to just drink and drink and drink and I ended up living -- at the end of the three months, I was living with prostitutes and keeping my -- drinking a lot.”
In his evidence, Mr Holt agreed that this was a correct account.
14. Mr Holt’s evidence to the Board also included a reference to his first voyage to Vietnam on HMAS Duchess in 1969 which involved a stopover in Singapore. He said:
“Anyway, that is when I went ashore and my drinking started and there was no stopping me. I just drank every night, I had the money for the girls every night, and I didn’t buy anything. Everyone was buying everything. I didn’t bother. I spent all my money on alcohol and girls.”
Again, Mr Holt confirmed that this was correct and he also confirmed that the chief coxswain had arranged for him to be confined to the vessel without leave for 21 days because of excessive alcohol consumption. In his evidence, he said that, whilst on the Duchess, he drank his daily ration and was usually able to obtain and consume the unwanted rations of several other sailors.
15. Mr Holt’s evidence to the Board included the following references to alcohol consumption on the Sydney:
“Sydney – well, what Sydney did to me, the fear factor of going into Vung Tau Harbour – we were three days out and my intake would pick up tenfold, and by the time I got there, I was drinking very, very heavily, where I’d have to hide myself a lot of the times, because the Chief was right next to me – well, right near me in my office. So I used to have to hide myself quite a bit.”
Mr Holt confirmed the correctness of this account and it was in that context that he made reference to the need to use alcohol that did not show on his breath. He also referred to the absence of proper meals because of the practice of allowing army personnel to eat first. This meant that, at the end of the meal, they were left with toasted sandwiches or biscuits and cheese which they would wash down with large cans of beer until 12 o’clock at night. In his evidence, Mr Holt said these descriptions related to all of his voyages on the Sydney.
16. In re-examination, Mr Holt said that, prior to November 1972, he mainly drank beer but also consumed some spirits from the stashes that he had in various storerooms. He also said that, after November 1972, he substantially increased his levels with consumption of methylated spirits, medical alcohol as well as beer. He estimated that his consumption of alcohol increased by about 50% at that time.
Evidence of Albert Palazzo
17. A report was provided by consultant historian Dr Albert Palazzo who also gave evidence. Dr Palazzo was requested to analyse the relevant RAN records for confirmation, or otherwise, of the sampan incident described by Mr Holt. He examined the Reports of Proceedings of HMAS Sydney held by the Australian War Memorial. These were in evidence as attachments to his report. They comprised the daily records of activities undertaken by that vessel including those on voyages to and from Vietnam. Dr Palazzo was unable to find any record of the incident or any similar incident. He also considered that this was not a surprising outcome because the records were brief and did not include information on all events which occurred. His searches revealed that, while the Sydney was in Vung Tau Harbour, it was at “Awkward State” which meant that steps were undertaken to prevent enemy attacks. These included the detonation of scare charges at irregular intervals and the posting of armed lookouts on the upper deck with instructions to fire at any rubbish or debris that could provide cover for hostile swimmers.
Medical Evidence
18. Medical reports were provided by psychiatrist Dr Kevin Calder-Potts and by Mr Holt’s treating psychiatrist Dr Ashim Majumdar who also gave evidence. Dr Calder-Potts diagnosed alcohol dependence. Initially, he also diagnosed post traumatic stress disorder but, in subsequent reports, amended this to generalized anxiety disorder. He recorded the sampan incident and expressed the opinion that this was not of sufficient severity to constitute a triggering stressor for post traumatic stress disorder.
19. Dr Majumdar completed a report dated 25 August 2005. He confirmed the diagnoses of generalized anxiety disorder and alcohol dependence. He also noted the sampan incident as well as Mr Holt’s sighting of several injured soldiers who had been brought on board the Sydney. He was of the opinion that the stressful events in Vietnam were responsible for the development of Mr Holt’s anxiety disorder and the subsequent development of alcohol dependence. In his report, Dr Majumdar wrote that Mr Holt “drank sometimes” after he joined the Navy and started to drink quite heavily when he was in Vietnam. He said that this was what he was told by Mr Holt. Specifically, he was told that “he had no drinking problem before November 1972”. He was also guided by what Mr Holt told him about the nature of his symptoms of anxiety and was of the opinion, on the basis of what he was told, that all of the relevant criteria for anxiety disorder were met by him within two years of November 1972.
20. Dr Majumdar did not consider that Mr Holt’s alcohol dependence predated and precipitated the anxiety disorder and reiterated that, on what he was told, there had been no drinking problem before the sampan incident. Nevertheless, he agreed that a person who was consuming methylated spirits would have a moderately severe drinking problem and, indeed, an “alcohol dependency problem”.
Diagnosis and Statements of Principles
21. The RMA has published Instrument No 1 of 2000 and Instrument No 76 of 1998 as the Statements of Principles for generalized anxiety disorder and alcohol dependence, respectively. Both Dr Calder-Potts and Dr Majumdar are of the opinion that Mr Holt suffers from those conditions. I am reasonably satisfied that those conditions answer Mr Holt’s initial claim.
Principles of Causation
22. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, set out a four-step procedure for determining issues of causation in relation to operational service. The first of these requires that there be an hypothesis of connection between a claimed condition and service. From the contentions of Mr Anderson and the evidence of Dr Majumdar, I accept that hypotheses may be identified. These are that Mr Holt’s anxiety disorder resulted directly from the sampan incident; that his alcohol dependence resulted directly from the same incident or, alternatively, that his alcohol dependence resulted from his anxiety disorder.
23. The second of the four Deledio steps requires identification of any relevant Statement of Principles as published by the RMA. These are noted above. In so far as relevant to the identified hypotheses, the factors of causation and associated definitions read:
Anxiety disorder
5(a)(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Alcohol dependence
5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
5(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
5(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse;
“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;
24. The third Deledio step does not involve the making of findings of fact but requires a consideration of each advanced hypothesis to determine whether it is reasonable in the sense that there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if the hypothesis fits, in the sense of being consistent with, the template provided by the relevant factor and associated definition in the Statement of Principles. If an hypothesis is reasonable, it will then be necessary to consider the fourth of the Deledio steps.
Reasonableness of Hypotheses
anxiety disorder: factor 5(a)(ii) – direct effect of severe psychosocial stressor
25. The severe psychosocial stressor requires an identifiable occurrence. That term imports the notion of a recognisable event. The examples of identifiable occurrences contemplated by the Statement of Principles as psychosocial stressors cover a wide range of events suggesting resultant feelings which extend over a time-frame and which thereby have a social dimension to them. The only relevant “occurrence” in this matter is the sampan incident. The identifiable occurrence must be one which, subjectively, evoked feelings of substantial distress in Mr Holt as well as one which, objectively, would evoke such feelings in a person exposed to that occurrence: White v Repatriation Commission [2004] FCA 633.
26. The evidence of Dr Majumdar points to the presence of anxiety disorder shortly after and because of the sampan incident. In his evidence, Mr Holt described the incident and his subjective feelings. He said that he went to pieces and repaired to his mess deck where he proceeded to get drunk on methylated spirits. The material before me may be considered such that, objectively, there is some prospect that a person similarly placed to Mr Holt might suffer substantial distress. Accordingly, looked at in a benevolent light, the material points to a “severe psychosocial stressor” as defined in the Statement of Principles.
27. In addition to the need for a severe psychosocial stressor, factor 5(a)(ii) in the Statement of Principles for anxiety disorder requires that there be material which points to the clinical onset of the condition within two years of experiencing the stressor. The term “clinical onset” has not been defined by the RMA but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms at a particular time indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission and Cornelius [2002] FCA 750. Also, all of the diagnostic criteria of the disease need to be shown within the two year period: see Lees v Repatriation Commission (2002) 125 FCR 331 and Youngnickel v Repatriation Commission [2004] FCA 1691. The consideration of clinical onset is not confined to the matters favourable to the applicant: see Hardman v Repatriation Commission(2004) 82 ALD 433. The evidence of Dr Majumdar is that the condition of anxiety disorder was present within 2 years of the sampan incident. Without making any findings of fact in that regard, I accept that his description points to the clinical onset of anxiety disorder within the time-frame required by the Statement of Principles.
alcohol dependence: factor 5(a) – suffering from a psychiatric condition
28. This factor will depend upon whether or not anxiety disorder is accepted as being a war-caused condition. Dr Majumdar’s evidence points to this as a basis for the development of Mr Holt’s alcohol dependence and that is consistent with the terms of the factor in the Statement of Principles.
alcohol dependence: factor 5(b) – direct effect of experiencing severe stressor
29. For a reasonable hypothesis of a relationship between Mr Holt’s alcohol dependence and his service under factor 5(b), there needs to be material concerning the sampan incident which points to him experiencing a severe stressor as that term is defined above. Both subjective and objective considerations are again relevant in considering that definition: see Woodward v Repatriation Commission (2003) 75 ALD 420 at 445 and Repatriation Commission v Stoddart (2003) 134 FCR 392 at 399. In Woodward, the Full Federal Court said:
“[T]he definition 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.”
30. Mr Holt’s description of the sampan incident and of his reactions at the time are consistent with the definition and factor in the Statement of Principles. Dr Majumdar’s evidence also points to the relevant time-frame of two years for the clinical onset as having been met and, in addition, I note the concession by Mr Kelly in that regard.
alcohol dependence: factor 5(d) – worsening because of experiencing severe stressor
31. It will be seen below that I find that Mr Holt was strongly committed to a high level of alcohol consumption well before November 1972 when the alleged sampan incident occurred. Nevertheless, there is no material which points to a formal diagnosis from any practitioner that he was alcohol dependent at that time. That being so, the material cannot point to a clinical worsening of such a condition due to the events that occurred in November 1972.
Deledio Step 4: Is the Condition War-Caused?
32. On the basis of the material before me, the hypothesis advanced in respect of anxiety disorder under factor 5(a)(ii) of the Statement of Principles and the hypotheses advanced in respect of alcohol dependence on the factors 5(a) and 5(b) of the Statement of Principles are reasonable. This means that consideration must be given to the fourth of the Deledio steps. The conditions, or either of them, will be war-caused unless I am satisfied beyond reasonable doubt that I cannot accept the factual bases upon which the hypotheses rest or that there is material which contradicts those facts.
33. Mr Anderson contended that there was no evidence before me which would enable me to conclude, beyond reasonable doubt, that the sampan incident did not occur. I accept his submission in that regard. However, that does not conclude this step of the analysis.
34. Significant in this matter is the view which I have taken of the evidence of Mr Holt. I found him to be an unreliable witness. In particular, this relates to his evidence in respect of his alcohol consumption patterns both before and after November 1972. He accepted as correct the evidence which he gave to the Board. On that evidence, he was a very heavy consumer of alcohol from the early days of his RAN service, while he was serving on both the Duchess in 1969 and on the Sydney prior to November 1972 and when he took shore leave. Not only did he consume large quantities of alcohol during those times, he also experienced a wide variety of alcohol types including methylated spirits. The extent of his alcohol consumption is indicated by his need to stash supplies in a variety of store locations and his willingness to access these. On several occasions, he claimed that he did not consume alcohol whilst he was on duty. However, his evidence was conflicting in that regard because he also said that he would utilize those stashed alcohol products which he believed left no trace on his breath in order to escape the attentions of his superior who worked in the same office as he did on the Sydney. He also gave conflicting evidence concerning increased levels of consumption after November 1972. At one stage, he estimated that his consumption increased by 50%. However, the account which he gave of his drinking patterns at Cerberus and Harman did not reflect this. He described himself as consuming beer, rather than spirits or other alcohol, and as doing so at lunchtime and after duty before driving home where he rarely drank.
35. Dr Majumdar’s opinion about the clinical onset of Mr Holt’s alcohol dependence and his anxiety disorder depended upon the accounts given to him by Mr Holt. Dr Majumdar’s evidence was that Mr Holt did not have a drinking problem prior to November 1972. Clearly, that is not consistent with the evidence before the Tribunal. Not only was he a heavy consumer of alcohol during that time, he also took to exotic forms of alcohol, such as methylated spirits and orange juice, in order to mask his consumption. It was Dr Majumdar’s evidence that such a person would have a moderately severe drinking problem and even an “alcohol dependency problem”. Unfortunately, Dr Majumdar’s evidence of Mr Holt’s alcohol consumption was based on an erroneous history and, to that extent, I am unable to accept it.
36. The clinical onset of a condition requires that all of its diagnostic criteria be met. Those criteria for generalised anxiety disorder are listed in the Statement of Principles as follows:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.
37. Dr Majumdar was unable to locate any clinical references to these criteria in his clinical notes. He relied upon the history given by Mr Holt about the symptoms of his anxiety disorder in order to conclude that the condition was present within the required 2 year time-frame. My observations above concerning the reliability of Mr Holt as a witness and historian in relation to his alcohol consumption have equal application in the context of Dr Majumdar’s reliance upon him in relation to the six criteria for anxiety disorder. There has been no suggestion that there was any psychiatric treatment provided to Mr Holt in the 2 years following the sampan incident. His career in the RAN was characterized by promotion to the second-highest of the non-commissioned ranks and by an ability and willingness to serve his full 20 year commitment.
38. On the basis of all the evidence before me, I am satisfied beyond reasonable doubt that there was no clinical onset of anxiety disorder within two years of the sampan incident. It follows that I am also satisfied beyond reasonable doubt that anxiety disorder is not a war-caused condition. It also follows that alcohol dependence is not war caused in accordance with factor 5(a) of the Statement of Principles. Again, on the evidence before me, I am also satisfied beyond reasonable doubt that there was no increase in Mr Holt’s alcohol consumption after November 1972. As conceded by Mr Kelly, he may have been alcohol dependent during that time. However, any level of such dependence was no greater than it was prior to the sampan incident. It follows that alcohol dependence is not war caused in accordance with factor 5(b) of the Statement of Principles.
39. I am satisfied beyond reasonable doubt that anxiety disorder and alcohol dependence are not war-caused conditions under s 9(1)(b) of the Act.
Decision
40. The decision under review is affirmed.
I certify that the preceding 40 paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Fiona Kamst
Legal Research Officer
Date/s of Hearing 4 July 2007
Date of Decision 13 July 2007
Counsel for the Applicant Mr R Anderson
Solicitor for the Applicant Mr T O’Connor
Representative for the Respondent Mr J Kelly
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