Holzhauser and Repatriation Commission
[2004] AATA 1408
•24 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1408
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/232
VETERANS' APPEALS DIVISION ) Re LEONARD JOHN HOLZHAUSER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Allen Date24 December 2004
PlacePerth
Decision The decision of the Tribunal is that the decisions of the respondent made on 26 June 2002, as affirmed by the Veterans’ Review Board on 6 May 2003, that:
(a) the applicant’s conditions of anxiety disorder, irritable bowel syndrome, impotence, and alcohol dependence or abuse, are not war-caused, is affirmed;
(b) the applicant’s condition of gout is not war-caused, is set aside and in substitution therefor the Tribunal decides that the applicant is entitled to a disability pension for gout, with effect from 27 May 2002.…..(sgd M A Allen)…..
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – applicant rendered operational service – whether conditions of generalised anxiety disorder (“GAD”), irritable bowel syndrome, alcohol dependence or abuse, impotence and gout are war-caused – whether reasonable hypotheses connecting conditions to operational service – for GAD, finding that material fits the template of the Statement of Principles (“SoP”) but finding that Tribunal satisfied beyond reasonable doubt that condition not war-caused – for conditions of irritable bowel syndrome, alcohol dependence or abuse, and impotence, satisfaction of requirements of SoPs required condition of GAD to be war-caused – applicant’s GAD not war-caused and so the requirements of the relevant SoPs not satisfied – for condition of gout, material raised reasonable hypothesis and Tribunal not satisfied beyond reasonable doubt that condition not war-caused – decisions under review set aside in part.
Veterans’ Entitlements Act 1986 ss 9,13,120,120A,196B
Statement of Principles 97 of 1996, 103 of 1996, 76 of 1998, 1 of 2000, 11 of 2000
Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission [2002] FCA 412
Treloar v Australian Telecommunication (1990) 26 FCR 316
REASONS FOR DECISION
24 December 2004 M J Allen, Member 1. This is an application by Mr Leonard John Holzhauser (“the applicant”) for review of a decision of the respondent made on 26 June 2002 to refuse claims that the conditions of anxiety disorder, irritable bowel syndrome, impotence, alcohol dependence or abuse, and gout are war-caused. That decision was affirmed by the Veterans’ Review Board (“VRB”) on 6 May 2003.
2. At the hearing of the matter the applicant was represented by an advocate, Mr Wood, and the respondent was represented by Mr Ponnuthurai, an officer of the Department of Veterans’ Affairs. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15) together with Exhibits A1 tendered by the applicant and Exhibits R1 and R2 tendered by the respondent. Oral evidence was given by the applicant and, on behalf of the respondent, by Captain H A Josephs AM (retired).
background
3. The applicant was born in March 1946 and served in the Royal Australian Navy (“the Navy”) from April 1963 to April 1972. He trained and served as an able seaman cook on various vessels and at various shore establishments during that time. The applicant rendered operational service aboard HMAS Duchess as follows:
Vietnamese Waters
27 May 1965 to 26 June 1965
20 September 1965 to 3 October 1965North Borneo/Malay Peninsula Waters
31 August 1965 to 7 September 1965
6 November 1965 to 29 November 1965
16 December 1965 to 20 December 1965
4 January 1966 to 5 February 1966
4. In August 2001 the applicant claimed a disability pension under the Veterans’ Entitlements Act 1986 (‘the Act”) in respect of a number of conditions. On 26 June 2002 a delegate of the respondent accepted his claim for bilateral sensorineural hearing loss and bilateral tinnitus, and granted a disability pension at 40% of the general rate with effect from 2 May 2001. At the same time the delegate refused to accept as war-caused the conditions referred to in para 1 above but also rejected claims for the conditions of cervical spondylosis, unspecified chest pain, obstructive airways problem, and ureteric calculi. When the matter was reviewed by the VRB only the conditions referred to in para 1 above were pursued and the same matters were in dispute before this Tribunal.
statutory framework
5. Section 13(1) of the Act relevantly provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the Act, liable to pay pension by way of compensation to the veteran in accordance with the Act.
6. Section 9(1) of the Act relevantly provides as follows:
‘(1)Subject to this section, for the purposes of this Act, an injury suffered
by a veteran shall be taken to be a war-caused injury, or a disease
contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran
resulted from an occurrence that happened while the veteran
was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose
out of, or was attributable to, any eligible war service rendered
by the veteran;
...
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was
rendering eligible war service, but did not arise out of
that service; or
(ii) was suffered or contracted before the commencement of
the period, or last period, of eligible war service
rendered by the veteran, but not while the veteran was
rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.’
7. Section 120 of the Act deals with standards of proof. In the case of a veteran with operational service, subsections 120(1) and(3) provide as follows:
Section 120 of the VE Act relates to the standard of proof. So far as is relevant to the present case, it provides:
‘(1) Where a claim under Part II for a pension in respect of the incapacity
from injury or disease of a veteran, or of the death of a veteran, relates
to the operational service rendered by the veteran, the Commission
shall determine that the injury was a war-caused injury, that the
disease was a war-caused disease or that the death of the veteran was
war-caused, as the case may be, unless it is satisfied, beyond
reasonable doubt, that there is no sufficient ground for making that
determination.
...(3) In applying subsection (1) or (2) in respect of the incapacity of a
person from injury or disease, or in respect of the death of a person,
related to service rendered by the person, the Commission shall be
satisfied, beyond reasonable doubt, that there is no sufficient ground
for determining:
(a) that the injury was a war-caused injury or a defence-caused
injury;
(b) that the disease was a war-caused disease or a defence-caused
disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole
of the material before it, is of the opinion that the material before it
does not raise a reasonable hypothesis connecting the injury, disease
or death with the circumstances of the particular service rendered by
the person.
Note: This subsection is affected by section 120A.
8. Subsection 120A relevantly provides that, in relation to claims made after 1 June 1994, an hypothesis connecting a disease with the circumstances of any particular service rendered by the veteran is reasonable only if there is in force a Statement of Principle (SoP) determined under s196B(2) that upholds the hypothesis.
9. Section 120A(4) provides that s120A(3) does not apply where there is no SoP in respect of the relevant injury or disease.
consideration
10. In a case such as the present the first issues to be determined by the Tribunal, on the balance of probabilities, are whether the applicant has rendered operational service and whether the applicant suffers from the relevant diseases for which he has claimed.
11. In relation to operational service there is no dispute between the parties that the periods of service set out in para 3 above constitute operational service and I so find.
12. In relation to whether or not the applicant suffers from the diseases claimed, again there was no dispute between the parties. In a report dated 21 March 2002 (T8) a psychiatrist, Dr John Kemp, diagnosed the applicant as “…suffering from generalised anxiety disorder resulting from exposure to anxiety provoking stressors occurring during his operational service on HMAS Duchess” and also that the applicant met the diagnostic criteria for “substance abuse (alcohol)”. In relation to gout, irritable bowel syndrome and impotence the applicant’s general practitioner, Dr Lill, diagnosed these conditions at the time of the applicant’s claim and subsequently – see T4 and T7. I am satisfied that the applicant suffers from all of the conditions the subject of this review.
13. Having reached the conclusions set out above, I must then proceed to take the steps referred to by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The Full Court said:
‘1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. 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.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’
14. The parties agreed that much of the outcome of the present proceedings would turn on the conclusions of the Tribunal in relation to the applicant’s claim for generalised anxiety disorder (“GAD”). Accordingly, I propose to consider that claim first.
15. In his 2001 claim form (T4) the applicant said in relation to a disability of “stress disorder” that “for some years I have had distressing dreams and flashback visions of 1965. My wife complains of me calling out in my sleep. I have taken Serepax for 26 years and if I don’t have them I get uncontrollable shakes.” The applicant said that he first became aware of the signs and symptoms of this disability in “late 1972” and said that he believed his war service caused or contributed to the disability as follows: “while serving off the coast of Vietnam I was often traumatised by the firing of our ship’s guns. I saw Vietnamese boat people stopped, questioned, brutalised and even shot. I cannot forget these experiences.” In relation to excessive alcohol consumption the applicant said in that claim form that he consumed alcoholic drinks “… every day and this was a habit I developed in the Navy. Alcohol helped me to relax and forget any worries/problems which I had.” He said that he first became aware of the signs and symptoms of this disability in 1972 and said that “I started drinking in the Navy as it was the thing to do and I did not want to be the odd man out. Often, on shore leave, I would drink large amounts of spirits – I would boast of how much I drank.”
16. In relation to the condition of gout the applicant said that he believed this had been caused by drinking large quantities of alcohol in the Navy. In relation to the condition of impotence, the applicant said that his ability to have a meaningful sexual relationship with his wife had “diminished more and more since I started to worry about some of my experiences in the Navy – particularly things that happened while I was on the Duchess”. In relation to the condition of irritable bowel syndrome the applicant said that he could not remember having this problem while he was serving in the Navy “ … but it certainly occurred not long after my discharge…”.
17. In a questionnaire completed by the applicant in June 2001 (T39), the applicant said that he started drinking alcohol in the Navy because “everyone seemed to drink – I went along with the crew” and said that when on shore he would drink every day, but when at sea in an operational area he would drink less than once per week. He said that he “learnt to drink the hard way – with a bunch of experienced drinkers. I started with a few cans and this increased over the years.” In a subsequent (October 2001) questionnaire (T6) the applicant said that he started to drink alcohol on his first leave in the Navy, drinking about 6 x 375 ml cans each day and one 700ml bottle of rum every 10 to 14 days. He said “he started drinking in the Navy as everybody did, and I did not want to be the odd man out. Often I drank large quantities of rum and boasted how much I could drink.”
18. Between August 2001 and February 2002 the applicant saw Dr Kemp on 5 occasions. In T8 Dr Kemp recorded the applicant complaining of “ … numerous psychological symptoms [that] have been present since his naval service. These include a persistently disturbed sleep pattern with frequent ill formed dreams and nightmares regarding a variety of scenes. He complained of worrying thoughts which tended to occur about numerous topics including his capacity to work, his family relationships, whether or not he had performed day-to-day tasks adequately and finds it difficult to control his worry. …He also gave a history of having abused alcohol from time to time in the past that had resulted in a great deal of conflict with his wife. …[the applicant] reported his symptoms of irritability and sleep disturbance and worrying thoughts had been present since 1966 and have intensified over the past 5 years.”
19. Dr Kemp reported that the applicant described stressful circumstances to which he had been exposed during his operational service, including:
“(1)participating in boarding parties that boarded to search local native and coastal traders … during these operations when he was acting as an armed guard he would be intensely fearful, anxious and apprehensive regarding the possibility of armed conflict or detonations of explosives upon the intercepted boats etc… sometimes it was necessary to fire warning shots from the ship’s Bofors across the bow or overhead of intercepted boats in order to force them to stop. On occasions the crew of intercepted craft were taken into custody for interrogation by the civilian authorities … these incidents made him extremely anxious and fearful and that he frequently worried about the fate of the seamen who were handed into civilian authority custody.”
(2) …in 1966, following completion of his last operational tour, when he believed that HMAS Duchess would be returning for another tour of operational duty … he went absent without leave as he could not face returning to a combat situation due to his high levels of anxiety”.
(3) during non-operational service [the applicant had] participated in a rescue effort [of personnel from a sunken dredge that had] involved multiple efforts to pull in bodies with grappling hooks …[and he had] … been distressed when he saw sharks circling”.
20. Dr Kemp reported that the applicant’s wife had informed him that she had known him since 1970 and they had married in 1972. Ever since that time the applicant had been irritable, grumpy, negative and had angry outbursts. He had drunk to excess early in their marriage, but modified this in recent years and that he was frequently anxious, worried and preoccupied.
21. At T9 is a note made by an Officer of the Department of Veterans’ Affairs concerning a telephone conversation with Dr Kemp. The note records that Dr Kemp “… specifically questioned [the applicant] about the contention [that he saw boat people brutalised and shot], and it was established that he was involved in boarding parties and handed prisoners over to local authorities. [the applicant] told [Dr Kemp] that he did not actually witness any brutality or shooting, but feared that this would happen after the prisoners were handed over for interrogation.”
22. The applicant did not give oral evidence to the VRB but did do so to this Tribunal. In his oral evidence the applicant said that he was allocated to boarding parties on 2 occasions and had boarded a small vessel (approximately 20 to 50 feet long) on both occasions. A boarding party usually consisted of between 8 and 12 crew, commanded by a junior officer. As a junior member of the boarding party his task was to wait on the deck of the vessel that had been boarded with a rifle and hand-gun whilst other members of the boarding party went below to search for personnel or explosives or other prohibited goods. His orders were to wait on the deck and to shoot anyone who came up onto the deck who was not a member of the boarding party. He was extremely fearful whilst carrying out these duties because he had been told that there might be explosives on the small vessels and he was afraid that they might explode. On the second occasion that he boarded such a vessel he had been waiting on the deck and, unexpectedly, another member of the boarding party had come up the ladder. The applicant said that he was so fearful that he had urinated and had dropped a hand-gun that he was holding (which had been incorrectly tied to a lanyard) overboard.
23. The applicant said that on occasions HMAS Duchess took prisoners from vessels of this kind and held them for varying lengths of time. This included women and children – and one of his duties as cook was to take food to where the prisoners were held. The applicant said that on one occasion there were quite a number of prisoners who had been held for some days on the forecastle of HMAS Duchess, where they had been interrogated by civilian authorities. The applicant said that he had observed, when taking food to the prisoners, that the interrogators had treated the prisoners very brutally – such as hitting them in the head and stomach with rifle butts and knocking plates of food out of their hands. The applicant said that he had been very upset about the way the interrogators were treating the prisoners and he felt sick because of it. At the time there were rumours aboard the ship that the prisoners were, when taken ashore, to be executed. Overall, the applicant said that he was very distressed about this treatment and about the belief that the prisoners were executed after being taken from the ship. He had tried to forget his distress and he had taken every opportunity, when on land, to drink alcohol as a way of helping him to sleep better and to wipe out the memory. The applicant said that drinking alcohol was the only avenue available to lessen the anxiety.
24. The applicant said that some months after HMAS Duchess had returned to Australia in early 1966 he had learned that there was a prospect of again being sent to operational waters north of Australia. This had caused him to be very fearful for his own safety and for that of other people and, in July 1966 he had not reported for duty at the end of a period of approved leave. He had been absent without leave for about 10 days and then handed himself in to the authorities and served 14 days imprisonment for the offence. He had returned to HMAS Duchess for a very short time and then had a number of shore postings. He had subsequently served at sea on HMAS Swan but in 1971 he had been posted off that ship after the Captain had called him a drunk.
25. In 1969 he had considered re-enlisting for a further period of service in the Navy, but when he was posted to a warship he had decided to exercise his right to withdraw his re-enlistment application.
26. After leaving the Navy in 1972 the applicant worked as the head cook at a hospital in Darwin for about 18 months and then moved to Perth. He worked as a warehouse supervisor for approximately seven and a half years and then worked as a hospital cook in a country town for approximately 19 years. Thereafter he had worked as a security guard and in recent years had worked as a hospital orderly, which included work as a mortuary attendant.
27. The applicant said that prior to his going absent without leave in July 1966 he had loved his time in the Navy and had not had any problems.
28. In 1979 the applicant applied for and was admitted to the Naval Reserve (“the Reserve”) for a period of some years. He said he applied for this appointment because he had a friend who was in the Reserve and who described it as an opportunity to be “paid to do nothing and to get drunk”.
29. The medical records concerning the applicant from his time in the Navy are contained in Exhibit R2 and in the T documents. The applicant’s emotional stability and mental capacity were assessed as normal in his entry medical examination of February 1963 (T, pp19-20) and in a medical examination record dated May 1969, which was conducted for the purpose of the applicant’s proposed re-enlistment (T3, pp 22-23). Similar assessments were made when the applicant was medically examined in February 1972 at the time of his discharge (T3, pp25-26) and in October 1979 when the applicant was examined for his proposed entry to the Reserve (T3, pp23-24). At those times the applicant declared that he did not have any illness or disability and that he did not take any medicine or drugs. He answered “no” to questions about having headaches, migraines, sleep-walking, frequent nightmares, nervous trouble or mental illness. The applicant stated in 1979 that he drank a “small social amount” of alcohol. In his oral evidence the applicant said that the information provided by him in 1979 was incorrect because had he said that he had an alcohol problem at that time he would not have been admitted to the Reserve.
30. The applicant said in his oral evidence that he had been trained to work in boarding parties. This had involved some training in the use of hand guns and the correct use of such items as helmets and life jackets. In relation to the firing of the ship’s guns the applicant said that he could hear the guns firing but because he was below decks he did not know the circumstances in which they were being fired. He had never observed the firing of the guns.
31. In relation to the incident described to Dr Kemp concerning the rescue of personnel from a sunken dredge, the applicant said that this had not caused him any particular distress because all of the bodies that were being recovered were dead. He could not remember whether this incident occurred before or after his operational service.
32. Contained within the applicant’s medical records (T3,p21) is an entry recording the applicant’s attendance at a sick bay in April 1968 for what was diagnosed as “alcohol gastritis”. In December 1968 the applicant was sentenced to 2 days punishment in cells (Exhibit R1, Attachment 1) but there is no record of the offence for which this punishment was imposed. The applicant in oral evidence said that he could not remember any occasion in which he had served time in a naval cell (apart from the time for being absent without leave) and he thought that this entry might relate to an incident when he had been charged with driving a vehicle whilst under the influence of alcohol – when he had spent 1 night in a civilian police lockup.
33. Exhibit R1 is a report prepared by Captain Josephs. Captain Josephs reported that he had a discussion with Commodore Burnside (retired) who was the Commanding Officer of HMAS Duchess in 1965/66 when the applicant served on that ship. Commodore Burnside informed Captain Josephs that “… although he would have been prepared to do so he did not at any time fire a shot across the bow of a native vessel to bring it to a stop, because the necessity for such action simply had not arisen.” Commodore Burnside also informed Captain Josephs that it would have been very unusual to have a cook serve as an armed member of a boarding party and would not have happened unless there was some drastic personnel problem that left little or no alternative. Commodore Burnside could not recall the applicant and could not categorically state that he was never used in a boarding party. Attached to Exhibit R1 are copies of the reports of proceedings for HMAS Duchess for the months between September 1965 and February 1966. Some periods are missing from those attachments but the applicant acknowledged that no events of significance occurred during the periods covered by the gaps in the reports. These reports contain considerable detail of events that occurred involving HMAS Duchess during that period. No reference is made to firing the ship’s guns at native vessels, although it is apparent from the reports that from time to time HMAS Duchess made contact with many such vessels.
34. The first Deledio step requires me to consider all the material before me and determine whether the material points to an hypothesis connecting the applicant’s disease with the circumstances of the particular service rendered by him. In relation to his GAD the hypothesis advanced by the applicant is that the events that occurred whilst serving aboard HMAS Duchess caused him stress and anxiety and his GAD is the consequence of that.
35. On the evidence outlined above, and without attempting to make findings of fact, I am satisfied that all of the material before me points to an hypothesis connecting the applicant’s GAD with stressful events experienced by the applicant during his operational service. I therefore answer “yes” to the first Deledio step.
36. The parties agree and I find that there is in force an SoP determined under s 196B of the Act in relation to GAD, namely SoP 1 of 2000 which took effect from 28 January 2000.
37. I must consider then whether the hypothesis raised by the applicant is a reasonable one and this will be so if the hypothesis “fits” the “template” to be found in SoP 1/2000. The hypothesis must contain one or more of the factors set out in the SoP which the Repatriation Medical Authority has determined to be the minimum which must exist, and be related to the applicant’s service.
38. SoP 1 of 2000 defines “anxiety disorder” as the anxiety spectrum disorders of generalised anxiety disorders and some other disorders. Section 5 of the SoP sets out the factors that must exist before it can be said that a reasonable hypothesis has been raised connecting GAD with the circumstances of a person’s relevant service. For GAD the factors are set out in s 5(a) and factor 5(a)(ii) is the only factor relied on by the applicant. That factor is expressed as follows:
“(ii) experiencing a severe psycho-social stressor within the 2 years immediately before the clinical onset of anxiety disorder”.
39. A “severe psycho-social stressor” is defined in s 8 of the SoP to mean “… 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”. Section 8 of the SoP also defines a generalised anxiety disorder as meaning “ … a psychiatric disorder with the following features:
A Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least 6 months, about a number of events or activities; and
B The person finds it difficult to control the worry;
C The anxiety and worry are associated with three or more of the following 6 symptoms, with at least some symptoms present for more days than not during the previous 6 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 1 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 the substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder”.
40. Section 8 of the SoP defines “clinically significant” to mean “ … sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or general practitioner”.
41. Factor 5 (a)(ii) of SoP 1 of 2000 requires attention to 2 questions – whether the applicant experienced a severe psycho-social stressor during his operational service, and whether there was clinical onset of the applicant’s GAD within 2 years of experiencing that stressor.
42. As regards the experiencing of a stressor, it was contended for the applicant that this aspect of the SoP was satisfied by the event when the applicant was a member of the boarding party and was so fearful that he urinated, and also by the events that occurred on board HMAS Duchess when the applicant witnessed the brutalisation of the prisoners and his fear for their safety when they were removed from the ship. For the respondent it was contended that SoP 1 of 2000 required an occurrence that related to the applicant or a close relative or friend of the applicant.
43. At this point I am not required to make findings of fact. The applicant’s oral evidence, although it was to some extent contrary to other material before me, was that he experienced great distress from the 2 incidents and that as a consequence he began to drink even more heavily and was fearful for his own and other’s safety. In particular, he did not wish to return to operational areas of service.
44. The material before me does not identify when these incidents occurred, but it must have been prior to February 1996 – and hence any clinical onset of the applicant’s GAD must have occurred by February 1968 to satisfy factor 5(a)(ii).
45. The material before me indicates that the applicant did experience feelings of substantial distress as a result of the occurrences whilst on board HMAS Duchess. Those events were, if the applicant’s evidence were to be accepted, severe psycho-social stressors for the purposes of SoP 1 of 2000.
46. As regards the issue of whether the applicant’s GAD had its clinical onset within 2 years of February 1966, the material is much less direct. Dr Kemp reported the applicant as being “ … intensely fearful, anxious and apprehensive regarding the possibility of armed conflict or detonations of explosives …” and that the applicant “ … went absent without leave as he could not face returning to a combat situation due to high levels of anxiety”. The applicant’s oral evidence was that he was upset about the events on board HMAS Duchess for a long time and he handled his distress by trying to forget about the events and that he took every opportunity to drink alcohol in order to help him get sleep and to wipe out the memories. He said that he drank on every day that he was ashore because this was the only avenue to relieve his distress.
47. In the circumstances I consider that the material before me fits the template within SoP 1 of 2000 for the features of GAD. That material points to, or I am prepared to infer, that the applicant did have excessive anxiety or worry about the events that occurred on HMAS Duchess or the prospect of returning to an operational area that was present on most days for at least 6 months within the relevant 2 year period; that he found it difficult to control that worry; that he was restless, irritable and had difficulty sleeping; and that his anxiety and worry caused impairment in his occupational functioning – as evidenced by his going absent without leave because of the fear of returning to an operational area.
48. I therefore answer “yes” to the third Deledio step.
49. Having reached the conclusion set out in the previous paragraph I must then proceed to consider, under s 120(1), whether I am satisfied beyond reasonable doubt that the applicant’s incapacity due to GAD does not arise form a war-caused disease. If I am not so satisfied beyond reasonable doubt then his claim must succeed. It is only at this point that I must review the evidence for the purpose of making findings of fact.
50. There are a number of aspects of the documentary and oral evidence before me that tends to undermine the applicant’s case that his present GAD was war-caused. The main factors to which I refer are:
(a) In his 2001 claim the applicant referred to first becoming aware of the symptoms of his stress disorder in late 1972. He said that he had taken Serapax for this condition for 26 years – which is a quite specific time to nominate, and which would indicate that he commenced taking Serepax in about 1975.
(b) In the same claim form the applicant said in relation to alcohol consumption that, although he had started drinking in the Navy and had increased his consumption over the years of his service, he first became aware of symptoms of a disability in relation to alcohol in 1972.
(c) The medical examinations that the applicant underwent in 1969 (in relation to proposed re-enlistment), 1972 (on discharge) and in 1979 (for admission to the Naval Reserve) all failed to identify any mental or emotional problems for the applicant. At the time of his discharge in 1972 the applicant declared that he did not at that time suffer from any disabilities, had not suffered any disabilities during his period of service, and was not suffering from any disabilities that he considered to be due to or aggravated by service. On his own evidence his statements in 1972 and 1979 were not correct.
(d) In his 2001 claim the applicant said that he had seen Vietnamese boat people shot, but it is apparent from what he told Dr Kemp and from his oral evidence that that was not the case. Likewise, in his claim form he said that he was often traumatised by the firing of the ship’s guns, but his oral evidence was that he did not know whether the ship’s guns were being fired in anger or as exercises. I accept Captain Josephs’ evidence that when ship’s guns are being exercised the crew would be informed of that fact and would not be called to action stations – which would be the case if it was not an exercise and contact with the enemy was expected.
(e) In his oral evidence the applicant said that he understood that at all times HMAS Duchess was in Vietnamese waters and that the “native” people who were on the vessels intercepted were Vietnamese. I accept Captain Josephs’ evidence that on a ship such as HMAS Duchess the ship’s company would at all times know where they were because a chart would be displayed in a prominent place showing the ship’s location at all times.
(f) The only direct evidence of the applicant having an alcohol problem is a medical record from April 1968 that he was treated for alcoholic gastritis and the applicant’s oral evidence that in late 1968 he was apprehended for drunk driving. On the other hand, I note that the applicant was awarded a good conduct badge in August 1968, and received good and satisfactory character and efficiency assessments in December 1966 (see Attachment 1 to Exhibit R1).
(g) The reports of proceedings from HMAS Duchess for the relevant periods do not report incidents of large numbers of prisoners being brought aboard the ship and I accept Captain Josephs’ evidence that this was likely to be reported had it occurred. The applicant’s specific evidence that these prisoners were held on the forecastle for a number of days is contrary to that of Captain Josephs and Mr Mitchell. Captain Josephs’ evidence is that if prisoners were brought aboard a ship such as HMAS Duchess they would be held on the “iron deck”, which is in the middle of the ship – because that is a much more convenient place because of the availability of shade and water. In a statement made in June 2004 (Exhibit A1) Mr L J Mitchell, who served aboard HMAS Duchess as the same time as the applicant, said that some “prisoners” were taken on board but were held on the iron deck under canvas. Mr Mitchell’s statement confirmed that these prisoners were fed by the cooks and stewards of HMAS Duchess. However, Mr Mitchell made no reference to any concern about the treatment of the prisoners. Rather, the emphasis of his statement was that, although there were no conflicts between the prisoners and the ship’s crew, “ … the fact remains that there could have been and all ship’s company were on their toes …[and that] anyone who was associated with these prisoners were well and truly aware of the facts that they were dangerous and had to be treated with all caution”.
(h) Although the applicant said that he had gone absent without leave in July 1966 because of his fear of returning to operational service, he also said in his oral evidence that prior to his desertion he had never had any problems in the navy and had “loved it”.
(i) The applicant’s employment history after leaving the navy in 1972 was characterised by long periods with the same employer, suggesting that whatever symptoms may have been affecting him did not materially interfere with his ability to hold employment.
51. Having regard to the above factors, I consider that the applicant’s recollection of events as they occurred in the mid 1960s is by no means reliable. Having regard to the many inconsistencies in the evidence before me and my views of the other evidence before me, I am satisfied beyond reasonable doubt that the applicant’s GAD did not arise until some significant time after the completion of his naval service, and cannot be related to his war service. Specifically, I am satisfied to that standard that the kinds of features of GAD set out in s 8 of the SoP (see para 39 above) were not present in a clinically significant way by February 1968. Accordingly, I am satisfied beyond reasonable doubt that the applicant’s GAD is not war caused and I affirm the decision under review to that effect.
Alcohol Abuse
52. As noted above Dr Kemp diagnosed the applicant as meeting the criteria for alcohol abuse and the hypothesis advanced on behalf of the applicant was that he abused alcohol because of the stress associated with his operational service. The respondent did not dispute the existence of a hypothesis connecting the disease and the operational service.
53. The SoP concerning alcohol dependence or alcohol abuse is SoP 76 of 1998. The only factor relied on by the applicant to connect the alcohol abuse with the circumstances of his operational service is factor 5(a), which requires that the person must be “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”. It is not in dispute that GAD would be such a psychiatric disorder and would connect the alcohol abuse to the applicant’s operational service if the GAD itself was war caused.
54. Mr Wood for the applicant advised me that the applicant did not rely on factor 5(b) of SoP 76 of 1998, which requires the veteran to have experienced “… a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. Mr Wood said that the applicant did not contend that the clinical onset of his alcohol abuse had occurred by two years after the completion of the applicant’s operational service.
55. It follows from the above that the material before me will only fit the template of SoP 76 of 1998 if the applicant was suffering from a psychiatric disorder at some time after the completion of his naval service, and that psychiatric disorder was itself war-caused. I have concluded above that the applicant’s GAD is not war-caused and hence the hypothesis advanced on his behalf in relation to alcohol abuse does not fit the template. Accordingly, the hypothesis advanced cannot be considered a reasonable one and the applicant’s claim for this condition must fail.
Impotence
56. It is not in dispute that Dr Lill diagnosed the applicant as suffering from impotence based on the symptoms reported by the applicant in 2001. The hypothesis advanced on behalf of the applicant is that his impotence was a consequence of his GAD and alcohol abuse.
57. Statement of Principle No 97 of 1996 deals with impotence. The applicant relied on factors 5(a) and 5(n) of that SoP, which require that the veteran be: “(a) suffering from a specified psychiatric condition at the time of the clinical onset of impotence; or … (n) suffering from psycho-active substance abuse for dependence involving alcohol at the time of the clinical onset of impotence”.
58. GAD is a specified psychiatric condition for the purposes of SoP of 1997 of 1996, but the material before me will only fit the template of the SoP if the applicant’s GAD and alcohol abuse are war-caused. For the reasons given above neither of those conditions are war-caused and hence the hypothesis regarding impotence does not fit the template and the applicant ‘s claim for this condition must fail.
Irritable bowel syndrome
59. Once again the applicant’s hypothesis is that his condition of irritable bowel syndrome, which was diagnosed by Dr Lill in 2001 as having been present for approximately 10 or 12 years, was a consequence of the applicant’s stress disorders arising from his operational service.
60. Statement of principle 103 of 1996 deals with this condition and the factor relied upon by the applicant as connecting it with his operational service is factor 5(b), which requires that the applicant be “suffering a specified psychiatric condition within the 6 months immediately before the clinical onset of irritable bowel syndrome”. Once again, GAD is a specified psychiatric condition for the purposes of that SoP, but again the hypothesis advanced for the applicant fails because, even assuming that he suffered from GAD at the time of clinical onset of his irritable bowel syndrome, the GAD was not war-caused and the claim must also fail.
Gout
61. Dr Lill diagnosed the applicant as suffering from gout in 2001 for the purposes of his claim. At that time the applicant said that he started to drink alcohol while in the Navy and “years later I started to suffer from what I later learnt was gout. In October 1999 I had surgery on my left foot for gout and I have been taking Progout for many years.” The applicant said he believed that his consumption of large quantities of alcohol in the Navy had caused his gout. In his oral evidence the applicant said that he first started to suffer from what was diagnosed as gout in 1973 or 1974 when he had consulted a doctor at the Darwin hospital where he was working at that time. He has been taking tablets for the gout ever since. The respondent does not dispute that the material before the Tribunal raises an hypothesis connecting the gout with the applicant’s operational service.
62. Statement of Principle No 11 of 2000 as amended by No 43 of 2000 deals with the condition of gout and the applicant relies on factor 5(f), which requires, in effect, that the “drinking at least 150 kg of alcohol (contained within alcoholic drinks) within the 10 years immediately before the clinical onset of gout” must be “related to any relevant service” rendered by a person such as the applicant.
63. The respondent does not dispute that the applicant consumed the specified amount of alcohol in the relevant period, but Mr Ponnuthurai contended that the drinking of alcohol by the applicant did not have a sufficient causal connection with his operational service.
64. Emmett J said in Kattenberg v Repatriation Commission [2002] FCA 412 at [42] that the need to relate the SoP factors to the relevant service “…is the language of s 196B(2)” of the Act and that language in an SoP should be construed as having the same meaning as in s 196B – which “… entails reading into the language of [an] SoP the language of s 196 B (14).” That sub-section relevantly provides that a factor causing, or contributing to, an injury, disease or death “…is related to service rendered by a person if:
…
(b) it arose out of, or was attributable to, that service; or
…
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
…”
65. In the context of workers compensation, once a causal link that is not mere possibility or conjecture can be established between an occurrence in employment and a condition complained of then it does not matter how large or small the contribution is for there to be a material contribution: see Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323. At this third Deledio stage in relation to gout, I consider that the material points to a connection with operational service that fits the template of SoP 11 of 2000. The hypothesis is, therefore, a reasonable one and the applicant’s claim for gout must succeed unless I am satisfied beyond reasonable doubt that the gout was not war-caused.
66. Although, on the evidence, I have expressed some reservations about the applicant’s evidence in relation to other claimed conditions, I accept that his operational service caused him distress to some degree. Although he started drinking alcohol prior to the commencement of his operational service, I am prepared to infer that he drank more than he would have otherwise as a consequence of his operational service. I am not, on the evidence, satisfied beyond reasonable doubt that the alcohol consumption that caused his gout was not contributed to in a material degree by his operational service, and I am not satisfied beyond reasonable doubt that the gout was not war-caused.
67. Accordingly, the applicant’s claim in relation to gout should succeed and the respondent’s decision that it should not must be set aside. The applicant is entitled to a disability pension for gout with effect from 27 May 2002, which is the date agreed by the parties.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of M J Allen, Member
Signed: …..(sgd N H Wee)…..
AssociateDate/s of Hearing 26 October 2004
Date of Decision 24 December 2004
Counsel for the Applicant Mr Robert Wood
Counsel for the Respondent Mr Carl Ponnuthurai
Key Legal Topics
Areas of Law
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Veterans' Law
Legal Concepts
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Disability Pension
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War-caused Conditions
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Statement of Principles
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