JAMES EDWARD WATSON and REPATRIATION COMMISSION
[2010] AATA 220
•29 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 220
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2027
VETERANS' APPEALS DIVISION ) Re JAMES EDWARD WATSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Dr Kerry Breen, Member
Date29 March 2010
PlaceMelbourne
Decision
The decision of the Veterans' Review Board made on 15 April 2008 is affirmed.
(sgd) Egon Fice
Member
VETERANS’ AFFAIRS - disability pension – alcohol dependence – sleep apnoea – malignant neoplasm of the colorectum – chronic sinusitis – chronic bronchitis – diagnosis – lack of objective evidence –pseudologia fantastica
Veterans’ Entitlements Act 1986 (Cth) s 7, s 9, s 9A, s 13(1), s 120, s 120(1), s 120(3), s 120A(3), s 196B(2) or (11)
Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Deledio (1998) 83 FCR 82
Walsh v Rother District Council [1978] 1 ALL ER 510
Statements of Principles Instrument No 13 of 2005
Statements of Principles Instrument No 30 of 2004
REASONS FOR DECISION
29 March 2010 Mr Egon Fice, Member
Dr Kerry Breen, Member1. Mr James Edward Watson served in the Royal Australian Navy (the Navy) between 24 August 1963 and 2 June 1972. At that time, he was known as Edwin Michel Payne. He changed his name to James Edward Watson by Deed made on 20 October 1983, which was registered in the Supreme Court of Queensland at Rockhampton.
2. There was no dispute that Mr Watson had operational service, as that expression is defined in the Veterans’ Entitlements Act 1986 (the Act), when serving on HMAS Derwent (the Derwent) in Malaysia, Singapore and Brunei between:
(a)17 February 1966 and 30 April 1966; and
(b)8 June 1966 to 5 July 1966; and
(c)16 July 1966 to 3 August 1966.
Mr Watson also had operational service in South Vietnam between 26 May 1966 and 13 June 1966.
3. On 15 May 2006 Mr Watson made a claim for the disability pension (DP) on the grounds that he suffered from a number of medical conditions, which he claimed were war‑caused. In the process of determining that claim, Mr Watson's claim for anxiety disorder was varied so that it became a claim for alcohol dependence. On 26 July 2006 the Repatriation Commission (the Commission) refused Mr Watson's claim.
4. Mr Watson sought a review of the decision by the Veterans' Review Board (VRB). On 19 April 2007 the VRB affirmed the Commission's decision in respect of a number of claimed conditions while adjourning the hearing relating to the conditions of sleep apnoea, malignant neoplasm of the colorectum, chronic sinusitis, chronic bronchitis and alcohol dependence pending further information.
5. On 15 April 2008 the VRB affirmed the Commission's decisions relating to alcohol dependence, sleep apnoea, malignant neoplasm of the colorectum, chronic sinusitis and chronic bronchitis. It is that decision which is the subject of this application for review by the Tribunal.
6. The issues which we must address are:
(a)whether Mr Watson suffers from alcohol dependence, sleep apnoea, malignant neoplasm of the colorectum, chronic sinusitis and chronic bronchitis;
(b)if Mr Watson has been properly diagnosed with one or more of the ailments referred to in (a), the date of clinical onset of each ailment;
(c)whether the claimed ailments were war‑caused as that expression is defined in the Act ;
(d)whether Mr Watson's war‑caused ailments result in a degree of incapacity of at least 70%; and
(e)if the answer to (d) is in the affirmative, whether Mr Watson is entitled to receive a pension at the intermediate or special rate.
diagnosis
Alcohol Dependence
7. Dr N R Rose, a psychiatrist, examined Mr Watson on 23 June 2006. Dr Rose provided a report to the Department of Veterans' Affairs (DVA) dated 26 June 2006. Dr C J Percival, also a psychiatrist, examined Mr Watson on 12 February 2007 and provided a report for the purposes of a hearing at the VRB to Mr J G Horan, an advocate, who appeared for Mr Watson. Dr Rose recorded Mr Watson as saying he was born in Kalgoorlie. However, Mr Watson's service record states his place of birth to be Lower Hutt, North Island, New Zealand. We simply record this inconsistency because, as will become apparent, there were a number of serious inconsistencies in Mr Watson's evidence. When confronted with this contradictory evidence, Mr Watson seemed to brush it off by suggesting that he would not tell Australians in Australia that he was born in New Zealand.
8. Dr Rose said in his report:
Although Mr Watson describes himself as a "very heavy drinker", there is no evidence to support DSM IV diagnosis of Alcohol Abuse or Alcohol Dependence. The requirements for these diagnoses is (sic) simply not met. Furthermore, there is no evidence of any other psychiatric illness.
9. In his Mental State Assessment, Dr Rose said that Mr Watson was sober when examined, without the smell of alcohol on his breath. Dr Percival referred to Mr Watson's presentation as referred to by Dr Rose and said that he could do no better than to agree in every aspect of Dr Rose's description of Mr Watson's presentation. He said :
In particular I note Dr Rose's comment as to the veteran's apparent sobriety at the time of his interview with him, a finding (sic) which I once again concur, and which led, particularly in view of the drinking history set out below, to my directly asking the veteran how much alcohol he had drunk on that day. His answer was "three beers, I've been getting ready for this".
Despite this statement, Dr Percival did not record whether he could smell alcohol on Mr Watson's breath.
10. Mr Watson then provided Dr Percival with an account of a pattern of heavy drinking, commencing after HMAS Melbourne (the Melbourne) collided with and sank HMAS Voyager (the Voyager) (the collision) on 10 February 1964. Mr Watson claimed to be a survivor of that collision and we have more to say about that below. Mr Watson described to Dr Percival bouts of heavy drinking which continued until he left the Navy in 1972.
11. Mr Watson apparently told Dr Percival that each of his three marriages ended because his wives were no longer prepared to tolerate his drinking. He told Dr Percival that although he had never lost his driving licence due to alcohol, he had appeared in court on two occasions because he had caused a disturbance under the influence of alcohol. He also told Dr Percival that he suffered from a fatty liver and that he understood that his liver function tests were significantly deranged. We have no direct evidence of any such tests.
12. Dr Percival diagnosed Mr Watson as suffering from alcohol dependence in accordance with DSM IV 303.90 (DSM IV is a reference to the fourth edition of The Diagnostic and Statistical Manual of Mental Disorders, which provides uniform criteria for the classification of mental disorders).
13. There is nothing in Mr Watson's extensive service medical history to suggest that he had an alcohol problem.
14. Dr L A Walton, a psychiatrist, examined Mr Watson on 20 January 2009. In his report dated 6 March 2009, Dr Walton recorded that Mr Watson told him his alcohol intake prior to the collision was minimal but, after taking survivor's leave, his alcohol intake escalated markedly. Mr Watson also told Dr Walton that following his departure from the Navy, he continued to drink to excess, his intake only being limited by his financial resources.
15. Mr Watson told Dr Walton that when deprived of alcohol, he was prone to shaking and sweating but did not suffer from full-blown delirium tremens. He provided a history of regular alcoholic blackouts. Dr Walton also recorded that Mr Watson told him he was born in Kalgoorlie and educated for eight years to the age of 14. He said he worked in the mines for three years before joining the Navy at age 17.
16. Dr Walton described Mr Watson's appearance as having the flushed facies of a seasoned drinker. He diagnosed Mr Watson with alcoholic dependence. In his opinion, the history given by Mr Watson about his alcohol consumption suggested to him that Mr Watson's levels of alcohol consumption were reasonably stable and not escalating in response to increasing tolerance. However, he identified a maladaptive pattern of alcohol use, leading to clinically significant impairment or distress manifested by three of the criteria set out in DSM IV namely:
(a)withdrawal symptoms when deprived of alcohol;
(b)experiencing a persistent desire for alcohol and continued drinking against medical advice;
(c)a pattern of recurring relationship failures seemingly attributable to alcohol misuse.
17. Dr N Strauss, a psychiatrist, also examined Mr Watson on 2 June 2009 and he prepared a report bearing that date. Mr Watson told Dr Strauss he was born in Kalgoorlie. Mr Watson gave Dr Strauss a history of excessive alcohol consumption, which caused his first three marriages to fail. He also told Dr Strauss that he was on the Voyager when it was involved in a collision with the Melbourne on 10 February 1964.
18. Mr Watson gave Dr Strauss a graphic account of the collision, including falling out of his bunk onto the floor and seeing the person who slept next to him disappear. He said that all the men tried to get up a ladder and they spent three quarters of an hour on the deck, eventually being picked up from the water by crash boats. He recalled there was a large swell running at the time. He told Dr Strauss that he remembered being covered in oil and that he was taken ashore where he had a shower and was given fresh overalls. He said the men were then given alcohol and he remembers drinking beer and rum. Mr Watson said that on the following day he was taken to HMAS Albatross (Albatross) where he was kitted out and then bussed to Sydney. Mr Watson told Dr Strauss that it was after the Voyager collision with the Melbourne that he began to drink heavily.
19. Despite acknowledging that Mr Watson's service records indicated he was probably not on Voyager at the time of the collision, Dr Strauss nevertheless said that he had no doubt Mr Watson suffered from alcohol dependence. This was despite the fact that he had read Dr Rose's report where he stated there was no evidence to support a diagnosis of alcohol abuse or alcohol dependence. However, and significantly, Dr Strauss provided no reasons whatsoever for coming to his conclusion that Mr Watson suffered from alcohol dependence other than the fact that Mr Watson had told him so.
20. The problem with the reports of the three psychiatrists who diagnosed alcohol dependence is that they essentially relied on Mr Watson's account of his alcohol consumption. Other than those accounts, there was no evidence to support a DSM IV diagnosis of alcohol abuse or alcohol dependence, which was in fact, Dr Rose's opinion.
21. There are many problems with the accounts Mr Watson gave to the Tribunal about events which took place while he was in the Navy and afterwards. In particular, Mr Watson said that the sinking of the Voyager and his experience as a survivor of that collision led to his excessive alcohol consumption commencing. However, despite Mr Watson's graphic account of the collision, the objective documentary evidence clearly indicates he was not on board the Voyager at the time of the collision.
22. Mr Watson’s service records indicate that he served on the Voyager between 20 December 1963 and 11 January 1964. From 12 January 1964 to 6 February 1964 Mr Watson was at HMAS Rushcutter (Rushcutter) and then he was posted to Albatross on 7 February 1964, where he remained until 17 February 1964. He was posted to the Melbourne on 18 February 1964.
23. Although Mr Watson insisted that his service records were incorrect, we do not accept that to be the case. Commodore PM Mulcare (Retd) of Writeway Research Service Pty Ltd, who gave evidence on behalf of the Commission, after researching the factual basis for Mr Watson's claims, indicated to the Tribunal that a list of survivors from the Voyager disaster existed and was probably housed in the National Archives. He did not have a copy of that list. Nevertheless, we were able to obtain a list of survivors of the Voyager disaster from the National Archives' website after the hearing of this matter was completed. The list we obtained appeared to be complete and it listed the next of kin who were notified following rescue of the survivors. The name Edwin Michel Payne (Mr Watson's former name) is not on that list.
24. We provided a copy of the list of survivors to both parties' representatives and invited them to make submissions. Although the Commission's representatives provided further material, which was also provided to Mr De Marchi, the solicitor who appeared for Mr Watson, we had no response from Mr De Marchi.
25. The further material provided by the Commission included the service records of some of the survivors. Those service records are clearly marked with the words survivor from Voyager 10-2-64. Mr Watson's records do not bear that annotation. Furthermore, the survivors' records note that the survivors received survivor leave of two weeks. There is no such entry on Mr Watson's service record. Quite clearly, the independent documentary evidence must be given substantial weight in a case such as this. It is for that reason we find, on the balance of probability, that Mr Watson was not a survivor of the voyager disaster. Accordingly, that incident cannot support Mr Watson's claim that it caused him to commence drinking heavily.
26. There are some other grave problems with Mr Watson's evidence that we should mention. Mr Watson also claimed that he was involved in a number of frightening incidents while on active service. They include the following:
(a)while serving on the Derwent between March and April 1966 in the course of the Malaysian confrontation, a mine was found attached to the hull of a British ship and, although he did not in fact remove the mine, he was involved in the search which discovered the mine;
(b)while in Vietnam on the Derwent between May and June 1966, Mr Watson was present when a mine became entangled in the anchor rope of a merchant ship although he was not involved in its removal; and
(c)when serving on the Derwent again in the Malaysia/Borneo area in June 1966, the Derwent was fired upon while he was in a whaler waiting to board an unidentified vessel.
27. Although Mr Watson claimed to have been involved in diving activities while the Derwent was on operational service in the Malaysian area in 1966, his service records indicate that he did not qualify for basic diving activities until April 1967. Mr Watson was posted to Rushcutter, where the Navy had its diving school, on 9 September 1966 where he remained until 24 September 1966. A signal dated September 1966 indicated that he was accepted for a diving course. However, Mr Watson did not complete the course on that occasion and he returned to Rushcutter on 7 April 1967.
28. Mr Watson’s medical records confirm that Mr Watson was medically examined for his suitability for diving on 7 October 1966. His medical records also indicate that he was fit for a diving suitability test on 19 January 1967 and that he completed a medical examination prior to commencing the Compressed Air Breathing Apparatus course (CABA) on 8 March 1967. His service record shows that he passed the CABA course on 14 April 1967, a year after he allegedly helped in the search for the mine on the Derwent.
29. Commodore Mulcare gave evidence that the CABA qualification did not entitle persons to act as clearance divers, who were the divers involved in the disarming of any suspicious items found on a ship's hull. CABA divers were commonly known as ship's divers and they were authorised to undertake basic diving tasks such as searching ship's hulls, cleaning propellers and underwater fittings or recovering items from the seabed in relatively shallow waters.
30. Although Mr Watson's evidence was otherwise, his service and medical records combined clearly point to the fact that Mr Watson did not qualify as a CABA diver until 14 April 1967, some time after the Derwent was in Malaysian waters. It is therefore inconceivable that Mr Watson was involved in the removal of a Limpet mine from a Royal Navy ship in Tawau, as he claimed. At that time, he was not qualified to do any diving. Needless to say, we accept the objective documentary evidence over Mr Watson's claim regarding this incident.
31. The Derwent rendezvoused with the Sydney and HMAS Vendetta (the Vendetta) on 6 June 1966 when the Derwent and the Vendetta escorted the Sydney into Vung Tau Harbour on that day. Mr Watson again claimed that he was involved in diving activities, checking the bottoms of ships anchored in Vung Tau Harbour. He also claimed to have discovered a mine entangled in the anchor rope of a merchant ship. Given that he was not qualified as a ship's diver at that time, we cannot accept he was involved as he claimed.
32. The Derwent’s Report of Proceedings for June 1966 records its escort of the Sydney into Vung Tau Harbour. Although it records that the Sydney lent a Zodiac dinghy to the Derwent to assist with bottom searches, there is no mention made of any mine having been found. Had such a device been found tangled around an anchor rope, we have no doubt that the incident would have been recorded. The Report of Proceedings does record that a constant boat patrol was maintained around the anchorage. Once again, the objective evidence does not permit us to find that the incident described by Mr Watson in Vung Tau Harbour occurred.
33. The third incident referred to by Mr Watson occurred while the Derwent was in Malaysian waters. He said that he was a member of the boarding party and he was in the ship's whaler which was being lowered for the purpose of investigating a small fishing vessel which the Derwent had come across. He said that as the whaler was being lowered, the Derwent was fired upon and the ship returned fire. He said that he heard small arms fire, followed by what he thought was a .50 calibre machine gun response from the Derwent. He said that he was scared and when the boarding party boarded the vessel, they found weapons onboard.
34. However, the Report of Proceedings for the Derwent in June 1966 contains this entry:
All patrols were without incident with the exception that a burst of small arms fire across the bows was necessary to stop an unlit barter trader at 0538 on 22 June. This boat was later allowed to proceed.
Had there been return fire from the small barter trader vessel, we have no doubt at all that this would have been recorded in the ship's Report of Proceedings. Likewise, if weapons were found onboard the barter trader, not only would this have been recorded but undoubtedly the boat and its crew would have been seized. After all, that was the purpose of the patrols conducted by the Navy during the Malaysian confrontation. Quite clearly, we cannot accept Mr Watson's evidence about this incident.
35. In the course of examination by the Tribunal, Mr Watson was asked if he had ever applied to re-enter the Navy after his discharge in 1972. Mr Watson said he had not. However, the s 37 documents (T-documents) lodged by the Commission included a record of a re-entry medical examination of Mr Edwin Michel Payne conducted on 8 July 1980 at HMAS Leeuwin (Leeuwin). The examination appears to have been conducted by Lt Commander Hay. Leeuwin is situated south of Perth.
36. In a claim for the disability pension and the cost of medical treatment completed by Mr Watson on 31 August 1999, he listed details of his employment history other than his service with the Navy. In that history Mr Watson recorded that between 1975 and 1983, he worked as an offshore diver for J Ray McDermott W.A., whose address was given as Subiaco, Perth. Therefore, his employment record indicates that he was in Western Australia at the time when the medical examination is recorded as having taken place. Despite extensive questioning about this, Mr Watson continued to emphatically deny that he had ever sought re-entry into the Navy after his discharge in 1972. We do not accept that denial.
37. According to Dr Rose’s report of 26 June 2006, Mr Watson told Dr Rose that as a clearance diver, he had to dive for bodies and wreckage. He had to do so after the Tasman Bridge disaster. He said the worst thing there was finding bodies and bringing them up after putting them into bags. In the course of his cross-examination, Mr Watson said that his reference to the Tasman Bridge was incorrect and that he intended to say the Westgate Bridge, which collapsed on 15 October 1970. He said he came down to Victoria to help with the recovery of bodies following that disaster.
38. However, Mr Watson’s service records indicate that he was posted to HMAS Penguin (Penguin) on 4 May 1970, where he remained until 23 November 1970. Penguin is situated at Middle Head on Sydney Harbour, and it is the home of the Navy diving school. His service records indicate that he was under training until 18 May 1970 but there is no disclosure of the duties to which he was assigned between that date and November 1970. However, he qualified as a clearance diver on 16 November 1970.
39. After Mr Watson was recalled for further examination, he said that his duties at Penguin were simply the advanced clearance diver course. There is no evidence in his service records of any deployment to Victoria from that posting. He said that he stayed with his father who had a hotel in Victoria. However, in his previous evidence, he had indicated that his family had hotels in Western Australia, not Victoria. Other than Mr Watson's oral evidence, there was no objective documentary evidence supporting this claim.
40. In the course of Dr Walton's cross-examination, the Tribunal asked him about a condition known as pseudologia fantastica, which is also known as Walter Mitty Syndrome. Dr Walton explained that this condition was uncommon. It involved a person stating matters which were untrue with some repetition and vigour while believing entirely in what they said. Dr Walton explained that a person with this syndrome would continue to repeat the latest statement about a particular fact and would not retreat despite strong evidence suggesting the contrary. In our opinion, this is likely to be the reason why Mr Watson has made the unsubstantiated claims we have referred to above. The symptoms described by Dr Walton were clearly evident in the course of this hearing.
41. Mr Watson steadfastly maintained his account of the events as we have described them; and, despite putting documentary evidence to him which would suggest his version of events could not possibly be correct, he maintained his position. We were left with a number of accounts about Mr Watson's operational service which he claimed resulted in him becoming a very heavy alcohol consumer. The problem is that we cannot accept any of his accounts of those events in the face of strong contradictory objective evidence. Given this state of the evidence, we cannot, on the balance of probability, find that Mr Watson suffers from alcohol dependence. In fact, we agree with the opinion expressed by Dr Rose in June 2006 that there is no evidence to support a DSM IV diagnosis of alcohol abuse or alcohol dependence.
Malignant Neoplasm of the Colorectum
42. In his claim lodged on 31 August 1999, Mr Watson claimed he suffered from cancer of the colon. He said that he had been treated in the Queen Elizabeth Hospital in Christchurch, New Zealand. There were no medical records before the Tribunal to support this claim. Under examination by the Tribunal, Mr Watson said that he had been diagnosed with polyps in Western Australia after a colonoscopy. This was in 1978. He said he was unable to get treatment in Western Australia at that time and therefore he was sent to New Zealand where he received radiation for a period of 21 days followed by some 16 days of chemotherapy.
43. Dr Andrew F F Liew of Rockhampton in Queensland signed a medical report on 4 October 1999 stating that Mr Watson had suffered heavy bleeding in 1977 and although he had no operation, he had radiation treatment in Queen Elizabeth II Hospital in Christchurch in 1978 and he has had a colonoscopy every two years following that treatment. Dr Liew made no mention of chemotherapy. However, this is merely what Mr Watson told Dr Liew. There is no evidence that Dr Liew sighted any medical documents to support what Mr Watson told him.
44. There was no evidence of periodic colonoscopies. The fact that Mr Watson said that he could not obtain appropriate treatment for his condition in Western Australia in 1978, and his description of the treatment he received, raised serious doubts about whether he in fact had a neoplasm of the colon. We searched the internet for New Zealand hospitals and there is no Queen Elizabeth II or Queen Elizabeth Hospital in Christchurch. Therefore, we are unable to find, on the balance of probability, that Mr Watson has ever suffered from a neoplasm of the colon.
Sleep Apnoea
45. Mr Watson claimed to have suffered from sleep apnoea since 1999. However, Dr S Bowler, in a polysomnogram report dated 27 May 2002, recorded that Mr Watson was diagnosed with obstructive sleep apnoea syndrome in 1996. Dr Bowler said Mr Watson has been using CPAP (Continuous Positive Airways Pressure) since 1996 and his test indicated that home trial of CPAP was indicated at 15cm H20. He also said that vigorous attempts to reduce weight were also important and a variable pressure device might be best. In our view, the evidence before us discloses that Mr Watson does suffer from sleep apnoea and the clinical onset of that ailment was 1996.
Chronic Sinusitis
46. Mr Watson told Dr C Castle, an occupational physician, that his sinusitis dated from his service in the Navy, where he had an operation on his nose to correct sinus problems.
47. When examined for diving suitability on 7 October 1966 Mr Watson was noted to have a deviated nasal septum with engorged turbinates. He was said to be tender to percussion of the right frontal paranasal sinus. According to Dr Castle, this is consistent with early sinusitis. On 1 October 1968 a daily medical record indicates Mr Watson was diagnosed with sinus congestion. He had difficulty breathing through his nose with headaches to the right frontal region. He had a large post-nasal discharge.
48. Dr Castle reported that the date of development of Mr Watson’s chronic sinusitis is unclear. In his disability claim lodged on 24 July 2002 Mr Watson stated that he was being treated for chronic sinusitis by Dr Malan, an ear, nose and throat specialist. Among the clinical notes of Dr Dunbar, who treated Mr Watson while he was in Rockhampton from about June 2003, are a number of letters from Dr J F Malan. However, Dr Malan only treated Mr Watson for complaints he had with his ears. In a report dated 27 June 2002, Dr Malan said that an examination of Mr Watson’s nose indicated it was normal. In addition, under the heading oral & throat, Dr Malan recorded healthy. There was no mention of chronic sinusitis. Dr Malan also listed Mr Watson's medical history which, again, made no mention of chronic sinusitis. Given that Dr Malan is an ear, nose and throat specialist, if Mr Watson was suffering from chronic sinusitis, it is highly unlikely that he would not have mentioned it.
49. We also note that in the Reasons for Decision of the VRB dated 15 April 2008, the VRB relied on the opinion of the veteran's local doctor regarding a diagnosis of chronic sinusitis. Assuming that to be a reference to Dr Dunbar, we have found nothing in his clinical notes referring to chronic sinusitis. In fact, in his first claim for the disability pension which is dated 31 August 1999, Mr Watson made no mention of this condition. The first occasion on which he made this claim was in his application of 15 July 2002.
50. In that application, Dr Dunbar merely referred to Dr Malan as the basis for the diagnosis. However, Dr Malan's report of 27 June 2002, which appears to be the first occasion on which he saw Mr Watson, simply refers to early morning hay fever symptoms with occasional nasal blockage for which he has had a nasal cautery years ago. There is no mention at all of chronic sinusitis in any of Dr Malan's reports. Therefore, on the balance of probability, we cannot find that Mr Watson suffers from chronic sinusitis.
Chronic Bronchitis
51. The first mention of this condition appears in a medical history and examination report by Dr S Cousins of Wedderburn, Victoria for the DVA. The date of that report is 29 June 2006. The mention of this condition appears under the heading Major Diagnosis, which is said to be the record of the results of his physical examination. Dr Cousins provided the DVA with an updated list of Mr Watson's medical conditions on 10 May 2006. There is no mention in that report of chronic bronchitis. Dr P McCurdy, a medical officer with the DVA, stated in a letter dated 24 July 2006 regarding Mr Watson's claim for emphysema, that the diagnosis was chronic bronchitis.
52. Dr Castle, in his report, simply refers to Mr Watson's claimed chronic bronchitis and that he was told by Mr Watson that this condition started when he gave up diving in 1978. Under cross-examination, Dr Castle was referred to a spirometry analysis conducted on 14 June 2006 by Dr R Campagnaro. In particular, he was asked whether the result regarding the FEV1/FVC percentage of 76 indicated a serious disability. Dr Castle said that this reading was borderline. He said that a reading between 70 and 80% indicated an abnormality, while a reading above 80% was normal. Dr Castle was directed to Dr Campagnaro's interpretation of the results, which he said were spirometry and gas transfer are well within normal limits. Dr Castle said that he examined Mr Watson in 2009 while Dr Campagnaro conducted his examination in 2006. Dr Castle maintained his view that the spirometry test results were borderline.
53. Despite Dr Campagnaro's opinion, it appears Dr Cousins, some two weeks after the spirometry tests were conducted, diagnosed Mr Watson with chronic bronchitis. Dr Cousins did not set out the basis for his diagnosis. However, Dr Castle said in evidence that he came to that diagnosis by looking at the total clinical picture, not merely the spirometry test results. This also appears to have been the basis upon which Dr McCurdy came to the same conclusion. Therefore, on the balance of probability, we find that the diagnosis of chronic bronchitis is correct.
54. The date of onset of chronic bronchitis is not clear. Dr Cousins has not recorded Mr Watson as suffering from chronic bronchitis in the record of medical history he prepared on 10 May 2006. However, following the pulmonary function analysis carried out on 14 June 2006, Mr Watson was certainly regarded as being borderline. Therefore, we find that the date of onset of chronic bronchitis is June 2006.
were mr watson's sleep apnoea and chronic bronchits war-caused?
55. Where a veteran is incapacitated from a war-caused injury or a war‑caused disease, the Commonwealth is, subject to the VE Act, liable to pay a pension to the veteran by way of compensation (s 13(1)).
56. Section 9 of the VE Act relevantly provides that, subject to s 9A (which does not apply in this case):
… 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:
…
(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; …
57. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service (s 7, VE Act).
58. Mr Watson contended that the stressors he experienced in the course of operational service caused him to consume excessive alcohol which in turn resulted in him becoming obese. Being obese led to Mr Watson suffering from sleep apnoea. Mr Watson contended that his service-related smoking was responsible for him developing chronic bronchitis.
59. As Toohey J explained in Law v Repatriation Commission (1980) 29 ALR 64, while the expression has arisen out of or is attributable to requires some causal relationship between the injury and operational service, the relationship is not as direct as the expression caused by might require. He referred to the decision of the High Court of Australia in Government Insurance Office (NSW) v R J Green and Lloyd Pty Ltd (1966) 114 CLR 437, where Barwick CJ said, at 443:
Bearing in mind the general purpose of the Act I think the expression "arising out of" must be taken to require a less proximate relationship of the injury to the relevant use of the vehicle than is required to satisfy the words "caused by". …
60. Toohey J also referred to the decision of Donaldson J in Walsh v Rother District Council [1978] 1 ALL ER 510. Regarding the expression attributable to, Donaldson J said, at 514:
… these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient.
61. Toohey J said, in relation to the 1920 Repatriation Act, at 72:
In my view, para (b) of s 101(1) requires no more than that the death of a member of the forces have some causal connection with his war service.
62. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where the veteran rendered operational service, that the injury, death or disease of the veteran was war-caused, unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given that Mr Watson rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his sleep apnoea and chronic bronchitis.
63. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth.
64. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP), determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply to a claim for incapacity resulting from injury or a disease or the death of a person where the Repatriation Medical Authority (RMA) has neither determined a SoP under s 196B(2), nor declared that it does not propose to make a SoP.
65. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ 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.
Hypothesis – Sleep Apnoea
66. Mr Watson contended that his sleep apnoea arose because he became obese due to his increased alcohol consumption while on operational service. At least that is what he stated in the alcohol questionnaire that he completed on 6 July 2006. He said that he first started to drink alcohol during his operational service to be part of the shipboard mates' social life back from operations. In that questionnaire, Mr Watson also said that he increased his alcohol consumption in June/July 1966 because of the dangers of operational service and sailing up the Mekong River to Saigon.
67. However, in an alcohol questionnaire completed on 5 November 1999, Mr Watson said he started to consume alcohol on a regular basis in 1964 after the Voyager sinking. In that questionnaire, he said that he drank every day, usually rum, until he was drunk. He said that he changed his alcohol consumption by reducing the amount he consumed after contracting hypothalamic tumour of the pituitary gland. He said that he only consumed alcohol two to three times per week, being a glass of wine or a stubby of cider.
68. In his evidence before the Tribunal, Mr Watson said that his current consumption of alcohol included beer and spirits. He said that his daily consumption of beer was eight to 10 cans of full strength beer. Mr Watson told the Tribunal that he commenced drinking alcohol heavily after the Voyager sinking.
69. In his questionnaire dated 6 July 2006, Mr Watson said that he had been drinking since June/July 1966 and that his drinking increased considerably in the normal progression of the habit. He stated that he used alcohol to help him cope. Although there was no evidentiary material before us linking excessive alcohol consumption with obesity, for present purposes, we are content to accept that is the case. In the SoP dealing with sleep apnoea, the RMA has indicated that there is a causal link between being obese and the clinical onset of sleep apnoea. Therefore, we are satisfied that the material before us does point to a hypothesis linking Mr Watson's sleep apnoea with his operational service.
SoP in force
70. The RMA has made an SoP concerning sleep apnoea. The current SoP is Instrument No 13 of 2005, which came into effect on 13 April 2005. It remains the current SoP for sleep apnoea.
Is the hypothesis reasonable?
71. The hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. In other words, the hypothesis must contain one or more of the factors which the RMA has determined must exist and be related to the person’s service. The factor set out in Clause 5 of the SoP concerning sleep apnoea upon which Mr Watson relies is:
…
(b)being obese at the time of the clinical onset of sleep apnoea; or
. . .
72. The expression being obese is defined in the SoP. It means an increase in body weight by way of fat accumulation, which results in a body mass index (BMI) of 30 or greater, where the BMI is calculated by dividing the person's weight in kilograms by the person's height in metres squared. Although the material before us does not provide us with an indication of Mr Watson's weight in 1996, in 1999, it was 115kg. His height was recorded as 1.75m. Therefore, his BMI in 1999 was 37.55. Therefore, we find that Mr Watson satisfies factor 5(b) of the SoP. Accordingly, his hypothesis is reasonable.
Was Mr Watson's sleep apnoea war-caused?
73. It is at this point in the analysis that we are required to make findings of fact from the material before us in support of Mr Watson’s claim. We are required to find in favour of Mr Watson unless we are satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved, either by proof beyond reasonable doubt that a fact, or a fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact inconsistent with the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 464 at 567).
74. Assuming for the moment that excessive alcohol consumption leads to obesity, we must examine the factual foundation of Mr Watson's hypothesis in order to determine whether his operational service onboard the Derwent caused him to drink alcohol to excess.
75. There are a number of problems with Mr Watson's claim. In particular, as we have explained at length when examining the diagnosis of alcohol dependence, it is Mr Watson's account of the stressful events he said he experienced on operational service which caused him to commence drinking alcohol heavily. Because we have found that Mr Watson was not a clearance diver in 1966, nor had he so much as passed the basic CABA course until April 1967, we are satisfied beyond reasonable doubt that he was not involved in any diving operations whatsoever either in Tawau (Borneo) or in Vietnam. Our finding is fortified by the fact that the Derwent's Report of Proceedings during the relevant period makes no mention whatsoever of finding any explosive device either at Tawau or in Vietnam.
76. As to the incident where Mr Watson said the Derwent was fired upon by a small fishing vessel while on patrol near Borneo, again, the ship's Report of Proceedings merely indicates that the Derwent fired across the bows of the small vessel in order to cause it to stop. Had the fishing vessel returned fire and had weapons been found onboard the vessel as Mr Watson said, then we have no doubt whatsoever that this would have been recorded in the report. It was not; and therefore we find, beyond reasonable doubt, that this incident did not occur.
77. It is of some concern to us that, in the alcohol questionnaire which Mr Watson completed in November 1999, he only mentioned the sinking of the Voyager as the reason why he commenced to drink heavily. That event occurred in 1964 and it predated Mr Watson's operational service. When Mr Watson completed the second alcohol questionnaire on 6 July 2006, he made no mention of the Voyager incident.
78. However, in his oral evidence to the Tribunal, he again said that he began drinking and smoking heavily after the Voyager disaster, of which he said he was a survivor. As we have mentioned above, we are certain that Mr Watson was not onboard the Voyager when it was struck and sunk by the Melbourne. Therefore, quite clearly that incident could not be a reason for Mr Watson commencing to drink heavily.
79. Given our findings of fact in relation to the incidents that Mr Watson relied on, and which he said caused him to commence drinking heavily, we are satisfied, beyond reasonable doubt, that Mr Watson's sleep apnoea is not war-caused.
Hypothesis – chronic bronchitis
80. Mr Watson attributed his chronic bronchitis to his smoking of cigarettes, which he said was related to his operational service. In a cigarette smoking questionnaire dated 5 November 1999, Mr Watson indicated that he commenced smoking in March 1964 and the reasons for commencing smoking were described as –
Nerves on diving course
Ex Voyager
81. Mr Watson said he smoked 30 cigarettes per day. He said that he stopped smoking permanently in 1978 when he contracted cancer of the colon. He also indicated that the amount he smoked per day did not change from when he first started smoking, presumably to when he ceased in 1978.
82. However, in his cigarette-smoking questionnaire completed on 6 July 2006, Mr Watson said that he commenced smoking in mid-1964, smoking one or two cigarettes in the canteen at night after stand down. He said he started to smoke cigarettes on a regular basis because of the companionship of the canteen and positive encouragement of service life. He repeated that he stopped smoking permanently in 1978 but said that the amount that he smoked per day did change from when he first commenced smoking on a regular basis. He recorded changes in March 1966 to 20 cigarettes per day; in March 1974 to 30 cigarettes per day and the same consumption in 1978, when presumably he ceased smoking. Mr Watson said that the reason for his change in smoking in March 1966 was his operational service on the Derwent. He attributed his increase in 1974 to natural increase in habit combined with dangerous Navy service.
83. In the SoP dealing with chronic bronchitis, the RMA has indicated that there is a causal link between cigarette smoking and chronic bronchitis. Therefore, we are satisfied that the material before us does point to a hypothesis connecting Mr Watson's chronic bronchitis with his operational service.
SoP in force
84. The RMA has made a SoP concerning chronic bronchitis and emphysema. The current SoP is Instrument No 30 of 2004, which came into effect on 7 October 2004 and it remains the current SoP for chronic bronchitis.
Is the hypothesis reasonable?
85. As stated above, a hypothesis raised by a veteran will be reasonable if it is consistent with the template found in the SoP. The factor relied upon by Mr Watson is 5(a), which provides:
(a)Smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
. . .
86. The expression pack years of cigarettes, or the equivalent thereof in other tobacco products is defined at cl 8 of the SoP. It means a calculation of consumption where one pack year of cigarettes equals 20 tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. On the material before us, Mr Watson's hypothesis clearly satisfies factor 5(a) of the SoP. His hypothesis is therefore reasonable.
Was Mr Watson's chronic bronchitis war-caused?
87. Again, it is at this point that we are required to make findings of fact from the material before us in support of Mr Watson's claim. This is where Mr Watson’s claim runs into serious difficulties.
88. If, as he stated in the first smoking questionnaire and in his oral evidence to the Tribunal, his smoking was triggered by the fact that he was a survivor from the Voyager disaster, our finding that he was not a survivor of the Voyager disaster means that the factual foundation of his hypothesis is disproved beyond reasonable doubt. If we were then to accept that his increase in smoking in 1966 from one to two cigarettes per night to 20 per day occurred as a result of his operational service on the Derwent, because we have found that the stressful incidents upon which Mr Watson relied in the course of that service did not occur, again, the factual foundation for his hypothesis is disproved beyond reasonable doubt. It follows that we must conclude, on the evidence before us, that Mr Watson's chronic bronchitis was not war-caused.
intermediate or special rate of pension
89. A veteran who is receiving a pension under Part II of the VE Act may make an application for an increase in that pension(s 15(1)). The basis for such an application must be that the incapacity of the veteran has increased since the rate of pension was assessed or last assessed.
90. Mr Watson's accepted war-caused disability has not altered since his bilateral sensorineural hearing loss with tinnitus was accepted by the Commission. Given that we have rejected all of his claims which are the subject of this application, and that there was no evidence before us that his incapacity had increased due to his accepted war-caused condition, there is no basis upon which Mr Watson can be granted an increased rate of pension. Therefore, there is no reason for us to deal with his application for the intermediate or special rate of pension.
conclusion
91. Although Mr Watson claimed that he suffered from alcohol dependence, malignant neoplasm of the colorectum and chronic sinusitis, on the evidence before us, we are unable to find that Mr Watson suffers from any of these conditions. Therefore, his claims in respect of those conditions cannot be accepted.
92. Although we have found that Mr Watson suffers from sleep apnoea and chronic bronchitis, we are satisfied, beyond reasonable doubt, that these conditions were not war-caused. Therefore, Mr Watson's claims for these conditions must also fail.
93. In our opinion the decision made by the VRB on 15 April 2008 rejecting Mr Watson's claims was correct. We affirm that decision.
I certify that the ninety three [93] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Dr Kerry Breen, Member
(sgd): Leah Berardi
Clerk
Dates of Hearing 9 and 10 December 2009
Date of Decision 29 March 2010
Solicitor for the Applicant Mr D De Marchi, De Marchi and AssociatesAdvocates for the Respondent Mr K Rudge and Ms J McCulloch, Department of Veterans’ Affairs
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