John Schmidt and Repatriation Commission
[2015] AATA 229
•17 April 2015
[2015] AATA 229
Division VETERANS' APPEALS DIVISION File Number
2013/5424; 5425
Re
John Schmidt
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 17 April 2015 Place Sydney The decision under review in relation to “anxiety disorder” and “alcohol dependence”:
(a) is varied and a diagnosis is substituted of “anxiety disorder with co-morbid alcohol abuse”; and
(b) the decision under review, as varied, is affirmed.
The decision under review in relation to assessment is affirmed.
.........................[sgd]...............................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Entitlements – Anxiety disorder – Alcohol dependence – Whether veteran’s condition was war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1),120, 196B, 120A
Statement of Principles concerning Anxiety Disorder No. 102 of 2014
Statement of Principles concerning alcohol dependence and alcohol abuse No. 1 of 2009
CASES
Repatriation Commission vGorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Cooke (1998) 90 FCR 307
Gerzina v Repatriation Commission [2004] FCAFC 96
Repatriation Commission v Budworth (2001) 116 FCR 200.
Lees v Repatriation Commission (2002) 125 FCR 331
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Repatriation Commission v Hill (2002) 69 ALD 581
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Kaluza v Repatriation Commission (2011) 280 ALR 621
REASONS FOR DECISION
Ms N Isenberg, Senior Member
17 April 2015
Mr Schmidt served in the Royal Australian Navy between 6 January 1965 and 9 January 1976. His “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth)[1] (“the VE Act”) is as follows:
(c)22 April 1966 - 18 May 1966 aboard HMAS Sydney;
(d)25 May 1966 – 11 June 1966 aboard HMAS Sydney; and
(e)16 March 1971 - 11 October 1971 aboard HMAS Brisbane.
[1] ss 6 to 6F.
Mr Schmidt also rendered eligible defence service between 7 December 1972 and 9 January 1976, but this aspect of his service was not relevant to his claim.
Mr Schmidt claimed for ‘anxiety disorder’ and ‘alcohol dependence’ and contended that he suffers those conditions because of his operational service.
He also sought an increase in his pension to the Special or Intermediate Rate but conceded that any increase in his pension was dependent upon the success of his application for review of entitlement.
Mr Schmidt seeks review of the decisions of the Repatriation Commission dated 4 April 2013 (entitlement) and 11 October 2012 (assessment), both of which were affirmed by the Veterans’ Review Board (“the VRB”) on 18 September 2013.
The Applicant has a number of conditions accepted as related to service: Lumbar Spondylosis, Retrolisthesis L5-S1, Malignant Neoplasm of the Prostate, Erectile Dysfunction, Sensorineural Hearing Loss, Non Melanotic Malignant Neoplasm of the Skin, and Solar Keratosis.
ISSUES BEFORE THE TRIBUNAL
(a)Does Mr Schmidt suffer from anxiety disorder and alcohol dependence?
(b)If so, were those conditions war-caused?
(c)If so, what is the appropriate rate at which his pension should be paid?
LEGISLATIVE BACKGROUND
Section 9 of the VE Act provides that a disease or injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
As the veteran had operational service, the determination of whether his claimed condition(s) is/are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s condition was war‑caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
The Repatriation Medical Authority (“RMA”) was established under section 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, death or disease can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) in respect of that kind of injury, disease or death.[2] The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14). Relevantly, this provides, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
[2] s 196B(2) VE Act.
I am obliged to consider Mr Schmidt’s claim in the context of the current SoP unless the SoP in force at the date of the decision under review is more favourable: Repatriation Commission v Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108. The applicant conceded that it was only the current SoPs which were to be applied.
The current SoPs relevant to this matter are:
(a)Anxiety disorder: No 102 of 2014
(b)Alcohol dependence and alcohol abuse (now known as alcohol use disorder): No 1 of 2009 (as amended)
The Applicant initially relied on the category 2 stressor of "perceived lack of control over tasks performed and stressful workloads" and contended that the anxiety disorder “commenced as a result of his initial service on HMAS Sydney in 1966 and was aggravated and perpetuated by his subsequent service on HMAS Brisbane in 1971.”[3] At the hearing though the applicant relied on a hypothesis based on factor 6(a)(vi) of the SoP as follows:
experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder
[3] Applicant’s Statement of Facts and Contentions, paragraph 14 (citing report of Dr Anthony Dinnen, p 6).
Relevantly, “category 2 stressor” is defined as:
one of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
...
(c) having concerns in the work ... environment including ... perceived lack of social support within the work ... environment, perceived lack of control over tasks performed and stressful work loads, ...
...
EVIDENCE
I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:
(a)Statement of the applicant, John Schmidt dated 9 December 2014
(b)Medical Report of Dr Dinnen dated 7 April 2014
(c)Medical Report of Dr Dinnen dated 2 September 2014
(d)Medical Report of Dr Burns dated 11 March 2014
(e)Medical Report of Dr Vickery dated 2 June 2014
(f)Supplementary Report of Dr Vickery dated 18 December 2014
(g)Claim for Service Pension Documents
(h)Medical Report of Dr Chase dated 10 June 2014
(i)HMAS Sydney Reports dated 4 July 1966
(j)Killarney Vale Medical Practice Clinical Notes
(k)VRB Transcript dated 18 September 2014
(l)Extracts from the publication “Up Top”
Mr Schmidt gave evidence. He had previously provided statements in support of his claim dated 2 September 2008 and 9 December 2014. Evidence was also given by consultant psychiatrists, Drs Dinnen and Vickery, concurrently, and occupational physicians, Drs Burns and Chase, also concurrently. All the doctors had provided reports which were in evidence.
CONSIDERATION: ENTITLEMENT
Does Mr Schmidt suffer from the claimed conditions?
Only after I determine if the veteran is suffering from a particular condition does the question arise as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96, [5]; Repatriation Commission v Budworth (2001) 116 FCR 200.
Anxiety disorder
At the outset of their evidence Dr Dinnen and Dr Vickery agreed that the applicant suffers anxiety disorder, but disagreed as to “causation”.
Dr Dinnen was unconcerned about the veteran having described a happy lifestyle before his diagnosis of prostate cancer in 2007, noting that many people with anxiety disorder can lead happy lifestyles. Dr Vickery however, when that information was brought to his attention, then had serious reservations about the diagnosis of anxiety disorder, noting that he had largely relied on the veteran’s self-reporting. However, he did not completely resile from his diagnosis.
In that regard, Dr Dinnen had referred, in the history recorded in his report of 7 April 2014, to the applicant describing events which occurred during his service which he said caused him to be anxious: when he was only a young seaman in Vietnamese waters he experienced scare charges; and his sentry duty caused him to be very afraid. He started to drink then, and those worries and anxieties then increased when he served on the gunline in HMAS Brisbane.
At the hearing Dr Dinnen was informed that the applicant now solely contended that his condition was because of concerns in the work environment including perceived lack of social support within the work environment, and perceived lack of control over tasks performed and stressful work loads. The doctor maintained his view but noted that he did not obtain that history from the applicant, although he had referred to the cumulative effects of his service in Vietnam indicating “a perceived lack of lack of control over tasks performed and stressful work loads” i.e. a category 2 stressor. He continued in his evidence to particularly refer to the events about which he had taken a history. Dr Dinnen described the veteran’s condition as “environmentally triggered anxiety disorder”.
Dr Vickery considered that generalised anxiety disorder is a constitutional condition which usually begins in young adult life and extends throughout the person's life. He said in his evidence that the condition could have been exacerbated at the time of the veteran’s service, as would be expected, and then it would be expected to continue in a somewhat fluctuating course throughout most of his life, which it has. However, he rejected the concept of ‘triggering events’. He described the condition as:
... about magnifying small worries into huge big worries, about catastrophising normal everyday concerns into some dramatic outcome
Neither doctor addressed the diagnostic criteria in either DSM V or the SoP. Nonetheless, on the basis of their evidence I am reasonably satisfied that, notwithstanding Dr Vickery’s reservations, the applicant suffers anxiety disorder.
Alcohol use disorder
Dr Dinnen considered the veteran had co-morbid alcohol abuse, and while he thought that the veteran was dependent on alcohol, the diagnostic criteria for that as an independent condition was not satisfied. He said the veteran had told him that he commenced consuming alcohol excessively to deal with his anxiety.[4]
[4] Exhibit A1, p 3.
Dr Vickery considered that it is quite common in relation to generalised anxiety disorder for alcohol abuse co-morbidity. In his report of 18 December 2014[5] he considered there to be no objective evidence to support Dr Dinnen's conclusion that the veteran’s alcohol abuse is a co-morbid condition to any service-related psychiatric disorder. This is because the increase to the veteran’s current alcohol intake did not occur until 2004, before which his consumption was reported as six to 12 units of alcohol a week, which is not excessive.
[5] Exhibit R2.
Dr Vickery expressed some reservations about the history he had been given about the veteran’s alcohol consumption, namely that since the age of 40 he had been drinking his current consumption of 8 – 10 units per day. Mr Schmidt had told him he had been consuming 10 standard units daily for the past 25 years but the pathology results do not show any marked elevation in his liver function test to substantiate that amount of alcohol intake until 2005/06. Consequently, he considered the veteran’s alcohol abuse became habitual at about that time.
The applicant did not press his claim of an alcohol use disorder as a separate condition, and relied on the failure of Dr Dinnen to provide such a diagnosis.
The doctors did not agree that the veteran’s excessive use of alcohol is co-morbid to his anxiety disorder, but I do not think their views are incompatible. I find that the applicant does not suffer alcohol use disorder, but that it is co-morbid with his anxiety disorder, although it did not become habitual until 2005/06.
Consequently, with regard to the conditions under consideration the decision under review is varied and a diagnosis is substituted of “anxiety disorder with co-morbid alcohol abuse”.
ANXIETY DISORDER WITH CO-MORBID ALCOHOL ABUSE: CONNECTION WITH SERVICE
Being satisfied as to the diagnosis of anxiety disorder with co-morbid alcohol abuse, I turned to consider the connection, if any, between that condition and the applicant’s service.
Where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97] in the following way:
1The 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.
2If 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).
….
3If 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.
4The 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.
Steps 1 and 2: is there an hypothesis and is there a SoP?
The hypothesis is that Mr Schmidt’s anxiety disorder with co-morbid alcohol abuse arose because of experiences aboard HMAS Sydney and that the condition is therefore war-caused. In particular, he was said to have experienced a negative life event, in that he had concerns in the work environment including perceived lack of social support within the work environment, perceived lack of control over tasks performed and stressful work loads, and that the effects were chronic in nature and caused him to feel on-going distress, concern or worry.
As discussed above the veteran relied on factor 6(a)(vi) of the SOP No. 102 of 2014 as having experienced a category 2 stressor within the one year before the clinical onset of anxiety disorder.
Step 3: does the hypothesis conform to the template in the SoP?
This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
At this stage I must consider all of the material before me, and whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim for failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
The question for me at this stage is therefore: is there material pointing to each element of the factor? Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581, [583].
The essence of the applicant’s evidence at the hearing was that he had joined the Royal Australian Navy in 1965 at age 15. Initially he served in HMAS Leeuwin and his first posting commenced in January 1966 to HMAS Sydney.
In April 1966 HMAS Sydney commenced a voyage to Vietnam. The veteran was one of the most junior sailors, but there were some others who had been with him at LEEUWIN. The ship’s company tended to look down on junior sailors.
On arrival in Vung Tau he was on upper deck sentry duty on 4 hour watches while the ship was at anchor. He was alone on that part of the deck. He was wearing anti-flash gear and a helmet. His job was to look out for enemy or enemy bombs secreted in flotsam. He was armed with an SLR rifle which he had not previously used, but he agreed he had received some training on board and had fired a few rounds off the back of the ship while in transit. “Things started to get his mind working” and his hands became clammy. He was more tense during the watches at night, especially when he could hear gunfire or mortar fire onshore. SYDNEY was in Vung Tau harbour for 2½ or 3 days, and he did not go ashore, but went about his general duties. On one occasion when he was below decks he heard what he learnt was a scare charge and thereafter avoided going below decks because he was frightened. He found a place above decks – in a boat sponson - where he would spend the day, presumably when he was off duty. He would take his hammock up there at night. He returned below decks after SYDNEY left Vietnamese waters.
He said that on the return trip after the first time in Vung Tau he became “a little bit withdrawn”. He did not have his family support and he felt a lack of support from the ship’s company, and had felt that even on the way to Vietnam. Nobody came around to ask how “us young fellows” were handling their first experience of Vietnam, not even the chaplain. He felt “a bit let down”; there was no support mechanism. There was a divisional officer but he said he never met him. He only met one Petty Officer. He said he was unaware of any complaints mechanism on board. Because he had not had any emotional problems at LEEUWIN he was unaware of who he could turn to. A relative had advised him not to complain too much lest he be seen as “a whinger” and to try to resolve issues himself. He did that, he said, by withdrawing into himself. He was having trouble sleeping and started organising illegal beer rations for himself, notwithstanding that he was below age. On his return from Vietnam he started going to pubs; when in uniform he was never asked his age.
On the second trip, a few days after the first had ended, he was more anxious. He resumed sleeping in the boat sponson while SYDNEY was anchored about a kilometre offshore from Vung Tau. He denied in cross-examination that he slept there to avoid the heat below decks, although he agreed that others may have gone onto the upper decks for that reason.
In 1970 he was posted to HMAS Brisbane and the deployment was on the gun line. He had not wanted to go. He was afraid that if he said so he would be labelled as a conscientious objector. He felt he had no control over his posting. He was promoted to leading seaman with 2 junior sailors under him. His role in BRISBANE was as a gun director and he agreed he was efficient in his role. HMAS Hobart which was ‘quite a few yards [away]’ was hit. He started getting chest pains and began sweating a lot and became more anxious. He had a lot of intrusive thoughts about doom and being hit by missiles. In BRISBANE he would sleep below decks because he was not afraid of a bomb in flotsam, as he had been while in Vung Tau. He said that on both ships he felt there was a lack of support.
The applicant described himself as a loner. He said that even before he went to Vietnam he had gone ashore by himself.
He said he had enjoyed his early life in the Navy, before Vietnam. He was asked whether, in say, 1972 he felt he had any form of psychiatric disorder. He said that he did not, because “everything, even the drinking was the norm”.
He remained in the RAN until 1976, having been promoted several times and achieving the rank of Petty Officer within 7 years of joining. He attempted to deflect a suggestion that this was a quick promotion, by saying that the Navy needed senior non-commissioned officers and everyone was “pushed through”. He resigned because he thought he could not function properly anymore and was not getting support from the Navy or the sailors on the ships to which he was posted; he gave the required 18 months’ notice and left at the end of his 12 year contract. He had told the VRB that he “just didn’t feel like being there anymore”. He mentioned that the Vietnam War was over, the FESR had finished and there was “nothing going on”.
Did the veteran have concerns in the work environment - perceived lack of social support?
The ship’s company tended to look down on junior sailors of which the veteran was one. Even on the way to Vietnam, in the absence of his family support, he felt a lack of support from the ship’s company in that nobody came around to ask how he was handling his first deployment and he felt “a bit let down”. He claimed he never met the Divisional Officer and had only met one Petty Officer. He did not know who to turn to, so he adopted the advice of a relative to try to resolve issues himself, which he did by withdrawing into himself. Dr Brash, consultant psychiatrist, to whom the veteran had been referred for a medico-legal report wrote in February 2013 that the veteran was ‘homesick’.[6]
[6] T-documents, p 198.
He said that while on HMAS Brisbane he also felt there was a lack of support. Dr Brash also wrote of a high level of apprehension because of what had happened to HMAS Hobart.[7]
6 T-documents, p 198.
Having considered all the material before me, but without making any findings of fact, I consider there to be material pointing to a perceived lack of social support.
Did the veteran have concerns in the work environment - perceived lack of control over tasks performed?
The veteran told the VRB he did not know what to expect when he went to Vietnam. His sentry duty while SYDNEY was at anchor involved the use of a weapon with which he was relatively unfamiliar.
In 1970 he felt he had no control when he was posted to HMAS Brisbane.
Having considered all the material before me, but without making any findings of fact, I consider there to be material pointing to a perceived lack of control over tasks performed.
Did the veteran have concerns in the work environment - stressful workloads?
It was unclear as to the veteran’s contention in this regard. He mentioned 4 hourly watches but I did not understand him to complain that this created a stressful workload in terms of either arduous hours or volume of work. I do not find there to be material pointing to a stressful workload.
Did the veteran experience a negative life event, the effects of which are chronic in nature and caused him to feel on-going distress, concern or worry?
Dr Brash wrote of high levels of anxiety after leaving the Navy as demonstrated by recurrent nightmares about being on board SYDNEY.
The veteran told the VRB that he went to Vietnam “with a sound mind” and came back “with a disturbed mind”.[8] He thought his career was adversely affected.
[8] Exhibit R7, p 13.
Having considered all the material before me, but without making any findings of fact, I consider there to be material pointing to a negative life event the effects of which are chronic in nature and caused the veteran to feel on-going distress, concern or worry.
Was the clinical onset within one year of the claimed stressor?
The term “clinical onset” is not defined within the SoP. However, in Lees v Repatriation Commission (2002) 125 FCR 331 (“Lees”), the Federal Court approved the statement of this Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at [670] where this Tribunal concluded:
there is clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
In Kaluza v Repatriation Commission (2011) 280 ALR 621 at [62] (“Kaluza”) the Federal Court explained that the test in Lees did not require that all the required symptoms had to be displayed and treatment sought in order to determine clinical onset. The Federal Court clarified that the test is as follows:
there is clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present (emphasis added).
The veteran described himself as a loner. He said that on the return trip after the first time in Vung Tau he became “a little bit withdrawn”, but said that even before he went to Vietnam he would go ashore by himself. He admitted that by 1972, that is, a year after his operational service (and the time by which the clinical onset of his anxiety disorder was required in order to come within the factor relied on), he did not feel he had any form of psychiatric disorder and that “everything, even the drinking was the norm”.
Dr Dinnen said that, had the veteran presented within one year of his service, with the symptoms he had described he would then have diagnosed generalised anxiety disorder. Dr Vickery, on the other hand, because of his view that anxiety disorder is a constitutional condition, was unable to suggest a date of clinical onset in the absence of clinical notes or even other witnesses. Having considered all the material before me, but without making any findings of fact, I consider there to be material pointing to clinical onset by 1972.
Therefore, I have come to the view that every essential element of the hypothesis is pointed to by the material before me. A reasonable hypothesis therefore has been raised.
Step 4: can I be satisfied beyond reasonable doubt that the veteran’s condition was not war caused?
This step involves making findings of fact from the material before me. Section 120(1) of the VE Act provides that the claim will succeed, unless I am satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the veteran’s condition was war-caused. If I am not so satisfied, the veteran’s claim must succeed.[9] In examining this question, I note that there is no onus of proof.[10]
[9] s 120(1) of the VE Act
[10] s 120(6) of the VE Act; Bushell v Repatriation Commission (1992) 175 CLR 408.
Dr Dinnen in discussing clinical onset, said he had taken a history from the veteran that he started to get anxious when he was in Vung Tau Harbour, and the anxiety was to such an extent that he was constantly worried. He was worrying excessively, more than was warranted, and in spite of being told about a scare charge, he was nonetheless fearful that there could be an explosion. He felt that he wasn't safe sleeping below decks, he was fearful of the gunfire.
The test for clinical onset in Kaluza is disjunctive, namely that either the applicant became aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or that a finding is made on an investigation which is indicative to a doctor of the disease being present. In this case, there was no diagnosis, as far as I could see until 2008 when the applicant saw Dr Iyer, consultant psychiatrist. There was no evidence that he had sought medical intervention until after the devastating diagnosis of his prostate condition.
I do not accept that over 30 years after the veteran’s experiences in Vietnamese waters he can give a history of his symptoms which can enable a doctor to reliably diagnose the condition retrospectively. Furthermore, the history that he gave insofar as the stressors was not consistent with the matters upon which he now relies. In any event, I did not consider that Dr Dinnen explicitly put clinical onset at no later than 1972, but rather posited that the veteran’s experience in Vietnam was the “origin” of his condition.
I accept that the veteran was shaken by his experiences in Vietnam. However, he went on to have a very successful Navy career, becoming one of the youngest Petty Officers. I do not accept the contention that he and others were “pushed through” because of operational needs. From his evidence to the VRB he could have left the Navy after 6 years plus an 18 month notice period. Instead he stayed until the end of his contract.
I accept that he was only a junior sailor on his first deployment and that he was, understandably, homesick. There were many other sailors to whom he could have turned, including some from his time in LEEUWIN and more senior sailors, but, it appears, he did not himself seek any intervention of any kind. He mentioned the chaplain not having sought him out, but by his evidence, he knew a chaplain to have been on board, and, notwithstanding his evidence of having some free time between watches, he did not, it appears, seek spiritual support. He preferred to adopt the advice of a relative not to complain. I do not accept that no social support was available.
I accept that the experience of going to Vietnam was a new and challenging one, although, by that time he had had about 15 months in the Navy. One task he was given was as a sentry while at anchor. From his evidence, the task was explained to him and that he would be required to fire if directed to do so. It involved the use of a weapon with which he was relatively unfamiliar, but had received some training on. While he may have felt he had no control over his posting to HMAS Brisbane, this was nothing more, it seemed to me, than expressing a disappointment in the posting cycle. He simply did not want to go.
He remained in the RAN until 1976, having been promoted several times and achieving the rank of Petty Officer within 7 years of joining. He attempted to deflect a suggestion that this was a quick promotion, by saying that the Navy needed senior non-commissioned officers and everyone was “pushed through”. He resigned because he thought he could not function properly anymore and was not getting support from the Navy or the sailors on the ships to which he was posted; he gave the required 18 months’ notice and left at the end of his 12 year contract. He had told the VRB that he “just didn’t feel like being there anymore”. He mentioned that the Vietnam War was over, the FESR had finished and there was “nothing going on”.
In all of the circumstances, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s anxiety disorder with alcohol abuse is related to his operational service.
CONCLUSION AS TO ENTITLEMENT
The decision under review, as varied, is affirmed.
CONSIDERATION: ASSESSMENT
Because the veteran’s application for review in relation to assessment was conceded to be dependent upon the success of his entitlement application for review, and having reviewed the evidence of Drs Chase and Burns who, effectively, were also of that view, I find there to be no basis for an increase in the veteran’s pension. Accordingly the decision under review in relation to assessment is affirmed.
DECISION
The decision under review in relation to “anxiety disorder” and “alcohol dependence”:
(m)is varied and a diagnosis is substituted of “anxiety disorder with co-morbid alcohol abuse”; and
(n)the decision under review, as varied, is affirmed.
The decision under review in relation to assessment is affirmed.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member. ..............................[sgd]..........................................
Associate
Dated 17 April 2015
Dates of hearing 29 and 30 January 2015 Counsel for the Applicant Ms C Mudge Solicitors for the Applicant Legal Aid New South Wales Counsel for the Respondent Mr G Purcell Solicitors for the Respondent Department of Veteran's Affairs
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