John Stirling and Repatriation Commission
[2014] AATA 804
•30 October 2014
[2014] AATA 804
Division Veterans' Appeals Division File Number
2014/0658
Re
John Stirling
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 October 2014 Place Brisbane The decisions under review are affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Several non-accepted conditions – Ischaemic heart disease – Depressive disorder – Alcohol abuse or dependence – Gastro-oesophageal reflux disease – Application of relevant Statements of Principle – Tribunal not reasonably satisfied conditions connected to service – Reviewable decisions affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120(4); 120B
SECONDARY MATERIALS
Statement of Principles concerning ischaemic heart disease No. 90 of 2007
Statement of Principles concerning gastro-oesophageal reflux disease No. 66 of 2013
Statement of Principles concerning depressive disorder No. 28 of 2008
Statement of Principles concerning alcohol dependence and alcohol abuse No. 2 of 2009
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 October 2014
Mr John Stirling is currently in receipt of a disability pension under the
Veterans’ Entitlements Act 1986(Cth) (“the VE Act”) in respect of a number of medical conditions that have been accepted as being defence-related. Mr Stirling wants the Repatriation Commission to accept the following additional conditions as being
service-related:
·Ischaemic heart disease
·Depressive disorder
·Alcohol abuse or dependence
·Gastro-oesophageal reflux disease (GORD).
In order to assess Mr Stirling’s claim, I must follow the assessment process in s 120 of the VE Act and have regard to relevant statements of principles pursuant to s 120B.
I must ultimately decide whether I am reasonably satisfied the conditions are
service-related. As it happens, I am not reasonably satisfied there is a connection, so the application must fail. I explain my reasons below.
WHAT HAPPENED TO MR STIRLING
Mr Stirling enlisted in the Navy in 1968 when he was 15 years of age. He said he did not drink before he joined, which seems reasonable given the legal drinking age was 21 years. He said he was a well-behaved young man. Mr Stirling’s father died when he was a small boy. He and his sister lived with their mother in Innisfail in north Queensland. Mrs Stirling re-partnered at some point while the applicant and his sister were children, and the family moved into a new house with the partner – although Mr Stirling made it clear during the course of the hearing that he and his mother’s partner were not close. They had a difficult relationship.
After he joined the Navy, Mr Stirling was sent to HMAS Leeuwin in Western Australia for recruit training. The new recruits lived on base for the first few months. Mr Stirling said the older recruits would sneak out and obtain supplies of alcohol. The applicant said he was forced to drink along with other junior recruits out of fear of reprisals from their senior classmates. He gave evidence that these binge drinking sessions occurred on weekends, although it is unclear whether they occurred every weekend and to what extend the applicant became intoxicated on a regular basis. Mr Stirling said the binges became more intense once he and other recruits were allowed to spend occasional weekends with families in the Perth region. He spoke of the parents of a local recruit who would acquire a keg of beer for the young recruits to drink over the course of a weekend.
Mr Stirling recollected regular binge drinking in those early years but he agreed that pattern was interrupted by his first sea-posting. He was a cook and he served on a number of vessels, starting with HMAS Supply. While sailors at sea had access to a beer ration, Mr Stirling conceded he was not able to access alcohol while on board the vessels because he was still below the legal drinking age. He was not eligible to access the beer ration until he was aboard HMAS Stalwart in 1972, he recalled. (The evidence is unclear on this point. By my calculations, Mr Stirling was still under 21 years of age in 1972.
But I am satisfied nothing turns on this detail. He said in his evidence that he did not drink regularly or to excess while he was at sea during this period, although he acknowledged it was possible to do so.) He suggested he still drank on weekends when he was in port, but it is unclear how regularly he became intoxicated. He insisted at one point in his oral evidence that he did not lose control of his drinking – he claimed he was managing it successfully – even after he was posted to HMAS Penguin in Sydney in approximately August 1972.Things began to change during the course of 1972. Mr Stirling said he became aware his mother was ill. He was not sure at the time how sick she was; he did not get a clearer picture until he went home for the mid-year vacation in 1972. It turned out she had developed serious kidney disease, and she was in hospital in Cairns. Mr Stirling said in his evidence that his mother looked in very poor condition when he saw her.
Mr Stirling decided he needed to get out of the Navy and return home in light of his mother’s illness. It was not clear what he proposed to achieve by this: he did not say in his evidence that he simply wanted to be with her or provide comfort. He said he needed to care for her, but she was in hospital. He also referred to looking after her partner who was at home in the house in Innisfail. Mr Stirling said his mother’s partner had lost the use of his arm and had difficulty taking care of himself – although Mr Stirling also said he did not get on with the partner. When asked about his motivations in
cross-examination, Mr Stirling did not articulate a clear explanation of his motivations for seeking to return home.Upon return to HMAS Penguin after his mid-year leave, Mr Stirling said he applied for a compassionate discharge from the Navy. He suggested that application was lodged in August 1972. (He originally signed on for 12 years of service, so he could not simply resign from the defence forces.) He said in evidence he recalled completing some paperwork and being referred by his divisional officer to the chaplain. He said the chaplain was distinctly unsympathetic to his plight. He claimed the chaplain said words to the effect that he should “harden up” because the Navy was not going to release him from his obligations just because his mum was ill.
Interestingly, Mr Stirling’s oral evidence suggested he was not put off by the chaplain’s approach. He said he resolved to let the application for a compassionate discharge take its course. He got on with his work. He said he recalled mentioning the fact of the application from time to time to his workmates and perhaps to his divisional officer.
He heard nothing more about it in the months that followed, but nor did he learn he was unsuccessful. He said he did not take steps to follow up the application and find out what was decided. He just assumed the application was wending its way through a Naval bureaucracy he only dimly understood.Mr Stirling said he went home to Innisfail for Christmas. He saw his mother.
Her condition was deteriorating. He said he was more determined than ever to seek a discharge. But he agreed in his evidence that he did not follow up on the application for compassionate discharge when he returned to HMAS Penguin in January 1973.After the Christmas holiday, Mr Stirling was contacted at HMAS Penguin by his uncle who reported what Mr Stirling took to be good news: his mother had been moved to Townsville where she was placed on dialysis. The applicant’s uncle said Mrs Stirling’s condition was improving, and suggested she might “come good” after all. But it was not to be: she remained in hospital until her death in April 1973.
The applicant was told of his mother’s death in a phone call. His superiors immediately gave him compassionate leave so he could attend the funeral. But he said everything unravelled at that point. He was upset. He said he immediately began to drink much more heavily and regularly. Once he returned from the funeral, he was routinely drinking during the day at work and after hours and on weekends. He said a drinking pattern became established very quickly, and he has had difficulty breaking from that pattern ever since.
His superiors suggested Mr Stirling apply for an elective discharge in around June 1973. He was successful in that application although he was not eligible to leave the Navy until after an 18 month cooling-off period had expired at the end of 1974. Mr Stirling suggested that was because his superiors had observed the marked deterioration in his well-being and performance after he returned from his mother’s funeral. That is puzzling: he insisted he did not lose control of his drinking until after his mother’s death in April, but the elective discharge application process was initiated within less than two months of his return. It seems unlikely that his supervisors would have rushed to conclude that elective discharge was the appropriate course after such a short period of poor performance.
Mr Stirling’s case was conducted on the basis it was the Navy’s insensitive refusal of (or failure to approve) his compassionate discharge that brought on a sudden change of behaviour following his mother’s death. But his evidence at the hearing was less
clear-cut. When asked directly in cross-examination about that period, he agreed it was his mother’s death rather than the Navy’s attitude to his compassionate discharge that was his focus.There is no evidence of the applicant actually being agitated about the silence in relation to his application for a compassionate discharge prior to the death of his mother. In his evidence at the hearing, he described a patient, almost philosophical acceptance of the slow progress of the application. He was not preoccupied or troubled by what was occurring with the application for discharge between August 1972 and April 1973, and there is no evidence of any adverse effect. Indeed, he said he was not told anything about the application one way or another (apart from the one encounter with the chaplain).
He said he did not raise it again with his superiors after his mother’s death because there was no point – and he became aware of the possibility of an elective discharge soon after.Mr Stirling was discharged from the Navy in 1974. He has worked in a variety of occupations since then although he is not working at present.
THE MEDICAL EVIDENCE
The Commission called Dr Larder to give evidence at the hearing. Dr Larder is a consultant psychiatrist. He also provided a report: exhibit one at p 188ff. Dr Larder accepts the applicant suffers from alcohol abuse disorder and “a depressive state”.
(Dr Larder refers to both “alcohol abuse” and “alcohol dependence” in his report, although they are separate diagnoses. In his oral evidence, he referred to a “substance abuse disorder”. That is also a different diagnosis. I am satisfied his evidence, taken as a whole, acknowledges the existence of alcohol abuse although I note the analysis which follows would be the same in practice if he were instead diagnosed with alcohol dependence since both conditions are dealt with under the same statement of principles.) Dr Larder says the depressive disorder in particular appears to be properly characterised as dysthymia – a chronic depression – and it is in remission: exhibit one at p 207. He said the date of onset was in the mid-1990s when the applicant began to seek medical treatment. (I note the applicant’s GP, Dr Laws, suggests the date of onset was in 1973 although Mr Stirling did not seek treatment until the mid-1990s. I think I should prefer the evidence of an experienced specialist in preference to the general practitioner in the circumstances.) Dr Larder says the alcohol abuse condition is Mr Stirling’s principal problem. He said in his oral evidence that the pattern of alcohol abuse was firmly established by 1972 or 1973, and suggested it probably began earlier (although
Mr Stirling suggests he managed his alcohol intake effectively between the time he graduated from HMAS Leeuwin and the news of his mother’s death in April 1973.) In the absence of other evidence suggesting a different, more plausible explanation, I accept these conclusions.Dr Larder added that he did not believe the events described by Mr Stirling – specifically, the Navy’s failure to offer him a compassionate discharge prior to his mother’s death – were or could have been the triggers for any of Mr Stirling’s psychiatric conditions. Dr Larder said the Navy’s handling of the compassionate discharge application has become the focus of Mr Stirling’s ruminations after the event (see exhibit one at p 209).
The applicant’s GORD and ischaemic heart disease conditions were not the subject of extensive evidence before the Tribunal. The Veterans’ Review Board accepted
Mr Stirling suffers from these conditions, although it found they are not service-related.
I have no reason to doubt the Board was correct to accept those diagnoses, and I accept them. I note the Board decided the date of onset of the GORD condition was in the 1990s when Mr Stirling first sought medical attention in respect of the problem. I have no reason to dispute that conclusion, and I accept it.THE RELEVANT STATEMENTS OF PRINCIPLES
Given the claimed events occurred during the course of defence service, s 120(4) of the Act requires I be reasonably satisfied there is a connection between that service and the applicant’s claimed conditions. In assessing the link, I must have regard to the applicable statements of principles published by the Repatriation Medical Authority.
Mr Stirling’s ischaemic heart condition can only be related to his service if it is established he had a clinically significant depressive disorder for at least five years before the date of onset of the ischaemic heart disease: clause 6(m) of the
Statement of Principles concerning ischaemic heart disease No 90 of 2007 as amended. It follows the claim in respect of the heart condition depends on my attitude to his depression condition. I will deal with that issue below. Mr Stirling’s GORD condition can only be related to his service if factor 6(d) of the Statement of Principles concerning gastro-oesophageal reflux disease No. 66 of 2013 is satisfied. That is, I need to be reasonably satisfied Mr Stirling was drinking at least 500 grams of alcohol a week in the 12 month period preceding the clinical onset of the GORD condition. I have already noted the date of clinical onset of GORD was in the 1990’s, long after he left the Navy. The condition can only be connected to his service if the alcohol consumption was the product of a service-related alcohol abuse or dependence condition.The statement of principles dealing with depression is No 28 of 2008 as amended by No 41 of 2010. The statement of principles relating to alcohol abuse and dependence is No 2 of 2009 as amended by No 30 of 2014. I will deal with the depression condition first.
An applicant seeking to link his depression condition to his service must satisfy one of the factors in the Statement of Principles concerning depressive disorder. In this case, the applicant must satisfy one of the factors in clause 6(a). I note clause 6(a)(iv) refers to experiencing the death of a significant other within the one year before the clinical onset of depressive disorder. Mr Stirling certainly experienced the death of a significant other, but that death occurred many years before the onset of his condition in the 1990s – and was in any event unrelated to his service. That leaves clause 6(a)(v), which refers to experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder. Clause 9 defines a category 2 stressor to include:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody,
on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability[.]
None of these criteria apply to the applicant within the period before the onset of his condition in the mid-1990s. I would add that the applicant would not be able to satisfy this factor even if the date of onset was around 1973: the only stressor identified that would apply was the “death of a significant other” but there was no connection between the death of the applicant’s mother and his service in any event.
I turn now to alcohol abuse and dependence. The applicant can only succeed if I am reasonably satisfied one of the factors in clause 6 of the Statement of Principles concerning alcohol dependence and alcohol abuse is met. Mr Stirling says the date of onset was in 1973. The Commission suggests it may have been a little bit earlier. Even if I accept the applicant’s contention, I do not think he can succeed. Mr Stirling did not have a clinically significant psychiatric disorder at or before the date of onset of his alcohol abuse condition, so he cannot satisfy clause 6(a) of that instrument. The death of a significant other (namely, his mother) that occurred in April 1973 was unrelated to his service – so he cannot satisfy clause 6(d). None of the other factors are relevant.
If alcohol abuse or dependence and the depressive condition are not related to service, it is also impossible for Mr Stirling to satisfy the requirements of the statements of principles in relation to GORD or ischaemic heart disease.
CONCLUSION
I am not satisfied there is a link between Mr Stirling’s service and his claimed conditions. It follows the application for review cannot succeed. The decisions under review must be affirmed.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 30 October 2014
Date of hearing
3 September 2014
Applicant
In person
Advocate for the Respondent Bruce Williams
Department of Veterans' Affairs
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