Johnson and Repatriation Commission
[2006] AATA 768
•8 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 768
ADMINISTRATIVE APPEALS TRIBUNAL № V2004/1152
№ V2005/0489VETERANS’ APPEALS DIVISION
Re: RONALD JOHNSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:8 September 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E. A. Shanahan
Member
VETERANS’ AFFAIRS – generalised anxiety disorder – pre‑existing anxiety – no severe psycho-social stressor – anxiety secondary to physical medical conditions and non‑war related conditions – diabetes – cessation of smoking greater than 10 years before the diagnosis of diabetes.
Veterans’ Entitlements Act 1986
Statements of Principles
Instrument N°1 of 2000 concerning generalised anxiety disorder
Instrument N°11 of 2004 concerning diabetes mellitus
Repatriation Commission v Deledio (1998) 49 ALD 193 - followed
Hardman v Repatriation Commission [2005] FCAFC 83 Full FC - considered
Delahunty v Repatriation Commission [2004] FCA 309 - Tamberlin J
Benjamin v Repatriation Commission (2001) 34 AAR 270
Cooke v Repatriation Commission (1998) 160 ALR 17- followed
Repatriation Commission v Gosewinckel [1999] FCA 1273 - considered
Stoddart v Repatriation Commission (2003) FCA 334 - considered
REASONS FOR DECISION
8 September 2006 Miss E.A. Shanahan, Member
1. Mr Johnson has applied to this tribunal for review of two decisions of a delegate of the Repatriation Commission. The first decision, dated 29 January 2004 and affirmed by the Veterans’ Review Board (VRB) on 8 September 2004, determined that Mr Johnson’s generalised anxiety disorder was not war‑caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act). The second decision, dated 28 January 2005 and affirmed by the VRB on 9 May 2005, determined that Mr Johnson’s diabetes was not war‑caused.
2. The applicant was represented by Mr A. Larkin, of counsel, instructed by Williams Winter, Solicitors. The respondent was represented by Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, for the first two days of the hearing and on 22 May 2006 by Mr G. Purcell of counsel. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents). The parties tendered the following documents:
Statement of Applicant taken on 29 September 2004 Exhibit A1
Statement of applicant taken on 26 May 2005 Exhibit A2
Statement of Mrs G. Johnson taken on 22 November 2005 Exhibit A3
Report of Associate Professor D. Lording dated 6 October 2005 Exhibit A4
Report of Dr J. Agar dated 22 May 1997 Exhibit A5
WriteWay Report dated 1 March 2005 Exhibit R1
Clinical notes of Dr B. Reid pp1‑44 Exhibit R2
Defence Psychological Record of Applicant Exhibit R3
Defence Personnel Records (1‑228) Exhibit R4
Statement of Mr J. Watson dated April 2005 Exhibit R5
Minute of Dr Morgan dated 24 January 2006 Exhibit R6
Claim for Disability Pension dated 3 April 2000, Exhibit R7
claim dated 17 September 2001 and Applicant’sletter dated 20 August 2001
Service Medical File pp1‑69 Exhibit R8
Map of Vung Tao Special Zone Exhibit R9
Medical records of the Geelong Hospital under cover Exhibit R10
of letter dated 7 March 2006
3. Mr Johnson, Lieutenant Colonel W. Barsley, Dr C. Newlands, Mr J. Ploenges, Associate Professor D. Lording, Mr J. Watson and Dr B. Kenny gave evidence to the Tribunal.
BACKGROUND TO THE APPLICATION
4. Mr Johnson has been receiving a disability pension at 100 per cent of the General Rate since 3 January 2000. He suffers from the following conditions for which the respondent accepts liability:
·Right Renal Calculus with Operation
·Hypertension
·Intervertebral Disc Prolapse at L3‑L4
·Bilateral Sensorineural Hearing Loss with Tinnitus
·Sciatica of the Right Leg
·Emphysema
5. Mr Johnson claimed that his generalised anxiety disorder and diabetes are war‑caused within the meaning of s 9 of the Act and when his claims to the Commission were unsuccessful he sought review by this Tribunal. The Tribunal is somewhat perplexed as to why he has sought review given that he is already on a 100 per cent disability pension and has not worked for 23 years.
6. Following the first two days of the hearing and upon further inquiries directed to Geelong Hospital, the respondent conceded that the date of the onset of Mr Johnson’s diabetes was in May 1997.
7. Mr Johnson was on operational service in Vietnam from 5 October 1966 until 24 October 1967. He has eligible service from 7 December 1972 until his discharge on 18 July 1982.
8. Mr Johnson was born in the United Kingdom on 7 March 1929 and came to Australia in 1962. Within a few months of his arrival, on 13 July 1962, he enlisted in the Australian Army. Mr Johnson had performed his National Service requirements in the UK, as a cook in the Royal Navy for two and a half years, but did not serve outside the UK. His childhood years were difficult due to his abusive, alcoholic father; and following the death of his mother, from the age of thirteen Mr Johnson lived with his aunt. In 1960, while still living in the UK, Mr Johnson had undergone a thyroidectomy for thyrotoxicosis. Following his service in the Royal Navy he worked in numerous jobs but predominantly as a plasterer. On joining the Australian Army he was found to have a small thyroid nodule and underwent regular checking of the status of this nodule for several years. While training at Portsea, his treating doctor described him as nervous and a worrier and prescribed Amytal (a barbiturate) to counteract his heightened nervousness and anxiety. No formal diagnosis of an anxiety disorder was made by a psychiatrist; but the Army medical officer (Exhibit R8 p1) diagnosed probably mild anxiety state – work pressure – continue Amytal on 28 May 1965. Mr J. Guest (a surgeon) described Mr Johnson as getting a little bit nervous from time to time and recommended a mild sedative (Exhibit R8 p3). Mr Johnson’s doctor prescribed Amytal from 1965 to 1966 and when it was ceased for a period of three months Mr Johnson became nervy again (Exhibit R8 p7). Mr Johnson had no recollection of having taken any medication in 1965/66. Mr Johnson has claimed that as a result of exposure to several severe psychosocial stressors during his operational service in Vietnam (5 October 1966 to 24 October 1967) he developed a generalised anxiety disorder. He had made earlier claims for post traumatic stress disorder and generalised anxiety disorder but these had been unsuccessful. The nominated severe psychosocial stressors were:
·Seeing the body of a dead Vietnamese civilian who had presumably drowned;
·The stressors of running an Army kitchen and cooking for some 150 Army personnel in a war zone;
·Seeing a Vietnamese civil policeman fire on a Vietnamese civilian and then kick him;
·His knowledge that a grenade had been thrown into the camp some months before he arrived in Vietnam and that, in his opinion, security in the camp was poor;
·Driving a Land Rover to or towards Nui Dat and being fearful of an attack.
9. With regard to his diabetic condition, Mr Johnson claimed that this was related to his cigarette smoking during operational service and thereafter. He said that prior to his enlistment he had smoked some 20 cigarettes per day but this had increased to 50 to 60 per day while in Vietnam and this level of cigarette smoking continued until 1987. However, other documentary evidence indicates that he ceased smoking well before this date.
10. After his operational service Mr Johnson suffered several bouts of ill‑health due to recurrent right renal calculus, impaired renal function, an enlarging thyroid nodule with tracheal compression necessitating further thyroid surgery and hypertension. While serving in Vietnam Mr Johnson had presented with renal colic and was diagnosed to have a right urinary calculus which required a ureterolithotomy on 28 September 1967.
11. In late 1979 or early 1980 Mr Johnson’s first wife was diagnosed with lung cancer and Mr Johnson cared for her during her terminal illness. This was a distressing period for Mr Johnson and following her death he sought psychiatric treatment for depression and an anxiety state. The Tribunal noted that Mr Johnson became very tearful during the hearing of this matter when giving evidence regarding his first wife’s illness and death.
ISSUES BEFORE THE TRIBUNAL
12. With respect to the generalised anxiety disorder, the issues before the Tribunal are whether Mr Johnson suffers from a generalised anxiety disorder; its date of onset; and the question of whether it was war‑caused.
13. With respect to Mr Johnson’s diabetes, the claim for which is based on his smoking habit, the issue is simply when he ceased smoking.
14. The Tribunal finds that Mr Johnson does suffer from generalised anxiety disorder, that he had a vulnerability to the development of such a disorder and that the clinical onset was in 1981. With regard to his diabetes, the respondent has conceded that the date of onset was May 1997; and despite Mr Johnson’s evidence to the contrary, the Tribunal finds on the documentary evidence that he ceased smoking in approximately 1983 or 1984. Thus, his diabetes is not war‑caused within the meaning of s 9 of the Act.
EVIDENCE BEFORE THE TRIBUNAL
Mr R. Johnson
15. Mr Johnson had provided two statements (Exhibit A1 and Exhibit A2). The first of these, dated 29 September 2004, confirmed that Mr Johnson had undergone thyroid surgery in 1960 while living in the UK; and that in 1964 he had noticed a lump in his throat/neck area. He admitted to being anxious regarding the presence of this lump but had been reassured by the treating surgeon that he would not require immediate surgery, though he may do so in the future. As a result, Mr Johnson had concluded that he suffered from no nervous condition of which he was aware prior to his enlistment in the Army.
16. Mr Johnson outlined the stressful incidents to which he was exposed while serving in Vietnam as being the pressures put upon him by managing the base kitchen and acting as a sergeant with the responsibility of supplying meals to more than 150 people. In addition, he was perturbed by what he perceived to be a lack of security at the camp at Vung Tau.
17. Mr Johnson described an incident of a Vietnamese police officer shooting and wounding a civilian and then kicking the civilian. He described a second incident when he saw the body of a drowned Vietnamese civilian in a fishing village. He had also been upset by seeing Vietnamese civilians scrounging for food in unhygienic circumstances and had been extremely worried and felt threatened on those occasions when he was required to travel to Nui Dat.
18. Mr Johnson said his ill‑health in Vietnam was due to a right renal calculus necessitating surgery, his evacuation from Vietnam to Australia because of this condition and the need for further surgery some six months later.
19. Mr Johnson stated that he was smoking 20 cigarettes a day when he enlisted and by the end of his Vietnam tour his cigarette smoking had escalated to 50 to 60 per day. Additionally, he drank alcohol to excess while in Vietnam, having been a social drinker prior to his enlistment. Mr Johnson claimed that by the end of his tour in Vietnam he was suffering from frequent nightmares which related to cooking and having inadequate supplies and staff predominately, but also to threats to his life.
20. Mr Johnson admitted that he had become severely depressed and anxious during his wife’s terminal illness from 1989 to 1991 but he was of the opinion that his wife’s illness and death had aggravated his pre‑existing anxiety state.
21. Mr Johnson’s second statement, dated 26 May 2005, related to his smoking history. Once more, he said that he was smoking at a rate of 20 cigarettes per day prior to his operational service in Vietnam and by the end of that tour he was smoking 50 to 60 cigarettes per day. He stated that he continued to smoke at that rate until about 1983 or 1984 at which time he ceased smoking. He also reported that he underwent thyroid surgery at Geelong Hospital in 1988 and while in hospital urinary tests showed elevated glucose levels. He was not formally diagnosed with diabetes until September 1998.
22. Mr Johnson’s wife, Jean Johnson, also provided a statement (Exhibit A3) wherein she said she had noted that Mr Johnson suffered from excessive thirst and frequent urination from the time she had met him in April 1988. In addition, she had noted lethargy and a change in the level of his interest in tennis and squash and attending jazz events from 1989 onwards. Mrs Johnson was also aware that her husband suffered frequent nightmares although he had refused to discuss with her the content of those nightmares. When they first met in April 1998 Mr Johnson was neither smoking nor drinking alcohol.
23. In his evidence before the Tribunal Mr Johnson confirmed his previous statements (Exhibits A1 and A2) except for the smoking history given. In exhibit A1 he had declared that he ceased smoking in 1983/1984 and he denied this before the Tribunal and stated that he had ceased smoking in late 1987 or early 1988.
24. In the course of his evidence Mr Johnson tendered photographs he had taken of a Vung Tau camp in which he served as a cook. He denied that during the period he was serving in Vietnam there was any perimeter fencing and that access to and from the beach was unhindered.
25. Mr Johnson confirmed that he worked under difficult circumstances as an Army cook combating sand and flies and dubious food supplies. There ensued quite a lengthy debate as to whether or not there was an east gate accessing the camp from the beach and whether or not this was patrolled. The exchange did not result in any clear evidence.
26. Mr Johnson elaborated on the report of seeing a drowned Vietnamese civilian when he attended a fishing village close to the camp. He explained that he and Mr Ploenges would, every one to two weeks, endeavour to access fresh fish from this village. In the course of such a visit he was exposed to the sight of a dead Vietnamese, presumably drowned. Mr Johnson also described what he called travel to Nui Dat in a single vehicle, namely a Land Rover with three other persons, all of whom were armed and were at all times cognisant of the possibility of being fired on during their journey. Mr Johnson informed the Tribunal that in fact he carried arms at all times including while working at the camp kitchen. This was an Army regulation. The purpose of these trips to Nui Dat appeared to be for the acquisition of catering supplies for special dinners and events held by the Army. Mr Johnson also described the event when he saw a Vietnamese policeman shoot a Vietnamese civilian on the beach in front of his camp following which the policeman kicked the injured civilian.
27. Under cross‑examination Mr Johnson agreed that he had been happy as a cook in the Australian Army. He agreed that he had been very distressed when his wife had developed carcinoma of the lung which eventually led to her demise. He also agreed he had received very compassionate postings during the period of her illness so that he could care for her most of the time. It was during this period that Mr Johnson first sought psychiatric treatment for a combination of depression and anxiety; both of which he attributed to the effect upon him of his wife’s ill‑health and subsequent death.
28. Mr Johnson was re‑called to give further evidence at the resumed hearing on 22 May 2006. At the end of the first two days of the hearing the Tribunal directed the respondent to obtain further information from Dr John Agar regarding the date of diagnosis of Mr Johnson’s diabetes. This resulted in the provision of Mr Johnson’s entire medical records from the Geelong Hospital. It became obvious from these records that Mr Johnson had, on numerous occasions, given different dates between 1982 and 1986 as the date of cessation of his smoking. There were 11 entries in this medical record regarding the date of cessation of smoking.
29. Mr Johnson could not recall when he commenced smoking. However, he did recall that prior to his service in Vietnam he had been smoking less than 20 cigarettes per day and this increased to 40 to 60 per day during his operational service. Mr Johnson attributed his increased cigarette consumption to the stresses of his job and the general anxiety of being in a war‑zone. Mr Purcell took Mr Johnson through all the conflicting dates of cessation of smoking. Mr Johnson acknowledged that he had given different dates at different times and explained that he was giving the answer the doctors wanted. He maintained that he had not stopped smoking until 6 September 1988 and cited this date as being when he left Melbourne to take up residence in Ocean Grove. Mr Johnson said that just prior to moving to Ocean Grove he had gone on a cruise with a male friend and on his return he ceased smoking. The Tribunal asked Mr Johnson if he could provide his passport or inform the Tribunal of when he bought the house in Ocean Grove; but Mr Johnson could not provide either of these pieces of information as he had not kept his old passport and he would need to look at the deed of sale in order to determine when he bought the house in Ocean Grove.
Dr Carol Newlands
30. Dr Newlands had seen Mr Johnson on referral from his general practitioner Dr Barry Reid in December 2000. She had continued to treat him until August 2001. Dr Newlands had diagnosed a generalised anxiety disorder. This she had attributed to various incidents or stressors that he had suffered while serving in Vietnam. Dr Newlands was unaware that Mr Johnson had been diagnosed with an anxiety state, also called very nervy, in 1965, prior to his deployment to Vietnam. Dr Newlands was aware that Mr Johnson had been treated for depression and anxiety following the death of his wife in the early 1980s. Dr Newlands had not been informed that Mr Johnson had made three previous claims for anxiety disorder and PTSD in which he had not mentioned the stressors that Dr Newlands had outlined in her report. Despite this, Dr Newlands remained certain that Mr Johnson suffered from a generalised anxiety disorder. She attributed the cause of his anxiety disorder to his experiences in Vietnam.
Lieutenant Colonel Warren Barsley
31. Lieutenant Colonel Barsley had provided a report under the authority of Writeway Research Services Pty Ltd dated 1 March 2005 (Exhibit R1). He had addressed all the nominated stressor incidents claimed by Mr Johnson. Lieutenant Colonel Barsley agreed that Mr Johnson’s role as a cook with the 17th Construction Company was stressful. Lieutenant Colonel Barsley could find no reports of the incidents reported by Mr Johnson, seeing a dead Vietnamese civilian at a fishing market and a Vietnamese police officer shooting and kicking a Vietnamese civilian and therefore could not substantiate them; but he agreed that such incidents could have occurred. Lieutenant Colonel Barsley provided information regarding the security relating to the camp in which Mr Johnson was based. He agreed there had been an incident 12 months prior to Mr Johnson’s deployment, wherein a hand grenade was thrown into the camp. It would appear from Lieutenant Colonel Barsley’s evidence that a perimeter fence was erected between May and November 1967. Lieutenant Colonel Barsley was involved in the delivery of the necessary earth moving equipment in May 1967 to construct the perimeter fence. His enquiries revealed the date of completion to be in November or December of 1967.
32. With respect to Mr Johnson’s claim that he had driven to Nui Dat in a Land Rover without escort, Lieutenant Colonel Barsley’s investigations had revealed that any motor vehicle activity between Vung Tau and Nui Dat was subject to the regulation that it be conducted in a convoy such convoys consisting of, on the average, eight vehicles. Lieutenant Colonel Barsley noted that while Mr Johnson had been fearful of the bombardment of his camp, this did not occur and while Mr Johnson had also been fearful of his safety while traversing roads in Vietnam no adverse incidents had occurred.
33. In his evidence before the Tribunal, Lieutenant Colonel Barsley confirmed his written report. He provided the Tribunal and the parties with excellent maps of the area. He confirmed that in June 1966, some four months prior to Mr Johnson’s arrival in Vietnam, a grenade had been thrown into the compound. No similar incidents had occurred during Mr Johnson’s time in Vietnam. With respect to Mr Johnson’s concerns regarding security at the compound, Lieutenant Colonel Barsley said that a fence was constructed around the compound shortly after May 1967 and he had been informed by those concerned in its construction that it was completed by November of that year. This resulted in there being two entry and exit gates to the compound, both of which were manned by guards. The Peter Badcoe Club used by the Australian soldiers was within the perimeter fence.
34. Lieutenant Colonel Barsley explained that all the travel between Vung Tau and Nui Dat took place in a convoy of vehicles as this road was considered unsafe. Personnel were not permitted to use single vehicles along this road. In addition, at the time Mr Johnson was deployed in Vietnam, there was no taskforce in Nui Dat and Lieutenant Colonel Barsley could see no reason for Mr Johnson to ever have been required to visit Nui Dat in that time. In his evidence, Mr Johnson had stated, I travelled on the road to Nui Dat. Mr Barsley said that once a task force was established in Nui Dat, there were daily maintenance convoys between Vung Tau and Nui Dat. Prior to October 1967 convoys to Nui Dat were much less frequent. Mr Barsley confirmed that all Army personnel carried a weapon at all times in Vietnam, including when travelling in a convoy or single vehicle, as well as in Mr Johnson’s case when working in the kitchen. The east gate of the compound provided pedestrian access to the beach. All vehicular access was through the west gate. An administrative order had been issued in November 1966 to the effect that both gates were to be manned by sentries. In addition, the Vietnamese working in the compound kitchen and offices were all subject to security checks prior to their employment and their entry and exit from the compound was also security checked.
Mr John Ploenges (by telephone)
35. Mr Ploenges had known Mr Johnson since their basic training as cooks at Broadmeadows and they had then been posted to the same unit at Portsea. Mr Ploenges arrived in Vietnam on 29 April 1967, some six months after Mr Johnson, and was a Sergeant Cook at the Army hospital. Mr Ploenges said that he and Mr Johnson had quite often travelled to a near‑by fishing village to purchase fresh fish on weekends. They went in the ration vehicle supplied by the hospital for his purposes. He stated that it was an open truck with no cabin or tray canopy. The person riding shot‑gun was seated in the tray. In his evidence Mr Johnson had stated that Mr Ploenges was with him when he saw a Vietnamese fishing boat unload a tarpaulin covered object which turned out to be the body of a drowned Vietnamese civilian. Mr Ploenges had no recollection of such an occurrence. He said that, generally speaking, he and Mr Johnson while travelling to the village together then went their own separate ways to do their fish shopping. Mr Ploenges could not recall having discussed the event with Mr Johnson. With respect to the security of the compound, Mr Ploenges could recall that there was a certain amount of barbed wire around the perimeter; but he was uncertain as to whether the entire perimeter was fenced when he arrived in 1967. Mr Ploenges agreed with Mr Larkin that while he could not recall the event described by Mr Johnson or any discussion of this event, this did not mean that it had not occurred.
Associate Professor D. Lording (by telephone)
36. Dr Lording provided a report dated 6 October 2004 (Exhibit A4), regarding Mr Johnson’s diabetes, with particular attention to the likely date of onset. In his report Dr Lording commented on the positive urine testing for glucose on 10 September 1988. Dr Lording stated that testing for glucose, if positive, does not constitute a diagnostic test for diabetes. However, in his opinion, the most likely cause of glycouria is diabetes. To make such a diagnosis it would be necessary to review the hospital records and see if any blood glucose determinations were made. Dr Lording also commented on the clinical course of diabetes which may be present and symptomatic for some years before diagnosis.
37. Dr Lording nominated the symptoms of increased thirst, excessive urination along with lethargy, visual blurring and possibly an increased risk of infection which might characterise the early phases of diabetes. He also recorded, in his consultation with Mr Johnson, that Mr Johnson had ceased smoking no later than 1984. In his evidence in chief Dr Lording confirmed the content of his written report and was taken by Mr Larkin to the various random blood glucose estimations done between 1993 and 1997. None of these were fasting blood sugars and some were elevated and some normal. Dr Lording did accept that the elevated blood glucose reading of 12.5, as recorded by Dr J. Agar (Exhibit A5) in May 1997, would indicate that Mr Johnson was definitely diabetic at that time. Having looked at the clinical notes of Mr Johnson’s general practitioner, Dr Reid (Exhibit R2), Dr Lording agreed that Dr Reid had not diagnosed diabetes until 8 September 1998 and that earlier elevations in the blood glucose levels in May 1996 may have been due to Mr Johnson taking oral prednisilone at that time.
Mr J. Watson (by telephone)
38. Mr Watson was a member of the military police who served in Vietnam from May to August 1967 for a period of six to eight weeks, and again in 1969 and 1970. Mr Watson provided a report to the respondent dated April 2005 (Exhibit R5). Mr Watson had been asked to comment on the incident described by Mr Johnson wherein a Vietnamese civil policeman had shot a Vietnamese youth and then kicked him, on the beach in front of the camp. While Mr Watson could not remember such an incident, he could not deny that such an incident might have occurred. However, it was not reported, and he said he had never seen the mistreatment of civilians by the Vietnamese civil police force. Despite not being the subject of a report, Mr Watson believed that given the small size of the city of Vung Tau, such an event would have been the subject of much gossip within the civilian population. In his evidence before the Tribunal, Mr Watson stated that he had difficulty believing this episode could have occurred in front of the Peter Badcoe Club, an area that was fenced off, and inside which civilians of any descriptions, including the police, were not permitted. Mr Johnson had described the events occurring three months after his arrival in Vietnam, that is in early 1967. In order to access that site any person, other than Australian Army personnel, would have had to be escorted by Australian Army personnel. Mr Watson disagreed with Mr Larkin’s contentions that the South Vietnamese police were not held in high reputation. In his experience, they were generally fairly even handed (Transcript, p.113). Mr Watson agreed that an episode involving civilians would not be reported to the military authorities. On direct questioning by Mr Larkin, Mr Watson said that in the time he was present in Vietnam, namely in July 1967, a wire fence separated the camp from the beach front. He did not however have any knowledge as to whether there was one there in January 1967.
Dr B. Kenny
39. Dr Kenny was the first psychiatrist to assess Mr Johnson after lodgement of his claim (V2004/1152). As such he was not provided with any pre‑existing medical reports. Dr Kenny took a very thorough history, noting that Mr Johnson had a troubled childhood due to his father, who was an aggressive drunkard, being violent toward him and his mother.
40. Dr Kenny reported that Mr Johnson:
joined the Army for security and travel and in general terms enjoyed his time in the Army, spending most of it in Victoria. He served in Vietnam for a year in Vung Tau, again in catering, found that a bit stressful, didn’t like it, didn’t see combat, wasn’t frightened but was a bit anxious some of the time. (T-documents, p.19, V2004/1152).
At this interview, Mr Johnson did not report any stressful incidents during his service in Vietnam. He said that he had been a worrier over many years and that his post‑service dreams related to catering matters, that is about people in the mess waiting to be fed, there is no food and he has no staff (T-documents, p.21). Mr Johnson gave a history of having seen a psychiatrist after the death of his first wife in 1981 or early 1982 and Dr Kenny believed he was suffering from unresolved grief associated with his wife’s death.
41. Dr Kenny diagnosed a mild chronic anxiety state which was dependent upon his background experience and his personality structure and was not related in any meaningful sense to his Army service (T-documents, p.23). In the course of taking a history Dr Kenny ascertained that Mr Johnson had drunk alcohol during his service in Vietnam but had ceased after service and that he had been a smoker but had ceased many years ago. This history was taken in 2000.
42. Dr Kenny gave evidence before the Tribunal and affirmed the content of his written report. He outlined the normal questions he would ask any veteran he was assessing in terms of a psychiatric history and condition. In particular, he said he would normally ask if there had been any particular traumatic episodes. Dr Kenny confirmed that he had asked Mr Johnson if there had been any particular traumatic events during his time of service and Mr Johnson had denied there had been any. Ms McCulloch referred to the stressors claimed by Mr Johnson in 2004, and in particular the incidents of the South Vietnamese policeman shooting a youth and the body of a drowned man being unloaded at a fishing village. Dr Kenny said he had not obtained any history of these events in 2000.
43. Under cross‑examination, Dr Kenny agreed with Mr Larkin that Mr Johnson’s Vietnam experience may have exacerbated any underlying anxiety disorder. Mr Larkin referred Dr Kenny to Mr Johnson’s statement (Exhibit R7), in which he described an episode of awaking during the night with acute shortness of breath, the episode having been attributed to fogging in order to control mosquito infestation in the area of the camp. Mr Larkin asked if this could be a panic attack, to which Dr Kenny replied that could have been the case. Dr Kenny reiterated that Mr Johnson had not told him of any specific stressful incidents while he served in Vietnam other than his worries regarding his catering duties. Had he been told of these episodes, he might have considered them as being contributory towards Mr Johnson’s generalised anxiety disorder.
44. The Tribunal acquainted Dr Kenny with Mr Johnson’s pre-Vietnam service medical records: relating to his thyroid disease, and what in 1965 was called an anxiety disorder requiring the prescription of a barbiturate, Amytal, to reduce his level of anxiety. Dr Kenny said that this confirmed his opinion or hypothesis that Mr Johnson had a chronic generalised anxiety disorder prior to his service in Vietnam, or at least suggested that. The Tribunal also informed Dr Kenny that Mr Johnson had undergone thyroid resection in 1960 and had been left with a right recurrent nerve palsy and tracheomalacia. The Tribunal then asked Dr Kenny if he thought if this so called panic attack might, in fact, have been a response to the use of pesticides, given Mr Johnson’s abnormal upper respiratory tract and in particular his trachea. Dr Kenny stated this was not his area of expertise but that a panic attack was a diagnosis of exclusion and therefore any underlying anatomical pathological abnormality may have caused the episode of upper respiratory distress.
DOCUMENTARY EVIDENCE
Veterans’ Review Board (VRB)
45. On the 8 September 2004, the VRB affirmed that Mr Johnson’s claimed generalised anxiety disorder was not service related on the basis that the relevant Statement of Principle (SoP) was not met and therefore the evidence did not raise a reasonable hypothesis within the meaning of section 120(3) of the Act.
46. On 9 May 2005 the VRB affirmed the decision of the primary delegate that Mr Johnson’s diabetes was not war‑caused as he had ceased smoking in 1987 and his diabetes had been diagnosed in September 1998. As a result, Mr Johnson did not meet the requirements of Factor 5(c) of SoP Instrument № 11 of 2004 concerning diabetes mellitus.
Report of Dr M. McGill dated 1 September 1986
47. Dr McGill had been Mr Johnson’s general practitioner while he lived in the Greensborough area. Dr McGill had treated Mr Johnson from July 1979 until the time of her report, 21 January 1987. She had diagnosed recurrent renal colic due to calculus and had appropriately referred Mr Johnson for further treatment. In addition, she diagnosed hypertension secondary to his renal disease and anxiety and stress reaction also secondary to his renal calculus disease (T-documents, V2004/1152, p.85). In a further report of the same date, Dr McGill stated that the stress and responsibilities of his trade as a chef had contributed to his level of anxiety. (T-documents, V2004/1152, p.86)
Geelong Hospital Clinical Record (Exhibit R10)
48. At the completion of the second day of the hearing, the respondent sought leave to obtain further information from Dr J. Agar who had provided a report (Exhibit A5) which unfortunately was unsigned and carried several hand written notations which in turn were not signed. The Tribunal, with the acquiescence of the applicant, gave leave to certify that Dr Agar had written the letter and that the notations were his and for the respondent to obtain any further information Dr Agar might have. As Dr Agar had seen Mr Johnson in his capacity as a visiting medical officer at the Geelong Hospital, the outcome of this was the provision of the Geelong Hospital Clinical Record. This record has been of significant assistance to the Tribunal. It had been submitted by the applicant that a positive urinary glucose test on 10 September 1988 may well have been the first evidence of the development of Mr Johnson’s diabetes.
49. The hospital clinical record confirms that Mr Johnson has a right vocal cord palsy dating from 1960; that his abnormal lung function tests relate primarily to upper airway (tracheal) compression and tracheo-malacia due to his recurrent thyroid adenomata and that his respiratory function tests improved post thyroidectomy in 2001. The data suggests that Mr Johnson has mild lower airways disease or what is now called chronic obstructive pulmonary disease and commonly known as emphysema.
50. The Geelong Hospital clinical record contains numerous entries regarding Mr Johnson’s date of cessation of smoking. The respondent identified the following:
·reports of September 1988 stating the year of cessation was 1982-1983 (Exhibit R10, p.140);
·a report of January 1992, stating the year of cessation was 1984 (Exhibit R10, p.118);
·a report of 23 February 1996, stating the year of cessation was 1986 (Exhibit R10, p.187);
·a report of 27 February 1996, stating the year of cessation was 1986 (Exhibit R10, p.188);
·a report of 27 February 1996, stating the year of cessation was 1985 (Exhibit R10, p.100);
·a report of 12 May 1997, stating the year of cessation was 1985 (Exhibit R10, p.75); and
·a report of 29 March 2001, stating the year of cessation was 1983 (Exhibit R10, p.44).
The Tribunal has examined the clinical record and has identified several more entries:
·an entry dated 13 November 1998 in which Mr Johnson said that he had ceased smoking in 1984 (Exhibit R10, p.66);
·an entry dated 25 March 1997 in which Mr Johnson said that he had ceased smoking in 1985 (Exhibit R10, p.95); and
·entries dated 28 February 1997 in which Mr Johnson said that he had ceased smoking in 1985 (Exhibit R10, p.100) (in the history taken by an intern and in the history taken by the anaesthetist (Exhibit R10, p.109)).
51. The Geelong Hospital clinical records have clarified the positive urinary glucose test of 10 September 1988 to the satisfaction of the Tribunal. This entry of a trace of glucose on this date occurred in the post‑operative phase, following left sub‑total hemithyroidectomy on 9 September 1988. Because of the risk of subglottic oedema, hydrocortisone 50 mg intravenously six hourly had been prescribed by the intensive care (ICU) staff. (see Associate Professor Lording’s comments regarding the effect of cortisone/steroids on blood sugar levels). Also, Mr Johnson was prescribed intravenous fluids in the form of 5 per cent dextrose (Exhibit R10, p.153). The ICU medical staff recommended on 10 September 1988 that Mr Johnson should have daily glucometer estimations of his blood sugar while he remained on hydrocortisone. The glucometer reading at 10:00 am on 10 September 1988 was 6.2 mmols (that is normal). This was the only time when urine testing was positive for glucose. Intravenous hydrocortisone was ceased on 11 September 1988 as Mr Johnson had no evidence of respiratory stridor or respiratory distress. In May 1997 the blood glucose test performed at the Geelong Hospital indicated the presence of Type 2 diabetes.
Previous Claims Submitted by Mr Johnson
52. Mr Johnson had submitted claims for Post Traumatic Stress Disorder (PTSD) on 29 January 2004 (T-documents, V2004/1152, p 64), anxiety and depression on 27 March 2000 and generalised anxiety disorder on 12 September 2001 (Exhibit R7).
Dr Reid’s Clinical Notes (Exhibit R2)
53. Dr Reid’s clinical notes are primarily concerned with the treatment of Mr Johnson’s hypertension (fully controlled), back pain, dyspnoea, haemorrhoids; and after October 1998, with the control of his diabetes. Random blood sugar levels had been estimated on two occasions in 1993, twice in 1998 and once in 1999. These levels varied between normal and elevated.
54. Dr Reid’s clinical notes contain references at intervals to Mr Johnson’s psychological status. In March 2001 there is an entry stating lots of trauma at home, son in motor vehicle accident with head injury (Exhibit R2, p.14) and on June 2001, Dr Reid records lots of family problems (Exhibit R2, p.15). There is an earlier entry, on 17 February 1998, which records Mr Johnson being stressed by his wife’s diagnosis of carcinoma of the breast (Exhibit R2, p.9). On 3 September 2004, Dr Reid commenced Mr Johnson on the drug Zoloft for the treatment of depression, panic disorder and social anxiety disorder. Dr Reid did not indicate the exact indication for the prescribing of this drug.
55. Dr Reid’s clinical notes also contain a copy of a letter from Dr Watson (respiratory physician) dated 6 November 2003 wherein Dr Watson recorded that Mr Johnson had ceased smoking in 1983.
THE RELEVANT LEGISLATION
56. As the applicant had rendered operational service, ss 120(1) and (3) of the Act are applicable. Section 120A requires the Tribunal apply any relevant SoP. The parties are agreed that the relevant SoP are Instrument № 1 of 2000 concerning generalised anxiety disorder and Instrument № 11 of 2004 concerning diabetes mellitus. The relevant subsections of the Act are as follows:
120 - Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
…
57. The impression given to the Tribunal was that the Applicant relied on Factor 5(a)(ii) or in the alternative, Factor 5(a)(v) of Instrument № 1 of 2000 concerning generalised anxiety disorder. Factor 5(a)(ii) states:
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
…
(v)experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder;
…
The SoP delineates the features of a generalised anxiety disorder and defines a severe psychosocial stressor as:
…. an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
58. With respect to the applicant’s claim that his diabetes mellitus was war‑caused (application № V2005/489), he relied on Instrument № 11 of 2004 and in particular to Factor 5(a)(x) which states:
…
(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation;…
…
59. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis stand of proof. The process involves a series of steps as follows:
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.
SUBMISSIONS
60. At the commencement of the resumed hearing on 22 May 2006 the respondent conceded that the onset of Mr Johnson’s diabetes was May 1997. This was based on the report of Dr Agar (Exhibit A5) and the Geelong Hospital Record (Exhibit R10).
THE APPLICANT
61. Mr Larkin, for the applicant, submitted that the Tribunal could not be satisfied beyond reasonable doubt that Mr Johnson had ceased smoking prior to 1987 despite the conflicting data regarding the date of cessation of smoking. The applicant relied on Factor 5(c) of the relevant SoP.
62. Mr Larkin contended that there was no evidence of any psychological problems when Mr Johnson enlisted in the Australian Army (Exhibit R3) and that he subsequently experienced severe psycho‑social stressors while serving in Vietnam. These psycho‑social stressors were nominated as being employed in a demanding job as a cook; seeing the body of a deceased Vietnamese civilian brought ashore at a fishing village; observing Vietnamese persons scrounging for food in a local rubbish tip (the Tribunal notes that earlier in the hearing this stressor was declared as not being pursued) and the episode wherein a Vietnamese civil policeman shot and then kicked a Vietnamese citizen. In addition, Mr Johnson had had ongoing concerns regarding the security of the compound. There was conflicting evidence as to whether or not security fencing existed at the relevant time.
63. Mr Larkin acknowledged Dr Kenny’s evidence and opinion that Mr Johnson’s anxiety disorder related to his childhood and teenage experiences and existed prior to his enlistment. However, it was argued that the Vietnam experiences, given Mr Johnson’s vulnerability, may have worsened his general anxiety disorder as delineated in Factor 5(a)(viii).
THE RESPONDENT
64. Mr Purcell appeared for the Respondent on the final day of hearing in Ms McCulloch’s absence. He submitted that Mr Johnson had a pre‑existing anxiety disorder diagnosed in 1965 and that the evidence before the Tribunal indicated that his anxiety worsened in 1981-2 during his first wife’s illness and subsequent death. His anxiety was further exacerbated in 1988 when he underwent surgery for renal calculi. While an argument could be raised that Mr Johnson’s Vietnam experiences had aggravated a pre‑existing anxiety state, Mr Purcell submitted that there was no evidence of aggravation within two years of Mr Johnson’s operational service which was completed in October 1967.
65. Mr Purcell also contended that the claimed psycho‑social stressors did not impact directly on Mr Johnson and did not meet the SoP requirements of a severe psycho‑social stressor.
66. Mr Purcell pointed out the unreliable history with regard to Mr Johnson’s cessation of smoking and the overwhelming contemporaneous evidence that this had ceased prior to 1985 or at the latest 1986; and thus, he submitted, Mr Johnson did not meet the requirement of Section 5(c) of the SoP.
TRIBUNAL’S DELIBERATIONS
67. The Tribunal accepts the respondent’s concession that Mr Johnson’s Type 2 diabetes mellitus had a date of onset in May 1997. The Tribunal also accepts that Mr Johnson suffers from a mild generalised anxiety disorder (Repatriation Commission v Cooke). However, the evidence suggests varying dates of onset. There is documentary evidence that an anxiety state disorder was first diagnosed on 28 May 1965; that in 1982 a psychiatrist at the Repatriation General Hospital diagnosed anxiety, depression and a grief reaction secondary to Mr Johnson’s first wife’s death; that an anxiety disorder was diagnosed in 1986 by Dr McGill and that a mild general anxiety disorder was diagnosed Dr B. Kenny on 19 May 2000. The diagnoses of Mr Johnson’s psychological condition are not in dispute, but the date of onset of his generalised anxiety disorder is (see later).
68. The applicant has raised the hypothesis that Mr Johnson’s diabetes, with onset in May 1997, is war‑caused as a result of his cigarette smoking, which commenced prior to service, but increased during his operational service in Vietnam. The applicant relied on Factor 5(c) of Instrument № 11 of 2004. The second hypothesis raised by the applicant relates to his generalised anxiety disorder which he claims resulted from experiencing severe psycho‑social stressors while undertaking operational service in Vietnam between October 1966 and October 1967. The applicant relied on Factors 5(a)(ii) and 5(v) of Sop Instrument № 1 of 2000.
69. Step 2 of Deledio requires the Tribunal to identify the relevant SoPs and these are as stated above.
70. Step 3 of Deledio requires the Tribunal to determine whether or not the hypothesis meet the template described in the SoP. Having examined all of the material before it, but not proceeded to make any decision regarding facts, the Tribunal must find that the hypotheses raised by the applicant meet the template of the relevant SoPs.
71. As the hypotheses raised are consistent with the template to be found in the relevant SoPs, the Tribunal proceeds to the application of Step 4 of the Deledio decision.
FINDINGS OF FACT IN RELATION TO MR JOHNSON’S DIABETES MELLITUS
72. Mr Johnson’s claim that his diabetes is war‑caused is dependent on Factor 5(c) of Instrument № 11 of 2004. To meet Factor 5(c) Mr Johnson must not have ceased smoking more than ten years before the onset of his diabetes. The respondent has conceded that the date of onset of Mr Johnson’s diabetes was in May 1997. In his evidence before the Tribunal Mr Johnson said he ceased smoking in 1987 or early 1988. In his statement taken on 26 May 2005 (Exhibit A2) Mr Johnson stated that he had ceased smoking in 1983 or 1984. Dr Watson, a thoracic physician, on 6 November 2003 recorded that Mr Johnson had ceased smoking in 1983 (Exhibit R2) and the Geelong Hospital Medical Records, covering a period between 1988 and 1999, contain 11 entries regarding the date of cessation of smoking. The dates of cessation vary from 1982 to 1986 but there are none later than 1986. At the hearing before the VRB it was said that Mr Johnson ceased smoking no later than 1987. The Tribunal notes that Mr Johnson did not attend this hearing nor give evidence and that he had previously claimed his diabetes was due to exposure to dioxin. Professor Lording (Exhibit A4, dated 6 October 2005) obtained the history that Mr Johnson ceased smoking no later than 1984. Dr Kenny, in his report of May 2000, obtained a history that Mr Johnson had ceased smoking many years ago (T‑documents, V2004/1152, T5).
73. Thus, the Tribunal has before it 14 documented statements that Mr Johnson ceased smoking before 1986, including Mr Johnson’s own signed statement.
74. When challenged by Mr Purcell as to why he had given so many different dates as the date he had ceased smoking, if in fact he had not ceased smoking until late 1987 or early 1988, Mr Johnson replied that he gave the answers he thought the various doctors wanted to hear. This reply goes to Mr Johnson’s credibility or at least to his memory with respect to his smoking habits.
75. On the basis of the more contemporaneous entries in the various medical records, and particularly Mr Johnson’s signed statement (Exhibit A2) dated 26 May 2005, the Tribunal is satisfied beyond reasonable doubt that Mr Johnson ceased smoking before 1987 and most probably in 1983 or 1984. Therefore, he does not meet the requirements of Factor 5(c) of Instrument № 11 of 2004. His diabetes is not war‑caused within the meaning of s 9 of the Act.
FINDINGS OF FACT IN RELATION TO MR JOHNSON’S GENERALISED ANXIETY DISORDER
76. Mr Johnson was diagnosed as suffering from an anxiety disorder in May 1965. He was prescribed Amytal. His anxiety or being nervous (Exhibit R8, page 3) is recorded over more than 12 months in his service medical record. In his evidence before the Tribunal Mr Johnson could not recall this diagnosis or treatment but had previously acknowledged that he was concerned at the time that his thyroid condition, treated surgically in the United Kingdom in 1960, had recurred.
77. Dr McGill, in a report dated 1 September 1986 (T22, V2004/1152) reported an anxiety disorder precipitated by Mr Johnson’s concern regarding his medical conditions of hypertension, past renal calculi and continuing intermittent renal symptoms. She described him as being of a nervous disposition.
78. Mr Johnson first saw a psychiatrist on 12 January 1982 when a diagnosis of anxiety, panic attacks, depression and a grief reaction was made and attributed to the death of his first wife in late‑1981. He was prescribed Serepax with benefit this was continued for many years. On 9 February 1982, Mr Johnson had informed the psychiatrist (Dr Stevens, Exhibit R8, p.45) that he had been experiencing panic attacks for 16 years, that is since 1966.
79. On 24 March 1982 Mr Johnson presented to the Emergency Department of the Heidelberg Hospital (Exhibit R8, p.47) complaining of sharp left‑sided chest pain. In his evidence he stated he was worried that this chest pain could be due to a carcinoma of the lung. The symptoms were investigated and the occurrence of carcinoma of the lung and myocardial ischemia were excluded. The symptoms were attributed to anxiety.
80. Mr Johnson retired from the Army on 19 July 1982 on completion of his term of 20 years and did not work again. He stated that he could not cope with the responsibilities of being a cook/caterer and felt he was too old at 52 to embark on a new career. He did seek employment for a few months but ceased further efforts when he received a service pension.
81. Dr Kenny saw Mr Johnson on 12 May 2000 at the request of the Department of Veterans’ Affairs after Mr Johnson had lodged a claim for a disability pension (T5,V2004/1152). He diagnosed Mr Johnson as suffering from a mild generalised anxiety disorder. Dr Kenny attributed Mr Johnson’s anxiety disorder to his childhood and teenage experiences, his personality structure and to unresolved grief associated with his first wife’s death. Mr Johnson had told him that he found his catering duties stressful but did not describe any other stressful events, even though Dr Kenny had pursued this subject. Mr Johnson gave a history of bad dreams and even nightmares (T5, p.21) concerning his catering duties: for example no food being available to feed the troops or no staff available to assist him in his cooking duties.
82. Mr Johnson first mentioned events which might constitute a severe stressor in a letter to the Department of Veterans’ Affairs dated 20 August 2001 (T32, V2004/1152). The major factor remained the stress of his work as a cook/caterer but on this occasion he reported his concerns regarding the security of the compound in the light of an event when a grenade had been thrown into the camp some months before he arrived in Vietnam. He claimed that he had been extremely anxious during Land Rover trips he took from Vung Tau to Nui Dat. His anxiety had increased when he was diagnosed with a right ureteric calculus requiring surgery while in Vietnam and an episode where he became acutely dyspnoeic during the night.
83. Dr Newlands first saw Mr Johnson on the 1 December 2000, at which time she diagnosed a generalised anxiety disorder and prescribed Zoloft. In her detailed report dated 9 January 2004 (T11, V2004/1152), she identified two further stressful incidents compared to those nominated in Mr Johnson’s letter, namely the sighting of the body of a drowned Vietnam civilian and the episode wherein a Vietnamese civil policeman had shot at a Vietnamese youth and then kicked him. Mr Johnson had told her his life was one big worry and that all his dreams and nightmares related to his duties as a cook/caterer. In her evidence before the Tribunal, Dr Newlands said she had been unaware of Mr Johnson’s previous service as a cook in the British navy; his thyroid operation in 1960 and the fact that he had developed, as a result of this surgery, a right recurrent nerve palsy. And she was also unaware that he had been diagnosed as suffering from an anxiety disorder in 1965.
84. Mr Johnson had submitted a claim to the Department of Veterans’ Affairs on the 6 February 2003 in which he attributed his anxiety disorder to the diagnosis of emphysema. The latter has been diagnosed as mild to moderate and since his third thyroid operation in April 2001 his lung function had improved following relief of the tracheal compression by the thyroid gland (Exhibit R2, p.33). Mr Johnson did not pursue this claim.
85. Over several years, Mr Johnson has submitted claims other than those the subject of this decision. All these claims were denied.
86. Toward the end of his military career and thereafter, Mr Johnson consistently reported that he had found his responsibilities as a cook/caterer stressful. However, it was not until 2001 that he advised of incidents occurring during operational service that might be considered severe psycho‑social stressors.
87. The stressful incidents nominated do not meet the definition of severe psycho‑social stressors. Mr Johnson was never exposed to any threat to himself, his friends or his colleagues. His sighting of a drowned Vietnamese civilian and a Vietnamese policeman shoot and kick a Vietnamese youth might produce transient distress; which appears most likely to the Tribunal given that Mr Johnson did not remember it until 2001, some 35 years after the alleged events. As there was no Australian base at Nui Dat during the period of Mr Johnson’s operational service, travel between Vung Tau and Nui Dat for work purposes was unlikely to have occurred; but if it did, such travel was always as part of a convoy (the evidence of Mr Barsley). While Mr Johnson claims he did travel this route in a single vehicle, he also reported that there were no stressful incidents experienced.
88. The Tribunal finds that Mr Johnson’s mild generalised anxiety disorder pre‑existed his period of operational service and was temporarily aggravated by his concerns regarding his renal function in 1986, by his first wife’s death in 1981 and by his second wife’s diagnosis with carcinoma of the breast in 1998. These well documented aggravating events have no link with his operational service. Nor, in the alternative, was there evidence of aggravation of his anxiety disorder within two years of service. Factors 5(a)(ii), (v) and (vi) of Instrument № 1 of 2000 are not satisfied, once the facts have been determined.
89. The Tribunal is satisfied beyond reasonable doubt that Mr Johnson’s mild generalised anxiety disorder was not war‑caused within the meaning of s 9 of the Act.
90. For the reasons given above the Tribunal affirms the decisions under review.
I certify that the ninety [90] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Lydia Zozula
Associate
Dates of Hearing: 20‑21 February 2006, 22 May 2006
Date of Decision: 8 September 2006
Counsel for the applicant: Mr A. Larkin
Solicitor for the applicant: Williams Winter SolicitorsAdvocate for the respondent: Ms J. Mc Culloch (Feb)
Counsel for the respondent: Mr G. Purcell (May)
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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