Jones and Repatriation Commission
[2005] AATA 203
•11 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 203
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1022
VETERANS’ APPEALS DIVISION )
Re GLYNN JONES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date11 March 2005
PlaceBrisbane
Decision The Tribunal determines that –
1. the diagnoses of chronic Generalised Anxiety Disorder with Tremor, chronic Depressive Disorder and Alcohol Abuse are accepted by the Tribunal.
2. these diagnoses are not war-caused pursuant to section 9 of the Veterans’ Entitlements Act.
3. the Tribunal affirms the decision of the Veterans Review Board dated 21 October 2003 in all other respects i.e. the claims made are not war-caused.
..................[Sgd]............................
K S Levy
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2003/1022
VETERANS’ APPEALS DIVISION )
Re GLYNN JONES Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2005] AATA 203
Tribunal Dr KS Levy, Member Date24 August 2005
PlaceBrisbane
The Reasons for Decision handed down by the Tribunal on 11 March 2005 are amended by deleting the last sentence of paragraph 93 which reads: “These factors and definitions relevantly provide:”.
[Sgd]
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pensions – war-caused diseases during operational service – whether applicant’s claimed conditions of depressive disorder, post traumatic stress disorder, generalised anxiety disorder and alcohol dependence or abuse are war-caused – whether applicant experienced a severe stressor and or a severe psychosocial stressor – diagnoses of generalised anxiety disorder with tremor, depressive disorder and alcohol abuse accepted – none of the applicant’s conditions are war-caused – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 5D, 6C, 9, 13, 70, 119, 120, 120A, 196B, Schedule 2
Byrnes v Repatriation Commission (1993) 177 CLR 565
Jackman v Repatriation Commission [1997] FCA 564
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2003) 70 ALD 622
Fogarty v Repatriation Commission (2003) FCAFC 136
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 74 ALD 518
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Bey (1997) 47 ALD 481
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission [2004] AATA 663
Hillier v Repatriation Commission [2004] AATA 897
Stonehouse v Repatriation Commission [2004] AATA 707
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Stoddart [2004] FCA 633
Stoddart v Repatriation Commission [2003] FCA 334McKenna v Repatriation Commission [1999] FCA 323
REASONS FOR DECISION
11 March 2005 Dr K S Levy, Member Introduction
1. The applicant, Glynn Keith Jones, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for review of a decision of the Veterans’ Review Board dated 21 October 2003. That decision rejected a claim that the veteran’s conditions of Ischaemic Heart Disease, Depressive Disorder and Alcohol Dependence or Alcohol Abuse were war-caused, under the Veterans’ Entitlements Act 1986 (the Act). The current application is based on the contentions that the applicant’s claimed disabilities of Depressive Disorder or Post Traumatic Stress Disorder (PTSD), with a secondary diagnosis of Alcohol Dependence/Alcohol Abuse satisfy the diagnostic criteria for these conditions. It is asserted that the applicant suffered a “severe stressor” and within two years following that, he suffered the onset of Alcohol Dependence/Alcohol Abuse. The claim also includes a tremor which has developed in the applicant and which it is suggested, is a symptom of a psychiatric condition.
2. In addition to those claims of war caused injury or disease, the applicant has also included an alternative description of the claims as being that depressive disorder or PTSD was present prior to the onset of the condition of Alcohol Dependence or Alcohol Abuse, or prior to the clinical worsening of Alcohol Dependence or Alcohol Abuse.
3. I note since the application was made to the Administrative Appeals Tribunal, that the respondent department has conceded the link of Ischaemic Heart Disease to his relevant service, which has consequently not been in contention during the hearing of this matter.
4. The applicant was represented by Mr R J Clutterbuck of Counsel and Mr S Mackie of Gilshenan Luton Lawyers. The respondent was represented by its advocate, Mr J Kelly.
5. The following documents were tendered into evidence –
Exhibit 1 “T” Documents filed under s 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Statement of Mr Glynn Jones (undated) with letter from solicitors dated 10 March 2004.
Exhibit 3 Supplementary statement of Mr Glynn Jones (with solicitor’s letter of 9 August 2004).
Exhibit 4 Report by Commodore P M Mulcare (Writeway Research Service) dated 10 July 2004.
6. Oral evidence was also admitted from the applicant, and his psychiatrist Dr Ivan Holm. The respondent led evidence from Dr Mulholland.
7. All of the oral evidence and all of the documentary exhibits have been carefully considered in determining this matter.
Background
8. The applicant is currently 58 years of age. His date of birth is 18 September 1946.
9. He served in the Royal Australian Navy (RAN) from his date of enlistment on 3 July 1965 until he was discharged on 14 February 1969. The applicant had operational service in Vietnamese waters on HMAS Sydney, which was, relevantly, as follows -
§ Operational Service (HMAS Sydney)
o 4 May 1966 to 6 May 1966
o 6 June 1966 to 8 June 1966
(See Department of Defence (Navy Office) advice dated 14 May 1996).
10. The first period of operational service was for a total of 47 hours and the second period was for 44½ hours. Each period was slightly less than 2 calendar days duration. He subsequently served on HMAS Melbourne from 23 March 1967 until 15 October 1968. He was discharged on 14 February 1969 as being physically unfit for Naval service.
11. The applicant has the following service related disabilities: Bilateral Sensorineural Hearing Loss with Tinnitus and Ischaemic Heart Disease. He has the following non accepted disabilities: PTSD, Depressive Disorder, Tremor, Alcohol Dependence/Abuse and Solar Keratosis.
Issues for Determination
12. The issues for determination in this matter, taking account of the oral evidence and written claims set out, are whether the applicant’s conditions of Depressive Disorder or PTSD, Generalised Anxiety Disorder and Alcohol Abuse or Alcohol Dependence are related to operational service and, therefore, war-caused by virtue of section 9 or section 70 of the Act. This involves determining also whether the events experienced satisfy the relevant definitions of ‘severe stressor’ and or ‘severe psychosocial stressor’.
13. The applicant’s claims for increased rate of pension centre on certain events associated with his service in the RAN. These are –
Operational Service
§ HMAS Sydney
o Incident One – The applicant perceived potential risk to HMAS Sydney through continual danger of underwater attacks when in the vicinity of the Vietnamese Coast and particularly, during unloading operations off Vung Tau.
o Incident Two – The applicant worked below decks in propeller shaft tunnels, the evaporation cooling unit, and the boiler room. He worked alone and in confined spaces in these areas.
o Incident Three – No notification was provided to the applicant that scare charges would be dropped overboard. There is no evidence to conclude that the dropping of scare charges were made known to other members of the ship’s company.
o Incident Four – During Operation Awkward, scare charges were regularly used as anti-swimmer devices and the ship was in a state of readiness.
Evidence
§ The Applicant
14. The evidence of the applicant was that he enjoyed good health before he joined the Army. He undertook recruit training at HMAS Cerebrus. This was of approximately 6 months duration. He was then posted to HMAS Sydney as an ordinary seaman. It was standard practice with the Navy for ordinary seamen to be given some experience at sea doing general duties even though they were not qualified in any particular trade. Mr Jones was earmarked to be trained as an ordinary seaman ME (Engineering Mechanic).
15. He described his work on HMAS Sydney as working in the boiler room which required working six flights of stairs below the main deck. Similarly, he was given experience in the evaporation room. These areas had hatches which could be locked down but were generally not locked. However, they were usually kept closed because of noise from the engines. He thought the ship was not well serviced and was rusty. He stated that he was worried about his own safety because of this.
16. He was advised that he was going to Vung Tau and was told of his role in the engine room. He was also informed about “damage control” when he undertook recruit training but was not told of what could happen if the ship was hit by enemy fire. In describing the events which he states were the stressors leading to his present conditions, he worked shifts which were four hours on and eight hours off. While in Vietnamese waters, the ship moved out to sea overnight and came back in to Vung Tau Harbour during the day. While in the harbour, he undertook engine room watch and states that he heard a loud explosion. He was concerned that the ship may have been attacked. He stayed at his post but at the end of his shift, he went upstairs and asked others what was going on. He was informed then, that it was “scare charges”. He stated that he had no knowledge of these prior to that time.
17. After completing a watch on deck, he then was required to do another watch in the engine room. He heard another explosion and again thought the ship had been hit. He stated that he was very shaken and nervous after that time.
18. The above trip involved being in Vietnamese waters for just under 2 days. He then was on HMAS Sydney when it visited Vung Tau Harbour again approximately one month later. He said he didn’t want to go back to Vietnam as he didn’t feel good after the first trip. He was 18 years of age at the time.
19. He sought referral to a psychiatrist the following year (25 May 1967). The service medical record shows that at that time, it was claimed that he was overcommitted financially. In evidence before the Tribunal, he said that he was not overcommitted financially but that he would have said anything not to go back to Vietnam. He was then posted to HMAS Melbourne and spent the last 4 months on land establishments.
20. Under cross examination, the applicant agreed that he was one of 100 recruits on board HMAS Sydney. Before he left for South Vietnam, they spent some time on exercises experiencing sea trials, manoeuvrability, when to muster, safety actions and other procedures. In relation to the point about the sea worthiness of HMAS Sydney, he stated that that was his opinion although he was not a shipwright or maritime engineer. The applicant’s evidence that the doors were “locked down” at times was supported by a written statement by Mr Neil Trapp, a former Chief Petty Officer, who also supported Mr Jones’ opinion about the state of sea worthiness.
21. In relation to the events said to be stressors, he said that he heard scare charges on 2 occasions. He also maintained that he was alone in the lower decks and was scared and horrified when he heard the explosions. He said that when he heard the explosions, he opened the door from the engine room to see if there was any water coming in.
22. On further questioning, he agreed that during his first trip to Vietnam, there were times when he was with a Petty Officer (an experienced sailor). After his second trip to Vietnam, he was posted back to HMAS Cerebrus for further training, and he qualified as an Engineering Mechanic and was posted to HMAS Melbourne. He agreed he had not reported any feelings of anxiety in 1966 or 1967 but said that he did see a Padre after being to Vietnam. He did not seek help from a psychiatrist.
23. His life since he was discharged from the Navy indicates that he has had three marriages, all of which have ended in divorce; he has suffered from mood swings and depression; he has occupied over 50 jobs since he left the Navy; he also now suffers from Alcohol Abuse and is claustrophobic. He is currently on medication for Depression and sleeping difficulties, angina spray for his heart, and medication for an asthma condition.
§ WriteWay Research Service
24. A report dated 10 July 2004 from WriteWay Research Service and authored by Commodore Mulcare, was tendered into evidence (see Exhibit 4). Neither the advocate for the respondent nor Counsel for the applicant required the author for cross examination. That report shows that in relation to the applicant’s claims about Incident One, the principal threat to Naval ships in Vietnam were certainly enemy divers or floating mines. The report described the tidal stream and said that at four to five knots, it was difficult for free swimming enemy divers (and also difficult for the ship’s divers) to search the ship’s bottom, except during periods of slack water – this was approximately 30 minutes either side of the high water or low water point.
25. There were always concerns that mines could be hidden under debris and snag on the anchor cable and be swept up against either side of the ship. However, the report states that the ship’s divers searched the hull and anchor cable when conditions were suitable. It also had motor cutter patrols at approximately 150 to 200 yards from the ship towing home made debris (barbed wire to catch underwater divers) and also threw scare charges as directed. Sentries were also posted to watch for air bubbles or other suspicious debris.
26. In relation to Incident Two, the report states that an ordinary seaman would have been employed on more mundane tasks under supervision. He was not a trained ME and therefore, would not have been employed as a watch keeper on an evaporator on HMAS Sydney. Commodore Mulcare stated this “would not be given to an untrained ordinary seaman under any circumstances”. He stated that he may have been given work experience on an evaporator taking hourly readings of oil levels, pressure gauges and temperatures but he would have been under the supervision of a trained watchkeeper. Commodore Mulcare also does not agree with the hatches being “locked down”. He states that particularly, engine rooms were never locked down when they were operational or when personnel were involved. He further stated “the veteran’s claim that in the event of an ‘outside detonation, such as a mine’, all the access hatches to the machinery spaces would be sealed from the outside, locking engine room personnel inside, is not correct.”
27. Commodore Mulcare comments about the applicant’s claims and says that Mr Jones’ description of his duties “…suggest that his recollections of his employment are as an ME in Melbourne rather than his work experience in Sydney.”
28. In relation to Incident Three, WriteWay Research indicates there are no existing records of briefings given to sailors. However, Commodore Mulcare stated that the ship would not have arrived in Vietnamese waters without extensive information being provided over the main broadcast, in Memorandum containing detailed instructions for all aspects of the visit, and general instructions promulgated in daily orders.
29. Ordinary seamen were housed in their own mess decks with experienced leading seamen in charge of each mess deck. Commodore Mulcare stated that everyone from the Commanding Officer down, would have been well aware that ordinary seamen in particular would need to be thoroughly briefed.
30. In relation to the dropping of scare charges, it is likely that all such charges would have been thrown some distance from the ship. Therefore, any noise should not have been significantly loud.
31. With respect to Incident Four, Commodore Mulcare agrees that if a charge was thrown from the ship, then the noise would have been much louder and sharper particularly for sailors who were below the water line of the ship. However, he stated that the records show that in both May and June 1966, the visits to Vung Tau by HMAS Sydney had barges alongside both sides of the ship while unloading was taking place. Therefore, scare charges would not have been thrown from the ship, but only from the patrol boats 100 yards or more away from the ship. To have thrown scare charges from the ship itself, would not only have been unsafe, but it would have been unpopular with the barge owners and operators.
Medical Opinion Evidence
§ Dr Lawford
32. Dr Lawford reported on Mr Jones’ psychiatric conditions in August 1998. He diagnosed Mr Jones as suffering from Major Depressive Disorder, PTSD, exaggerated severe psychological tremor and Alcohol Abuse Disorder.
33. He noted that he reported anxiety symptoms in May 1967 and tremor was recorded. He was then concerned about family and financial matters. The Naval medical records were noted that in 1968 he was unfit to go to sea and in 1969 he had deteriorated. Discharge was then recorded by Dr John McGeorge.
34. He thought Mr Jones recorded concerns about his wife and finances were as a consequence of his depressive state. On discharge, his emotional stability was assessed as ‘abnormal’.
35. Dr Lawford assessed the events reported by Mr Jones as being evidence of severe psychological stressors within 2 years immediately before the clinical onset of depressive disorder. He says that “his service in Vung Tau plus the separation from his family in someone who had a strong family history of Depressive Disorder would be enough to bring on a Depressive Disorder in the applicant”.
36. He saw Mr Jones’ condition as being primarily an anxiety and depressive condition. His alcohol abuse was seen as secondary to those conditions and the tremor aggravated by all 3 conditions.
§ Dr Ivan Holm
37. Dr Holm’s report is dated 14 June 2000. He is also currently the applicant’s treating psychiatrist.
38. He reported that the applicant had been employed as a wholesale car buyer for a car dealership until 1996 and left that position due to anxiety and depression. He has not worked since.
39. His childhood years prior to joining the Navy were uneventful to the extent that there is no indication of premorbid psychiatric conditions.
40. Mr Jones described his Naval service to Dr Holm and stated his duties were such that “…he was exposed to considerable danger in that if the ship were to be attacked or sunk, he would be locked in and almost certainly drown.”
41. Following his Vietnam service, Dr Holm reported that he felt a significant increase in anxiety, irritability, disturbed sleep and alcohol intake resulting in physical fights with other sailors. After his Navy service, these symptoms continued as well as with Alcohol Abuse, Depression, increased startle response and tremor most likely associated with his Alcohol Abuse. His diagnosis was that of PTSD with secondary and associated symptoms of Anxiety, Depression and Alcohol Abuse and Dependence.
42. Under cross examination, he said Mr Jones’ “subjective” experience of threat was not an unrealistic interpretation in his situation in an isolated part of the ship. After he heard scare charges, he did not leave his post but checked whether water was coming in.
43. In relation to the diagnosis of PTSD, he said the other diagnoses would be regarded as concurrent, that is, they would not be multiple diagnoses.
§ Dr Mulholland
44. Dr Mulholland interviewed the applicant on 24 December 1998. He said the applicant reported no major medical illnesses. He noted however, a motorcycle accident in 1971 and a hernia in 1988, both of which seem to have resulted in satisfactory recoveries. He also had a brother who died in 1968 in a motor vehicle accident while he was serving in the RAAF. This was distressing but a normal grief reaction. Both his parents died in 1984. He seemed to have had a normal although prolonged grief reaction to their deaths.
45. His childhood seemed uneventful from a psychiatric point of view. He was born in England, the first of five siblings. His father was a dairy farmer and his family moved to Australia in 1951 or 1952 (when he was 5 or 6 years old).
46. He left home at 17 to join the RAN. He has had three marriages – 1. 1967-1969; 2. 1971-1991; 3. 1992-1996.
47. He was educated to second year of high school level and did unskilled work for two or three years prior to joining the RAN.
48. His Naval service lasted for less than half of his nine year engagement (approximately). He was 18 years old when he joined and 22 years old when he was discharged. At time of discharge, his record indicates that he suffered anxiety and nervousness due to a domestic situation – “wife dominated by her mother almost to his complete exclusion. She has now left him.”
49. Since leaving the Navy, he has had many jobs driving buses and coaches, or service or sales positions in the motor industry.
50. Dr Mulholland stated he was anxious, agitated, distressed and depressed. He also had a generalised tremor. He indicated there was no evidence of psychoses. However, his thought processes were dominated by his attributional entitlement. He diagnosed Mr Jones as having a chronic Major Depressive Episode; chronic Generalised Anxiety Disorder; chronic alcoholism; and chronic Conversion Disorder (tremor).
51. Dr Mulholland stated that much depends on whether Mr Jones can be regarded as credible. He stated that there must be some significant doubts about some of his self report. In particular, he says it is difficult to see how two periods of two days of anxiety about being attacked could translate into a lifetime of depression, anxiety, alcoholism and conversion disorder. He states that it is not impossible but highly unlikely.
52. Dr Mulholland also concludes that it is more likely than not that his psychiatric conditions are associated with personality factors and with his chronic alcoholism. He began drinking in the Navy but he said that that could simply be a matter of timing and not of any special psychopathological significance. He concluded, “he has an intense sense of attributional entitlement which in my view, is unreasonable and is also aggravating his psychiatric condition”.
53. Under cross-examination, Dr Mulholland was asked if nobody had told Mr Jones of scare charges, whether that would be more significant than if he had been pre-warned. He replied, “Possibly, but not necessarily.” In discussion of Conversion Disorder (tremor), he indicated this is another way of referring to anxiety (not an emotional state) but one that is converted into a physical state. The tremor was also described as a general tremor or familial tremor, that is, one that could have a genetic basis.
Submissions of the Parties
§ The Applicant
54. It was argued based on the four incidents claimed by the applicant, and the medical evidence, that he satisfies the criteria for PTSD, Depressive Disorder and Alcohol Dependence/Alcohol Abuse related to war service.
55. Alternatively, if the time sequence of the incidents is not accepted by the Tribunal, it was argued that he has suffered a severe stressor within 2 years before the onset of Alcohol Dependence or Alcohol Abuse. That is, that he witnessed or experienced an event that involved a stressor such as actual death or serious injury to him, or a threat to his own integrity, which might evoke intense fear, helplessness or horror. If tremor is accepted as a separate disorder, then section 120(4) would need to apply.
§ The Respondent
56. The respondent argued that regardless of the label put on the conditions suffered by the applicant, essentially the questions for the Tribunal are whether the applicant was subjected to “ a severe stressor” (for PTSD) or “severe psychosocial stressor” (for Depressive Disorder or Generalised Anxiety Disorder). In relation to tremor, it was argued that this needs to be related to a psychiatric disorder. If it is to be recognised as a separate condition, this would need to be assessed under Section 120(4) of the Act.
Legislative Framework
57. The relevant legislative authorities contained in the Act which must be considered in order to determine the applicant’s eligibility for disability pensions are outlined below. Fundamentally, for proof that an injury or disease is war-caused, section 9 of the Act must be satisfied to demonstrate the link between an injury or disease and its relationship to war service. It provides:
“9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…..
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
……
(6) Paragraph 1(e) does not apply to an injury suffered, or disease contracted, by a veteran (being an injury or disease that has been contributed to in a material degree by, or aggravated by, eligible war service rendered by the veteran):
(a) if the aggravation of the injury or disease:
(i) resulted from the veteran’s serious default or wilful act;
(ii) arose from a serious breach of discipline committed by the
veteran; or
(b) unless the veteran had rendered operational service or the period of eligible war service rendered by the veteran that so contributed to the injury or disease, or by which the injury or disease was aggravated, was 6 months or longer.
58. The reference to “operational service” in section 9 is defined in section 6C. By further reference to section 5D of the Act and to Schedule 2, areas of overseas deployments of the Australian Defence Forces which are recognised as “operational service” can then be determined. There was no dispute about the applicant’s service or that the ships upon which he served, satisfied the requirements of operational service as set out in sections 6C and 5D.
59. If a person’s service is shown to be recognised as “operational service”, his application must then establish eligibility for a disability pension. The applicant must demonstrate that the injury or disease claimed is “war-caused” (section 13(1)(b)). If that requirement is satisfied by the applicant, the obligation to pay pension to a veteran, subject to meeting the relevant statutory requirements, is placed on the Commonwealth by virtue of section 13(1)(d) of the Act.
60. In assessing whether an injury or disease meets the required standard of proof, the governing provision of the Act is section 120. This provides:
“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.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: 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.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
61. Where a claim is lodged after 1 June 1994, section 120A applies and requires that the reasonableness of a hypothesis be assessed in terms of Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA). Section 120A provides as follows:
“120A Reasonableness of hypothesis to be assessed by Reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that also relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1),(2) and (3) are relevant to these claims.
Note 2: For Peacekeeping service, a member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(a) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease or, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
62. It is clear that section 120(A) applies where the Repatriation Medical Authority has issued SoPs under section 196B(2) or (11) of the Act. In the present case, SoPs have been issued in relation to the following conditions which are relevant to the evidence –
§ Instrument No 1 of 2000 – Generalised Anxiety Disorder
§ Instrument No 58 of 1998 – Depressive Disorder
§ Instrument No 76 of 1998 – Alcohol Dependence and Alcohol Abuse
63. The standard of proof in relation to claims for operational service is that of a reasonable hypothesis (section 120(1) and (3)). The test to be applied here has been set out by the High Court as follows:
“The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus the disproving beyond reasonable doubt, the hypothesis.” (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571)
64. The standard of proof relevant to all other decisions such as incidents during eligible defence service, or the assessment of pension, is that of “reasonable satisfaction” (section 120(4)). In addressing legal principles which are relevant to the standards of proof prescribed under the Veterans’ Entitlement Act, Repatriation Commission v Gosewinckel (1999) 59 ALD 690, concluded with respect to the standard in subsection 120(1) and 120(3):
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s 120(4) and not the reasonable hypothesis standard in s 120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war caused. All other matters were to be dealt with the reasonable satisfaction standard in s 120 (4) [Emphasis added].”
65. This standard of “reasonable satisfaction” has been held to equate to the civil standard of proof, or proof on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327; Benjamin v Repatriation Commission (2003) 70 ALD 622; Fogarty v Repatriation Commission [2003] FCAFC 136; Repatriation Commission v Hancock [2003] FCA 711.
Consideration of the Issues
66. The Tribunal has reached a decision in this application for review taking account of all the oral evidence and the documentary exhibits, the legislation and the relevant case law.
§ Diagnoses
67. The psychiatric conditions for which Mr Jones has been diagnosed by Doctors Lawford, Mulholland and Holm are chronic Alcohol Abuse with Major Depressive Disorder and tremor (Doctors Lawford and Mulholland), PTSD (Doctors Lawford and Holm) and chronic Generalised Anxiety Disorder (Doctor Mulholland).
68. Of these, Major Depression and chronic Alcohol Abuse do not seem to be in dispute. It is worthy of note, however, that there is not detailed evidence to clearly differentiate whether his symptoms satisfy the criteria for Alcohol Abuse or Alcohol Dependence. Based on the diagnoses of the assessing psychiatrists, Alcohol Abuse seems to have been adopted consistently.
69. The diagnosis of PTSD is disputed by Doctor Mulholland and he has provided an alternative diagnosis of Generalised Anxiety Disorder. He argues against PTSD as he finds it difficult to believe two periods of two days of anxiety “could translate into a lifetime of Depression, anxiety, alcoholism and Conversion Disorder”. While accepting the applicant undoubtedly experienced high levels of anxiety in or about Vietnam, he is of the view that two periods of two days does not equate to the sort of trauma which might result in PTSD.
70. While it is not the role of the Tribunal to make the diagnosis, it is there to determine the most acceptable diagnosis (Benjamin v Repatriation Commission (2001) 70 ALD 622).
71. The veteran’s service record shows anxiety being reported on 15 May 1967, 25 May 1967, on 28 August 1968 and had reportedly deteriorated by 7 June 1969. At that date, his request for discharge was recommended. The aetiology of the anxiety is attributed at that time to “marital and financial problems”. In the Unit report referring him for psychiatric assessment, his Officer Commanding wrote on 4 September 1968 that Mr Jones was depressed due to marital and financial problems. It reported his behaviour on the ship was “…satisfactory, but if not constantly supervised, he would alter the situation to his own advantage”.
72. On the basis of the above, which includes service medical records to which some of the reporting psychiatrists have probably not had access, it is more likely that his anxiety state is more consistent with Generalised Anxiety Disorder than Post Traumatic Stress Disorder. Doctor Mulholland attributes this anxiety to personality factors and his chronic alcoholism. Also, Doctor Mulholland’s interview shows Mr Jones’ father had a nervous breakdown and was hospitalised for some weeks. A genetic basis for his anxiety is clearly a possibility in the applicant’s case.
73. The Tribunal prefers the view of Doctor Mulholland and accepts that Generalised Anxiety Disorder would be a more appropriate diagnosis.
74. In relation to the applicant’s tremor, Dr Lawford referred to it as an Exaggerated Severe Psychological Tremor. He regarded it as aggravated by the three other conditions which he diagnosed, that is, PTSD, Depressive Disorder and chronic Alcohol Abuse. Dr Mulholland categorised it as Conversion Disorder which involves one or more symptoms affecting voluntary motor functions, having a psychological aetiology, where the symptoms are not intentionally produced, and where the symptom or deficit causes clinically significant distress or impairment in social and occupational functioning.
75. There was a reference to a tremor when reporting anxiety in 1967 related to family and financial problems. There was also evidence from Dr Holm that his tremor was an ‘essential tremor’. Dr Mulholland, in cross examination, said the Conversion Disorder (tremor) is ‘another way of saying anxiety’. While there was no evidence that it is a familial tremor or that it was pre-existing, there was clear reference in the Naval records in 1968 referring to a “family history of ‘nervous breakdown’”. In 1998, the applicant also told Dr Mulholland of his father being admitted as an inpatient as a result of a nervous breakdown. Dr Mulholland’s view indicates the tremor is a subset of the diagnosis of Generalised Anxiety Disorder.
76. Dr Holm regarded the tremor as developing after his Navy service and thought it was most likely to be associated with and consequential to Alcohol Abuse. Distilling the views of Dr Holm and Dr Mulholland, I consider the tremor to be part of the General Anxiety Disorder syndrome, although it should be noted as a separate manifestation of that disorder.
77. Consequently, the diagnoses accepted by the Tribunal are chronic Generalised Anxiety Disorder with tremor, chronic Depressive Disorder, and comorbid Alcohol Abuse. PTSD is not accepted as a diagnosis. No other alternative diagnosis which would indicate a “disease” which could be war caused, is revealed from the evidence (Benjamin v Repatriation Commission (2003) 70 ALD 622). The diagnoses of generalised anxiety disorder and depressive disorder are concurrent diagnoses and are accepted as being present in 1967.
§ Preliminary Considerations
78. Before making an assessment based on the principles in Repatriation Commission vDeledio (1998) 83 FCR 82, the Tribunal must first be satisfied to its reasonable satisfaction, that is, on the balance of probabilities, as to the kind of disease or injury which has been suffered by the veteran. This was amplified by Selway J in Repatriation Commission v Hancock [2003] FCA 711, where his Honour indicated two pre-conditions must be satisfied. Related to this case, these pre-conditions are –
(i) that Mr Jones was a veteran; and
(ii) in order to determine whether SoPs apply, the kind of injury or disease which is the basis of the veteran’s claim must be identified (section 120A(2) and (4) of the Act).
79. In this case, there is undisputed evidence of the applicant’s operational service. He is therefore “a veteran”. Equally, there is credible expert evidence which resulted in the diagnoses of Depressive Disorder, Generalised Anxiety Disorder with tremor and Alcohol Abuse. While those conditions were accepted by the Tribunal in this case, it also was accepted that each of the conditions claimed was a “disease” within the meaning of that term in section 5D(1) of the Act. He therefore has a kind of disease for which a SoP has been determined.
80. Therefore, the preconditions set out in Hancock’s Case have been met. The accepted psychiatric conditions are assessed below in terms of the claimed incidents and their relationship to operational service.
§ Assessment – Generalised Anxiety Disorder
81. As this application is made after 1 June 1994, section 120A applies. That is, the claims must be assessed against the factors listed in any relevant SoP issued and section 120A(3) of the Act. The process of that assessment which is required, was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The steps required, so far as they are relevant, are shown at page 97 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)…….
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.”
Step 1 of Deledio – Is there material before the Tribunal which points to a hypothesis connecting his condition with circumstances of his service?
82. The ordinary meaning of “hypothesis” in the Concise Oxford Dictionary (New Edition) defines it as a “proposition made as a basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption”. This was adopted in East v Repatriation Commission (1987) 74 ALR 518. The Full Federal Court at page 534 in that case also said:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities”.
83. A similar definition was outlined in Repatriation Commission v Stares (1996) 41 ALD 212 at 217, where it was referred to as “a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”.
84. In Repatriation Commission v Bey (1997) 47 ALD 481, the Full Federal Court said:
“While a hypothesis may be no more than a possibility or supposition, in order for an hypothesis to be reasonable, it must ….. be pointed to or supported, and not merely left open as a possibility by the material before the decision maker”.
85. On the basis of the claims made by the veteran, a connection is apparent between his conditions and the claims or circumstances described. A hypothesis can be raised which is at least a possibility and which provides an apparent link between his conditions and his Naval service.
Step 2 of Deledio – Is there a SoP in force as issued by the appropriate authority?
86. SoPs for Generalised Anxiety Disorder, Depressive Disorder and Alcohol Abuse have been issued by the Repatriation Medical Authority (See paragraph 60). Therefore Step 2 is satisfied.
Step 3 of Deledio – Is the hypothesis reasonable?
87. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564, at 571 said:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis (Emphasis added).”
88. The Tribunal concludes that the hypotheses raised are reasonable because, pursuant to section 120(3) of the Act, the evidence appears to be consistent with the relevant factors contained within the SoP as set out below:
SoP No 1 of 2000 – Generalised Anxiety Disorder
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
……
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition 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; or
…..
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
…..
(c) inability to obtain appropriate clinical management for anxiety disorder.
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means 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;
89. The following material before the Tribunal relates to the circumstances of Mr Jones’ operational service:
a. Mr Jones’ perception of danger in the context of potential enemy divers and mines;
b. The expert opinions of Dr Lawford, Dr Mulholland and Dr Holm in relation to the current psychiatric conditions diagnosed for Mr Jones.
c. The naval service records pointing to reports of anxiety feelings in the period of naval service following this operational service.
90. Accordingly, based on the evaluation of all the material before the Tribunal, there is a hypothesis pointed to by the facts, and which is a reasonable hypothesis, as it involves more than a mere possibility, at least in relation to some of the factors in paragraph 5(a) (ii) of the SoP.
91. However, in considering the presence of a clinical significant psychiatric condition within 2 years immediately before the clinical onset of anxiety disorder or the “clinical worsening” of a condition of anxiety disorder, this refers to a “clinical” condition, that is, one which is “founded on observation and treatment of patients” (Butterworths Medical Dictionary, Second Edition, page 375). It is intuitively obvious that for there to be a “clinical worsening”, there must first have been a “clinical onset” preceding it. Therefore, the Tribunal was conscious of the need for it to be satisfied that Mr Jones was suffering from anxiety disorder or another psychiatric disorder within 2 years before the clinical onset of generalised anxiety disorder. As there was no evidence from medical experts or from the applicant’s naval medical records to point to a pre-existing psychiatric disorder, the Tribunal concluded that any hypothesis relating his diagnosed conditions to a psychiatric disorder prior to his operational service is not consistent with the template found in the SoP. An hypothesis in relation to pre-existing condition under Factor 5 (a) (iii) or to a ”clinical worsening” of a pre-existing psychiatric condition at the time of or within 2 years of operational service under factor 5 (a)(v) or factor 5 (a)(vii) is therefore, not reasonable.
Step 4 of Deledio
92. The principal question at this stage is whether the evidence admitted before the Tribunal discharges the legal standard of proof required by the Act.
93. The relevant SoP Instrument is No 1 of 2000, which is concerned with “anxiety disorder”. That is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified (see paragraph 2(b)). The SoP also specifies the following factors which must as a minimum exist, and at least one of which must be related to any relevant service. Definitions are also included in the SoP. These factors and definitions relevantly provide:
94. Evaluating the fourth step in Deledio involves consideration of the facts contained in the evidence to determine whether the reasonable hypothesis can be accepted under section 120(1), beyond a reasonable doubt in terms of Byrnes v Repatriation Commission.
95. In assessing this aspect, two further terms need to be amplified: “clinical onset” and “severe psychosocial stressor”. In relation to the term “clinical onset”, this has been considered by the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 at [16], which stated that the determination of clinical onset is:
“….intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.”
96. The effect of this term requires a determination of when the onset of the disease occurred in relation to the stressors. As required by the factors in paragraph 5 of the SoP, it must occur within 2 years before the clinical onset of Anxiety Disorder if it is to raise a reasonable hypothesis of connecting a disorder with the person’s relevant service. Considering the incidents submitted by the applicant, and considering his service medical record as well as comments made by the examining psychiatrists, there is direct evidence which relates the onset of anxiety to the applicant’s naval service. However, the only record on his service medical record indicates that he reported suffering from anxiety for the first time on 28 August 1968 and that this was due to “marital and financial problems”. This was outside the two year period following his operational service which commenced on 4 May 1966 and the last (second) period concluded on 8 June 1966. He was referred to psychiatric assessment on 4 September 1968 in relation to the same report of anxiety. The applicant’s Officer Commanding understood that he had reported this complaint on the basis of marital and financial problems. It had been indicated that the veteran was overcommitted financially and had a number of difficulties with his wife and at least one child.
97. However, as revealed in Dr Mulholland’s report, Mr Jones has declared that his father had had a nervous breakdown and been admitted to a psychiatric hospital previously. The possibility of a genetic predisposition to anxiety must be considered.
98. The applicant seemed to have displayed a number of indicia of anxious behaviour or symptoms of anxiety at that time. There is the likelihood of a genetic predisposition to anxiety given the history of his father’s known clinical treatment for anxiety. In the report of Dr Lawford, there is a report of the applicant having a tremor in 1967 when he was 21 years of age and in the year following his service in Vietnam. The possibility of a psychiatric condition was acknowledged as he was also referred to a psychiatrist in 1967 although there was no diagnosis made at that time of a psychiatric disorder. Dr Lawford’s opinion was that the recorded concerns about marital and financial difficulties had an underpinning of an existing depressive disorder. By the time of his discharge, his emotional state was described as “abnormal”. Based on the determination of clinical onset as outlined by Lees case, the Tribunal therefore concludes that there is evidence of an anxiety condition or depressive disorder (or both) within 2 years of his operational service.
99. Also critical to the assessment under SoP No 1 of 2000 is whether the incidents claimed by the veteran amount to “experiencing a severe psychosocial stressor” within two years immediately before the clinical onset of Generalised Anxiety Disorder. A “severe psychosocial stressor” is defined in paragraph 8 of the SoP 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..”
100. In assessing the relevant claims of the applicant, The Tribunal considered White v Repatriation Commission[2004] FCA 663, where reference was made to the benchmarks which have been defined in the SoP as being the standards of severity of threat or injury. It would seem that if these examples in the SoP are not used as the guide to the standard to be applied, then the SoP would be ineffectual as a means of assessing claims under the Veterans’ Entitlements Act. The examples are therefore regarded as an integral guide to the assessment at this stage.
101. In White v Repatriation Commission[2004] FCA 663 Spender J held that a severe psychosocial stressor has both a subjective and objective element. The application of the principles required to arrive at a reasoned decision consistent with the definitions and the decision in White, was delineated in Hillier and Repatriation Commission [2004] AATA 897. At [65], Deputy President Jarvis set out the considerations to be applied as follows:
“(a) There must be an occurrence, and this connotes an objective event.
(b) The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c) The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d) Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e) Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
102. The subjective element of a severe psychosocial stressor involves an event which is dangerous, frightening and which causes distress. “An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension.” (Stonehouse v Repatriation Commission [2004] AATA 707. The decision in Hillier also underscored at [67] that the objective requirements should be evaluated not by the reasonable person test but should be measured against an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”. The wide variability and experience of servicemen and veterans was noted as affecting the objective assessment of this standard.
103. Considering now the material relevant to the stressors alleged in this case and the authorities of White, Stonehouse and Re Hillier (supra), the stressors must firstly be seen to be “an occurrence”. An occurrence is defined as an “incident” or “event”. An “event” is an “incident or mishap” which can be differentiated from the ordinary course of life (Repatriation Commission v Law (1980) 31 ALR 140 at 149). I consider the word “event” and the word “occurrence” to be effectively synonymous in the present context.
104. Evaluating the applicant’s evidence was also undertaken while being mindful of resolving uncertainty around his beliefs about the reality of the danger in the circumstances. The veteran’s perception, must be assessed on the basis of whether a person with the same level of knowledge and in the circumstances of the particular applicant at the time, would reasonably lead to that person perceiving a threat of death or serious injury. Using that test, the standards or benchmarks shown in the examples and the factual material presented and considered in context, the Tribunal is not satisfied the incidents claimed by Mr Jones in his Navy service would lead to the perceptions he claims.
105. This conclusion has been reached in relation to the four events claimed to relate to operational service, for the reasons which follow. The objective assessment of Incidents 1 and 2 would indicate some cause for increased anxiety in a relatively inexperienced sailor. However, there were 100 other Ordinary Seamen on that voyage also obtaining experience which they had not had previously. The report of Writeway indicates there were risks faced by HMAS Sydney at that time, but that the processes followed minimised any possible attack. It also proffered the view that undoubtedly the Captain and senior Officers on board would have been acutely aware of the risks, as the Sydney was regularly visiting Vietnam harbour and therefore many of the crew were well experienced in the scenario in which the applicant found himself. Also, the number of experienced personnel who could have regularly advised and supervised the applicant and the other young sailors in relation to the real risks would appear to have been more than adequate. In terms of the criteria in Hillier, the applicant is a person who would have been more anxious and distressed than most sailors of the same age and experience, but there was not evidence of a threat or serious injury which would cause the level of substantial distress referred to in Stonehouse, or which would meet the requirements of paragraphs (b and (c) quoted from Hillier above, judged objectively.
106. Incident Three deals with the claim that there is no evidence to conclude that dropping scare charges was made known to members of the ship's company or specifically to the applicant. Accepting that this is an occurrence, the information is incomplete in terms of clear evidence. Counsel for the applicant referred to section 119 of the Act which provides that the Tribunal “shall take into account any difficulties….including….the absence or deficiency in, relevant official records [section 119(i)(h)(ii)]. That section also requires the Tribunal to “act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities” [section 119(i)(g)].
107. The Tribunal took account of those submissions on behalf of the applicant. It also noted the evidence of Commodore Mulcare that the ship would not have arrived in Vietnamese waters without extensive information being provided over the main broadcast, in written instructions, prior to arrival, and in daily orders. He also emphasised that the Commanding Officer, and all senior officers would have been conscious of the need to ensure ordinary seamen were properly briefed. As HMAS Sydney undertook this trip regularly, the Tribunal accepts that on balance, the evidence of Commodore Mulcare is to be preferred on this point, and therefore, it is accepted that there was some predetermined process of briefing of information prior to arrival. In any event, with instructions given on the main broadcast, in formal written instructions and in daily orders, together with leading seamen to supervise ordinary seamen, it is difficult to accept that formal and informal information from any source was not available to the applicant, even if there were aspects he might not have heard or understood.
108. Incident Four relates to the scare charges. Prima facie, on an objective assessment, this incident seems to satisfy the requirement of being an “occurrence”. It also is the type of occurrence which may be perceived as being extremely distressing to a person having the attributes of the applicant. This is subject to whether objectively, it would cause “substantial” distress. The respondent’s case relied on evidence from WriteWay Research Service which referred to the official record of the ship, and indicated that the HMAS Sydney was only there for just under two days on each of two occasions in 1966, and that, during that time, there were barges pulled up alongside both sides of the ship to facilitate unloading. That report states that scare changes would almost invariably have been thrown from patrol boats, but that these were 100 yards or more away. To operate in any other way, would have resulted in unsafe practices, and it would have been very unpopular with barge owners and operators. Given the role of the ship and its time in the harbour, together with the particular situation it operated in with barges close by, the Tribunal accepts that based on the objective assessment set out in Repatriation Commission v Stoddart [2004] FCA 633, the likelihood of scare charges being dropped close to the ship, over each of those two-day periods, is quite remote. Therefore, while the applicant undoubtedly suffered anxiety and some distress during his period in Vietnamese waters, the incidents as described indicate he did not experience a “severe psychosocial stressor” as defined. This is because he does not satisfy the requirements of causing “substantial distress”, as set out in Stonehouse.
109. In relation to the subjective aspect of this assessment, the Tribunal determined that the applicant did not experience the degree of fear for the events claimed which would satisfy the standard in the definition “experiencing a severe psychosocial stressor”. Some of the four incidents were based on information he heard from others or involved observation of events without any real trauma occurring. Although the veteran undoubtedly had a personal perception of elevated anxiety or fear, nothing happened which would be regarded as a severe psychosocial stressor in reliance of the authorities outlined previously. Therefore, the personal perception, when considered with the objective assessment, does not satisfy the definition of “severe psychosocial stressor”.
110. For the above reasons, the Tribunal is satisfied beyond reasonable doubt, that while the applicant currently suffers from a condition of Generalised Anxiety Disorder, there is no sufficient ground for making a determination that the disease is war-caused because of a severe psychosocial stressor.
§ Assessment – Depressive Disorder
111. I have considered all of the material before me, and I am satisfied that it points to a hypothesis connecting the condition of Depressive Disorder with the circumstances of the applicant’s operational service (Step 1 of Deledio). Furthermore, a SoP has been determined by the RMA in accordance with section 196B(2) of the Veterans Entitlements Act in respect of this condition, thus satisfying Step 2 of Deledio.
112. I now examine the third step in Deledio. The relevant parts of the SoP dealing with Depressive Disorder are:
· Depressive Disorder (Instrument No. 58 of 1998)
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…...
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
(f) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
(g) having a major illness or injury within the two years immediately
before the clinical worsening of depressive disorder; or
(h) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or
…..
Other definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
113. To raise a reasonable hypothesis that the applicant satisfies factors 5(c)(f)(h) of the SoP, there must be evidence of a pre-existing depressive or other psychiatric disorder prior to experiencing a “severe psychosocial stressor” or operational service, or prior to clinical onset of a depressive disorder or clinical worsening of a depressive disorder. The reports of Dr Holm and Dr Mulholland noted that Mr Jones’ childhood and experience prior to his naval service were unremarkable from a psychiatric point of view. His naval service prior to Vietnam reveals no record of a diagnosed psychiatric condition. Following his first period of service in Vietnam waters, he returned for another brief 2 day period in Vietnam about 1 month later. The applicant’s naval record shows he had expressed some concern about going back to Vietnam due to family and financial pressures. Regardless of the status of those or any other concerns he may have had at that time, there is no evidence of a psychiatric condition prior to his second period of operational service in June 1966. The Tribunal concluded that there was no evidence of a psychiatric condition within 2 years of the onset of a depressive disorder or that it could amount to a clinical worsening of such a condition. Therefore, a reasonable hypothesis is not raised with respect to the applicant and his operational service in terms of Factors 5 (c),(f) and (h).
114. To satisfy factor 5(b), it must be shown that Mr Jones “experienced” “a severe psychosocial stressor” “within the two years immediately before the clinical onset of Depressive Disorder”.
115. The relevance of the word “experience” in this context is to appreciate the impact on the applicant. It is also to indicate that the veteran must have “experienced” the stressor in the ordinary meaning of that term, that is, “actual observation of or practical acquaintance with facts or events; …event that affects one (an unpleasant experience)” (The Concise Oxford Dictionary (Sixth Edition)). It implies a situation involving personally encountering a situation which utilises some or all of the person’s senses, and which could have a consequential effect mentally or emotionally. There is therefore a subjective element to this aspect of factor 5(b). This has also been recognised by Mansfield J in Repatriation Commission v Stoddart [2004] FCA 633.
116. The reference to a “severe psychosocial stressor” is amplified by its definition in paragraph 8 of the SoP. In White v Repatriation Commission [2004] FCA 633, Spender J also held that this term relates to an occurrence which “objectively is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary” [at 30].
117. As outlined previously, Hillier held that a “severe psychosocial stressor” must take account of the following considerations:
“(a) There must be an occurrence, and this connotes an objective event.
(b) The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c) The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d) Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e) Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
118. This is a case where the Tribunal must determine whether a particular occurrence satisfies the definition of “severe psychosocial stressor”. It must do so with reference to a sailor who is inexperienced in many aspects of functioning of a ship, particularly when in an area designated as an operational area and where there is a risk that hostilities may be experienced. The examples included in the definition of “severe psychosocial stressor” provide some guidance in this determination.
119. Considering now the incidents purported by the applicant to be “severe psychosocial stressors”, I am mindful of the reasoning of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334. In considering the examples in the definition of “experiencing a severe stressor” Mansfield J attempted to distinguish an actual threat as opposed to a perceived one. At [50], he said “It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perception of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively with free information involve an actual threat of death or serious injury”.
120. The Tribunal concluded that having regard to the considerations in Stoddart and Hillier, that SoP No 58 of 1998 is not satisfied because the events relied on (potential risk of attack from enemy divers; working below deck in the boiler room; having no notice of scare charges; and hearing scare charges), do not equate to the magnitude of examples which explain the scope of the definition “severe psychosocial stressor”. This also recognises that it is not necessary that there be a threat of death or serious injury to satisfy the definition of “severe psychological stressor”. However, despite being a young and inexperienced sailor at the time, these incidents are just not compatible with the examples given in the SoP. The analysis of these incidents which was conducted for the purpose of evaluating whether the applicant had experienced a “severe psychological stressor” in relation to generalised anxiety disorder, is also relevant here.
121. Accordingly, the Tribunal finds that the alleged stressors, over a period of less than 2 days each on each of two occasions, do not satisfy beyond reasonable doubt under section 120(1)of the Act, the requirements of a “severe psychosocial stressor”. It follows that while the Tribunal accepts that the applicant suffered from anxiety disorder and/or depressive disorder within 2 years of his operational service, the incidents do not satisfy the requirements of a “severe psychological stressor” as required by Factor 5(b). Therefore, the hypothesis that the applicant experienced one or more severe psychosocial stressors within 2 years of the clinical onset of the condition of Depressive Disorder is not reasonable.
§ Assessment - Alcohol Abuse – Operational Service
122. The relevant parts of the SoP Instrument No 76 of 1998 (Alcohol Abuse) are:
“Kind of injury, disease or death
2….
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows:
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12- month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Other definitions
8. For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
123. In terms of the approach laid down by the Full Court in Deledio, the Tribunal considered all the material before it and is satisfied that the material points to an hypothesis, connecting the conditions of alcohol abuse, with the circumstances of the veteran's operational service. An SOP relating to alcohol abuse (instrument number 76/1998), has been determined by the RMA pursuant to section 196B of the Veterans Entitlement Act. Therefore, these findings show the first two steps in Deledio are satisfied.
124. Turning to the third step described in Deledio, this involves determining whether the hypotheses contained one or more of the factors referred to in the SoP. This also involves considering the material before the Tribunal, but without any findings of fact being made or included in that determination. A description of the facts, as relayed by an applicant to a medical practitioner, is legitimate material for the purposes of the third stage in Deledio (Lees v Repatriation Commission (2002) 125 FCR 331). Similarly to the other claims made, there is a hypothesis raised which links at least as a reasonable possibility, the condition of Alcohol Abuse and the other conditions claimed, the incidents cited and operational service.
125. There is no evidence of a previous psychiatric disorder prior to the applicant’s naval service or prior to his service in Vietnam. The first period was for 2 days followed by another period in Vietnam waters for approximately 2 days, about 1 month later. There is no record of any diagnosed psychiatric condition prior to the period of service in Vietnam waters or prior to the onset of Alcohol Abuse. Therefore, the Tribunal determined that there was no psychiatric condition which was pre-existing and diagnosed or diagnosable, before the clinical onset of Alcohol Abuse or of the clinical worsening of Alcohol Abuse. Mr Jones did suffer a psychiatric disorder at the time of clinical onset of Alcohol Abuse however, this must be related to relevant service (see Clause 4 of SoP 76 of 1998). That is the hypothesis raised must point to a causal relationship between Mr Jones’ alcohol abuse and the psychiatric conditions of depressive disorder or generalised anxiety disorder, and one of these must be attributable to operational service. Under section 120A(3), the hypothesis linking alcohol abuse to the applicant’s operational service depends on a sub-hypothesis linking the psychiatric disorders to operational service. If one of the sub-hypotheses are not satisfied, then it is fatal to the hypothesis linking alcohol abuse to operational service (see Full Federal Court decision in McKenna v Repatriation Commission [1999] FCA 323 at [23] –[26]). Therefore, the evidence does not raise a reasonable hypothesis in terms of Section 120(3) of the Act with respect to Factors 5 (a), (c) and (d) of SoP 76 of 1998. A reasonable hypothesis in terms of section 120 (3) is however pointed to by the facts and factor 5 (b) of the SoP.
126. In relation to step 4 of Deledio, the Tribunal noted that the claim would succeed under section 120(1) of the Act, unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus, disproving the hypothesis (Byrnes’ case).
127. The Tribunal was mindful of the submissions of the parties in respect of this condition. One of the essential criteria in Factor 5 (b) is to determine is the time of “clinical onset” of Alcohol Abuse. The considerations involved in the fourth step in Deledio have been outlined previously.
128. The Tribunal determines that the “clinical onset” of Alcohol Abuse did not occur within 2 years of being exposed to “stressors” in 1966. This is supported by the fact that Mr Jones did not over the prescribed period, fail “to fulfil major role obligations at work.” There was no evidence over the two year period following his operational service to demonstrate that any of the other diagnostic criteria were present at that time, other than the applicant’s more recent account given to psychiatrists. Also, there was no expert opinion evidence available to the Tribunal concerning the onset of his Alcohol Abuse.
129. The Tribunal noted the report of Dr Ivan Holm who merely says the history of war service events ‘may” be related to the applicant’s claims for psychiatric disorders. Dr Mulholland stated Mr Jones reported drinking to excess when he came back from Vietnam. He noted Mr Jones claimed that he started drinking to excess when he returned to Australia. No quantification is provided except that he has been binge drinking for thirty years. This would indicate that the pattern of excessive behaviour commenced about 4 years after his Vietnam service. However, there is no reliable information to determine this with any degree of accuracy.
130. Dr Holm refers obliquely to Mr Jones’ Alcohol Abuse and states that the veteran “describes a significant increase in …. Alcohol intake” following his experience in Vietnam. He further says that after he got out of the Navy, “….his symptoms continued with ongoing Alcohol Abuse . . …. and the development of a tremor most likely associated with and consequential to his alcohol abuse”. He says the Alcohol Abuse is ‘secondary’ to the primary diagnosis, which he regards as PTSD.
131. Dr Lawford also sees the Alcohol Abuse as being a consequence of his primary anxiety and depression. He concluded the tremor is aggravated by his anxiety/depression and Alcohol Abuse disorder. There is no suggestion in that psychiatrist’s report as to time of clinical onset. Dr Mulholland suggests that the commencement of drinking in the navy “may not be of any psychopathological significance”.
132. Most of the direct evidence of the level and timing of alcohol consumption comes from the applicant. It was implied that the Tribunal can deduce from this evidence that Mr Jones’ excessive drinking can be sheeted home to his war service, either directly or consequentially from the primary diagnosis accepted by the Tribunal.
133. Considering these facts put by the applicant and the psychiatric reports, the weight of evidence seems to be that the diagnoses suggest Alcohol Abuse as being a secondary diagnosis. However, none of the psychiatric evidence makes a judgment about the likelihood of the genesis or timing of Alcohol Abuse, other than basing psychiatrists’ reports based on the veracity of Mr Jones’ claims.
134. Dr Mulholland suggests that it would be “advantageous” to obtain information from the chaplain and from his first wife as to the efficacy of his claims. This is complementary to Dr Mulholland’s noting that “some significant doubts” have to be held about the credibility of all of Mr Jones’ account. The Tribunal has noted also that the evidence of Dr Holm is relevant to recent years but is less robust in supporting Mr Jones’ claims about the relevant period prescribed in the SoP for Alcohol Abuse. Accordingly, the Tribunal placed less weight on the evidence of the applicant as it was subjective and not strongly supported by the psychiatrists’ reports as being directly linked to his service in Vietnam.
135. Also, Factor 5(b) is also not satisfied as any “stressor” experienced does not meet the definition of “severe stressor”. As this is a higher test than for a “severe psychological stressor” and the incidents claimed failed to meet the latter definition, then the higher test for the definition of “severe stressor” in factor 5(b) cannot be met.
136. On balance, the Tribunal concludes that based on all of the relevant evidence and that Dr Lawford and Dr Holm regard the applicant’s alcohol abuse as secondary to the other conditions, as well as Dr Mulholland’s concern about the veracity of some of the applicant’s claims, that inferring or implying that the evidence can be linked beyond a reasonable doubt to war service is merely conjecture.
137. Given the above conclusion, the Tribunal determines that under 120(1) of the Act, it is satisfied beyond reasonable doubt that the condition of Alcohol Abuse claimed by Mr Jones was not caused by his operational service.
138. For the reasons above, the decision under review is affirmed.
Conclusion
139. The Tribunal determines that –
1. the diagnoses of chronic Generalised Anxiety Disorder with Tremor, chronic Depressive Disorder and Alcohol Abuse are accepted by the Tribunal.
2. these diagnoses are not war-caused pursuant to section 9 of the Veterans’ Entitlements Act.
3. the Tribunal affirms the decision of the Veterans Review Board dated 21 October 2003 in all other respects i.e. the claims made are not war-caused.
I certify that the 139 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: Camille Banks
AssociateDate/s of Hearing 9 December 2004
Date of Decision 11 March 2005
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr J Kelly, Departmental Advocate
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