Joyce and Repatriation Commission
[2005] AATA 4
•6 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 4
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/409
VETERANS' APPEALS DIVISION ) Re REGINALD JOYCE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Allen, Member Date6 January 2005
PlacePerth
Decision The decisions of the respondent made on 9 April 2001 and 27 March 2002, as affirmed by the Veterans’ Review Board on 23 May 2003, that the applicant’s conditions of polycythaemia vera and generalised anxiety disorder are not war-caused, are affirmed.
...........(sgd M J Allen)..............
Member
CATCHWORDS
VETERAN AFFAIRS – benefits and entitlements – disability pension – whether diseases of polycythaemia vera and generalised anxiety disorder are caused by war-service – no clinical onset of generalised anxiety disorder within 2 years of possible severe psychosocial stressor – no inability to obtain clinical treatment for polycythaemia vera – hypotheses connecting the diseases with the applicant’s operational service do not fit the templates of the relevant Statements of Principle – hypotheses not reasonable – decisions under review affirmed.
Veterans’ Entitlements Act 1986 ss 9, 119, 120, 120A, 196B
Brew v Repatriation Commission [1999] FCA 1246
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
6 January 2005 Mr M J Allen, Member 1. In these proceedings Mr Reginald James Joyce (“the applicant”) seeks a review of decisions made by a delegate of the respondent, as affirmed by the Veterans’ Review Board (“VRB”) on 23 May 2003, as follows:
(a)on 9 April 2001, to refuse a claim that the condition of polycythemia vera (“PCV”) was war caused; and
(b)on 27 March 2002,to refuse a claim that the condition of generalised anxiety disorder (“GAD”) was war-caused.
2. At the hearing the applicant was represented by an advocate, Mr Robbins, and the respondent was represented by Mr Ponnuthurai, an officer of the Department of Veterans’ Affairs. The Tribunal received in evidence the documents filed pursuant to as 37 of the Administrative Appeals Tribunal Act 1975. Two sets of documents pursuant to s 37 were filed. The first set, (which will be referred to as 1T1 – 1T19), relate to the claim for PCV, and the second set, (which will be referred to as 2T1 – 2T19), relate to the claim for GAD. The Tribunal also received into evidence Exhibits R1 – R3 tendered by the respondent. Oral evidence was given by the applicant and, on behalf of the respondent, by Dr A J Mander and Captain W Rothwell, RAN (Rtd).
3. The background of the matter is that the applicant was born in October 1940 and served in the Royal Australian Navy (“the Navy”) between November 1957 and October 1964.
4. Between November 1958 and March 1962 the applicant rendered operational service while attached to the Far Eastern Strategic Reserve (“FESR”) as follows:
HMAS Quickmatch
20 November 1958 to 23 January 1959
27 January 1959 to 6 February 1959
HMAS Vampire
23 June 1960 to 8 July 1960
15 July 1960 to 16 August 1960
10 September 1960 to 10 October 1960
14 October 1960 to 5 November 1960
15 November 1960 to 30 November 1960
29 September 1961 to 3 November 1961
15 January 1962 to 25 January 1962
29 January 1962 to 24 February 1962
2 March 1962 to 27 March 1962
In addition, the applicant rendered one period of operational service in Vietnamese waters on HMAS Vampire between 25 January 1962 and 29 January 1962.
5. In August 2000 the applicant made a claim to the respondent for entitlements under the Veterans’ Entitlements Act 1986 (“the Act”) (1T4). The conditions claimed were hearing loss, tinnitus, tinea, and “right leg blood clot mid 1990s”. The applicant’s doctor, who completed part of the claim form relating to the blood clot claim (Dr Cordingley) recorded a diagnosis of polycythemia robra vera, stating the basis of the diagnosis as being “presented with [deep vein thrombosis] found to have polycythemia” and that the applicant had first consulted Dr Cordingley in February 1997 (1T1 p46).
6. On 9 April 2001 a delegate of the respondent accepted the applicant’s claims for “bilateral sensorineural hearing loss and tinea” but rejected the claim for PCV.
7. In September 2001 the applicant submitted a claim (2T4) for a disability described as “stress/anxiety”. After considering a report submitted by a psychiatrist, Dr Fellows-Smith, on 27 March 2002 a delegate of the respondent refused the claim for GAD.
8. As noted above the VRB affirmed those two decisions on 23 May 2003 and in October 2003 the applicant applied to the Tribunal for review of the decisions.
9. In his August 2000 claim regarding PCV the applicant did not provide any information concerning the signs and symptoms of the disease; why he believed his war service had caused, contributed to or aggravated the condition, or when he first became aware of signs and symptoms of the condition.
10. In response to the respondent’s decision concerning PCV (1T13) in June 2001, the applicant said “… firmly believed I suffered this problem when I was in the Navy” and indicated that he would provide further information to support the claim. It appears that the applicant, or his representative, provided the respondent with extracts from journals or textbooks concerning PCV (1T17).
11. In a report to the respondent dated 17 March 2004, Dr A McQuillan, who is a clinical haematologist and consult physician, recorded a history of the applicant having been diagnosed with PCV in 1997, having been initially treated with three months of Warfarin therapy, and noted that the applicant currently undergoes venesection every ten or twelve weeks.
12. Dr McQuillan noted a history that the applicant had been a blood donor until 1997, although the frequency of donations had decreased during the early 1990s. He noted that the applicant’s medical record did not demonstrate any significant exposure to potential stem cell toxins and that the applicant did not recall having ever been exposed to radiation. Dr McQuillan noted that the applicant had worked as a truck driver for 26 years and that he would have been exposed to petrochemicals during the course of that employment, and also possibly in the Navy.
13. Dr McQuillan noted that PCV occurs in 13 per million of population per year and is therefore not uncommon as an haematological disorder. In most cases the underlying cause is unknown, there is a recognised genetic predisposition in some families, and “reports suggesting a role for ionizing radiation, occupational exposure to toxins including petrochemicals and certain viruses.” Dr McQuillan stated that a positive link between the applicant’s exposure to petrochemicals and the development of PCV could not be established.
14. Dr McQuillan also stated that as far as prognosis is concerned, “… the median survival for a patient who receives treatment for this condition is 10 or more years. The most common cause of death is either haemorrhage or thrombosis. Approximately 20% of patients will go on to develop myelodysplasia or acute myeloid leukaemia.”
15. In his oral evidence the applicant said that he first heard of PCV in about 1997. During his Navy service he had complained of skin problems but he was not suffering from any such problems at the time of his discharge. He said that he first donated blood in Singapore during his naval service when all members of the ship’s company were asked to donate. Thereafter, he donated blood 2 or 3 times a year over the time of his naval service and continued to donate at about the same rate after he left the Navy, although he reduced the rate during the 1990s when he travelled frequently in the course of his employment.
16. Document 1T3 p21 is a record dated 30 October 1963 of the applicant attending a sick bay complaining of a scaly rash on his upper limbs that was diagnosed as dermatitis. The applicant also referred to various attendances at the sick bay in 1963 and 1964 regarding discharge from his ears. In September 1964 he was referred to an external ear, nose and throat specialist, Dr A W Gray, with the notation that he had suffered from recurrent otitis externa for about 6 years with frequent waxing of ears and hearing loss.
17. Dr Gray reported (1T3 p41) that the applicant’s hearing became normal after syringing and remained clear for two or three months thereafter. He diagnosed mild chronic otitis externa right and left. At a medical examination at the time of his discharge in August 1964 the applicant reported that he suffered from what was described as “tropical ears” and had done so for 6 years, but said that he had not suffered from any other disabilities during service.
18. In relation to his claim for GAD, the applicant said in his oral evidence that he had wanted to become a seaman in the navy but he had been appointed as a gunnery seaman. His father was a miner and had warned him of the dangers of undetonated explosives.
19. In support of his 2001 claim for GAD the applicant provided a statement (2T4 pp50 and 51) to the effect that he had no problem with nerves or stress until he saw service in the FESR and Vietnam on HMAS Vampire. When visiting Saigon he recalled the lower deck being cleared and being informed that extra precautions were to be taken because Vietnam was at war with America. They were also informed that whilst the ship was in port no scuttles were to be left open because not long before an American vessel had a grenade thrown into the ship. He began to feel anxious and worried about the safety of the ship and himself, and could recall two American helicopter gun ships flying low to escort HMAS Vampire up the river to Saigon.
20. He could also see “far away inland” some kind of shore bombardment. While HMAS Vampire was tied up at the wharf in Saigon there were divers in the water all the time and scare charges were going off around the ship. He found it difficult to control the stress and anxiety while below deck and found it difficult to stay asleep, often taking walks on the upper deck to relieve his stress and tension. Since that experience he often worried over little things and was on edge most of the time. He often felt tired and found it hard to sleep or stay asleep. His family had noticed when he was home on leave how he had changed and increased smoking and drinking habits after his return from operational service in 1962.
21. The applicant said in his statement that he had been coping with stress and anxiety for a long time, and “about 5 years ago” it got to the stage where he could no longer cope at work, with family life, and lost interest in social activity. He had seen a general practitioner at that time and had been on medication ever since – and over the last couple of years he could not work full time due to his stress and anxiety and had to stop work in February 2001.
22. In his oral evidence the applicant said that he gone absent without leave from the navy between October and December 1959. This was prior to any period of operational service and his voyages on HMAS Quickmatch prior to that time had been uneventful. The applicant said that he could offer no explanation about why he went absent without leave at that time.
23. The applicant said he could not recall any gun boats or light aircraft accompanying HMAS Vampire up the river to Saigon and he could not recall specifically the Captain of HMAS Vampire entertaining a number of people whilst the ship was berthed in Saigon. He agreed that the ship was often open for public inspection but could not recall whether that had happened at that time, or whether the ship had held a party for a group of Vietnamese orphans. He agreed that he could not hear bangs exploding in the distance or see planes. All he could see were puffs of smoke and assumed that they were bombs dropping.
24. In answer to my questions the applicant agreed that he did not know what a scare charge was, and he did not know if they had or had not gone off or been used around HMAS Vampire whilst it was at berth in Saigon.
25. The applicant also gave oral evidence that he had been extremely distressed by an incident that had occurred in early 1962 shortly before HMAS Vampire went to Saigon, when a shell had not detonated when fired. He had to remove the shell from the gun and drop it overboard. He said that even though as a gunnery seaman he had been trained and carried out exercises for dealing with such a situation, he was extremely frightened by the incident because he was fearful that the shell would explode and kill or seriously wound him. After this incident he had not wanted to continue to serve in the gun turret and had asked the leading seaman in charge of his gun if he could be excused from that duty, but his request had been refused. He had not taken the request to any higher authority, but he thereafter usually took a bucket with him to the turret because of the nausea that he felt and in case he vomited.
26. The applicant said that after he had completed his operational service he had served at various shore establishments in the Navy until his period of enlistment expired. He said that he had increased the rate at which he smoked and consumed alcohol, but agreed that there were no medical records that indicated he sought medical assistance for any anxiety or stress conditions. In the period following his operational service he had not experienced any health problems “out of the ordinary” although he was stressed and anxious during the period. This affected his sleep but did not have any other effect upon him. It had no particular affect on how he was able to perform his duties in the Navy prior to his discharge.
27. After his discharge from the navy the applicant worked as a self-employed truck driver for approximately 26 years and thereafter established a wholesale confectionary business, which he conducted for 13 years.
28. The applicant said that his symptoms of anxiety became worse in 1991 when he saw television coverage of the first Gulf War. This had reactivated his fears and anxiety from his time in the Navy.
29. By reports dated 16 November 2001 (2T6) and 28 August 2002 (2T9) Dr Fellows-Smith, a psychiatrist, reported that the applicant presented with stress symptoms “directly related to his naval service” on HMAS vampire. He referred to the applicant describing traumatic experiences regarding the closing of scuttles whilst in Saigon Harbour, being escorted by helicopter gunships up the Mekong River, witnessing shore bombardment, battening down below at action stations whilst going upriver and the detonation of scare charges to deter enemy divers. Dr Fellows-Smith considered that the incidents were stressful but did not fulfil the diagnostic criteria for post traumatic stress disorder. In the latter of his 2 reports Dr Fellows-Smith referred to the applicant describing an additional stressful incident, namely the onset of claustrophobic symptoms coinciding with misfires of the guns on 3 separate occasions. On the basis of the events described in the first report and the additional events described in the second report Dr Fellows-Smith considered that these fulfilled the criteria for severe psychosocial stressors because the misfire occurrence evoked feelings of substantial distress – because the applicant was aware that misfires had been associated with injury to gunnery crews in the past.
30. Dr Fellows-Smith concluded that the applicant presented with GAD and claustrophobia directly related to his operational service in Vietnam and the FESR.
31. Dr A J Mander provided the respondent with a report dated 23 April 2004 (Exhibit R1). He recorded that the applicant told him that he had served in Vietnam and was a gunner in the Navy, that he was “agitated, fearful for his life and nauseous much of the time.” He had spent a lot of time closed up in gun turrets and felt trapped and had seen pictures of cargo bays full of bodies and photos of injuries such as headless bodies that used to be regularly passed around the mess deck. The applicant told Dr Mander that he “had had difficulty since service in Vietnam” but that things were not as bad once he left the Navy. Dr Mander described the symptoms that the applicant complained of in 2004 and reported that the applicant had informed him of “a lot of trouble in the family” and that he did not see eye to eye with his children.
32. Dr Mander noted that it was difficult to get the applicant to spontaneously discuss matters relating to his war service and set out in his report information that he had obtained from the applicant’s wife concerning the applicant’s behaviour, noting that it had been worse in the last few years.
33. Dr Mander agreed that the applicant had GAD in 2004 but that it was difficult to date the clinical onset of the condition. Although the applicant had been “moody and somewhat difficult” over the years, both the applicant and his wife agreed that things had been significantly worse over the last 6 or 7 years, suggesting that the applicant’s GAD “ … gained clinical significance in the late 1990s.” Dr Mander noted the applicant’s high level of alcohol intake, which his wife says was an increase over former times. Dr Mander reported that:
“it is understandable that the veteran had an increase in his anxiety levels when in a war zone but these appear to be within the normal range of responses. I could not find any evidence of a severe [psychosocial stressor in the veterans history but note his description of the misfires. These misfires were not mentioned in the veteran’s handwritten statement of 2001 suggesting that at that time they did not figure prominently in the veteran’s view of precipitating factors. …Whilst not meaning to minimise the danger of such a situation and whilst acknowledging that theoretically such an event might be considered to be a severe psychosocial stressor there is no evidence that the veteran started to suffer significant anxiety symptoms following any of these events and one would have predicted that if they were significant stressors he would have been unable to return to his duties in the gun turret because indeed it would be anticipated that he would have a phobic anxiety response.”
34. In his oral evidence Dr Mander said that information that the applicant was physically sick and nauseous about returning to the gun turret, and information about the applicant deserting prior to his operational service might have been of some significance. However, he thought that if the applicant had been particularly troubled about these things he would have expected him to tell Dr Mander of them. The absence of any reference in the 2001 statement made by the applicant to any misfiring was, Dr Mander thought, significant because it indicated that there was not a single precipitating event and allowed the conclusion that over time different matters were the cause of anxiety and worry.
35. Dr Mander said that it might be possible to hide the signs and symptoms of an anxiety disorder at a discharge medical examination, but he would expect that if the applicant had been suffering from GAD at the time of his discharge it would have become noticeable over time in his worklife. Dr Mander thought that the fact the applicant had had only 2 periods of employment, of 26 and 13 years, after his discharge was convincing evidence that he did not have a clinically significant condition at the time of and following his discharge from the Navy and prior to the 1990s - when the applicant’s family problems may have precipitated the clinically significant signs.
36. Exhibit R2 is a report prepared by Captain Rothwell based on research that he had undertaken concerning the visit of HMAS Vampire to Saigon in January 1962 and from his personal knowledge of conditions on board ships such as HMAS Vampire and, in particular, misfires in the 4.5 inch guns on which the applicant served.
37. In relation to the visit to Saigon, Captain Rothwell noted in R2 that the records showed that HMAS Vampire was in what was called “condition X Ray” when it was berthed in Saigon – which is a normal peacetime harbour and cruising state. It involves what is referred to as “8 hours notice of steam” – which means that the ship’s boilers are cold and the ship would be unable to leave its berth for many hours after a decision was made to do so. In January 1962 the security situation in Saigon was “a little tense” but the city was calm and life went on as normal. Three quarters of the ship’s crew were granted liberty – which is normal for peace time visits. Whilst in Saigon the Captain of HMAS vampire had entertained a number of diplomatic and other guests on board the ship and had held a party for a group of orphans. The ship was in harbour on 26 January 1962 and had been open for public inspection as part of Australia Day celebrations. When the ship eventually left Saigon it took a number of civilian personnel with it down river.
38. All of the above indicated to Captain Rothwell that the visit made by HMAS Vampire to Saigon was a normal peace time visit and that there was no particular concern for security. He noted that another Australian ship (HMAS Quickmatch) had berthed outside HMAS Vampire, which made it most unlikely that there would have been an order to close all scuttles. In addition, had there been divers and scare charges employed for security reasons, that would have involved a procedure called “operation awkward” – a procedure that would have been recorded in the ship’s records, and no such entry could be located. Captain Rothwell thought that it was possible that divers were at times put into the water but this was a common occurrence in order to keep the ship’s inlets clear of such things as plastic bags and other refuse that could clog them and cause damage.
39. Captain Rothwell could find no record of helicopter gunships having escorted HMAS Vampire up the river, but a record did exist of the ship having been accompanied by a light plane and some naval gun boats. He noted that the trips up and down river had occurred substantially in darkness.
40. As regards the misfiring of 4.5 inch guns, Captain Rothwell reported this was a most unusual occurrence for a gun of that kind and it was therefore quite unlikely that there could have been 3 misfires while the applicant served on HMAS Vampire. There were well established procedures for dealing with misfires and the applicant would have been trained in handling such a situation. Captain Rothwell considered that misfire situations might cause apprehension and require crew to proceed with care, but he could see no reason why there should be any fear caused by the situation. However, he acknowledged that it is a situation of potential danger, although he could not recall any person ever being injured from a misfire on a 4.5 inch gun. The same could not be said for other types of guns employed.
statutory framework
41. Subsection 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”) relevantly provides that a disease contracted by a veteran shall be taken to be war-caused 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 of, or was attributed to, eligible war service rendered by the veteran;”
42. Section 120 of the Act deals with standards of proof. In the case of a veteran with operational service subsections 120(1) and (3) provide as follows:
“(1) Where a claim under Part II for pension in respect of the incapacity from the 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) … in respect of the incapacity of a person from injury or disease … 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)…;
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.
43. Subsection 120A(3) provides, in relation to claims made after 1 June 1994, that an hypothesis connecting a disease with the circumstances of any particular service rendered by the person is reasonable only if there is a Statement of Principles (“SoP”) determined under subsection 196B(2) that upholds the hypothesis. Subsection 120A(4) provides that subsection 120A(3) does not apply where there is no SoP in respect of the relevant injury or disease.
consideration of the issues
44. The first question to be answered in proceedings of this kind is whether the applicant presently suffers from GAD and PCV. The respondent does not dispute that he does and, on the basis of the reports of Dr McQuillan, Dr Fellows-Smith and Dr Mander, I find on the balance of probabilities that he does indeed suffer from those conditions. The next question that must be determined is whether those 2 conditions should be accepted as war-caused diseases.
45. The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 set out the approach that is to be adopted by this Tribunal in deciding whether or not a disease is war-caused where a veteran has operational service. The analysis set out below follows the steps specified by the Full Court.
46. The first step requires the Tribunal to consider all the material that 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 hypothesis arises, the application must fail.
47. In relation to GAD, the hypothesis advanced by the applicant is that he experienced a number of stressful events during his operational service, namely, the stress of the visit to Saigon and the stress of the misfire incidents in the gun turret, and that these events precipitated his GAD. Bearing in mind that no question of fact finding arises at this stage, I am satisfied that the material before me does point to a connection between the applicant’s GAD and his operational service.
48. In relation to the condition of PCV the hypothesis advanced by the applicant is that he suffered from the condition during his operational service as evidenced by the problems he experienced with dermatitis and discharging ears. The condition was not diagnosed because, apart from the fact that little was known about it at the time, his regular donations of blood masked the symptoms that would have otherwise developed, and this aggravated the condition.
49. Black’s Medical Dictionary (39th Edition) describes polycythaemia as involving an excess in the number of red cells in the blood due to raised production of these cells in the bone marrow. The disorder may appear for no obvious reason and is then called polycythaemia vera. This type of polycythaemia develops mainly in people over 40 and about 400 people develop the disorder every year in the United Kingdom. The blood thickens and the sufferer may develop a number of conditions, including itchiness. Treatment is by regular removal of blood by venesection.
50. In the circumstances I accept that there is material before me that points to a connection between the applicant’s PCV and his operational service.
51. Having reached that conclusion I must then consider the second Deledio step, which is to ascertain whether there are in force Statements of Principle (SoPs) determined under s 196B of the Act in relation to the conditions in question.
52. In relation to GAD, the relevant SoP is Instrument 1 of 2000 and in relation to PCV the relevant SoP is No 78 of 1999 as amended by No 11 of 2000.
53. The third step to be taken, following the approach set out in Deledio, is that the Tribunal must form an opinion as to whether the hypothesis raised in relation to each condition is a reasonable one – and this will be so if the hypothesis “fits” the “template” to be found in the relevant SoP. The hypothesis must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the applicant’s service. If the hypothesis does contain these factors, it can neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
54. GAD is one of the disorders encompassed by the expression “anxiety disorder” in SoP 1 of 2000. Clause 5 of the SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting GAD with the circumstances of a person’s operational service. The only factor relied on by the applicant as possibly applicable to his case is set out in clause 5(a)(ii) as follows:
“experiencing a severe psychosocial stressor within the 2 years immediately before the clinical onset of anxiety disorder”.
55. A “severe psychosocial stressor” is defined in clause 8 of the SoP as meaning “ … 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”.
56. Clause 8 also defines GAD as meaning a “psychiatric disorder” with the following features:
A Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least 6 months, about a number of events or activities; and
B The person finds it difficult to control the worry;
C The anxiety and worry are associated with three or more of the following 6 symptoms, with at least some symptoms present for more days than not during the previous 6 month period:
1 Restlessness or feeling keyed up or on edge;
2 Being easily fatigued;
3 Difficulty concentrating or mind going blank;
4 Irritability;
5 Muscle tension;
6 Difficulty falling or staying asleep, or restless unsatisfying sleep; and
D The focus of the anxiety and worry is not confined to features of any other axis 1 disorder; and
E The anxiety, worry or physical symptoms (as described in C above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F The anxiety and worry are not due to the direct, physiological effects of the substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder”.
57. Finally, clause 8 also defines the term “clinically significant” as meaning “sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or general practitioner.”
58. For the requirements of factor 5(a)(ii) to be satisfied the applicant must have experienced a severe psychosocial stressor within 2 years of the clinical onset of his GAD. In my opinion the material concerning the events that occurred aboard HMAS Vampire when it visited Saigon do not constitute such a stressor but, bearing in mind that no findings of fact need to be made at this stage, the material concerning the applicant’s reaction to the events that occurred when his gun misfired may have been such a stressor. However, because of the view that I have taken regarding clinical onset it is not necessary for me to reach any particular conclusion regarding the existence of a severe psychosocial stressor.
59. It has been said that “…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …” ; see Re Robertson and Repatriation Commission (1998) 50 ALD 668, Repatriation Commission v Cornelius [2002] FCA 750 at [26], Lees v Repatriation Commission [2002] FCA AFC 398 at [13]. In the context of GAD all the symptoms or features that are referred to in the definition of GAD in the SoP must be present such that, if observed by a doctor, would warrant a conclusion that a person is suffering from the condition: Lees v Repatriation Commission (supra) at [16].
60. Dr Fellows-Smith, although he considered the applicant’s GAD to be related to his naval service, did not address directly the question of when there was a clinical onset of the GAD. Dr Mander considered that issue but thought that the history suggested the GAD gained clinical significance in the late 1990s. The applicant’s own evidence was that he felt anxious and worried after the events aboard HMAS Vampire but that when he was posted off that ship to a shore posting in June 1962 he had no health problems that were out of the ordinary other than an effect on his sleep. There was no great effect on his ability to perform his duties.
61. The applicant’s operational service was completed by the end of March 1962 so any clinical onset of GAD as a result of events that occurred during his operational service must have occurred by the end of March 1964. There is nothing in the material before me to indicate that by that time the applicant had suffered any particular health or emotional problems, and certainly there is nothing to indicate that the features of GAD as set out in SoP 1 of 2000 were present by March 1964. Accordingly, in my opinion the material before me does not point to there being a clinical onset of GAD within 2 years of the applicant’s operational service and accordingly the material does not fit the template provided by the SoP to connect the applicant’s GAD with his operational service. Accordingly, the hypothesis making that connection cannot be regarded as a reasonable one and the applicant’s claim for GAD must fail.
62. In relation to the applicant’s claim for PCV, SoP 78 of 1999 as amended contains only one factor that may be related to the cause of or material contribution to or aggravation of PCV and which can be related to the operational service. That factor is “ … inability to obtain appropriate clinical management for polycythaemia vera.” It is to be noted that the SoP, as amended, refers to the PCV being caused, materially contributed to or aggravated by the existence of that factor whereas the SoP prior to its amendment in early 2001 referred only to a material contribution to, or aggravation of PCV where the PCV was suffered or contracted before or during, but not arising out of, the operational service.
63. An inability to obtain clinical treatment can arise because of objective or subjective barriers to obtaining that treatment. An objective barrier may be something like the absence of medical officers whereas a subjective barrier may be something like sanctions or other adverse consequences that might flow to a person if he or she sought treatment. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case: see generally Brew v Repatriation Commission [1999] FCA 1246 at [26] to [30].
64. In Brew v Repatriation Commission [1999] FCA 494 Sundberg J considered the question of whether any “difficulties” that might arise from the fact that medical equipment and techniques that are now available for the accurate diagnosis of a condition but which were not present at an earlier time could be overcome by an application of s 119(h) of the Act, which requires the respondent (and this Tribunal) to take into account “…any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact…”. His Honour concluded (at [9]) that the section did not encompass matters such as the primitive state of medical knowledge at an earlier time. The section can be of no assistance to the applicant in the present case.
65. The applicant relies on his seeking medical attention for dermatitis in October 1963, that he suffered blocked and discharging ears over the years of his naval service, and the fact that his regular donations of blood would have suppressed the symptoms of PCV that might have otherwise have been present. There is no material before me addressing the question of what knowledge there was in medical circles regarding PCV in the late 1950s and early 1960s and there is nothing to indicate that any of the matters in respect of which the applicant sought medical attention were suggestive of the existence of PCV at that time. In that sense, there is no material before me that indicates that there were any barriers, objective or subjective, that prevented the applicant obtaining clinical treatment for the condition had it existed at that time. If there had been any inability to obtain such treatment it could only have been because there were no symptoms suggestive of it or the state of medical knowledge was such that the symptoms would not have been recognised. None of those things, if they existed, could be related to the applicant’s operational service. It must be said, in addition, that on the information before me the clinical treatment that the applicant would have received at the time had PCV been diagnosed was the giving of blood – which he did several times each year anyway. If that was the appropriate clinical treatment then it cannot be said that the applicant did not, and was unable to, obtain that treatment.
66. In addition, the material before me, which suggests that PCV is present mostly in people over the age of 40 years and the fact that Dr McQuillan reports that the median survival rate for a patient who receives treatment is 10 or more years suggests that it is unlikely that the applicant had PCV during the time of his operational service.
67. It follows that the material before me does not satisfy the requirements of SoP 78 of 1999 as amended and hence the hypothesis advanced by the applicant is not a reasonable one. Accordingly, the applicant’s claim for PCV must fail.
68. For the reasons above, my decision is that the decisions of the respondent made on 9 April 2001 and 27 March 2002 to refuse claims that conditions of PCV and GAD were war-caused, as affirmed by the VRB on 23 May 2003, are affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member.
Signed: ...........(sgd J Lim).............
AssociateDate/s of Hearing 29 November 2004
Date of Decision 6 January 2005
Counsel for the Applicant Mr T Robbins
Counsel for the Respondent Mr Carl Ponnuthurai
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