Kamp and Repatriation Commission
[2001] AATA 181
•12 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 181
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1730
VETERANS' APPEALS DIVISION )
Re Mr Wallis John Kamp
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date12 March 2001
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that the conditions of depressive disorder, alcohol dependence and hypertension are war-caused. Disability Pension is payable for these conditions with effect from and including 17 June 1997. The assessment of the appropriate rate of Disability Pension is remitted to the Repatriation Commission for determination.
.................[sgnd]..................
Ms SM Bullock
Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension - Operational Service - Reasonable Hypothesis - Alcohol Dependence - Depressive Disorder - Hypertension
Legislation
Veterans' Entitlements Act 1986 ss 5D, 9, 3, 120, 120A
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Deledio v Repatriation Commission (1997) 47 ALD 261
REASONS FOR DECISION
This is an application for review by the Applicant, Mr Wallis John Kamp, of a decision of the Repatriation Commission dated 6 March 1998 (T2) as varied but affirmed in part by a decision of the Veterans' Review Board ("the Board") of 22 September 1999. The Board decided to vary the diagnosis of Mr Kamp's psychiatric condition from dysthymic and amnestic disorder with alcohol dependence to depressive disorder and alcohol dependence and then affirmed the decision under review in relation to depressive disorder, alcohol dependence and hypertension. The Board set aside that part of the Repatriation Commission's decision relating to chronic bronchitis and emphysema, deciding that these conditions were war-caused with pension payable from and including 17 June 1997.
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 5 December 2000. Mr Kamp provided oral evidence as did Dr A Dinnen, Consultant Psychiatrist. Mr Kamp was represented by Mr R Sherlock, Advocate from the Legal Aid Commission and the Respondent, the Repatriation Commission, was represented by Mr R Wallis, Solicitor and Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" T1-T26) and the following exhibits:
Exhibit Number Description Date
T1-T26 T Documents Various
A1 Statement of Mr Kamp 9 December 1999
A2 Report of Dr A Dinnen, Consultant Psychiatrist 30 June 2000
A3 In-patient service records of Mr Kamp Various
A4 Conduct service documents in relation to Mr Kamp Various
A5 Poem entitled "The Snipe's Lament"
R1 Report of Dr N J Schultz, Consultant Psychiatrist 3 June 2000
R2 Report of Clinical Psychologist, Associate Professor R P Mattick 18 February 2000
R3 Report of Consultant Cardiologist, Clinical Associate Professor D Richards 18 February 2000
Issues
The issues to be determined in this matter are whether or not Mr Kamp's conditions of depressive disorder, alcohol dependence and hypertension are war-caused.
LegislationA decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:
"War-caused injuries or diseases
(1) Subject to this section, 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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(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.
…"
Section 13 of the Act deals with eligibility for pension.
Mr Kamp served in the Royal Australian Navy from 22 August 1958 to 21 August 1967. His eligible war-service which is also operational service was from:
7 April 1960 to 28 April 1960 in the Far East Strategic Reserve.
6 May 1960 to 20 May 1960 in the Far East Strategic Reserve.
6 June 1960 to 16 June 1960 in the Far East Strategic Reserve.
24 March 1961 to 17 April 1961 in the Far East Strategic Reserve.
The standard of proof for Mr Kamp's operational service is that of the reasonable hypothesis applying subsections 120(1) and 120(3) of the Act which provide:
"Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
…."
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken in accordance with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act. As relevant, section 120A states:
"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 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, 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
(b) 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 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.…"
Statements of Principles
Applying Repatriation Commission v Keeley [2000] FCR 532, the Tribunal considers that the appropriate Statements of Principles are those in force at the time of the primary decision made by the Commission on 6 March 1998. Accordingly, the relevant Statements of Principles are:
Instrument Number 5 of 1994 concerning Psychoactive Substance Abuse or Dependence.
Instrument Number 65 of 1996 as amended by Instrument Number 181 of 1996 concerning Depressive Disorder.
Instrument Number 83 of 1995 concerning Hypertension.
Background
The following information is provided by way of background and the information contained within is not in dispute.
Mr Kamp was born on 12 May 1939. He left school when aged approximately 14 years old and worked initially as an apprentice carpenter. He next worked as a telegram delivery boy with the then Post Master General's Office.
Mr Kamp was heavily involved with cycling.
Prior to joining the Navy lived on a farm in Victoria. He left the farm because his step-mother, a positive influence on his life, suggested that there was no future for him working on a cattle station.
On 17 September 1997, Mr Kamp made an informal claim for skin cancers, hearing problems, post traumatic stress disorder, hypertension and respiratory problems (T5). A formal claim was lodged on 14 October 1997 (T7). In relation to hypertension, Mr Kamp stated that he first became aware of this condition in 1990 and he believed that this condition was related to his service through obesity and an excessive alcohol intake. The reasons for Mr Kamp's high consumption of alcohol related to alcohol being inexpensive during service; the social status of joining in drinking with your mates on shore; and harsh treatment metered out to him by Senior Officers.
In relation to his psychiatric condition referred to in the informal claim as post traumatic stress disorder and in the formal claim as anxiety state, Mr Kamp related this condition to the stress he suffered during and after service and noted the condition had its onset in about 1960.
On 6 March 1998, the Commission accepted Mr Kamp's claim for chronic solar skin damage and sensorineural hearing loss with effect from 17 June 1997. Pension was assessed at ten per cent of the General rate with effect from that date (T10). A further decision was made by the Commission on 10 March 1998, which accepted the conditions of gastroenteritis, conjunctivitis of both eyes and cystic acne with pension assessed at 30 per cent of the General rate with effect from 14 July 1997 (T12).
Mr Kamp made an application for review to the Board which on 22 September 1999, set aside the decision in relation to chronic bronchitis and emphysema, deciding that these conditions were war-caused with effect from 17 June 1997 and remitting the assessment of the rate of pension to the Commission (T18). In relation to dysthymic and amnestic disorder with alcohol dependence, the Board varied the diagnosis of the condition to depressive disorder and alcohol dependence and affirmed the decision (as varied) in relation to depressive disorder, alcohol dependence and hypertension (T18).
Mr Kamp made his application for review to the Tribunal on 16 November 1999. Mr Kamp is currently in receipt of a Disability Pension at 60 per cent of the General rate.
Evidence of Mr Kamp
Mr Kamp stated that his mother died when he was very young and he was then largely brought up by his grandmother who exerted a very strong and stable influence on him. At the age of twelve or thirteen he went to live with his father and his step-mother, who was also a strong and steadying influence on his life.
Mr Kamp told the Tribunal that he commenced his Naval service in HMAS CERBERUS where he was classed as a stoker. He had joined the Navy on the advice of his step-mother who considered that there was no future for him working on a cattle station. Mr Kamp explained that upon joining the Navy, there was a six month period of training, including seamanship and general purpose duties and parade ground duties. Following his initial posting, Mr Kamp was posted to HMAS SWAN, a river class frigate, where he spent a further nine months. This period of Mr Kamp's Naval service involved him undertaking survey work and at the time he felt "as if he was on holiday". Mr Kamp stated that he liked Naval life very much at that point, especially the comradeship, which was most enjoyable.
Mr Kamp consumed alcohol while serving in HMAS SWAN, drinking beer each night. At that point, however, Mr Kamp was giving away part of his beer ration as he did not consume a great deal of alcohol, consuming approximately one can of beer per night. Mr Kamp also commenced smoking in HMAS SWAN, noting that cigarettes were ten cents per packet.
Mr Kamp explained that his next posting to HMAS MELBOURNE was his "first real ship". He was very excited about the posting. HMAS MELBOURNE was on a tour to Indonesia and Malaya and Mr Kamp was working in the boiler room. In the boiler room Mr Kamp experienced the noise, heat and vibrations of the ship quite intensely. The location of the boiler room under the catapult in HMAS MELBOURNE also made it extremely frightening at times, as planes were catapulted off or as they landed. Mr Kamp described that each occasion when a plane was catapulted off the deck, it was accompanied by extremely loud noise and vibrations. When coming off duty from the boiler room while serving in HMAS MELBOURNE, it took Mr Kamp half an hour to an hour to calm down, he told the Tribunal.
To help explain the conditions and impact of working in the boiler room, Mr Kamp referred the Tribunal to a poem, "The Snipe's Lament" (Exhibit A5). Mr Kamp told the Tribunal that he was very afraid and found work in the boiler room extremely difficult but he did not complain as it was "not the thing to do in the Navy".
When not at action stations, HMAS MELBOURNE's speed was in the vicinity of ten to twelve knots, but when actively engaged in operations the speed was 22 knots, which was extremely frightening. Mr Kamp reiterated that he was absolutely terrified in the boiler room. There were three personnel stationed there, however, Mr Kamp was the person whose duty it was to stand next to the boiler. He was told stories by the experienced sailors of explosions in the boiler room and horrific accidents which can occur. Mr Kamp confirmed that he did not experience any such accidents himself. Mr Kamp estimated that he spent between three to six months serving in the boiler room in HMAS MELBOURNE. He described that as a result of the noise, vibrations, confined spaces and heat in the boiler room during operational service, he experienced symptoms of shortness of breath, pain in his chest and stomach, loss of concentration and panic. Mr Kamp stated that the anxious feelings he experienced in HMAS MELBOURNE still affect him today; for example he had similar symptoms when flying in an aeroplane to attend the Tribunal hearing in Sydney. Mr Kamp did not tell anyone of his feelings because he did not want to be considered a "weakling".
Mr Kamp stated that he should never have been classified as a stoker as he was entirely unsuited to this type of work. Although Mr Kamp served elsewhere in the Navy in boiler rooms, it was serving on operational service that caused him considerable distress. Mr Kamp believed that the training he received prior to service in HMAS MELBOURNE did not prepare him at all for his experiences.
During his first tour of duty in HMAS MELBOURNE, Mr Kamp began to drink extremely heavily and estimated that by the end of his first period of service he was drinking up to 36 midis of beer per day. Mr Kamp told the Tribunal that by the time he had left HMAS MELBOURNE, he considered that he was an alcoholic. He would drink himself "into oblivion" to try and help him deal with the fear and stress he experienced in the boiler room. Mr Kamp further estimated that he would drink approximately "30 pots" of beer per night, each containing ten ounces of beer.
In 1965, Mr Kamp was posted to HMAS BARCOO, a river class frigate. He worked on this ship for approximately six to eight months as an engineering mechanic. Mr Kamp explained to the Tribunal that the chief stoker of that ship realised that he was anxious and terrified of being in the boiler room and in fact posted him to the laundry, rather than the engine or boiler rooms. Mr Kamp also worked as a driver for the captain of HMAS BARCOO. Mr Kamp stated that while serving in HMAS BARCOO, he continued to have alcohol problems, which he attributed to his service in HMAS MELBOURNE. On one particular occasion, it was noted that Mr Kamp drove a Commonwealth car without permission and was stopped by police and returned to the ship. By this stage Mr Kamp was trying to reduce his alcohol consumption but found that he could not. He was binge drinking and by 1967, he estimated that he was drinking between 30 and 40 schooners of beer per day. By this time, Mr Kamp was trying to disguise his drinking and hide it from those he was working with. On one occasion in Adelaide, Mr Kamp drove a Naval car while under the influence of alcohol and had his licence confiscated, he was not formally charged with any offence.
Mr Kamp's next posting in HMAS WATSON, was initially as a motor training driver, but Mr Kamp had his licence taken away as a result of misdemeanours in relation to his drinking. Next, Mr Kamp served in HMAS ANZAC and while there, passed his Petty Officer's exam. This pass took two attempts and on the first attempt, Mr Kamp admitted that because of him being very "hung over", he could not properly concentrate on the exam.
When in HMAS SUPPLY, Mr Kamp obtained his Boilermaker's Ticket. This was not a problem for him, he stated, as the experience in the boiler room in HMAS SUPPLY was completely different to that of being in the boiler room in HMAS MELBOURNE when the ship was undertaking active operations. Mr Kamp concluded that in relation to his service in HMAS BARCOO, WATSON and ANZAC, he had tried to "toe the line" but he was not always successful. Mr Kamp informed the Tribunal that superior officers had warned him that his level of drinking would effect his career in the Navy.
When serving in HMAS SUPPLY, Mr Kamp described experiencing "a wonderful time" because of the people and because of his elevated position to Petty Officer. During this period of his service life, Mr Kamp had no disciplinary problems, however he was still drinking heavily. By this time, Mr Kamp had married and had a young family. Mr Kamp stated that he was trying to cut down his alcohol consumption.
Mr Kamp was next posted to HMAS KUTTABUL. He initially thought that he would serve there for the next six months, after which he would be discharged from the Navy. However, three months before Mr Kamp was due to be discharged, he was called back to duty in HMAS MELBOURNE where he was to be a water tenderer in the boiler room and he was to be under the supervision of a Junior Petty Officer. Mr Kamp described to the Tribunal being extremely upset about this. He agreed that he was sullen and angry at this posting. Firstly, Mr Kamp did not want to go back on to HMAS MELBOURNE given his previous experiences and fears of the boiler room. Secondly, he was concerned at being supervised by a Junior Officer. Mr Kamp spoke to the Chief Petty Officer about this situation and subsequently was made the Senior Officer who was to then supervise the Junior Petty Officer. Mr Kamp denied at any stage having any physical fights with the Junior Officer, but agreed that the situation was extremely tense and full of friction. Added to these difficulties, Mr Kamp admitted that he was worried about his imminent discharge and his future career. Mr Kamp was worried that he would be unable to support his wife and young child when he left the Navy.
The Tribunal was referred to an incident, which occurred on 15 June 1967, in Yokohama. Mr Kamp stated that he had been drinking heavily on shore and knew that he had to rejoin HMAS MELBOURNE, which was due to depart. Mr Kamp told the Tribunal that he was terrified of being once more in the boiler room in HMAS MELBOURNE and sailing up to Japan, the ultimate destination for the ship at that time. The memories of service in HMAS MELBOURNE in 1960 came flooding back. Mr Kamp stated that instead of rejoining HMAS MELBOURNE, he "fled" to HMAS SUPPLY, which was also in port. Mr Kamp took such action because he felt that personnel in HMAS SUPPLY would listen to him. Mr Kamp had no such confidence that he would be afforded the same opportunity to discuss his concerns with personnel in HMAS MELBOURNE. Mr Kamp told the Tribunal that he just knew that if he remained in HMAS MELBOURNE, "something terrible would happen".
The Tribunal had available to it a record of a sick bay admission in HMAS SUPPLY from 29 May to 31 May 1977. The clinical notes at the time record "acute depression with agitation" (Exhibit A3). Dr D A Beardwood recorded on 31 May 1967, that Mr Kamp had presented to HMAS SUPPLY on 29 May 1967, to seek advise and help from friends having left his own ship HMAS MELBOURNE. Dr Beardwood recorded that Mr Kamp had been drinking heavily the previous night and had become severely depressed and agitated, stating that he hated the MELBOURNE and would not return to the ship. Mr Kamp was assessed by a psychiatrist on 31 May 1967, who recommended that Mr Kamp be admitted to hospital for initial therapy and then transferred to R.A.N.H PENGUIN for follow up treatment. Mr Kamp was subsequently taken to "Yokosuka Naval Hospital" and from there taken to Tokyo and later Hong Kong where he joined HMAS MELBOURNE to travel in the sick bay back to Singapore and then fly to Sydney.
Mr Kamp told the Tribunal that he was horrified to be taken back to HMAS MELBOURNE. He stated that he was virtually locked in the sick bay and was not given any medication. A sympathetic attendant, however, provided him with beer. Once back in HMAS MELBOURNE, he was examined, he stated, for approximately 15 minutes by Dr R J Gray. Dr Gray wrote in his clinical notes on 15 June 1967:
"My impression of him since he has been on board is that he is a sullen, cunning, whinging, bullying individual who is determined to make as much trouble as possible. For example, he has already requested Lieutenant Andrews to see about getting the extra one dollar 50 cents which he thinks he's entitled to whilst under investigation at Yokosuka, he refers to the Navy "dumping him"; and out of the blue stated that POME James had been unfairly treated, in such a manner as to imply that I should do something about it. His messmates shun him because of his reputation as a "stand-over man" " (T3, p22).
Mr Kamp told the Tribunal that Dr Gray was not a psychiatrist and he did not ask about the treatment he had received in the American hospital. Nor did Dr Gray, Mr Kamp stated, indicate any interest in listening to Mr Kamp's problems with HMAS MELBOURNE. Mr Kamp further told the Tribunal that he was absolutely shocked to read Dr Gray's assessment of him some years later.
Back in Australia, after a short period in HMAS PENGUIN, Mr Kamp was transferred one week later to other duties in HMAS BALMORAL. Mr Kamp acknowledged that at that time and earlier (that is, just prior to being posted to HMAS MELBOURNE in 1967) he was concerned about his future after the Navy. Although concerned about returning to civilian life and the inherent difficulties which might arise in finding work, Mr Kamp denied that this was a major issue for him. It was a consideration from him, which he had to deal with. Mr Kamp had applied for a position with the Navy police, which was not successful. Again, Mr Kamp told the Tribunal that while disappointed, he did not really expect that he would have been successful but thought it wise to pursue this possibility. Thus, following discharge from the Navy, Mr Kamp found employment in civilian life was problematic. He found it difficult to settle and was drinking extremely heavily. Mr Kamp stated "I was a mess for the next three years after leaving the Navy". Mr Kamp informed the Tribunal that he had eight or ten jobs lasting from only one day to one week. He continued to drink, finding the alcohol provided him with a sense of relief.
Mr Kamp's marriage was "in trouble" in the early 1970s. He described an incident at a local RSL Club when Mr Kamp began screaming and "went berserk" for no apparent reason. Consequently, Mr Kamp was admitted to Chelmsford Private Hospital where the treatment commenced was deep sleep therapy for a period of two weeks. Mr Kamp eventually signed himself out of hospital because he was worried about the treatment and its effect upon him and did not want to have any more injections. After this incident, Mrs Kamp divorced Mr Kamp because of "mental cruelty", Mr Kamp told the Tribunal. Mr Kamp currently has contact with his two daughters with whom he shares a good relationship.
After the Chelmsford Hospital admission, Mr Kamp was asked to leave his employment at Shell, where he had been working as a refinery operator.
In about 1972, Mr Kamp formed a relationship with his current partner and she has been a calming and steadying influence on his life ever since. This relationship has been ongoing for the past 27 years. Mr Kamp's partner has attended Alcoholic Anonymous for family members and because she understands Mr Kamp's problems, she is able to cope with him and deal with his various difficulties.
Over the years, Mr Kamp has been assisted by his General Practitioner, Dr J Holmes, who has treated him with "Serapax" and "Mogodon". Since his claim for Disability Pension, Mr Kamp has been examined and assessed by many psychiatrists. He told the Tribunal that he had no problems with his consultations with Dr J Schultz or Dr K G McNamara, Consultant Psychiatrists, to whom Mr Kamp had been referred by Dr Holmes (T17). In relation to Dr Dinnen, Consultant Psychiatrist, Mr Kamp found Dr Dinnen easy to talk to and felt that he understood his many problems (Exhibit A2). In relation to the report provided by Dr C Danesi, Consultant Psychiatrist, Mr Kamp advised the Tribunal that there were some 16 to 20 factual errors which he had identified in the report (T16).
When questioned about his level of alcohol consumption, Mr Kamp stated that he still drinks but has cut down the quantity of alcohol and has switched to drinking light beer. Mr Kamp told the Tribunal that he had a "massive heart attack" in August 2000 and was told that if he did not reduce his drinking, the damage done to his health would be irreparable.
Evidence of Dr A Dinnen, Consultant PsychiatristIn his report of 30 June 2000, Dr Dinnen referred to his assessment of the many documents concerning Mr Kamp's psychiatric history. Dr Dinnen noted "a most important report" from Captain K P Jones of the United States Navy Medical Corps of 31 May 1967 (T3, p21). Captain Jones reported that Mr Kamp had been acutely depressed and extremely anxious for the past few days and diagnosed the condition of depressive reaction with anxiety reaction. Dr R J Gray, who Dr Dinnen believed was a surgeon, reported on 15 June 1967, that Mr Kamp was a "sullen, cunning, whinging, bullying individual who is determined to make as much trouble as possible" (T3, p22). Dr Dinnen also noted a report from Dr C Edmonds, Psychiatrist, who reported on 27 June 1967, that Mr Kamp has an "inadequate personality with anxiety and depression reactions" (T3, p12).
A further psychiatric report by Dr C Danesi, Consultant Psychiatrist, noted on 12 February 1998, that Mr Kamp suffered from "Amnestic Disorder secondary to Alcohol Dependency and Dysthymic Disorder" (T16, p119). Dr Dinnen noted Mr Kamp's statement that Dr Danesi's report contained incorrect information.
Dr Dinnen noted a further psychiatric report of 10 March 1999, provided by Dr K G McNamara, Consultant Psychiatrist, in which Mr Kamp was diagnosed as having a chronic major depressive disorder in addition to chronic alcohol dependence (T17). Dr McNamara noted extremely stressful service in HMAS MELBOURNE and discussed the alcohol and behavioural problems in the early 1960's, concluding that Mr Kamp's problems had dated from Mr Kamp's psychiatric admission in Japan in 1967, and 11 drink driving charges over the years as well as six weeks in gaol, 16 years previously, for drunk and disorderly behaviour. Dr McNamara noted that Mr Kamp's psychiatric problems dated from and commenced during his service.
Dr Dinnen noted the Board's decision and its consideration of the medical evidence discussed above in addition to reports from Dr Holmes, Mr Kamp's General Practitioner. The Board concluded that Mr Kamp suffered from Depressive Disorder and Alcohol Dependence during service and that there was a temporal link between the increase in drinking and service in HMAS MELBOURNE. The Board, however, could not satisfy itself, Dr Dinnen noted, that there was a severe psychosocial stressor present as required in the relevant Statement of Principles. Noting the report of Psychologist, Associate Professor R Mattick of the National Drug and Alcohol Research Centre at the University of New South Wales, Dr Dinnen pointed to Associate Professor Mattick's view that Mr Kamp appears to meet the criteria for substance dependence involving alcohol but nevertheless had concluded that Mr Kamp had a long standing tendency to depression appearing to meet the criteria for Dysthymic Disorder. Associate Professor Mattick did not accept Mr Kamp's contention about his stressful experiences in HMAS MELBOURNE's boiler room, concluding that the most likely explanation for Mr Kamp's condition of heavy drinking and depression stemmed from a lifelong inadequate personality predating service. Associate Professor Mattick concluded that:
"The reasonableness or otherwise of the hypothesis that being in the engine room caused his on going lifelong problems may be a matter for legal opinion. My preferred hypothesis is that he had personality problems, he was a difficult worker, he drank heavily in a fashion which was probably unrelated to service and that his alcohol dependence and depressive disorder is not directly linked to that service." (Exhibit R2)
Dr Dinnen further noted the report in March 2000, of Dr Tim Anderson, Occupational Physician, who while considering Mr Kamp "a very tragic man", concluded that Mr Kamp's genuine psychiatric condition could hardly be blamed on the Navy, considering that it was Mr Kamp's own choice to behave in the manner he did causing himself "extraordinarily self destructive behaviour and life style".
Finally, Dr Dinnen noted the report of Consultant Psychiatrist, Dr N Schultz (Exhibit R1). While Dr Schultz accepted a diagnosis of depression and considered that the depressive and alcohol abuse problems were a consequence of "a mixed personality disorder", Dr Schultz concluded that Mr Kamp's condition was not related to his naval service. Dr Schultz concluded:
"Overall then, I believe that Mr Kamp suffers from a mixed personality disorder that involves both depressive symptom (sic) and alcohol abuse. It is possible that working in the engine room increased his anxiety and acted as a precipitant or aggravate for his alcoholic behaviour but has not been involved in the maintenance of either condition which has been continued as a result of his underlying personality disorder" (Exhibit R1).
Having reviewed the documentation, and assessing Mr Kamp at interview, Dr Dinnen concluded that the diagnosis of depressive disorder and alcohol dependence was appropriate. Dr Dinnen further concluded that these conditions are attributable to service and that there is clear evidence to indicate that the conditions commenced during service. Dr Dinnen concluded:
"It cannot be stated often enough that traumatic experience is personal and subjective, and has to be assessed in each case on its merits. This man had some limitations in his upbringing, although he was raised in a warm and supportive family home by his grandparents, and after three years or so as a jackeroo was encouraged to enter the Navy by his step-mother according to his account. He clearly found his service as a stoker throughout his years in the Navy to be difficult, more so on the MELBOURNE, and the return to that environment appears to have precipitated the breakdown which occurred in May 1967. It is equally clear that he has a personality which was not seen by all as being attractive, but the breakdown of his first marriage and his hospitalisation at Chelmsford followed by years of recurrent depression and alcohol abuse is more in keeping with chronic psychiatric disability than an explanation that it is due to a faulty character. The support he gains from his local doctor provides sufficient proof, apart from his stable defacto relationship for the past 27 years, of the inherent positive features of his personality.
Be that as it may, it is my view that the Statement of Principles which sets out "psychosocial stressor" as being important for the relationship of these two conditions to service is satisfied. In this regard I have the same information as was available to the Veterans' Review Board, but believe that a different perspective is justified" (Exhibit A2).
In evidence to the Tribunal, Dr Dinnen noted Mr Kamp's interview where he was tearful and depressed. Dr Dinnen opined that Mr Kamp used alcohol to mask his depression.
Dr Dinnen further opined that it was clearly an incorrect decision given Mr Kamp's personality, to place Mr Kamp in the boiler room. Mr Kamp was an outdoors person, having been used to open spaces and working in the outback. For Mr Kamp, to be placed in the boiler room was to expose him to a psychosocial stressor, noting that boiler rooms are very uncomfortable, enclosed spaces with conditions of extreme noise, danger of explosion due to high pressure, vibration and heat. Dr Dinnen opined that this particular environment could easily "scar" a person. The environment itself was anxiety provoking to Mr Kamp even if nothing happened, Dr Dinnen opined. The environment induced severe stress in Mr Kamp. Dr Dinnen did not doubt Mr Kamp's credibility. He opined that the depth of Mr Kamp's emotional responses in his interview with him added strength to Dr Dinnen's assessment of Mr Kamp as credible and reliable.
Dr Dinnen opined that Mr Kamp had the onset of his depressive condition in 1960, when he first served in HMAS MELBOURNE. He later had an acute breakdown in 1967, when he was faced with the prospects of serving once more in HMAS MELBOURNE. The increased alcohol consumption arising out of the 1960 period in HMAS MELBOURNE is further evidence of the onset, Dr Dinnen concluded.
Dr Dinnen further noted that his opinion was not diminished or altered as a result of Dr Schultz's conclusions concerning Mr Kamp's personality weakness. In fact, Dr Dinnen concluded that his own diagnosis was not so different from that of Dr Schultz and to his mind, Dr Schultz's opinion could be incorporated into Dr Dinnen's conclusions concerning Mr Kamp's depressive disorder.
Dr Dinnen concluded that the depressive condition had its onset in 1960 and that Mr Kamp self medicated with alcohol, which in fact to this day masks many of his symptoms. There were then acute episodes, which occurred in 1967 when Mr Kamp was posted back to HMAS MELBOURNE and again in the early 1970's when Mr Kamp was admitted to Chelmsford Private Hospital.
Other Medical Evidence
Clinical Associate Professor D Richards, Consultant CardiologistAssociate Professor Richards reported on 18 February 2000, that Mr Kamp appears to have hypertension, which he has suffered since 1967. Associate Professor Richards noted, however, that there might have been an earlier hypertensive reading in 1958 but concluded that the hypertension could not be established until 1967. While concluding that hypertension had been exacerbated by Mr Kamp's alcohol abuse, Associate Professor Richards did not consider that this alcohol abuse could be attributable to operational service.
SubmissionsMr Sherlock submitted that the correct diagnosis of Mr Kamp's psychiatric condition is depressive disorder and alcohol dependence, which had its onset in 1960, as supported by the opinions of Dr Dinnen and Dr Anderson. The service medical report of Dr Gray in 1967, cannot be seen as useful as Dr Gray was not a psychiatrist, Mr Sherlock contended. Further, Mr Sherlock submitted that Dr Schultz's opinion and that of Dr Dinnen are not inconsistent in that while Mr Kamp may have had personality difficulties, this did not detract from the substantive diagnosis of depressive disorder and alcohol dependence.
Mr Sherlock submitted that clearly on all the evidence, Mr Kamp experienced a severe psychosocial stressor on operational service in HMAS MELBOURNE in 1960, arising out of his duties in the boiler room. Referring to the relevant Statement of Principles (as amended) concerning Depressive Disorder, Mr Sherlock noted that Mr Kamp's circumstances satisfied factor 5(b) which states:
"(b)experiencing a severe psychosocial stressor or stressors within the two year immediately before the clinical onset of depressive disorder; …"
"Severe psychosocial stressor" is defined in the amended Statement of Principles, Instrument Number 181 of 1996 as:
"… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in 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; …"
Mr Sherlock submitted that from Mr Kamp's evidence, he experienced extreme stress as a result of his work in the boiler room. He had the symptoms of anxiety, panic and fear, which he graphically described. There were no facts which could dispute Mr Kamp's experiencing severe psychosocial stress as a result of his stoker duties, Mr Sherlock submitted.
Thus, the hypothesis is that as a result of the psychosocial stressor of duty in the boiler room, Mr Kamp quickly developed a depressive disorder, which he then self medicated by use of alcohol. This lead Mr Sherlock to submit to the Tribunal that the clear evidence of Mr Kamp having an alcohol dependence problem arose out of his attempts to deal with the depression he felt arising out of his service in 1960, in HMAS MELBOURNE. Mr Sherlock referred the Tribunal to the Statement of Principles concerning Psychoactive Substance Abuse or Dependence, Instrument Number 5 of 1994 and specifically factor 1(b) which states:
"(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; …"
Mr Sherlock submitted that Mr Kamp satisfied the diagnostic criteria for psychoactive dependence as defined and this contention is supported by the evidence and medical opinion. There was no indication of Mr Kamp having an alcohol problem prior to his service in HMAS MELBOURNE but subsequently, there are numerous reports in the service documents of there being a heavy consumption of alcohol and problems arising out of this with Navy discipline.
Mr Sherlock made no detailed submissions relating to hypertension but indicated that this condition flowed from the alcohol dependence problem.
Mr Wallis for the Respondent, noting Dr Dinnen's evidence, submitted that in essence there was a similarity in the diagnoses of Mr Kamp's psychiatric condition apart from Dr Gray. Whilst concluding in this way, Mr Wallis submitted that one could not easily discount Dr Schultz's opinion, although he conceded that Dr Schultz did make a finding of alcohol dependence and depressive features, which the Tribunal may well be able to conclude was sufficient to meet a diagnosis of Mr Kamp's psychiatric condition as depressive disorder and alcohol dependence. Mr Wallis further conceded that the onset of depressive disorder should be taken as 1960, as opined by Dr Dinnen.
Specifically in relation to the condition of depressive disorder, Mr Wallis submitted that an issue remained as to whether or not Mr Kamp's circumstances met the definition of experiencing a severe psychosocial stressor as required by factor 5(b) of Instrument Number 5 of 1996 as amended. Mr Wallis contended that the definition of severe psychosocial stressor should be strictly viewed in terms of the examples provided.
In relation to the condition of alcohol dependence, Mr Wallis submitted that the service documents clearly indicate an alcohol abuse / dependence on service. Mr Wallis stated that there was no challenge to medical opinion nor Mr Kamp's evidence that he had an alcohol dependence problem. The question for the Tribunal was whether or not the dependence was as a result of service and whether Mr Kamp had met any on the factors in the relevant Statement of Principles concerning Psychoactive Substance Abuse or Dependence.
In relation to hypertension, Mr Wallis submitted that the appropriate Statement of Principles is 83 of 1995 and the relevant is factor 1(b) which states:
"(b)suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; …"
Mr Wallis acknowledged that if the Tribunal found that Mr Kamp suffered from a service related alcohol dependence problem then the factor 1(b) of the Hypertension Statement of Principles would be met. Noting the onset of hypertension as opined by Associate Professor Richards as occurring in 1967, Mr Wallis submitted that if the Tribunal found that Mr Kamp's alcohol dependence arose out of the onset of depressive disorder in 1960, then the facts supported the hypothesis that a service related alcohol dependence caused the onset of hypertension in 1967, at a time when Mr Kamp still satisfied the requirement of having alcohol dependence up until the accurate determination of hypertension as is required by factor 1(b).
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and by applying the legislation and case law.
The Tribunal finds that Mr Kamp was a truthful witness and there was no challenge to his credibility by the Respondent.
The Tribunal will deal firstly with the condition originally diagnosed as dysthymic and amnestic disorder with alcohol dependence but whose diagnosis was varied by the Board to depressive disorder and alcohol dependence. The Tribunal has noted the various diagnoses of Mr Kamp's psychiatric condition from the original diagnosis by the Commission; namely, a finding of inadequate personality; a diagnosis of personality disorder and depressive features and alcohol dependence. The Tribunal is of the view, based on the preponderance of medical evidence, that even if Mr Kamp does have personality difficulties that this is not inconsistent with, as opined by Dr Dinnen, the diagnosis of his psychiatric condition being depressive disorder and alcohol dependence. This diagnosis is supported by Dr McNamara, Dr James and Dr Edmund on service. The Tribunal does not consider its conclusion in relation to the diagnosis of depressive disorder is inconsistent with Dr Schultz's opinion of Mr Kamp having a mixed personality disorder. Further, the Tribunal agrees with Dr Dinnen, that while Mr Kamp's personality was perhaps not attractive, the fact that his family life and marriage broke down and he was hospitalised in Chelmsford followed by years of reoccurring depression and alcohol dependence, is more likely to be related to a chronic psychiatric condition than personality difficulties. This is particularly so, the Tribunal finds, when consideration is given to the fact that Mr Kamp has been able later in life to sustain a stable relationship of 27 years and has worked steadily during this time; the Tribunal's finding is also consistent with the evidence provided by Mr Kamp's general practitioner, Dr Holmes. Accordingly, the Tribunal is reasonably satisfied that the correct diagnosis of Mr Kamp's psychiatric condition is depressive disorder.
Based on the evidence and Dr Dinnen's opinion, the Tribunal concludes that the onset of the condition of depressive disorder is in 1960, when Mr Kamp served in HMAS MELBOURNE in the boiler room as a stoker.
The Tribunal turns next to consider whether the condition of depressive disorder is war-caused. Noting the steps set out in Deledio v Repatriation Commission (1997) 47 ALD 261, The Tribunal firstly examines whether a reasonable hypothesis is raised pursuant to subsection 120(3) of the Act. The hypothesis put by Mr Sherlock is that Mr Kamp experienced a psychosocial stressor on service when his duties were to work in the boiler room as a stoker. The relevant Statement of Principles, Instrument Number 65 of 1996, as amended, contains factor 5(b) which the Tribunal considers as relevant to its consideration of this matter. The Tribunal has determined that the clinical onset of the depressive disorder was in 1960. To satisfy factor 5(b), Mr Kamp must have experienced a severe psychosocial stressor within the two years immediately before the clinical onset of depressive disorder, which in this case is 1960. Considering the definition of severe psychosocial stressor, the Tribunal finds that Mr Kamp's work in the boiler room in HMAS MELBOURNE caused him severe stress with signs of fear, panic, sweating and breathing difficulties. Dr Dinnen's opinion further supports this finding. The Tribunal does not consider that this experience and the subsequent conditions suffered by Mr Kamp are at odds with the examples of severe psychosocial stress contained within the definition. Thus the Tribunal finds that factor 5(b) is met and a reasonable hypothesis is raised in terms of subsection 120(3) of the Act.
The Tribunal now turns to consider the application of subsection 120(1) of the Act. Mr Kamp was working in the boiler room in HAMS MELBOURNE and his subjective feelings and experiences during the course of the performance of his duties remain unchallenged. It is clear from the evidence that following this time, Mr Kamp's alcohol consumption increased and the facts indicate, and find some support in Dr Dinnen's opinion, that Mr Kamp was self medicating his depressive disorder through alcohol. Dr Schultz does not deny that Mr Kamp has depressive symptoms and alcohol dependence but sees that these arose out of a mixed personality disorder. The Tribunal considers that Dr Schultz's opinion is not inconsistent with the view taken by either the Tribunal or Dr Dinnen. The Tribunal considers that the exposure of Mr Kamp to boiler room duties provided the response of psychosocial stress to this exposure. That other sailors may not have experienced these duties in the same way nor had the same response is not relevant to the individual responses of Mr Kamp. Even if Mr Kamp did have a personality disorder, it still remains the Tribunal's conclusion that the exposure to service in HMAS MELBOURNE caused depression and self-medication with alcohol. The Tribunal can find no facts inconsistent with or disproving the reasonable hypothesis that Mr Kamp experienced a severe psychosocial stressor in his duties as a stoker in the boiler room of HMAS MELBOURNE. In so finding, the Tribunal notes that Mr Kamp did undertake stoker duties in other ships, however, this was not on operational service and certainly not in the conditions experienced in HMAS MELBOURNE involving the specific duties of that ship and the active operations undertaken by HMAS MELBOURNE. The Tribunal also notes the extreme reaction by Mr Kamp to being posted back to HMAS MELBOURNE in 1967 and his inability to face the prospect of further duties in the boiler room with all the stresses this held for him. Thus, the Tribunal determines that on all the evidence available to it, Mr Kamp has a war-caused depressive disorder.
The Tribunal next turns to consider Mr Kamp's claim for alcohol dependence. The Tribunal finds that on all the evidence, Mr Kamp meets the diagnostic criteria for alcohol dependence as defined in the Statement of Principles, Instrument Number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence.
The general hypothesis put is that Mr Kamp had a psychiatric condition of depressive disorder prior to the onset of alcohol dependence. The relevant factor in the Statement of Principles is factor 1(b), which requires Mr Kamp to have a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence. The Tribunal has already found that in 1960, Mr Kamp had the onset of depressive disorder. Accordingly, factor 1(b) is met and a reasonable hypothesis has been raised that the depressive disorder caused Mr Kamp's alcohol dependence.
The Tribunal next considers the application of subsection 120(1) of the Act. The Tribunal can find no fact to disprove the raised hypothesis that as a result of a depressive disorder, which occurred in 1960, Mr Kamp turned to alcohol to try to assist him in dealing with his feelings of depression. Mr Kamp's evidence was that after being in the boiler room he would have to take a half hour to an hour to calm down and then further, he would try to drink himself into "oblivion" to deal with his feelings of stress. The evidence from service records indicate that the alcohol dependence was apparent after service in HMAS MELBOURNE and this increase in alcohol consumption to the level of dependence arose out of that service. In / out patient records of 27 June 1967, indicate alcohol "over consumption" occurred during his initial service in 1961–1962 in HMAS MELBOURNE (T3, p12). The Tribunal could find no evidence of a confirmed alcohol habit prior to 1960. While Mr Kamp consumed alcohol prior to 1960, namely at the commencement of his service in 1958, it was from his service in HMAS MELBOURNE that the level of consumption increased to the point of dependence. The Tribunal sees these facts pointing to a war-related alcohol dependency. While the Tribunal notes the opinion of Dr Schultz that alcohol dependency, though existing, is not service related, the Tribunal prefers the opinion of Dr Dinnen because this is consistent with all the evidence both oral and documentary. Accordingly, having reviewed the material before it and having put the reasons above, the Tribunal is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act that there is no sufficient ground for determining that Mr Kamp's condition of alcohol dependence was war-caused.
Finally, in relation to the condition of hypertension, the Tribunal finds that based on the opinion of Consultant Cardiologist, Associate Professor D Richards, hypertension was established in about 1967 (Exhibit R3). The hypothesis put to the Tribunal is that Mr Kamp's service related alcohol dependence caused the onset of hypertension. The Tribunal has already found that Mr Kamp suffers from a service related alcohol dependence problem. Turning to the relevant Statement of Principles, Instrument Number 83 of 1995, the relevant factor is factor 1(b), which requires that Mr Kamp suffer from psychoactive substance abuse involving the daily consumption of alcohol before and continuing at least until the accurate determination of hypertension. Having found that Mr Kamp does have a service related alcohol dependence, the Tribunal also finds that this alcohol dependence continued up until 1967 and indeed continued past this time. Hence the Tribunal finds that factor 1(b) in the relevant Statement of Principles for Hypertension is raised by the evidence. Accordingly the Tribunal is of the opinion that the material raises a reasonable hypothesis with the meaning of subsection 120(3) of the Act and turns now to the application of subsection 120(1) of the Act to determine whether it can accept sufficient of the facts as are necessary to support this raised hypothesis.
The Tribunal finds that there are no facts which disprove this reasonable hypothesis. Mr Kamp was abusing alcohol as defined by the Statement of Principles leading to alcohol dependence following his service in HMAS MELBOURNE in 1960. This alcohol abuse is recorded in the service documents. Mr Kamp continued his excessive alcohol consumption to the level of dependence following service and up until 1967, when a diagnosis of hypertension was established. Accordingly, the Tribunal finds that it is not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act that there is no sufficient grounds for finding that Mr Kamp's condition of hypertension was war-caused.
In conclusion, the Tribunal finds that Mr Kamp's conditions of depressive disorder, alcohol dependence and hypertension are war-caused. In such circumstances, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review in relation to these conditions is set aside and the Tribunal substitutes its decision that the conditions of depressive disorder, alcohol dependence and hypertension are war-caused. The Tribunal further determines that pension is payable with effect from and including 17 June 1997. In relation to the correct rate of pension to be paid to Mr Kamp, the Tribunal considers that it has insufficient up to date material upon which to assess the impairment level, lifestyle rating and hence General rate of Disability Pension payable to Mr Kamp. In these circumstances, the Tribunal remits the matter for assessment of the rate of pension to the Repatriation Commission.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ............[sgnd]..................................................................
Sharonne Brainenberg, AssociateDate of Hearing 5 December 2000
Date of Decision 12 March 2001Representative for the Applicant Mr R Sherlock, Advocate with the Legal Aid Commission of New South Wales
Representative for the Respondent Mr R Wallis, Solicitor and Advocate with the Department of Veterans' Affairs
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