Kellett and Repatriation Commission
[2002] AATA 752
•2 September 2002
DECISION AND REASONS FOR DECISION [2002] AATA 752
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/633
) No N2000/1465
VETERANS' APPEALS DIVISION )
Re VINCENT ALBERT JOSEPH KELLETT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member Professor T M Sourdin, Member
Date2 September 2002
PlaceSydney
Decision The tribunal affirms the decision under review in application N2001/633. The tribunal varies the decision under review in application N2000/1465 by deciding that the applicant's aortic aneurysm and chondromalacia patellae are war-caused diseases. The applicant qualifies for a Disability Pension in respect of his aortic aneurysm and chondromalacia patellae with effect from the first pension payday on or after 16 August 1999. The matter is remitted to the respondent for it to assess the appropriate rate of pension.
[SGD] M J SASSELLA
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether veteran has war-caused anxiety disorder – whether veteran experienced a severe psychosocial stressor within two years immediately before clinical onset of anxiety disorder – whether veteran has war-caused alcohol dependence or alcohol abuse – whether veteran has war-caused hypertension – whether veteran ingested at least 12 grams of salt supplements a day on average for a continuous period of at least six months immediately before clinical onset of hypertension – whether veteran suffers from aortic aneurysm – whether veteran smoked at least five cigarettes a day for at least three years before clinical onset of aortic aneurysm.
Veterans' Entitlements Act 1986 ss 14(3), 20(1), 120(1), (3), (4), 120A(1), (3)175(3)
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse
Statement of Principles 5/94 concerning psychoactive substance abuse and dependence
Statement of Principles 31/2001 concerning hypertension
Statement of Principles 64/98 concerning hypertension
Statement of Principles 66/98 concerning aortic aneurysm
Statement of Principles 1/2000 concerning anxiety disorder
Benjamin v Repatriation Commission (2001) 34 AAR 270
Budworth v Repatriation Commission (2001) 63 ALD 402
Bull v Repatriation Commission [2001] FCA 1832
Cooke, Repatriation Commission v (1998) 90 FCR 307
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Kattenberg v Repatriation Commission (2002) 34 AAR 562
Robertson and Repatriation Commission, Re (1998) 50 ALD 668
Smith, Repatriation Commission v (1987) 74 ALR 537
Williams, Repatriation Commission v [2001] FCA 1195
REASONS FOR DECISION
2 September 2002 Mr M J Sassella, Senior Member Dr M E C Thorpe, Member Professor T M Sourdin, Member
THE APPLICATIONS BEFORE THE TRIBUNAL
Application N2000/1465 is an application to the Administrative Appeals Tribunal ("the tribunal") by Vincent Albert Joseph Kellett ("the applicant"), date of birth 13 March 1937 (ex TD1/T4), for the review of a decision of the Veterans' Review Board ("the VRB") dated 15 August 2000 (ex TD1/T11) affirming a decision of the Repatriation Commission ("the respondent") dated 24 February 2000 rejecting the applicant's claim for a Disability Pension in respect of hypertension, aortic aneurysm and chondromalacia patellae affecting both knees (ex TD1/T6).
Application N2001/633 is an application by Mr Kellett for the review of a decision of the VRB dated 12 April 2001 (ex TD2/T15) affirming a decision of the Repatriation Commission dated 2 November 2000 (ex TD2/T10) rejecting Mr Kellett's claim for a Disability Pension in respect of asthma and anxiety disorder.
Mr Kellett has no injury or disease accepted currently as caused by eligible service and receives no Disability Pension.
At the outset of the tribunal hearing in this matter the tribunal was advised that the respondent had agreed to recognise chondromalacia patellae as war-caused and to pay Mr Kellett a pension on that basis. The tribunal will inquire no further into that decision. Section 175(3) of the Veterans' Entitlements Act 1986 ("the Act") permits the respondent to change the decision under review before the tribunal has determined the application before it. The decision under review then becomes the original decision as altered by the Repatriation Commission. The applicant has accepted this alteration to the reviewable decision and the tribunal sees no reason to interfere with it.
At the same time the tribunal was advised that the applicant had withdrawn his claim in respect of asthma. The applicant was ably represented in these proceedings by the NSW Legal Aid Commission. The tribunal accepted this advice from the applicant's representative.
The parties' statement of facts and contentions disclosed that the matters requiring focus by the tribunal were:
As a matter of diagnosis, whether Mr Kellett actually suffers from anxiety disorder and alcohol abuse or dependence.
As a matter of causation, whether there is a reasonable hypothesis connecting the various diseases with (i) several claimed war-caused stressful incidents; (ii) war-caused alcohol consumption; (iii) war-caused ingestion of salt or salt supplements; and (iv) war-caused smoking.
HEARING
The tribunal convened a hearing in this matter in Sydney on 9 November 2001. Mr M T Vesper of counsel represented Mr Kellett. Ms S Breuer of the Department of Veterans' Affairs ("DVA") Advocacy Service represented the respondent. The tribunal heard oral evidence from Mr Kellett. The tribunal received into evidence the following documents:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T15) in application N2000/1465.
Exhibit TD2 – Section 37 Statement and associated documents (exhibits T1 – T19) in application N2001/633.
Exhibit A1 – Applicant's statement of facts and contentions, 1 November 2001.
Exhibit A2 – Statement by applicant, 17 August 2001.
Exhibit A3 – Statement by applicant, 8 October 2001.
Exhibit A4 – Report by Dr R J Butler, physician, 29 December 2000.
Exhibit A5 – Report by Dr J Lawson, physician, 17 August 2001.
Exhibit A6 - Report by Dr A E Pusic, psychiatrist, 5 November 2001.
Exhibit A7 – Letter dated 25 September 2000 from Retired Admiral M W Hudson to the Director of the Australian War Memorial.
Exhibit R1 – Respondent's statement of facts and contentions, 8 November 2001.
Exhibit R2 – Report by Dr R Haik, psychiatrist, 19 July 2001.
Exhibit R3 – Report by Dr Haik, 3 September 2001.
Exhibit R4 – Report by Dr Haik, 31 October 2001.
Exhibit R5 – Research report by Retired Commodore P M Mulcare, 29 October 2001.
Exhibit R6 – Report by Associate Professor D Richards, cardiologist, 17 January 2001.
Exhibit R7 – Report by Mr J Tilbrook, Writeway Research Service, 7 November 2001.
Exhibit R8 – Clinical notes of Dr S Labib.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings.
The applicant served in the Royal Australian Navy ("the navy") and rendered operational service on a number of occasions in the Far East Strategic Reserve. The dates were 5 April to 7 May 1957, 7 to 28 June 1957, 17 March to 3 April 1958 and 23 April to 13 May 1958. Total service was from 27 January 1955 to 12 March 1961 (ex TD2/T3).
The applicant lodged valid claims on 16 November 1999 (ex TD1/T4) and 27 March 2000 (ex TD2/T6) (s 14(3), T9).
The date of effect of any decision favourable to the applicant would be 16 August 1999 (N2000/1465) and 27 December 1999 (N2001/633) (s 20(1) of the Act).
The standard of proof in relation to whether any anxiety disorder, alcohol abuse or dependence, hypertension or aortic aneurysm suffered by Mr Kellett are war-caused diseases is the reasonable hypothesis standard (s 120(1), (3), 120A(1), (3) of the Act). The standard in relation to whether Mr Kellett actually suffers from each of these diseases is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The Repatriation Medical Authority has published binding Statements of Principles ("SoPs") concerning anxiety disorder, alcohol dependence or alcohol abuse, hypertension and aortic aneurysm. If the hypothesis fails in relation to the SoPs currently in force, then the SoP in force at the time of the primary decision (24 February 2000 for alcohol dependence or alcohol abuse and hypertension, and 2 November 2000 for anxiety disorder) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
hypotheses
Several hypotheses are raised in the applicant's case:
(a)The applicant's anxiety disorder was caused by an operational service-related stressor.
(b)The applicant's alcohol abuse was caused by either or both of an operational service-related stressor and pre-existing anxiety disorder.
(c)The applicant's hypertension was caused by either or both of operational service-related alcohol abuse and salt ingestion.
(d)The applicant's aortic aneurysm was caused by either or both of operational service-related hypertension and smoking.
These will be considered in turn.
anxiety disorder
The respondent submitted that Mr Kellett does not suffer from anxiety disorder. Diagnosis is a matter for proof to the tribunal's reasonable satisfaction (Repatriation Commission v Cooke (1998) 90 FCR 307, Benjamin v Repatriation Commission (2001) 34 AAR 270, Budworth v Repatriation Commission (2001) 63 ALD 402). Dr R Haik, a psychiatrist, reported on 19 July 2001 (ex R2) that he could find no evidence of Mr Kellett having an anxiety disorder. He recorded that Mr Kellett described always being anxious, nervous or apprehensive but there was no evidence that Mr Kellett had been actually impaired by such anxiety during his navy service or after discharge. Measures of Mr Kellett's occupational, social or other important areas of functioning did not provide an objective reflection of any such disability. Dr Haik said that the applicant may tend to be anxious as a personality trait but there was no evidence of an anxiety disorder. Dr Haik said that it would be reasonable to expect that, were he to have suffered from such anxiety some time in the last 40 years, during and since his navy service, he would have sought or received some form of treatment for this. However, it was not until about 1999, at about the time he was made redundant, that he first received Cipramil, an antianxiety/antidepressant agent. Dr Haik concluded that Mr Kellett had no Axis 1 or Axis 2 disorders.
In his claim form Mr Kellett said that he first became aware of an anxiety state in 1990 (ex TD2/T6/64). He seemed to associate taking Prinivil tablets for 10 years with the condition. However, Prinivil is prescribed for hypertension, heart failure, and acute myocardial infarction. In cross-examination he could not say why he had dated the onset as in 1990 but he recalled that 1990 was bad year. His niece had died. He was divorced. He had moved house.
Dr A E Pusic, a psychiatrist, saw Mr Kellett on 20 June 2000 and reported on 17 August 2000 (ex TD2/T9) that Mr Kellett described to him symptoms of free floating generalised anxiety. He had described experiencing increased muscle tension, a sense of inner tension and a sense of apprehension. He said that he was uneasy whenever he was faced with difficult situations. He said that he would experience acute exacerbation of anxiety whenever he felt that he was not in control of the situation or where he felt that he was doing something wrong. He told Dr Pusic that this increased anxiety and tension would often manifest itself in irritability and low frustration tolerance, frequently leading to verbal aggressive behaviour. Mr Kellett had further said that when acutely anxious his head would spin, he would have difficulty concentrating and become argumentative. Mr Kellett had experienced acute panic attacks with hyperventilation, palpitations and a feeling of overwhelming dread. He told Dr Pusic that he had a tendency to brood and had trouble sleeping. He described short-lived episodes of dysphoria which could last from the day to a week during stress periods. He told Dr Pusic that over the last two years he had been maintained on an antidepressant, Cipramil, prescribed by his general practitioner. Dr Pusic concluded that Mr Kellett was suffering from generalised anxiety disorder which dated back to his service in the navy.
In a later report on 5 November 2001 (ex A6) Dr Pusic said that the applicant met the diagnosis for generalised anxiety disorder in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995), known as DSM-IV. The DSM-IV criteria are replicated in clause 8 of the SoP concerning anxiety disorder and are:
"generalised anxiety disorder" means 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 six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six 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 I 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 a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;Mr Vesper called Mr Kellett's attention to a comment in the navy medical records (ex TD2/T3/34) where he was described in June 1960 as a "rather worried-looking man". The tribunal has been unable to find any other contemporaneous reference to any apparent anxiety affecting the applicant while he was in the navy. This reference related to a two-week period the applicant spent as an in-patient in a hospital suffering fairly significant asthma. Viewed in context the observation appears to relate to how his asthma symptoms may have been affecting Mr Kellett.
The applicant told the tribunal that he was always worried, stressed and irritable in the 1960s. He would sweat and could not keep his hands still. After he left the navy, said Mr Kellett, he could not settle. He had six jobs in one year. In the 1970s he worked for 3M and his performance appraisals were said to have mentioned his nervous disposition. He could not relax and still cannot relax today. In other evidence Mr Kellett said that his alcohol consumption did not affect his work and there was no absenteeism. In cross-examination Mr Kellett told the tribunal that he had a steady job by 1962 through help from a friend who knew he needed help. He changed jobs in 1965 to join 3M when the company changed hands. He kept the new job until 1999 when he was made redundant (ex TD2/T9/95). For 3M he was an engineering project officer. He worked on part-time as a recruitment officer.
In cross-examination Mr Kellett disagreed that he had told Dr Haik that he had "always" been anxious. He said that what he had told Dr Haik related to the present not to his childhood. He agreed in cross-examination that three of his siblings had died and that made him feel terrible – he was still coming to terms with it.
Ms Breuer submitted that Mr Kellett's condition did not satisfy the definition of generalised anxiety disorder in the SoP, notably paragraph E, "[t]he anxiety, worry, or physical symptoms [must] cause clinically significant distress or impairment in social, occupational, or other important areas of functioning". She suggested that his length of employment with 3M (34 years) militated against satisfaction of that criterion.
The tribunal finds itself reasonably satisfied that Mr Kellett suffers at present from generalised anxiety disorder. Dr Pusic's first report looked at the required indicia for generalised anxiety disorder, which Dr Haik failed to do in his report. Ms Breuer's point about paragraph E of the definition of generalised anxiety disorder was cogent as far as it went, however there was a history of family relationship problems, notably a divorce, that might suggest impairment in social functioning.
We must now consider whether there is a reasonable hypothesis linking Mr Kellett's operational service with his anxiety disorder. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. Such a hypothesis is in paragraph 9(a) above.
The second step is to ascertain whether there is a relevant SoP in force. The tribunal has found this to be SoP 1/2000.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. The factor cited for the applicant was factor 5(a)(ii), "experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder".
Re Robertson and Repatriation Commission (1998) 50 ALD 668 stands for the proposition that clinical onset occurs 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 at that time. Thus a clinical onset can be said to have occurred retrospectively even if a condition was not originally diagnosed.
The stressors identified by Mr Kellett (ex A2) were the death of a navy colleague, Robert Spooner when a star shell exploded above him on the HMAS Tobruk in April 1957, the navy's delay in releasing Mr Kellett to see his sister before she died in 1957 and a confrontation in a Singapore street with a group of Malays who assaulted the navy group and injured one. Mr Kellett located the Singapore incident in 1957 in oral evidence. For these stressors to be relevant to Mr Kellett's generalised anxiety disorder the anxiety disorder must have had its onset by 1959. Mr Kellett presented this as the case. Dr Pusic accepted it to be so.
For the stressors, or any one of them, to accord with the SoP requirements the definition of "severe psychosocial stressor" in clause 8 must be reflected in the hypothesis.
"severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
Mr Kellett explained the stressor involving Able Seaman Robert Spooner during the hearing. He had met Mr Spooner in Singapore over a period of days in April 1957. It was possible that they had met earlier in Sydney but Mr Kellett was not certain of this. The event which resulted in the death of Mr Spooner occurred on 26 April 1957. Mr Kellett heard of the event but did not immediately know the identity of the deceased. He discovered that information next day when Mr Spooner was buried at sea. Mr Kellett said that the burial at sea affected him greatly. Mr Kellett felt depressed and sat on the deck merely looking out to sea, especially at night. Mr Kellett described Mr Spooner as "a great bloke". He had difficulty sleeping after this event, although he said it was difficult to sleep on the HMAS Melbourne at any time. He said he was concerned and upset at what happened to Mr Spooner. Mr Kellett was not motivated to work. He found concentration difficult and became argumentative. He described himself as a nervous wreck. In cross-examination Mr Kellett agreed that he and Mr Spooner had never served together. He believed that they first met sometime between 18 and 23 April 1957. They were involved in exercises in which each was on a different ship. Mr Kellett knew Mr Spooner for only five days, although they could have met earlier, as was mentioned above. Mr Kellett said that in the navy a shipmate friendship becomes a friendship for life. When the tribunal asked in what sense Mr Spooner was a great bloke, Mr Kellett replied that he was a very happy fellow who told good jokes and made you feel good. Mr Kellett was not the only person impressed by Mr Spooner. Mr Kellett agreed that he and Mr Spooner were not intimate friends.
Mr Kellett's sister died in October 1957 at the age of 16. She contracted hepatitis and it took sometime before Mr Kellett became aware that she was ill. He was on a ship between Adelaide and Fremantle at the time. He was not permitted to return home to Tamworth because she was not his next of kin. After he was eventually released he arrived home five minutes before her funeral. Mr Kellett told the tribunal that he felt depressed, upset and irritated because he had been unable to see his sister before she died. At that moment he would have preferred to leave the navy. The HMAS Melbourne, on which he was serving, then returned to the Far East. The image of his sister's funeral returns to his mind often. At the time he was not keen to return to the HMAS Melbourne but his family encouraged him to return.
During the hearing Mr Kellett described the incident that occurred with the Malays. He thought this occurred in 1957 after Mr Spooner's death. The Malayan group said that they hated Australians. Mr Kellett was one of a group of five. One of the group was gashed in the head and suffered bruising after one of the Malayan men hit him with a rattan.
The tribunal notes that the incident involving Mr Kellett's sister's death was said by Mr Kellett to have occurred when Mr Kellett was not engaged in operational service. It is therefore not a relevant incident, even if stressful, for the purposes of explaining this hypothesis. The tribunal does not see how the material explaining the death of Mr Spooner meets the description of a severe psychosocial stressor. Mr Kellett told the tribunal that he was not present to witness Mr Spooner's death, indeed it was witnessing the burial that was said to have the greatest impact on him. As presented, this incident was not akin to being shot at or an occurrence involving the death or serious injury of a close friend or relative.
The incident in Singapore with the Malays, as presented, would appear to amount to a severe psychosocial stressor. There was an identifiable occurrence. The incident involved an assault and Mr Kellett said that he thought they were going to kill him and his colleagues. This was said to have occurred while Mr Kellett was serving in the Far East Strategic Reserve. It would appear, as presented, to have been related to Mr Kellett's operational service, as required in clause 4 of the SoP.
It appears, therefore, that this hypothesis conforms to the template in the SoP as required for anxiety disorder. However, the Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis (Bull v Repatriation Commission [2001] FCA 1832).
The tribunal considers that the hypothesis linking Mr Kellett's operational service with any anxiety disorder he may now have is too tenuous. The tribunal was influenced by Mr Kellett's self-assessment in his pension claim whereby he dated the onset of his anxiety as in 1990. This was a description of his health situation expressed with forethought and divorced from the pressures engendered by an adverse decision from the respondent or the VRB. The tribunal also considered Dr Haik's comments about the inferences to be drawn from the length of time Mr Kellett took to seek treatment for this condition. It is true that Dr Pusic considered it reasonable to date the onset of Mr Kellett's generalised anxiety disorder during his time in the navy. That opinion, however, does not single out Mr Kellett's operational navy service. Dr Pusic was also apparently ignorant of Mr Kellett's own dating of the condition as having commenced in 1990. If the anxiety disorder did not commence by 1959, the stressors identified by Mr Kellett are not sufficient to meet the SoP requirements.
The tribunal, having found that the hypothesis, as presented and explained, was not a reasonable hypothesis. It is not, therefore, necessary to consider step 4 of Deledio (above). The tribunal would have had to decide whether it was satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury.
The tribunal has, in accordance with the Federal Court decision in Benjamin (above) considered whether Mr Kellett may suffer from a war-caused condition other than an anxiety disorder but which may answer Mr Kellett's claim. It has decided that there is no alternative disease or condition that may be applicable here. The other psychiatric conditions in the relevant SoPs require that Mr Kellett's symptoms are not better explained by a more cogent Axis I disorder or are not a manifestation of substance use.
alcohol dependendence or alcohol abuseThe hypothesis that Mr Kellett's alcohol dependence or alcohol abuse resulted from a war-caused anxiety disorder cannot now be maintained because of the tribunal's finding that Mr Kellett's anxiety disorder was not war-caused. The hypothesis that Mr Kellett's alcohol dependence or alcohol abuse was linked to an operational service-related stressor may be a reasonable hypothesis. The relevant SoP is 76/98. That SoP requires that there must be alcohol dependence or alcohol abuse as defined in clause 2. This is a matter for proof to the level of reasonable satisfaction (s 120(4) of the Act). However, it will be unnecessary to traverse issues of diagnosis if factor 5(b) of the SoP is not reflected in the hypothesis.
Factor 5(b) requires that a veteran must have experienced "a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" "Experiencing a severe stressor" means, according to clause 8 of the SoP:
"experiencing a severe stressor" means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;It is possible that the confrontation with the Malay group in Singapore qualifies as experiencing a severe stressor. If it does then the necessary relationship with operational service (clause 4) can be taken as read. Mr Kellett would not have been there at the time but for his operational service. It is necessary to ascertain whether Mr Kellett suffers from alcohol dependence or alcohol abuse and, if so, when it had its clinical onset.
Dr Haik (ex R2) was of the opinion that Mr Kellett does not suffer from alcohol attendance or alcohol abuse. He consulted the SoP and said that, using the diagnostic criteria provided, there was an absence of the need in Mr Kellett for a markedly increased amount of alcohol or alcohol having a diminished effect. Additionally, Mr Kellett had not undergone an alcohol withdrawal syndrome. He had not had persistent desire, or unsuccessful attempts, to cut down on alcohol use. He had not spent a great deal of time in activities necessary to obtain alcohol. Important social, occupational recreational activities had not been reduced as a result of alcohol. The conflict within, and the eventual failure of, his first marriage appeared to be very much related to Mr Kellett's sense of sexual deprivation and later an absence of communication. Dr Haik said that these marital conflicts may have contributed significantly to Mr Kellett's use of alcohol, particularly the binge drinking at the time of substantial marital conflict. Dr Haik said that, despite Mr Kellett's claim of an excess volume of alcohol use for more than 40 years, there was no objective evidence that there had been cognitive, behavioural or physiological symptoms. He had not received treatment for his alcohol use. He had not had absenteeism or other employment difficulties. He had not come to the attention of the authorities. He had not been arrested for PCA or DUI (commonly a sign of problem drinking). He had not come into conflict with others as a result of his alcohol use other than with his first wife.
Dr Pusic (ex TD2/T9) said that Mr Kellett displayed a pattern of alcohol abuse with episodic binge drinking but he did not address the criteria in the SoP as Dr Haik had done. He appeared to reason only from the quantity consumed. In ex A6 Dr Pusic said he would diagnose the applicant as having suffered from alcohol abuse in remission when he saw him on 20 June 2000.
Mr Kellett refuted some of Dr Haik's material in ex A3. He considered that Dr Haik had ignored the quantity of alcohol consumed and had ignored the fact that Mr Kellett had had continued consultations with his doctor in an attempt to reduce his level of alcohol intake. This might satisfy the criterion for alcohol dependence in the SoP relating to "a persistent desire or unsuccessful efforts to cut down and control alcohol use", however the SoP requires satisfaction of at least three of seven matters listed and such satisfaction is not present.
The tribunal finds itself reasonably satisfied that Mr Kellett does not suffer from alcohol dependence or alcohol abuse. His claim in respect of alcohol dependence or alcohol abuse will therefore fail. The tribunal notes that there was a different definition applicable in the SoP in force as at the date of the primary decision. This was SoP 5/94 concerning psychoactive substance abuse and dependence in clause 4. This was:
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);The tribunal considers that this definition is no more favourable to the applicant than that in the current SoP. Essentially it requires similar criteria as the current definitions do.
hypertensionThe hypothesis that Mr Kellett's hypertension was caused by his operational service-related alcohol dependence or alcohol abuse cannot now be a reasonable hypothesis because the tribunal has found that Mr Kellett does not suffer from alcohol dependence or alcohol abuse.
There is, however, the hypothesis that Mr Kellett consumed salt or salt supplements as a result of operational service and this caused his hypertension. In ex A1 the hypothesis was that Mr Kellett consumed 15 salt tablets a day in operational service and also salted his food. He said in ex A2 that he worked in extremely hot conditions on the HMAS Melbourne and he was compelled to take salt tablets daily.
The SoP on hypertension, 31/2001, requires in factor 5(c) that a veteran's service involved "ingesting at least 12 grams … of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension".
The time of clinical onset is obviously crucial. Dr Butler (ex A4) noted that hypertension was diagnosed in 1988. The applicant echoed this in his claim form (ex TD1/T4/14). There was no suggestion in the hearing that Mr Kellett's hypertension had its onset when he was in the navy or soon after he was discharged. There was likewise no such suggestion in the applicant's statement of facts and contentions (ex A1) or in any other documentary material before the tribunal. The navy medical records include only two blood pressure readings unearthed by the tribunal. At the time he was recruited in early 1955 he had a blood pressure reading of 130/90 (ex TD2/T3/22), which would just satisfy the requirement in the definition of hypertension in clause 2(b)(i) of the SoP. At discharge the blood pressure reading was 120/80 (ex TD1/T3/9). However, one reading is insufficient. The definition requires a "usual reading" of the relevant degree. It seems inescapable then that the date of clinical onset on the applicant's material before the tribunal was 1988. However, the applicant has hypothesised a connection with salt consumption during operational service in 1958 at the latest. The hypothesis does not suggest that the excess salt supplement ingestion occurred within the six months immediately before the clinical onset of hypertension as is required in the SoP.
As the hypothesis is inconsistent with the relevant SoP the tribunal finds, in accordance with s 120A(3) of the Act, that the hypothesis connecting Mr Kellett's operational service with his hypertension is not a reasonable hypothesis.
The tribunal has consulted the SoP on hypertension in force on the date of the primary decision, SoP 64/98. The only material difference for present purposes was that that SoP used a concept of "accurate determination of hypertension" instead of clinical onset of hypertension. At base the accurate determination of hypertension required the measurement of blood pressure on a number of occasions producing readings of 140/90 or higher. Application of this definition in the present case would still result in Mr Kellett's hypertension having been "accurately determined" only in 1988. The result would be the same.
aortic aneurysmThe hypothesis linking Mr Kellett's aortic aneurysm with an operational service-related disease of hypertension can no longer be sustained as the tribunal has found Mr Kellett's hypertension not to have been related to his operational service. However, there was an alternative hypothesis that the aortic aneurysm was related to Mr Kellett's smoking habit to which his operational service contributed.
The SoP in question is SoP 68/98 and factor 5(a) requires that the veteran has smoked at least five cigarettes a day for at least three years before the clinical onset of aortic aneurysm. It is accepted by the respondent that Mr Kellett suffers from this condition as defined in the SoP (clause 2(b)). The applicant dated its onset as November 1996 (ex TD1/T4). Professor M Appleberg, a vascular surgeon, confirmed the diagnosis on 23 January 1997 (ex TD1/T4/32). An ultrasound report dated 23 October 1997 (ex TD1/T4/33) confirmed it again but referred to an earlier result dated 27 November 1996 where the aneurysm was also detected. The hypothesis is that the applicant smoked at least five cigarettes a day for three years before November 1996.
Mr Kellett's evidence at the hearing was that he began smoking only after he joined the navy and when he joined the HMAS Albatross in October 1955 (ex A2). At that time he smoked only two or three (perhaps five) cigarettes a week. When he joined the HMAS Melbourne in October 1956 he began smoking more heavily. As a best guess he thought that in Singapore he smoked 25 to 30 cigarettes a day. This continued until he ceased in 1984. This would more than satisfy the requirement that the hypothesis must be consistent with the relevant factor in the SoP.
The relationship between operational service and the applicant's smoking as required by clause 4 of the SoP was said by the applicant to be that he began to smoke because service in Malaya was very stressful (ex A2) and the navy encouraged smoking by issuing cans of 50 unfiltered cigarettes. There was peer pressure also. Smoking relieved the applicant's tension and boredom during operational service. He estimated in ex A2 that he smoked 25 cigarettes a day because a can lasted two days.
This would appear adequate to satisfy clause 4 of the SoP. Step 3 of the Deledio (above) principles appears satisfied by this material relating to the hypothesis. However, there was other material before the tribunal that might suffice to suggest that the hypothesis was fanciful, impossible, incredible, too remote or too tenuous as in Bull (above). Ms Breuer referred to Professor Appleberg's report (ex TD1/T5/32) in which he recorded on 23 January 1997 that Mr Kellett gave up smoking 13 years before when his smoking was "mild at 10 a day". Mr Kellett could not recall having said that but he thought he may have reduced to 10 cigarettes a day just prior to giving up in 1984. There were some other discrepancies:
Dr Butler (ex A4) recorded a higher rate of smoking prior to when Mr Kellett joined the HMAS Melbourne. The rate was about six to 10 cigarettes a day.
Dr Richards (ex R6) recorded that the applicant was smoking 25-30 cigarettes a day when he first joined the HMAS Melbourne, prior to operational service.
In his smoking questionnaire for the respondent (ex TD1/T4A) Mr Kellett had said he smoked 30 to 40 cigarettes after a lower rate period early in service. Mr Kellett said that this was wrong. He had found it difficult to reconstruct the past.
On 6 June 1960 when Mr Kellett was an in-patient with an asthma condition he was recorded as smoking 10 to 20 cigarettes a day (ex TD2/T3/34). Mr Kellett doubted he had ever said that. He did not think he smoked 10 to 20 cigarettes a day in 1960.
Mr Kellett thought his evidence before the tribunal was more accurate than that recorded by the doctors.
Commodore Mulcare in ex R5 researched the availability of cigarettes on the HMAS Melbourne at the relevant time. He ascertained that they could be bought duty free from the ship's canteen and were significantly cheaper than those purchased ashore in Australia. However, cigarettes were not "given" to navy personnel.
From this material the following seems fairly clear. While Mr Kellett may be mistaken in his recall that he smoked 25 to 30 cigarettes a day from soon after October 1956 to 1984, such contemporaneous documents as exist suggest a rate of at least 10 a day. Second, the tribunal found that Mr Kellett experienced at least one stressful experience while engaged in operational service, although it did not suffice to establish a connected anxiety disorder. It is not that difficult to accept that this would have prompted some increase in his cigarette consumption during operational service. From the Federal Court's decision in Kattenberg v Repatriation Commission (2002) 34 AAR 562 it is clearly unnecessary that the whole of the five cigarettes daily average has to be attributed to operational service. It will suffice if operational service contributed to the cigarette consumption. The tribunal considers that, while Ms Breuer did well to cast some doubt on the validity of the hypothesis in as much as it was based on Mr Kellett's smoking history and its association with operational service, this did not suffice to render the hypothesis fanciful, impossible, incredible, too remote or too tenuous.
For similar reasons the tribunal finds itself not satisfied beyond reasonable doubt that the applicant's aortic aneurysm was not war caused (s 120(1) of the Act).
CONCLUSIONThe tribunal has found itself in agreement with the Repatriation Commission as regards the applicant's anxiety disorder, alcohol dependence or alcohol abuse and hypertension. These are not war-caused diseases and do not attract entitlement to a Disability Pension. The tribunal, however, disagrees with the Repatriation Commission in relation to Mr Kellett's aortic aneurysm which it has found to be a war-caused disease. The Repatriation Commission has already agreed to recognise chondromalacia patellae as a war-caused disease.
The applicant will therefore qualify for a Disability Pension at a rate to be assessed by the respondent and with effect from the first pension payday on or after 16 August 1999.
DECISIONThe tribunal affirms the decision under review in application N2001/633.
The tribunal varies the decision under review in application N2000/1465 by deciding that the applicant's aortic aneurysm and chondromalacia patellae are war-caused diseases.
The applicant qualifies for a Disability Pension in respect of his aortic aneurysm and chondromalacia patellae with effect from the first pension payday on or after 16 August 1999.
The matter is remitted to the respondent for it to assess the appropriate rate of pension.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member. Dr M E C Thorpe, Member and Professor T M Sourdin, Member
Signed: .....................................................................................
AssociateDate of Hearing 9 November 2001
Date of Decision 2 September 2002
Counsel for the Applicant Mr M T Vesper
Solicitor for the Applicant NSW Legal Aid Commission
Counsel for the Respondent Ms S Breuer, DVA Advocacy Service
Solicitor for the Respondent Mr J Marsh, DVA
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