Lamb and Repatriation Commission
[2005] AATA 40
•18 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 40
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/140
VETERANS' APPEALS DIVISION )
Re WAYNE PHILLIP LAMB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date18 January 2005
PlaceBrisbane
Decision The Tribunal decides:
(a) that the veteran’s conditions of generalised anxiety disorder, dysthymia and alcohol abuse are not war-caused; and
(b) that the decision under review is affirmed.
............[Sgd].............
K S Levy
Member
CATCHWORDS
VETERANS’ APPEALS – pensions and benefits – whether diagnoses of generalised anxiety disorder, dysthymia and alcohol abuse war-caused – whether SoPs met – decision affirmed
Veterans’ Entitlements Act 1986 ss 5D, 6C, 7, 9, 13, 120, 120A, 196B
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
White v Repatriation Commission [2004] FCA 663
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
Shelton v Repatriation Commission [1999] FCA 181; (1999) 58 ALD 256
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Mines v Repatriation Commission [2004] FCA 1331
Benjamin v Repatriation Commission (2001) 70 ALD 622
Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750Lees v Repatriation Commission (2002) 125 FCR 331
Re Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Law (1980) 31 ALR 140
Delahunty v Repatriation Commission [2004] FCA 309
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Budworth [2001] FCA 1421REASONS FOR DECISION
18 January 2005 Dr K S Levy, Member Introduction
1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of a decision of the Veterans’ Review Board dated 10 November 2003.
2. In that decision, the applicant, Wayne Phillip Lamb, sought a review of the decision of the Repatriation Commission dated 25 July 2002 insofar as it denied a claim for treatment and pension for anxiety disorder, social phobia, depressive disorder and alcohol dependence or alcohol abuse, as being attributable to operational service under the Veterans’ Entitlements Act 1986 (“the Act”).
3. The applicant has recognised disabilities from his defence service for osteoarthrosis of the right elbow and bilateral sensori-neural hearing loss. This entitles the applicant to a disability pension of 40% of the General Rate with effect from 26 January 2002.
4. The current application is based on two incidents which occurred while he was on operational service with the Royal Australian Navy in Vietnam on HMAS Brisbane. Both of these incidents are claimed to be sufficiently traumatic to satisfy the factors specified in the relevant Statements of Principles, where they have been issued. If these claims are accepted, then the rate of pension applicable to the veteran would then need to be adjusted appropriately.
5. The applicant was represented by Mr N Jarro of Counsel, instructed by Sciacca’s Lawyers. The respondent was represented by its advocate, Mr J Stoner.
6. The following documents were admitted into evidence:
Exhibit 1 “T” Documents prepared under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Statement by the applicant (undated)
Exhibit 3Statement by the applicant concerning consultation with Dr Flannagan (undated)
Issues for Determination
7. The issue for determination is whether the applicant’s conditions of generalised anxiety disorder, secondary generalised social phobia, co-morbid dysthymia and alcohol dependence can be related to operational service and therefore, war-caused within the meaning of section 9 of the Act. In the course of the evidence by Dr Flannagan, he conceded that his diagnosis of social phobia was essentially a subsidiary diagnosis under generalised anxiety disorder and both the applicant and the respondent accepted that the diagnoses in contention were generalised anxiety disorder with co-morbid conditions of dysthymia and alcohol dependence. It is the latter diagnoses which are now the subject of determination as to whether they are war-caused.
Background
8. The applicant served in the Royal Australian Navy (RAN) from 2 June 1963 to 1 June 1972. The applicant was 17 years of age when he enlisted and was 26 at the time of discharge. He is currently 58 years of age. During his service he served on HMAS Anzac (1964-1965), HMAS Brisbane (1968-1969) and HMAS Melbourne (1971-1972). Whilst serving with the RAN, he had one period only of operational service and that was on HMAS Brisbane between 3 March 1969 and 13 October 1969. This was when HMAS Brisbane patrolled the shores of Vietnam and provided fire support.
9. On enlistment in the RAN, the applicant was trained as a radio operator. During the period he served on HMAS Brisbane, he was part of the inaugural crew which sailed that vessel from the United States when it was commissioned. He was also on board during its tour of duty to South Vietnam for approximately seven months in 1969. There was no dispute about the period of operational service.
10. In relation to the two incidents which are the basis of the present claim, the applicant was 23 years of age (approximately) at the time of both incidents. He was therefore a trained sailor with some six years service. The two incidents which are central to this claim are as follows:-
§ Incident 1
11. This involved a shore visit for approximately four days which was initiated by the applicant’s brother-in-law who was then serving in the Australian Army at the 1st Australian Logistics Task Force (1ALTF) in Vung Tau. In evidence, he stated that this was shore leave and he did not seem to be very knowledgeable about the basis of this leave other than his brother-in-law had requested his commanding officer to allow the applicant to visit him at his unit at the headquarters of the Australian Logistics Task Force.
12. The applicant said he thought his brother-in-law was an engineer and arranged for him to be billeted in Vung Tau during his brief stay with the Army. He recalled that it was well guarded and while he was there for only one or two days, he was taken around Vung Tau in a jeep. His brother-in-law then had to go to Saigon but the commanding officer would not allow the applicant to accompany him. The applicant then spent time with a naval unit of clearance divers for a couple of days until HMAS Brisbane returned so that he could be taken back to his ship. He conceded that there were no incidents which occurred at either the 1st Australian Logistics Task Force or with the clearance divers which could be regarded as startling or traumatic. His claim was based on being stressed and unsettled merely by being in a land-based unit. He stated he was sea-trained and found that being in a land-based unit made him anxious and felt quite vulnerable.
§ Incident 2
13. This occurred on HMAS Brisbane when there was a misfire on one of the guns (Mount 51). In that incident, the misfire caused the barrel to be disengaged from the gun turret. As a result, a sailor was injured. In evidence presented, the applicant stated that a piece of shrapnel hit an area close to where he was standing on the flag deck which gave rise to a feeling of vulnerability. While another sailor near the gun turret received a fractured wrist, the applicant states that at the time of the incident he was off duty and standing on the flag deck. He admits that he did turn away when the gun went off. However, his concern was that there could have been an explosion down into the magazine which could have caused more serious consequences.
14. Since leaving the Navy at age 26, the applicant worked for a number of commercial organisations and then joined the Commonwealth Police Force in Canberra. His duties there involved guarding embassies which he found “very boring”. He then came to Queensland in 1980 where he joined the Queensland Police Force at 34 years of age. He has remained in that employment since that time although he believes his disabilities (which are said to have been caused by his operational service in the RAN), have precluded him from being promoted beyond the rank of Senior Constable.
Legislative Framework
15. The relevant legislative provisions of the Act which must be considered to determine the applicant’s claim for disability pension are outlined below. The primary provision governing success for the applicant’s claim is contained in section 13 of the Act which provides that the applicant must establish that his injury of disease is “war-caused” (see section 13(2)(b) of the Act). If the injury is deemed to be “war-caused”, then the Commonwealth bears the liability for payment of pension to the veteran (see section 13(1)(d) of the Act).
16. Whether a disease is “war-caused” is defined in section 9. Relevantly, it provides as follows:
“9 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;
…..
(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.”
17. The term “operational service” in section 9(1)(a) is defined in section 6C. As mentioned above, there is no dispute that the applicant had war service. This has been certified independently by the Department of Defence dated 1 July 2002.
18. In assessing the legal merits of the applicant’s claim that his injury or disease is war-caused, this is governed by section 120(1) and 120(3) of the Act. These sections prescribe the standard of proof. The relevant provisions of section 120 are:-
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…..
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
19. Applications such as this which are lodged after 1 June 1994, require an assessment under section 120A so far as that section is relevant. The assessment is one of the reasonableness of an hypothesis against a Statement of Principles (“SoP”), where the Repatriation Medical Authority (“RMA”) has authorised a SoP in relation to a particular type of injury of disease. That section provides as follows:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that 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.”
20. Given the diagnosis above, that is, the diagnosis of generalised anxiety disorder, dysthymia and alcohol dependence, it is clear that there are SoPs issued by the RMA under section 196B(2) of (11) of the Act in respect of each of those conditions. These are:-
o Instrument No. 1 of 2000 – Generalised Anxiety Disorder
o Instrument No. 58 of 1998 – Depressive Disorder
o Instrument No. 76 of 1998 – Alcohol Dependence or Alcohol Abuse
21. In applying the above provisions and standards set down in the SoPs, the standard of proof required for claims pertaining to operational service is that of a reasonable hypothesis (section 120(3)) and consequent upon that test, the applicant is entitled to succeed unless the Tribunal is satisfied beyond reasonable doubt to the contrary (section 120(1)). The test to be applied to satisfy these sections were set down by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The claim will succeed unless:
(a)one of more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.”
Evidence
22. Oral evidence was admitted from the applicant (in person), Commodore P Mulcare (by telephone) and psychiatrist, Dr John Flannagan (by telephone).
23. I have carefully considered all of the documentary exhibits and oral evidence in determining this matter.
§ Evidence of Mr Lamb
24. The applicant described the two incidents which are the basis of his claim. He outlined the detail consistent with his previous evidence to the Veterans’ Review Board and to Dr Flannagan. In relation to the first incident he did not dispute that it was a logistics base and that despite 1ALTF obviously being set up to ensure that it could be secure at all times, he acknowledged it was a logistics unit and that there was no incident which caused any degree of anxiety to him while he was there. On leaving 1ALTF, he also spent a couple of days with a Naval diver clearance unit while he waited for HMAS Brisbane to return. He exercised with the divers although the evidence indicates that he has claimed never to have been a strong swimmer. Nevertheless, there was no indication of any traumatic event which occurred while he was there.
25. In relation to the second incident, the basis of the claim is the anxiety caused to the applicant in that he claims to have been stressed by thoughts of what could have happened had the explosion inside the barrel gone into the turret and the magazine below it. The veteran states that he was off duty at the time and on the flight deck, had turned his back when the gun fired, as he was accustomed to do, and that a piece of shrapnel hit the guard rail of the ship near where he was standing. He then left the flight deck.
26. The applicant gave evidence that he started drinking at the age of 18 and that he drank heavily on operational service but only when he was on leave. He implied that after his Vietnam service, he would visit the canteen when it opened after work and then drank until it closed. He was at this stage 23 or 24 years of age.
27. The applicant stated he currently drinks up to ¾ of a bottle of bourbon each day. Since he has been on medication for the past couple of years he indicated he has now cut down on his alcohol intake. He said that on some days he does not drink but he drinks on more days than not. When asked how much he had drunk the day before the hearing, he stated about 4 stubbies of beer. When asked how much he had drunk the day before that again, he said about ¾ of a bottle of bourbon.
28. On cross-examination by Mr Stoner, the applicant agreed that he drinks sometimes and more often when he is depressed.
29. The applicant indicated that he had been withdrawn and perhaps depressed for some years but it was not until August 2002 when he thought of “doing away with myself”, that he sought psychiatric advice. His present position is that he mainly drinks in the afternoon “to feel relaxed”. He played golf until about six weeks prior to the date of the hearing.
§ Evidence of Commodore Mulcare
30. Commodore Mulcare described the incident of the gun explosion, which is Incident 2 as claimed by the veteran in this case. Commodore Mulcare referred to a report which he prepared for another case which had inadvertently fallen into Mr Lamb’s hands. However, the facts shown in that report regarding the premature explosion in Mount 51 were, nevertheless, relevant in this case. That report shows that the premature explosion in the barrel of the gun in Mount 51 made the gun unserviceable. Mount 52 operated in its place so that the ship could continue its firing operations providing fire support. There was only one casualty, a leading seaman who “suffered an injury to his forearm when he was hit by some debris from the gun”. That report also highlights that HMAS Brisbane was firing frequently when on the gun line and the ship’s company seems to have been at defence stations fairly regularly. Interestingly, the veteran has not claimed that the ongoing firing and general operations of the ship were a source of stress for him.
31. In any event, Commodore Mulcare referred the Tribunal to Folio 75 of the “T” Documents which shows Mount 51 being taken off the ship. He stated in evidence that the explosion was sufficient to crack some windows on the ship and, as previously stated, one sailor was injured. In the opinion of Commodore Mulcare, the incident was over very quickly.
§ Evidence of Dr Flannagan
32. Dr John Edward Flannagan, psychiatrist of Rockhampton, provided evidence in support of the applicant’s case. He stated that he had initially diagnosed Mr Lamb as having generalised anxiety disorder and a secondary generalised social phobia. In this regard, he said perhaps a diagnosis of mixed anxiety may have been more appropriate. However, he conceded that his diagnosis of generalised social phobia is probably subordinate to the diagnosis of generalised anxiety disorder and that the former was not, strictly speaking, a separate diagnosis or a separate condition. He indicated Mr Lamb also had significant depression and consequently gave a diagnosis of co-morbid dysthymia. He also had alcohol dependence.
33. Dr Flannagan said his diagnosis was based on interviewing Mr Lamb once face-to-face and having one telephone conversation with him subsequently, as well as one telephone conversation with his wife.
34. Dr Flannagan’s evidence showed that Mr Lamb had been a regular drinker in the Navy, although he did not drink much at sea. He described the veteran as showing no family history of traumatic experience. He said this would normally be the case to find social phobia as it usually begins in childhood and adolescence. However, since his anxiety did not appear at that time, it must have developed since. Dr Flannagan thought his social anxiety was probably secondary to another disorder and probably secondary to generalised anxiety disorder.
35. In relation to the gun explosion, Dr Flannagan thought that such an incident would not normally be considered to be a stressful incident, or would be considered to be a borderline matter whether it might be regarded as stressful or not. He described the applicant’s symptoms of awakening in a panic and he relates this mainly to his Vietnam experiences. Dr Flannagan stated that, based on the applicant’s reports, Vietnam played a “significant role”.
36. Dr Flannagan also obtained some collateral history from the applicant’s wife. She attested to the fact that he has deteriorated over five to ten years and early in their marriage he was generally agreeable. His moods have become more difficult as he has got older. He has maintained some hobbies over the years, mainly fishing which he still engages in and he used to play golf more regularly and had enjoyed it in the past. There was no reference or no referrable event in the applicant’s police service to anything particularly traumatic. His police career has been less than average. The part played by emotional and personality factors in relation to his anxiety and his drinking habits are difficult to determine, and particularly, which factor precedes the other. However, Dr Flannagan advised that Mrs Lamb informed him that she does not remember him drinking much at the time of his marriage, one year before his discharge i.e two years after his operational service. The syndrome of alcohol dependence and his social anxiety seems to have occurred later, and secondary to generalised anxiety and mood disorder.
37. In relation to the submissions by the parties, Mr Jarro for the applicant urged the Tribunal to form a view that the applicant had experienced a stressful event subjectively in relation to the first incident and that in relation to the gun explosion, while he had not witnessed it, it caused substantial distress to him. Therefore, it was argued that he has experienced a psychosocial stressor. In relation to his alcohol abuse it was said that he has demonstrated a maladaptive pattern because a pattern of his drinking habit exists and that the genesis of his alcohol dependence was in the Navy.
38. The respondent referred the Tribunal to White v Repatriation Commission [2004] FCA 663 (as did the applicant) but the respondent argued that both the subjective and objective conditions are relevant and necessary. Mr Stoner, for the respondent, also referred the Tribunal to Mansfield J’s judgement in Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366. He argued that there must be an assessable state of affairs not just a possibility. In other words, it is a question of whether the event was reasonable, based on an objective test overlaid by a subjective assessment.
39. In relation to the first incident, he argued that the applicant did not like being billeted ashore in Vung Tau but the fact that he did not like it, did not make it a severe stressor. Indeed, he pointed to the applicant telling Dr Flannagan that it was not a severe stressor. Mr Stoner also indicated that it was not a severe psychosocial stressor as it was not in the class defined in the SoP. In relation to the second incident, Mr Stoner argued that that also was not a severe stressor as he did not witness the event - he looked away and therefore only saw the aftermath of it. Only one person had a minor injury to his forearm. Also Dr Flannagan indicated that such an event would ordinarily be considered to be borderline at best.
40. Mr Stoner also raised the issue of “clinical onset”. As he pointed out, it was not critical for the diagnosis to be made within two years of the incidents but the question is, if it had been reported, would such a diagnosis have been made at that time? He did not report this nor seek any treatment until 2002, over 30 years after the events which the applicant states are the precipitating stressors. Mr Stoner also referred the Tribunal to Shelton v Repatriation Commission [1999] FCA 181; (1999) 58 ALD 256 which emphasised there must be a maladaptive pattern, or a pattern together with a formal psychiatric diagnosis. It was argued that there was no evidence of depression or anxiety until 2002.
Consideration
41. Section 9 of the Act provides that the injury or disease must have been contracted or aggravated while the veteran was rendering “operational service”. Section 7 deems “operational service” to be “eligible war service”. As stated earlier, there is no dispute that the period claimed as operational service satisfies the requirements of the Act.
42. Initially, the Tribunal must be satisfied to its reasonable satisfaction, that is, on the balance of probabilities, about the “kind of injury or disease” which has been suffered by the veteran. This was set out by Selway J in Repatriation Commission v Hancock [2003] FCA 711. There, his Honour stated two pre-conditions which must be satisfied:
(i)that the applicant was in fact a veteran; and
(ii)in order to determine whether a SoP applies, the “kind of injury or disease” which is the basis of the veteran’s claim must be identified (section 120A(3) of the Act).
43. In this case, the period of operational service claimed by the applicant is accepted by the respondent. It is also independently evidenced by the Department of Defence certificate. There is expert evidence which points to the diagnoses of generalised anxiety disorder, dysthymia and alcohol dependence which the applicant argues is the basis of his claim. The Tribunal was satisfied as to each of these points. It was also satisfied that each of the conditions were a “disease” within the meaning of section 5D(1) of the Act.
44. The standard of proof to be satisfied in this case is set out in section 120(1) and 120(3) of the Act and is the reverse onus of proof of the criminal standard ilel beyond reasonable doubt (Repatriation Commission v. Budworth 2001 FCA 1421). The standard required is that if the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for linking the disease to the war service rendered, then it must determine that the diseases were due to war service. To be satisfied that there is no sufficient ground beyond reasonable doubt, the Tribunal must find, after considering the whole of the material, that a reasonable hypothesis is not raised which links the disease to the relevant war service or that one of the tests set out in Byrnes v Repatriation Commission (supra) is satisfied beyond reasonable doubt.
45. As the application is made after 1 June 1994, the provisions of section 120A apply. This requires that the veteran’s claim must be assessed against the factors listed in any relevant Statements of Principles issued under section 196B(2) or (11) of the Act. The approach to assessment of a claim under SoPs has been outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, which is as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11)…..
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
46. In relation to the claims, it is necessary to consider the relevant sections of the Statements of Principles. These are as follows:-
§ General Anxiety Disorder (Instrument No. 1 of 2000)
“Kind of injury, disease or death
2……
(b) For the purposes of this Statement of Principles, “anxiety disorder” is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
…..
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
…..
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
…..
Other definitions
8. For the purposes of this Statement of Principles:
‘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;”
§ Depressive Disorder (Instrument No. 58 of 1998)
“Kind of injury, disease or death
2…..
(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A) the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i) major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
…..
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…...
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;or
…..
Other definitions
8. For the purposes of this Statement of Principles:
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
§ Alcohol Dependence (Instrument No. 76 of 1998)
“Kind of injury, disease or death
2….
(b)For the purposes of this Statement of Principles,
“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
‘alcohol abuse’ means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent. The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
……
Other definitions
8.For the purposes of this Statement of Principles:
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
47. Before assessing the steps outlined in Deledio, two preliminary questions must be addressed (see Mines v Repatriation Commission [2004] FCA 1331 (per Gray J).
§IS THERE AN INJURY OR DISEASE?
48. Following the judgment in Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54-55], the Court clarified that in determining a case of this nature, it must first determine whether a veteran is suffering, or has suffered, a claimed injury or disease (Mines v. Repatriation Commission) (supra), according to the reasonable satisfaction of the decision-makerin accordance with S.120(4), i.e. on the balance of probabilities (Repatriation Commission v. Cooke 1998 160 ALR 17; Repatriation Commission v. Gosewinckel (1999) 59 ALD 690; Repatriation Commission v. Budworth (supra)). This is necessary to ascertain whether there is a SoP in force in respect of that disease. Even if the decision maker is not satisfied on the balance of probabilities that the veteran was suffering from the disease claimed, that is not the end of the matter. It must decide then whether the veteran was suffering any symptoms that amounted to a disease. This needed to be answered also at the standard of reasonable satisfaction, i.e. on the balance of probabilities. If satisfied that the applicant was suffering such symptoms, then the decision maker was bound to undertake the steps outlined in Deledio ( Mines v. Repatriation Commission (supra)).
§ Is there a traumatic event said to have occurred during the veteran’s operational service?
49. The decision-maker must be reasonably satisfied (i.e. on the balance of probabilities) that the traumatic event occurred, before reaching the conclusion that the veteran suffered and injury or disease.
50. In relation to those questions, there is independent evidence that the events occurred as claimed by the veteran in this case. In relation to whether there is an injury or disease, there is evidence from two psychiatrists who have diagnosed Mr Lamb as currently having the three conditions he claimed. Whether the first event was traumatic is questionable objectively. Certainly, the second incident might be regarded, on the face of it, as possibly traumatic. However, there is some expert medical opinion which suggests that his conditions may be linked to Vietnam service. Both of the questions posed by Mines v Repatriation Commission (supra) are therefore answered in the affirmative.
51. It is therefore necessary to consider the steps in Deledio’s case. Based on the above assessment, the Tribunal is satisfied that an hypothesis is raised concerning the diseases claimed and the veteran’s operational service. Step 1 is therefore satisfied. There are also SoPs issued under section 196B(2) of the Act in respect of each of the three diseases diagnosed. Therefore, the Tribunal accepts that Step 2 is satisfied.
52. In respect of Step 3, the question to be answered is whether the hypothesis raised in Step 1 is a “reasonable hypothesis”? In other words, is the hypothesis consistent with the template provided in the relevant SoP.
53. In the SoPs dealing with generalised anxiety disorder and also dysthymia, the claimed conditions must be linked to a “severe psychosocial stressor”. As defined in paragraph 8 of each of the two relevant SoPs, the occurrence said to cause the onset of the disease must be one that invokes “substantial distress”. Examples which have been provided in helping to understand the level of severity required includes “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”.
54. In relation to alcohol dependence, the defining event must be a severe stressor which requires the applicant to have experienced or witnessed or be confronted with an event or events which involve “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 invoke intense fear, helplessness or horror”. This definition is further amplified for alcohol dependence by further specifying that in relation to service in the defence forces where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
“(i) threats 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.”
55. The level set in the template of events which might cause the clinical onset of one of the diseases claimed, is clearly very high. “Clinical onset” is a complex assessment when made thirty years after the event and which is claimed to be the precipitating event. Clinical onset has been considered to be “….either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time”. (Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, which was approved in Repatriation Commission v Cornelius [2002] FCA 750). The Full Federal Court also considered the determination of clinical onset and said that it is “….intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis”. (see Lees v Repatriation Commission (2002) 125 FCR 331 at 16)
56. The level of severity of a stressor required for each of these SoPs is clearly substantial and the clinical onset of the disease should indicate sufficient proximity between the event and the disease to highlight the causal link necessary to uphold the hypothesis.
§ What evidence is necessary to establish that a severe psychosocial stressor exists?
57. In White v Repatriation Commission (supra), Spender J held that both subjective and objective elements must be considered in answering this question. This was adopted in the decision of Deputy President Jarvis in Re Hillier and Repatriation Commission [2004] AATA 897 at [65]. There, it was stated that the considerations involved in considering a severe psychosocial stressor would include:
“(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
58. The decision in Re Hillier and Repatriation Commission (supra) at [67] stressed that the objective assessment should be made against the standard, not of an ordinary reasonable person, but of an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive” per Mansfield J in Stoddart v. Repatriation Commission 2003 FCA 334. It was noted there that there is a wide range in experience of servicemen when assessing an individual in a particular event.
59. In determining this matter, I accept that the applicant currently has the diagnoses of generalised anxiety disorder, co-morbid dysthymia and co-morbid alcohol abuse. The psychiatric assessment, his presentation at the hearing, evidence of pattern of behaviour and his career progress are consistent with the three diagnoses submitted to the Tribunal. In relation to Alcohol Dependence or Alcohol Abuse, the Tribunal is satisfied that the applicant has still been able to function effectively in the workforce and maintain some interests and enjoyment of life, notwithstanding that they appear to have been diminishing over recent years. Nevertheless, the applicant did demonstrate a “maladaptive pattern” of recurrent alcohol use which has lead to a clinically significant impairment at work and home and that this pattern has continued despite ongoing social or interpersonal difficulties as a result. The Tribunal therefore decides that the applicant satisfies a diagnosis of Alcohol Abuse, but not Alcohol Dependence.
60. However, considering the criteria in White v Repatriation Commission (supra) and the considerations outlined in Re Hillier and Repatriation Commission (supra), it must be ascertained whether each of the incidents or alleged stressors are “occurrences” or objective events. An occurrence is an “event, incident or mishap which is susceptible of differentiation from the course of events which constitute the ordinary course of life” (Repatriation Commission v Law (1980) 31 ALR 140 at 149). That definition refers to the SoP for depressive disorder. The SoP for alcohol dependence uses the term “event” although I consider the word “occurrence” and the term “event” are substantially synonymous for the purposes used here. I therefore regard them as being equivalent for the purpose of this assessment.
61. Applying these definitions to the two incidents submitted on behalf of the applicant, it is clear that the event or occurrence must evoke feelings of distress but this must be an objective and assessable state of affairs (Stoddart v Repatriation Commission). Given the evidence that has been available to the Tribunal, I regard each of the incidents as being an assessable state of affairs. However, incident one cannot be differentiated from the normal function which a serviceman of 23 years of age would deal with without regarding it objectively in any way as being stressful. Subjectively, the applicant told Dr Flanagan that it was not a severe stressor. Therefore, incident one is not an “event” which objectively and subjectively, could be regarded as a “severe psychosocial stressor”.
62. Incident two, the misfire on HMAS Brisbane, might be regarded as an “event” when viewed subjectively, but as Dr Flannagan points out, it is at best borderline, and most likely would not be regarded as a severe stressor. With respect to Incident 2, Commodore Mulcare provided evidence that the matter was over in half an hour. The applicant has not reported being stressed at all by guns firing on the ship on a regular basis, but he was stressed by visiting a logistics base for two days and a misfire by one of the guns on the ship. While the applicant was probably more anxious subjectively than the average sailor and the incident would have raised an increased level of alertness for a short time following the incident, it could not be regarded as substantial distress. Therefore incident two is not an ‘event’.
63. Even if I am wrong about Incident two and it is an ‘event’, it must also be a ‘severe psychosocial stressor’ or a ‘severe stressor’. In White v Repatriation Commission (supra), Spender J at paragraph 30 said that a severe psychosocial stressor requires objectively that the incidents must be “…such as to evoke feelings of a particular kind” and subjectively, they must “…. evoke feelings of substantial distress... Both aspects are relevant and necessary”. In Delahunty v Repatriation Commission [2004] FCA 309, Tamberlin J indicated a need for an event considered objectively, followed by a combined objective and subjective test involving a reasonable person with the knowledge of the person experiencing that event. The evidence of Dr Flannagan in relation to Incident 2 refers to that incident as not ordinarily being regarded as a stressor or that it would be a borderline matter. Dr Jenkins’ report refers to Mr Lamb having no psychiatric symptoms prior to the six months before he saw him. He noted there was evidence of mild social withdrawal and that his anxiety disorder was probably directly responsible for his alcohol abuse, although he did think that it may have been exacerbated by his service in Vietnam.
64. Looking at the subjective element as provided for in White v Repatriation Commission (supra) and elaborated by Re Hillier and Repatriation Commission (supra), the applicant clearly had a predisposition for worry. The respondent argued that there was no depression or anxiety before 2002. The Tribunal, however, accepts that the symptoms which had been documented and not disputed, are a feeling of alienation or detachment from others, difficulty having close and meaningful relationships and other physiological symptoms such as having difficulty falling asleep or concentrating. These symptoms do not in the ordinary course of events develop in a short period of time. There is evidence that the applicant had had some anxiety present for a long time and that his dysthymic disorder has become evident subsequently. This condition has deteriorated over the past 5 to 10 years, and possibly longer. However, these incidents are not of the magnitude indicated by the definitions and it cannot be said beyond reasonable doubt that this was linked to his operational service. At the time of his marriage (2 years after his service in Vietnam) he seemed to be functioning normally and was, on the balance of probabilities, emotionally in tact. His wife also reported that he did not drink much about that time.
65. Looking at the scope of the definitions or examples which help explain the term “severe psychosocial stressor”, it requires ‘being shot at, death or serious injury of a close friend…, or an assault..’. A ‘severe stressor’ for the purpose of Alcohol Dependence or Alcohol Abuse would be a threat of serious injury or death; or engagement with the enemy; or casualties or participation in or observation of casualty clearance, atrocities or abusive violence. Taking account of the scope of the definitions and the evidence outlined above, neither incident one nor incident two, fits within the same magnitude as the examples proffered in the SoP. Overall, the Tribunal cannot find that either incident is a ‘severe psychosocial stressor’ or a ‘severe stressor’ as defined. Therefore, it is determined that neither of these incidents could be regarded as either a severe psychosocial stressor for the purposes of the conditions of generalised anxiety disorder or co-morbid dysthymia. Also, neither incident could be regarded as a severe stressor for the purposes of alcohol dependence or alcohol abuse.
66. This is not to deny that the applicant has been and undoubtedly still is, a sensitive person who has suffered from anxiety and poor self-esteem and from the deleterious effects which this has had on his career, but the Naval culture, the Police culture and other personal factors have undoubtedly contributed to his present conditions. In this regard, I accept Dr Jenkins opinion that his anxiety condition is directly responsible for the applicant’s alcohol abuse. Indeed, alcohol abuse predisposes an individual to special problems of a physical, mental or social nature. Marital and family problems can also make a considerable impact on the consequential effects of a heavy drinker’s life.
67. The Tribunal therefore finds that the hypothesis linking these incidents to operational service is not a reasonable one and that the incidents do not satisfy the templates set out in the SoPs.
68. The Tribunal therefore decides:
(a) that the veteran’s conditions of generalised anxiety disorder, dysthymia and alcohol abuse are not war-caused; and
(b) that the decision under review is affirmed.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: J Lauriston
..Administrative Assistant
Date/s of Hearing 26 November 2004
Date of Decision 18 January 2005
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Sciaccas’ Lawyers
Counsel for the Respondent Mr J Stoner, Departmental Advocate
0
18
0