Leis and Repatriation Commission
[2004] AATA 1211
•18 November 2004
DECISION AND REASONS FOR DECISION [2004] AATA 1211
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/730
VETERANS APPEALS DIVISION ) Re GRAHAM MERVYN LEIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date18 November 2004
PlaceBrisbane
Decision The Tribunal decides that that:
1 the decision of the Veterans’ Review Board dated 8 July 2002 in relation to cardiomyopathy is set aside and it is determined that this a war-caused disease;
2 the decision that the veteran’s cardiomyopathy is war caused, is to be remitted to the respondent for assessment of pension;
3 the Tribunal affirms the decision under review as far as it relates to (a) alcohol dependence and (b) depressive disorder; and
4 the Tribunal determined that a claim for Post Traumatic Stress Disorder was not war caused.
…..[Sgd]….
K S Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – claimed war-caused cardiomyopathy, depressive disorder, alcohol dependence, and post traumatic stress disorder – whether hypothesis exists – whether raised facts are consistent with Statement of Principles – whether respondent can disprove necessary raised fact beyond reasonable doubt - war-caused cardiomyopathy – alcohol dependence and depressive disorder not war-caused – no severe stressor – unreasonable hypothesis regarding post traumatic stress disorder – post traumatic stress disorder not war caused
Veterans Entitlements Act 1986 s 9, 5, 13, 120
Repatriation Commission and Smith 15 FCR 327
Benjamin v Repatriation Commission 70 ALD 622
Fogarty and Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Hancock [2003] FCA 711Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel 59 ALD 690
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Robertson and Repatriation Commission 1998 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission 2004 FCA 663
Re Hillier and Repatriation Commission 2004 AATA 897REASONS FOR DECISION
18 November 2004 Dr KS Levy, Member Introduction
1.The applicant, Graham Mervyn Leis, has appealed under section 29(1) of the Administrative Appeals Tribunal Act 1975 (Commonwealth) against a decision of the Veterans’ Review Board dated 8 July 2002. The applicant currently has accepted disabilities and a disability pension of 60% in relation to the following:
(a)Bilateral sensorineural hearing loss with tinnitus;
(b)Ischaemic heart disease; and
(c)Nicotine abuse.
2.There are a number of conditions previously claimed which have been unsuccessful and are not the subject of appeal in the current matter. These conditions are lumbar spondylosis, shortness of breath and alopecia. The Veterans’ Review Board decided on 4 January 2000 that it would reject claims in relation to alcohol abuse, depression, shortness of breath and ischaemic heart disease. The applicant appealed these decisions and the Veterans’ Review Board reconsidered this on 13 September 2001. The decision of the Board on that date was to adjourn the hearing in relation to alcohol abuse and depression but set aside the decision in relation to ischaemic heart disease and determined that it was war-caused. In addition, it added a new diagnosis of cardiomyopathy. This diagnosis was also adjourned to a later date for determination as to whether it was compensable under Veterans Entitlements Act 1986 (Commonwealth) (“The Act”).
3.These appeals were heard by the Commission on 8 July 2002. It then decided:
(a)to amend the diagnosis of alcohol abuse to now read alcohol dependence;
(b)that the diagnosis of alcohol dependence was not war-caused;
(c)it added a diagnosis of nicotine abuse
(d)it set aside the previous decision on nicotine abuse and determined that it was war-caused;
(e)affirmed the decision that the claim for depressive disorder was not war-caused;
(f)affirmed the decision that the claim for cardiomyopathy was not war-caused.
4.The decisions affirmed by the respondent on 8 July 2002 are the subject of the present application for review by the Tribunal.
5.The applicant was represented by Mr RJ Clutterbuck of Counsel and his solicitor, Ms Catherine Haney of Streeting Haney, Lawyers. The Repatriation Commission was represented by its advocate, Mr B Williams.
6.The applicant, Mr Anthony Knight, and Dr Igor Petroff, Psychiatrist, gave evidence on behalf of the applicant. A statement was also tendered by Mr Alex Young on behalf of the applicant and while he was available to give evidence, the parties agreed that he was not required. The respondent called Mr Harry Josephs of WriteWay Research Service and Captain Robert Winter RAN (Ret’d), who was Liaison Officer on MV Jeparit when Mr Leis served on it. Mr Winter was a Lieutenant at that time and was the author of a report dated 21 April 1967 about one relevant voyage of MV Jeparit to Vietnam. All witnesses, with the exception of the applicant, gave evidence by telephone.
7.Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were tendered in evidence and marked as Exhibit 1. Also admitted into evidence were:
§ Exhibit 2 Statement dated 17 January 2003 by Graham Mervyn Leis
§ Exhibit 3 Statement received 15 June 2004 by Graham Mervyn Leis
§ Exhibit 4 Statement received 15 June 2004 by Anthony C Knight
§ Exhibit 5 Statement filed and served 29 March 2004 by Anthony C Knight
§ Exhibit 6 Statement dated 22 June 2004 by Alex Young
§ Exhibit 7 Statement dated 5 May 2004 by Bruce McNeill
§ Exhibit 8 Ship’s Log
§ Exhibit 9 Certificate of service – Graham Mervyn Leis
§ Exhibit 10 Report dated 18 March 2003 by Dr Igor Petroff
§ Exhibit 11 Report dated 4 June 2004 by Dr Igor Petroff
§ Exhibit 12 Employment history and attachments
§ Exhibit 13 WriteWay report dated 5 February 2004 by HA Josephs
§ Exhibit 14 Report of 9 September 2003 by Dr David Cody
8.These documents and all of the oral evidence before me has been carefully considered.
Issues for Determination
9.The issues before the Tribunal for determination are whether the applicant’s conditions of depressive disorder, alcohol dependence and cardiomyopathy are war-caused pursuant to section 9 of the Act.
Background
10.The applicant was born on 27 April 1939. He is 65 years of age. At the time of his original application he was 60 years of age.
11.The applicant enlisted in the Royal Australian Navy (RAN) on 20 February 1959. He served a nine (9) year engagement, being discharged on 19 February 1968. He rendered eligible operational service for the purposes of the Act as follows:
HMAS VENDETTA
26.11.59 -24.12.59
02.01.60 – 20.02.60
18.03.60 – 27.03.60
11.04.60 – 28.04.60
06.05.60 – 20.05.60
23.06.60 – 05.07.60
28.03.61 – 17.04.61
04.05.61 – 28.05.61
07.07.61 – 14.08.61
12.09.61 – 03.10.61
26.03.62 – 12.04.62HMAS SYDNEY
22.04.66 – 18.05.66
25.05.66 – 11.06.66MV JEPARIT
11.03.67 – 21.04.67
28.04.67 – 02.06.67
09.06.67 – 18.07.6712.The applicant submits that certain stressful events during the course of his service in the RAN, caused him to suffer from a depressive order and alcohol dependence. He also has been diagnosed with cardiomyopathy, which he attributes to his operational service, or that a worsening of these conditions has resulted form his operational service.
Legislative Framework
13.The purpose of this application is to prove eligibility for a disability pension under section 13 of the Act. This is effected if the applicant establishes that his injury or disease is “war-caused” [section 13(2)(b)]. If eligibility is established, the Commonwealth is liable to pay a pension to the veteran [section 13(1)(d) of the Act].
14.An injury or disease will be taken to be war-caused, if section 9 of the Act is satisfied. Relevantly, it provides:
“Sect 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.”
15.The term “operational service” in section 9(1)(a) is defined in section 6C. This refers to the areas which have been defined or gazetted or “allotted for duty”. By virtue of section 5B of the Act, this definition is cross-referenced to Schedule 2 and indicates areas of service which have recognition as “operational service”.
16.Determination of whether an applicant’s injury or disease is war-caused is governed by sections 120(1) and 120(3) of the Act. These sections prescribe the standard of proof. In cases where the application is lodged after 1 June 1994, section 120A is relevant and requires firstly, that an assessment of the reasonableness of an hypothesis be made against a Statement of Principle (“SoP”) where the Repatriation Medical Authority (“RMA”) has authorised a SoP in relation to a particular type of injury or disease. Section 120A provides as follows:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that 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.
(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.
(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.”
17.The relevant sections dealing with the standard of proof 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.
…
(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.
(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.:
18.The standard of proof referred to in Section 120(4) which requires the Tribunal to make a determination “…to its reasonable satisfaction”, has been held to be equivalent to the civil standard of proof, that is the proof on the balance of probabilities (Repatriation Commission and Smith 15 FCR 327; Benjamin v Repatriation Commission 70 ALD 622; Fogarty and Repatriation Commission [2003] FCAFC 136 at [34]; Repatriation Commission v Hancock [2003] FCA 711 at [9]).
Evidence Before the Tribunal Relevant to Applicant’s Claimed Conditions
19.The applicant was born in Casino on 27 April 1939. He is the eldest of a sibship of four. His family and school life were favourable but unremarkable. He moved from Casino on two occasions before leaving school in Kyogle in the second year of high school. He then finished his schooling by correspondence on his parents’ farm, owing to financial difficulties. He gave evidence that he left school at age 14 and subsequently worked for a nearby abattoir and the local Council until the age of 19, when he joined the RAN.
20.After enlistment, he completed recruit school and trade/technical training. Within a short period of time thereafter, he stated he was undertaking operational service. At that stage, as he had been trained in gunnery he was responsible for pyrotechnics on board the HMAS Vendetta. His record shows he was qualified as a Quartermaster Gunner, although he has indicated that he worked in a medical unit during the second half of his service.
21.His nine years service with the RAN included 15/12 years as an Ordinary Seaman and Able Seaman Second Class and 71/12 years as an Able Seaman. None of these ranks are recorded as Non-Commissioned Officer ranks.
22.The stressors the applicant identifies are:
(a)That whilst he was in Penang between 21 and 22 January 1960 serving aboard HMAS Vendetta, he witnessed bodies of dead people, including babies, floating in the water. He identified this as having occurred whilst he was going ashore from the ship on leave;
(b)Secondly he identifies “on or about 26 or 27 May 1960 whilst he was on passage to Korea they were passing through the Formosa Straits when some Chinese MIG fighters came in and flew low over the vessel causing them to have to load their gun turrets and unload them when they reached Korean waters”;
(c)In 1962, a sailor whom he knew personally went missing. It has been suggested that this was suicide but it is unknown how he went missing, although he was presumed dead;
(d)“…whilst he was aboard MV Jeparit during operational service (as found by the VRB (T5)). He describes the … incident as being secured along side a wharf in Vung Tau on 27 March 1967. He says that on arrival he was detailed to stand sentry at the head of the gangway accompanied by an Australian soldier. The Australian soldier was armed with an SLR rifle and the applicant was unarmed. A canoe was carrying women and children proceeding to go past the ship when suddenly the soldier began firing his SLR at them. He does not know to this day whether the children or women were hit. He says that his drinking problems escalated after this incident. There is evidence from independent witnesses to indicate that alcohol was freely available on HMAS Jeparit, formerly MV Jeparit, during the course of his operational service.”
Evidence
23.The evidence surrounding these incidents must be examined in relation to the conditions claimed to be compensable, that is cardiomyopathy, alcohol dependence and depression.
§ Cardiomyopathy
24.The claim for this condition emanates from the original claim for ischaemic heart disease which was initially rejected on 4 January 2000. It was subsequently accepted by the Board in its decision of 13 September 2001, at which time a diagnosis of cardiomyopathy was also determined. That diagnosis was adjourned at that stage, but it was subsequently determined on 8 July 2002 that it was not war-caused. The decision in September 2001 to adjourn the hearing was to enable an assessment to be made of whether there is a reasonable hypothesis that cardiomyopathy has developed from ischaemic heart disease. The decision on 8 July 2002 merely related the reasonable hypothesis to the consumption of alcohol, which was accepted, and was related to the cardiomyopathy. It concluded, however, that it was not service related and therefore the causal connection was not accepted.
25.Reports contained within Exhibit 1 were informative. Dr Cody’s report of 18 November 1999 indicates Mr Leis’ ECG was normal and that there was “no evidence of reversible ischaemia”. An extract from Dr Cody’s report dated 8 February 2000 (Folio 76 of the T documents) concludes that “Mr Leis has a cardiomyopathy, this may be related to ischaemia or ethanol or both. At this stage I felt that he should be observed and continued on his ACE inhibitor …” A subsequent report by Dr Cody dated 28 February 2002 referred to alcohol being the contributing factor in his cardiomyopathy, which, he opined, is obviously secondary. A final report by Dr Cody of 9 September 2003 concluded “the cause of his cardiomyopathy was due either to excess alcohol or to possible remodelling of the left ventricle following his AMI and I feel it is quite difficult to be completely exact about which is the predominate cause. There may in fact, be a combination of both factors.”
§ Depression and Alcohol Dependence
26.The First Incident – The Sight of Bodies in the Water in Penang. Mr Leis’ evidence is that he and a group of approximately 11 other sailors were going on leave for that day. He states that they drank all day after witnessing bodies in the water. He also stated that his drinking increased dramatically after that time. It seems that it was around this time he was also taken off the particular work he was doing and put into the laundry.
27.The respondent has tendered evidence from WriteWay Research Service Pty Ltd which states that at that time waste disposal habits were poor by Western standards. Local waters were polluted by “household garbage, including the corpses of domestic animals and other floating debris would have been quite common and, as in many large ports, the occasional human corpse might have been encountered”. The respondent’s evidence has stated that it is unlikely any official record would have been made of such sightings even if reported. Mr Leis, however, has two other witnesses who were with him on that day to confirm his account.
28.The Second Incident – Low Flying Chinese Aircraft. In relation to the MIG incident where Mr Leis claimed that Chinese jet fighters “buzzed” the HMAS Vendetta, he stated he was fearful. He referred to a copy of the Ship’s Log for 27 May 1960 where the abbreviation “A/c” was said to refer to aircraft. The respondent provided evidence from Mr Harry Josephs on behalf of WriteWay Research Services Pty Ltd in a report dated 5 February 2004. His oral evidence indicates that the Ship’s Log on 27 May 1960 which has an entry showing a time of 1100 hours and a notation “A/c”, referred to “altering course”, and was not a reference to “aircraft”. He also believed that Mr Leis’ account of the ship loading guns and standing to in war time conditions may not have been because of any perceived attack by Chinese aircraft but rather, that it would have been standard practice at various times for the ship to adopt simulated war time conditions as a training exercise. He believed that if there was a perceived attack by Chinese aircraft which posed a real threat, then there would have been another more detailed report, although not necessarily in the Ship’s Log.
29.I note also, however, that the date of this incident would not appear to coincide with the dates when the ship was allotted for duty under the Veterans Entitlements Act. Therefore, regardless of the facts of that incident, it would not be recognised as being on ‘operational service’ under Section 6C and therefore, does not assist the veteran’s case.
30.The Third Incident – The Sailor Lost at Sea. In relation to the incident where the sailor was lost overboard, Mr Leis stated that his depression came on 18 months to 2 years later. This was in addition to his other accounts which linked his depression such as seeing bodies in the water in 1960.
31.The Fourth Incident – Sentry Duty in Vietnam Waters. In relation to his service in Vietnam on MV Jeparit, he stated that the ship had berthed and that he was on sentry duty. He was unarmed but stated that a soldier from the Australian Army was also on board on sentry duty and that the soldier was armed with an SLR rifle. He has stated that he was distressed by the soldier firing in the direction of a canoe containing women and children.
32.The WriteWay Report obtained evidence from the ship’s Liaison Officer at the time, Lieutenant Commander R Winter (now Captain Ret’d). The report of Mr Josephs and the evidence of Mr Winter contradicted that of the applicant. Mr Winter stated that he was the author of the report dated 21 April 1967 which recorded the movements of the MV Jeparit. His report shows that the ship did not dock at Vung Tau, but anchored in the harbour. His report and his recollection in oral evidence was that the ship anchored 1½ kms off shore. He stated that the ship may have docked on other trips but that the official record shows that it did not do so on that occasion. In cross-examination, Mr Winter said he had no recollection of an Army sentry and certainly no recollection of any report of a sentry firing. He stated he gave no directions in relation to any live firing (if in fact that occurred) and stated that he had not heard of any reports of any such live firing at a passenger vessel. He believed he would have heard of a report of such an occurrence, had that been the case.
33.Evidence of Alcohol Consumption. In relation to Mr Leis’ drinking, he stated in evidence that he could have as much alcohol as he liked on board while at sea. The respondent referred to various questionnaires which had been signed by the applicant and which, the respondent argued, were not supportive of the applicant’s claims. It also referred to the report of WriteWay Research Service Pty Ltd which indicates that the standard beer issue for junior sailors (leading seamen equivalent and below), was one 26oz bottle or can of beer per day. The report states that Lieutenant Commander Winter had indicated to its investigator that compliance with his rules in relation to alcohol on board appears to have been satisfactory, although he suggests that supervision may not always have been as effective as on a warship. He further commented that over-consumption would not have gone unnoticed by senior non-commissioned officers and referred to the Chief Petty Officer on board the Jeparit who he referred to as “a particularly watchful and respected senior sailor”.
34.Psychiatric Evidence. Medical Evidence was available which has assessed Mr Leis. Dr Igor Petroff, Psychiatrist, gave evidence for Mr Leis, having seen him twice, on 11 February 2002 and 18 March 2003.
35.In his report of 11 February 2002, Dr Petroff referred to Mr Leis having a committed and loving relationship with his wife, although having frequent arguments mainly about minor matters (for example television, which football team to barrack for, etc.). He recorded Mr Leis’ interests as painting the house, watching TV, gardening and reading. He mentioned that he had given up gardening because of lack of fitness and had given up fishing because of a back and neck problem. The latter seems unrelated to the present claims. He also referred to Mr Leis’ anxiety symptoms emanating from his “mate’s suicide” in 1962. He stated that the anxiety or depression which Mr Leis encountered was reported to have surfaced 18 months to 2 years later when he went back to sea. He concluded that Mr Leis should be given the benefit of the doubt as his conditions seem to have been impacted by a period of operational service. In March 2003, just over 12 months later, Dr Petroff diagnosed Mr Leis as having major depression, PTSD and alcohol dependence, all of which seemed to be inter-related. In a letter dated 4 June, 2004 and in his oral evidence to the Tribunal, Dr Petroff referred to the fact that he had seen Mr Leis on two occasions for assessment and he reiterated Mr Leis’ claims of being shocked and overwhelmed about seeing dead bodies in the water in Penang. He stated that Mr Leis had observed this before he suffered his present symptoms.
36.Dr Petroff, in evidence to the Tribunal, also stated that his assessment is based wholly on the interviews which he had with the veteran. His opinion was that all of the events which Mr Leis refers to are interlinked, but he thought the incident where a sailor “suicided” in 1962 was the start of his depression (its probable onset) but became evident 18 months to 2 years later. In response to cross-examination, Dr Petroff referred to the incident in 1967 where Mr Leis allegedly witnessed a soldier open fire on a canoe containing civilians. He stated Mr Leis was terrified by this and completely overwhelmed. He thought Mr Leis had a severe melancholic depression, that is a full blown depression or endogenous depression.
37.He also referred to Mr Leis’ condition in terms of the diagnosis by the Navy psychiatrist in the 1960s, where he was diagnosed with alexithymia. This refers to the condition where a person cannot understand or describe what he is feeling.
38.The evidence also included written reports by Dr Ian Hayes, Psychiatrist, who examined Mr Leis on 21 December 1999 and 19 June 2001. In his opinion, he stated Mr Leis exhibited symptoms of low mood, irritability and loss of energy, but did not display symptoms of over arousal, being jumpy or easily startled, nervous or vigilant. He reported there was no description of panic attacks. He suggested Mr Leis’ condition does not describe a picture of PTSD, or any evidence of psychosis, cognitive impairment or impaired concentration or memory. In summary, he thought Mr Leis suffered from many years of substance abuse and in more recent years he thought depression was evident. He thought the substance abuse related to the culture of Navy life and not to specific events. The suggestion was made by Dr Hayes that the condition would not be referable to operational service but was due to the culture of Navy life. When he saw Mr Leis in June 2001, his diagnosis remained that of major depression, alcohol dependence and nicotine dependence.
Consideration
39.As this application is made after 1 June 1994, the provisions of section 120A of the Act apply. That is, the claims must be assessed against any Statements of Principles issued and section 120A(3) of the Act. The approach to assessment which is required by the Tribunal was outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 which is:
“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 s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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 s196B(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 s120(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.”
40.The last sentence in paragraph 2 (above) of the decision in Deledio was corrected in one minor respect in Repatriation Commission v Gosewinckel 59 ALD 690.
§ Cardiomyopathy
41.I have considered the material before me in relation to this claim. I am satisfied that the evidence raises a hypothesis which connects the conditions stated with the applicant’s operational service. There is also an SoP which has been determined by the RMA under section 196B(2) of the Act. This addresses the first two steps in Deledio.
42.The Statement of Principle concerning cardiomyopathy is SoP 19 of 1998. There has been a subsequent amendment to this by Instrument No 22 of 2002 but this amendment is minor and not relevant for the present case.
43.The relevant provisions of SoP 19 of 1998 are:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cardiomyopathy or death from cardiomyopathy with the circumstances of a person’s relevant service are:
…
(b)for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of secondary cardiomyopathy; or
…
(z)for men, drinking at least 250kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical worsening of primary or secondary cardiomyopathy; or
…
Other definitions
7. For the purposes of this Statement of Principles:
“primary cardiomyopathy” means a non-inflammatory disorder of heart muscle, being described as dilated, restrictive or hypertrophic in type, in which the pathological process involves solely the myocardium, or the myocardium and the endocardium, arising because of no obvious or known cause and is not part of a disease affecting other organs attracting ICD code 425.0, 425.1, 425.2, 425.3 or 425.4;
“secondary cardiomyopathy” means a non-inflammatory disorder of heart muscle, being described as dilated, restrictive or hypertrophic in type, in which the pathological process involves solely the myocardium, or the myocardium and the endocardium, and which is the result of a known agent, disease process or condition, attracting ICD code 086.0, 425.5, 425.7, 425.8 or 425.9;”
44.It is not inconsistent with the standard of proof required, that the condition suffered by the veteran is probably linked to the factors as shown in paragraph 5 of the SOP. Nor is it inconsistent on the balance of probabilities, that it could be linked to the veteran’s operational service. As such, the hypothesis cannot be said to be contrary to known or proved scientific facts as far as could be ascertained, the hypothesis is a reasonable one. This satisfies the third step of Delidio.
45.Having accepted that a reasonable hypothesis exists linking cardiomyopathy to the veteran’s service, the question is then whether the Tribunal can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the present condition was linked to operational service.
46.The test inherent in section 120(1) of the Act has been summarised by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 where, at page 571, it stated that:
“The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus the disproving, beyond reasonable doubt, the hypothesis.”
47.As concluded by Dr Cody in his report of 9 September 2003, Mr Leis’ cardiomyopathy is due to either excess alcohol or to possible remodelling of the left ventricle. He states that it is difficult to be exact about the cause but while his cardiomyopathy is secondary, it may be due to both of the factors mentioned above. While Dr Cody’s report does not quantify the volume of alcohol within a ten year period, by implication, he does not negate Mr Leis’ claim.
48.In the present case, the Commission has previously accepted ischaemic heart disease as being one which is compensable to the applicant. While the condition of cardiomyopathy might be due to or at least aggravated by excessive alcohol which the applicant has habitually consumed, the medical evidence nevertheless cannot differentiate the causes of the applicant’s disorder of the heart muscle and whether it is unrelated to the ischaemic heart disease. Dr Cody’s evidence points to causes being multifactorial. Consequently, it is not possible to disprove the hypothesis beyond reasonable doubt and no other fact inconsistent with the hypothesis has been proved beyond reasonable doubt so as to negate the hypothesis. On that basis therefore, the applicant’s claim must be accepted and the decision of the Veterans’ Review Board of 8 July 2002, so far as it relates to cardiomyopathy, must be set aside and the decision that the applicant’s claim for that condition must be deemed to be war-caused, is substituted in its place.
Alcohol Dependence and Depressive Disorder
49.A SoP has been determined by the RMA under section 196B(2) of the Act in respect of both of these conditions. The applicant essentially relies on the same facts or evidence to prove a causal relationship between both these conditions and his operational service. The claims are, by and large, directed broadly to a number of elements of the respective SoPs. Indeed, there is medical evidence to support that co-morbidity of these conditions notwithstanding some differences in the opinion evidence of the experts.
50.In relation to the SoP for Alcohol Dependence (Instrument No 76 of 1998), it relevantly provides as follows:
“Statement of Principles concerning alcohol dependence or alcohol abuse
2 Kind of injury, disease or death
…
(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.
…
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
(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
…
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;
51.The Board’s decision of 8 July 2002 has accepted a diagnosis of alcohol dependence for the applicant. Considering that decision together with the SoP outlined above and the facts submitted, I am satisfied that the incidents in paragraphs 26, 30 and 31 results in an hypothesis which connects the condition of alcohol dependence with the applicant’s operational service. In addition, it serves to satisfy the first two steps of Deledio (supra). Turning now to the third step in Deledio, a determination must be made as to whether the Factors in the SoP raise a reasonable hypothesis and are related to the person’s service. I note again, however, as mentioned in paragraph 29 above, that the incident in item (b) – the “buzzing” by low flying Chinese aircraft – would seem from the evidence presented that it is not part of “operational service” as required by Section 6C and therefore cannot raise a hypothesis connecting the condition to operational service. A diagnosis of alcohol dependence has already been accepted, but it must be considered whether the stressors claimed by the applicant fit the template in Instrument No. 76 of 1998. As the incidents relied on are the same for both Alcohol Dependence and Depressive Disorder, these are evaluated together under “Assessment of the Third Step in Deledio” below.
52.In relation to the SoP for Depressive Disorder (Instrument No. 58 of 1998), it relevantly provides:
“Statement of Principles concerning Depressive Disorder - Instrument No 58 of 1998
…
Factors that must be related to service
4 Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;
Or
…
(f)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
…
(h)having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of depressive disorder; or…”
Other Definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”
53.The applicant relies on the four incidents outlined above, to demonstrate that he experienced a “severe psycho-social stressor” in accordance with the Factors in the SoP. These incidents seem to provide the basis (on the face of the claims presented), for a hypothesis between the depressive disorder condition and the circumstances of operational service experienced by the applicant. Therefore, the facts also seems to meet the first two steps of the Federal Court’s decision in Deledio for the purposes of the condition Depressive Disorder.
§ Assessment of the Third Step in Deledio.
54.I turn now to the third step in Delidio’s case and the assessment of the hypothesis that the incapacity pertaining to both alcohol dependence and/or Depressive Disorder, is related to the veteran’s operational service. The possible upholding of a hypothesis by more than one SoP is authorised by S.120A(3) (see Federal Court decision in McKenna v. Repatriation Commission 1999 86 FCR 144). In assessing the third step of Deledio, consideration must be given to the Factors in paragraph 5 of the SoP No 58 of 1998. This raises two essential terms for amplification: “clinical onset” and “severe psycho-social stressor”. “Clinical onset” has been previously considered by the AAT in Re Robertson and Repatriation Commission 1998 50 ALD 668, where, at 670, it was referred to as
“…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”.
This definition was approved in Repatriation Commission v Cornelius 2002 FCA 750. In addition, the Full Federal Court in Lees v Repatriation Commission 2002 125 FCR 331 at [16] stated that the determination of clinical onset is:
“…intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.”
55.The term “severe psycho-social stressor” is defined in the SoP as outlined above. To satisfy this definition, the stressor incident should occur “…within two years immediately before the clinical onset of depressive disorder…” or “within two years immediately before the clinical worsening of depressive disorder..” The severity of the stressor according to the standard of the definition in the SoP, is quite substantial, taking account of the examples provided eg, “being shot at, death or serious injury of a close friend or relative, assault, severe illness or injury …”
56.Firstly, is there evidence of a “severe psycho-social stressor” as required by paragraph 5 of the SoP?In White v Repatriation Commission 2004 FCA 663, Spender J held that a severe psycho-social stressor has both subjective and objective elements. This was further elucidated in Re Hillier and Repatriation Commission 2004 AATA 897. There at [65], DP Jarvis stated that the considerations would include that:
“(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).
57.The decision in Hillier also emphasised at [67] that the objective requirements should be evaluated not by the ordinary or reasonable person test, but should be tested against an objective “member of the armed forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”.The wide variability in experience of servicemen and veterans was noted as affecting the objectivity of such a standard.
58.I now consider the material relevant to the four stressors alleged in this case. The criteria outlined by Spender J in White v Repatriation Commission 2004 FCA 663 and the summary of considerations outlined in Re Hillier and Repatriation Commission 2004 AATA 897 must be considered in terms of whether each of the four alleged stressors are an “occurrence”. “ Occurrence means 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) 31ALR 140 at 149). That definition refers to SoP for Depressive Disorder. However, the SoP for Alcohol Dependence uses the term “event” and I consider the word “occurrence” (and therefore its defined meaning above) can be used interchangeably with the word “event”.
59.Applying this definition to three “events” or “occurrences” submitted by the applicant, (a) the sight of bodies in the water in Penang; (c) the Sailor Lost at Sea and (d) Sentry Duty on MV Jeparit in Vietnam waters, all satisfy the requirements of being an “event” or an “occurrence” using an objective test.
60.However, having regard to the requirements of the SoP No. 76 of 1998 (Alcohol Dependence), I do not find that on an objective test that any of the “events” alleged by the veteran can be equated to “experiencing a severe stressor” as defined in paragraph 8 of SoP for Alcohol Dependence. The events do not meet the degree of magnitude or significance of the examples listed, that is, threat of serious injury or death, engagement with the enemy or witnessing casualty clearance, atrocities or abusive violence.
61.Considering the SoP for Depressive Disorder and the application of the requirements in paragraph 54 (b) and (c) to the “occurrences” alleged, I have concluded that based on an objective test, that occurrences (a) and (d) of paragraph 57 cannot satisfy the definition of a “severe psychosocial stressor”. I consider that incident (c) of paragraph 57, the loss of a sailor at sea, might more closely approximate the examples contained in paragraph 8 of the SoP for Depressive Disorder ie. the definition amplifying the term “severe psychosocial stressor”. In the circumstances of this case and excluding idiosyncratic perceptions, I consider this incident could be regarded as a severe psychosocial stressor, based on an objective assessment.
62.Turning now to the subjective element of this assessment, there is evidence that the veteran had a greater propensity for worry or anxiety than perhaps many of his peers. Notwithstanding that, I am again not satisfied using this test as to incidents (a) and (d). In relation to incident (c) - the loss of a mate overboard, the psychiatric reports and references are based on a “suicide”, whereas Mr Leis admitted in evidence that a sailor was missing one morning. He was undoubtedly drowned at sea but whether it was suicide or misadventure or accident, there appears to be no evidence. There is evidence that he supported the missing sailor’s wife in her coming to terms with the loss. However, the stressor, as described, would not have been of the degree of impact referred to in the definitions. Accordingly, I have concluded that the incident where a sailor went missing at sea does not meet the subjective test in the definition of “severe psychosocial stressor”. It follows that the hypothesis that the applicant experienced a severe psychosocial stressor within two years of a depressive illness is not a reasonable one. Even if there had been a pre-existing depression, I do not believe the incidents (a), (c) or (d) are of the level of significance to conclude they are severe psychosocial stressors which could “worsen” the condition as provided for in the SoP. As a result, it is not necessary for me to make a determination of the date of “clinical onset” of either condition.
63.In final submissions by the representatives for both the applicant and the appellant, reference was made to Post Traumatic Stress Disorder (PTSD) as an alternative condition which had been on the veteran’s list of claims since 16 September 1999. A definition of “experiencing a severe stressor” is included in SoP 55 of 1999 – Post Traumatic Stress Disorder, which amends SoP 54 of 1999 (PTSD). While this disorder is not constrained by any time limit (as is Depressive Disorder and Alcohol Dependence), the requirements for “experiencing a severe stressor” are the same in general terms as for Depressive Disorder and Alcohol Dependence. Therefore, as the considerations above are relevant also for PTSD, the same factual “events” in this case do not satisfy the template for a hypothesis to support PTSD, using objective and subjective tests. Consequently, the hypothesis in relation to PTSD is not reasonable.
64.There is undoubtedly a co-morbidity of the conditions suffered by the applicant. However, the events submitted by the applicant do not satisfy the Factors in the SoPs, as events or occurrences which could link Alcohol Dependence or Depressive Disorder to the veteran’s operational service. Therefore, both those claims are not compensable. The decisions of the VRB dated 8 July 2002 are therefore affirmed. Similarly, the claim for PTSD is determined to be not war caused.
Conclusion
65.The Tribunal decides that:
1the decision of the Veterans’ Review Board dated 8 July 2002 in relation to cardiomyopathy is set aside and it is determined that this a war-caused disease;
2the decision that the veteran’s cardiomyopathy is war caused, is to be remitted to the respondent for assessment of pension;
3the Tribunal affirms the decision under review as far as it relates to (a) alcohol dependence and (b) depressive disorder; and
4 the Tribunal determined that the claim for Post Traumatic Stress Disorder was not war-caused.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: J Lauriston
Administrative Assistant
Date/s of Hearing 28 September 2004
Date of Decision 18 November 2004Counsel for the Applicant Mr R Clutterbuck, of Counsel
Solicitor for the Applicant Streeting Haney, Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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