LYLE TOWNSEND and REPATRIATION COMMISSION
[2013] AATA 335
•24 May 2013
[2013] AATA 335
Division VETERANS' APPEALS DIVISION File Number
2012/2143
Re
LYLE TOWNSEND
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 24 May 2013 Place Brisbane
The Tribunal:
(1) sets aside the decisions under review in relation to depressive disorder and diabetes mellitus; substitutes its decisions that those conditions are defence- caused in accordance with s 70 of the Veterans' Entitlement Act 1986 (Cth); that the veteran is entitled to receive a pension for associated incapacity with effect from 17 October 2010; and that the matter of assessment is remitted to the Repatriation Commission; and
(2) affirms the decisions under review in relation to alcohol dependence, erectile dysfunction and chronic bronchitis and emphysema.
……………[SGD]………………………
Mr R G Kenny, Senior MemberCATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Defence service with Australian Army – Depressive disorder – Diabetes mellitus – Statements of Principles – Clinical onset – Experiencing a category 1B stressor – Conditions caused by defence service – Decisions set aside and substituted – Matter of assessment remitted to Repatriation Commission
VETERAN’S AFFAIRS – Pensions and benefits – Defence service with Australia Army – Alcohol dependence – Erectile dysfunction – Chronic bronchitis and emphysema – Clinical onset – Conditions not caused by defence service – Decisions under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 14, 70, 120, 120B
CASES
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Smith (1987) 15 FCR 327
SECONDARY MATERIALS
Statement of Principles: Instrument No. 31 of 2004
Statement of Principles: Instrument No. 18 of 2005
Statement of Principles: Instrument No. 28 of 2008 as amended by Instrument No. 41 of 2010
Statement of Principles: Instrument No. 2 of 2009
Statement of Principles: Instrument No. 90 of 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Lyle Townsend (the veteran) served in the Australian Army (the Army). On 17 January 2011, he lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension on the basis that certain conditions from which he suffers were related to his Army service in accordance with s 70 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 18 May 2011 and by the Veterans’ Review Board on 9 March 2012.
SERVICE
The veteran’s Army service was from 12 May 1971 until 17 November 1981. He rendered defence service in accordance with s 70 of the Act from 7 December 1972 until his discharge.
CAUSATION
Section 70(1) of the Act provides that, where a member of the forces is incapacitated from a defence-caused injury or disease[1], the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The criteria of causation are set out in s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of the member.
[1] As those terms are defined in s 5D(1) of the Act.
Where, as in this case, defence service was rendered, the standard of proof applicable to the determination is set out in s 120(4) of the Act which requires that the matters are to be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[2] The application of that provision is affected by the terms of s 120B(3) of the Act, which reads:
[2] Repatriation Commission v Smith (1987) 15 FCR 327 at 335 per Beaumont J.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
That provision is concerned with matters of causation and requires a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
The conditions claimed by the veteran to be service-related are alcohol dependence, depressive disorder, chronic bronchitis or emphysema, diabetes mellitus and erectile dysfunction. The issue for the Tribunal is whether any of those conditions arose out of, or was attributable to, any defence service rendered by him.
CONTENTIONS
Mr David Chalk
For the veteran, Mr Chalk submitted that the veteran was only young when he joined the Army and, at that time, he consumed alcohol and used cigarettes to a minor degree only. He went to Singapore for a period of 20 months without having any real training for his role there. While based in Singapore, he would travel into Malaysia to an area near the Thai border where he was involved in live firing exercises. He would remain there for six weeks at a time before returning to Singapore. He found those periods stressful and was able to smoke cigarettes and consume alcohol from the rations distributed to each soldier and because they were inexpensive. Back in Singapore, he experienced the stress of being away from Australia and was frequently involved in a round of social engagements with friends and families which involved heavy consumption of alcohol and smoking.
Mr Chalk submitted that these influences constituted a causal association between smoking and service as well as alcohol consumption and service. On that basis, he submitted that alcohol dependence and smoking were defence-caused. Accordingly, he submitted the causally related conditions of depressive disorder, diabetes mellitus chronic bronchitis and emphysema and erectile dysfunction were defence-caused.
Mr Bruce Williams
For the respondent, Mr Williams conceded that the veteran had experienced a category 1B stressor when he attended to persons injured in a motor vehicle accident on 6 April 1981; that this was responsible for the development of his depressive disorder; and that depressive disorder should be accepted as defence-caused with effect from 17 October 2010 in accordance with the requirements of the Statement of Principles for depressive disorder. He noted that various dates were given for the clinical onset of the veteran’s erectile dysfunction but that the majority of them post-dated the clinical onset of depressive disorder. Accordingly, he conceded that, with effect from 17 October 2010, erectile dysfunction should be accepted as being related to the veteran’s service per medium of his depressive disorder and the Statement of Principles for erectile dysfunction.
Mr Williams submitted that the veteran’s alcohol dependence developed during and after his Singapore service but only through the ready availability of it and the opportunity to indulge in its consumption. He submitted that it was unrelated to his Army service. As to the veteran’s smoking habit, he submitted that this was a matter of personal choice by him which he took up, in particular, in an association with his alcohol consumption. His submission was that it was not service-related and that the conditions which developed as a consequence of smoking were not related to the veteran’s defence service. This included diabetes mellitus and chronic bronchitis and emphysema.
EVIDENCE
The veteran
The veteran’s evidence was that, after recruit training, he was posted to Artillery where he gained experience with 25 pound and 105mm Howitzer guns. This continued until he was posted to 106 Battery in Singapore in 1972 where he served for 20 months. There, he was required to undertake live firing exercises in Malaya near the Thai border for up to six weeks at a time. An element of his duties there which he found stressful was carrying out the role of a “pistol gun”. This involved a gun crew of seven men transporting their gun to a remote bush setting and firing a round into bushland in order to trigger retaliatory gun fire from an enemy force. After the gun was fired, the crew would wait for a period to see if there was a response. In the event that there was, the other guns were to home in on the enemy position. It was a task rotated through the group and the veteran’s crew performed the task on two occasions. At no stage was an enemy response elicited.
Before enlisting in the army, the veteran rarely drank alcohol and seldom smoked cigarettes. That soon changed and he began to attend the mess in the evenings with other soldiers. As his drinking increased, so did the level of smoking. Both habits increased in intensity when he was posted, in July 1972, to Singapore, because of availability and low cost. The veteran always volunteered to stay back after range sessions to conduct maintenance on the guns and did this because he did not wish to return to Singapore and also because he was able to drink beer at the range. When in Singapore, he would attend the mess each night for drinks and, during extended leave periods, also took part in the many social functions which could last for days at a time. He smoked heavily during these sessions and estimated that he trebled the number of cigarettes that he had smoked before being posted to Singapore. He also smoked a pipe and reserved that for the evenings when he was at home. His drinking and smoking continued even after his wife came to Singapore, about five weeks after the veteran did.
On return to Australia in 1973, the veteran was posted to 8/12 Medium Regiment and completed a course on destruction of “blinds” which was a reference to unexploded ordnance. He was then posted to DSU Liverpool Range Control where he was responsible for range activities, which included training for civilians in the Commonwealth Police and security staff in the Commonwealth Bank. His main work was in destroying blinds and he found this stressful as his team would be involved in 100 or so destructions each week. He recalled an occasion when the strength of the blast from an aircraft bomb knocked him off his feet even though he was at what was supposed to be a safe distance. He continued to drink alcohol excessively and smoke cigarettes heavily during this period and he was aware that, during the years in Singapore and after returning to Australia, his marriage suffered because of his alcohol consumption.
On 6 April 1981, the veteran drove across the range during a cease-fire period. A Land Rover in which two military personnel were travelling preceded him by some minutes. That Land Rover was involved in an accidental roll-over and the veteran was first on the scene. The female driver was trapped beneath the vehicle and was covered in petrol from the leaking fuel tank. She was badly injured and was feeling a burning sensation from the petrol. The male passenger was also injured but less critically than the driver. Attempts by the veteran to extract the driver from her position proved unsuccessful so the veteran contacted Range Control who arrived soon after and were able to assist her. She was in hospital for some time and eventually received a compensation payment from the Commonwealth for her injuries. The veteran found the incident with the Land Rover very stressful as the injured driver was screaming for assistance while trapped and the potential for her to be engulfed by fire reminded him of an earlier episode while he was living in the married quarters at Villawood. On that occasion, he was at home and off-duty when he was called out by his neighbour whose child was badly burned after his clothing caught fire as a result of being too close to a heater. The veteran had rescued the child by extinguishing the flames and in the process received burns to his hands. He recalled the child had been screaming as was the driver of the Land Rover.
After his discharge, the veteran and his family moved to Newcastle where he was employed as a government Fishing Inspector until 1985 when he ceased work because of an injury to his knees which made the inspection duties impractical for him. Subsequently he took up employment in security work.
Mrs Townsend
The veteran’s wife completed a statutory declaration on 18 September 2012.[3] She had known the veteran since they were at school and they were married when he and she were aged 19 and 18 years, respectively. She recalled that, before enlisting in the Army, the veteran had an occasional drink and cigarette on social occasions but was limited in the extent of this by the associated cost. She became aware that he indulged in these habits increasingly after enlistment and he was regularly absent from the home drinking with his army mates. His smoking and drinking habits increased even more in Singapore and continued at that high level on return to Australia.
[3] See Exhibit 13.
James Simpson
Mr Simpson completed a statutory declaration on 16 August 2012.[4] He served with the veteran in Singapore as a Gun Sergeant. He confirmed that, when on exercises, the men were issued with two cans of beer per day and that it was a common pastime for many of the soldiers, including the veteran, to smoke heavily and to drink heavily in Army canteens where prices were low.
[4] See Exhibit 5.
Writeway Reports
The respondent utilised Writeway Research Service Pty Ltd (Writeway) to obtain background information about aspects of the veteran’s service. Two reports, dated 3 December 2012[5] and 8 March 2013[6] were provided. The researcher confirmed that the veteran qualified in July 1975 to undertake destruction of unexploded ordnance from 1 July 1975. The reporter noted that the veteran had been allocated to Range Control which was a sub-unit of DSU Liverpool. He also confirmed the veteran’s involvement in assisting the driver of a Land Rover after it was involved in an accident on 6 April 1981 at Holsworthy Range. He confirmed that the veteran was first on the scene, that he provided assistance and called for more substantial assistance and that both the driver and the passenger in the vehicle were hospitalised.
[5] See Exhibit 2.
[6] See Exhibit 3.
Dr Una Stephenson
Dr Stephenson is a psychiatrist with the Cairns and Hinterland Mental Health Service. She completed reports on 19 November 2002,[7] 20 June 2003,[8] 20 April 2011,[9] 2 May 2012[10] and 13 March 2012[11]. She also gave evidence.
[7] See Exhibit 1, T-documents, pp. 30-33.
[8] See Exhibit 1, T-documents, pp. 55-57.
[9] See Exhibit 1, T-documents, pp. 112-115.
[10] See Exhibit 8.
[11] See Exhibit 9.
Dr Stephenson confirmed the diagnoses of alcohol dependence, depressive disorder and erectile dysfunction. She noted that the veteran was already drinking and smoking when he joined the Army and that this brought him into a culture where drinking was regularly accepted and was used in “aiding camaraderie between the men”. She noted that the veteran spent “time in the mess after work socialising and drinking” and that he had been expected to do so. Dr Stephenson described the veteran’s munitions clearing work as stressful and noted that he had found this “more stressful than being in the bush in Malaysia”. She considered that alcohol dependence should be accepted as service-related “due to the whole culture in which he served”.
Dr Stephenson described depression as a condition of gradual onset but referred to the motor vehicle accident on the Holsworthy range in 1981 and considered that this was “just about the last straw” for the veteran. In her final report, Dr Stephenson noted that he took annual leave and long service leave shortly afterwards “in order to settle his nerves”. He had not intended to leave the Army at that time but it became clear to him “that he was in no state of mind to return to work” and was discharged in November 1981.
In her first report, Dr Stephenson noted that the veteran had received no treatment for his psychiatric problems and that his impotence has been present for some eight or nine years. In her second report, Dr Stephenson referred to an absence of treatment and strongly recommended that he approach his general practitioner about this. At that time, she provided the veteran with a sample pack of antidepressant tablets.
Dr Stephenson spoke with the veteran’s wife who related the history of his heavy alcohol consumption in Singapore and for the rest of his life after returning to Australia. This had resulted in financial and emotional difficulties for them. She reported that the veteran had suffered from impotence for some years and had also been depressed for a long time. This was accepted by Dr Stephenson who referred to the duration of his psychological disability.
Dr Michael Likely
Dr Michael Likely, psychiatrist, provided reports dated 1 July 2004[12] and 12 August 2004.[13] He confirmed the diagnoses of depression and alcohol dependence. In his first report, he identified no specific stressor for these apart from the veteran’s failure to adjust to civilian life. He noted that “various anti-depressant drugs have been trialled” but no further detail of these is given. In his second report, Dr Likely referred to the incidents involving the burnt child and the injured Land Rover driver and wrote: “It appears that they may have been instrumental in the evolution of the symptoms of depressive disorder”; he noted that the veteran’s symptoms of depression were present when he took his discharge from the Army. At the time of his second report, Dr Likely noted that the veteran was taking anti-depressants at that time.
[12] See Exhibit 1, T-documents, p. 48.
[13] See Exhibit 1, T-documents, p. 68.
Dr Graham Simpson
A field of Dr Simpson’s practice is respiratory medicine. He completed a report on 17 October 2002.[14] On the basis of his testing, he concluded that the veteran has a mild permanent airflow limitation which is “almost certainly related to cigarette smoking”.
[14] See Exhibit 1, T-documents, pp. 28-29.
Dr Steven Rudolphy
On 16 December 2010,[15] Dr Rudolphy, the veteran’s treating doctor, provided guidance in relation to some of the veteran’s conditions. He recorded the veteran’s height and weight at 177cms and 117.5kgs, respectively, and noted that he was obese at that time. He diagnosed erectile dysfunction based on a history given by the veteran when he was first consulted about it in 2002. He referred to COPD[16] as a diagnosis of the veteran’s lung condition based on tests dated 2007. He diagnosed diabetes mellitus on the basis of glucose tolerance tests conducted in February 2009. Dr Rudolphy also diagnosed alcohol dependence with reference to the veteran consulting him about that condition in 2002.
[15] See Exhibit 1, T-documents, pp. 71-75. Some parts of the report appear to be incorrectly dated as 16/10/12.
[16] “Chronic obstructive pulmonary disease” now described in the Statements of Principles as “chronic bronchitis and emphysema”.
In another report dated 11 July 2001,[17] Dr Rudolphy diagnosed depression with onset in 1990, impotence with onset in 1990, COPD with onset in 1976, and alcohol dependence with onset in 1971.
[17] See Exhibit 1, T-documents, pp. 18-21.
On 10 February 2011,[18] he recorded the veteran’s height and weight as 175cm and 119kgs, respectively, with a BMI of 38. He noted that exercise tolerance was reduced by arthritis of the hips and knees as well as COPD. On that date, he also gave the onset of erectile dysfunction as 2002.
[18] See Exhibit 1, T-documents, pp. 83-101.
Service records
The veteran’s service records in July and August 1977 make several references to excessive alcohol consumption leading to a psychiatric assessment and a downgrade in his medical classification. He is described as having a “vulnerable personality as the primary diagnosis” and a reluctance “to accept the role of drinking in his problems”. A provisional diagnosis of “?alcoholism” is made. It was noted that he had made no effort to get himself fit and “although advised by the doctor to stop drinking he has been seen doing so on many occasions”.[19]
[19] See Exhibit 1, T-documents, pp. 6-9.
In his service records, the veteran is recorded as being 178cm tall and his weight recordings as 178 pounds on 27 April 1971; 99kgs on 20 August 1977 when he is noted to be obese; 92kgs on 28 March 1978 when he is described as being more than 15% overweight; 96kgs on 23 October 1981 where he is noted to be overweight.[20]
[20] See Exhibit 1, T-documents, pp. 4, 10, 12, and 14 respectively.
Abnormal emotional stability is noted in the veteran’s service medical records on 28 March 1978 although the associated description is that he was “much happier in his new job” and that his alcohol intake had reduced. A Medical History Questionnaire, dated 23 October 1981, describes no nervous or mental illness.[21]
PROCEDURE FOR CONSIDERATION
[21] See Exhibit 1, T-documents, pp. 12 and 13 respectively.
Statements of Principles
The Statements of Principles relevant to the veteran’s claim, the factors relied upon and the associated definitions are:
Instrument No 28 of 2008[22] for depressive disorder
[22] As amended by Instrument No 41 of 2010 in a manner not material to this matter.
(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
Instrument No 90 of 2011 for diabetes mellitus
(b) for type 2 diabetes mellitus only,
…
(xi) having depressive disorder, bipolar disorder or schizophrenia at the time of the clinical onset of diabetes mellitus;
Instrument No 18 of 2005 for erectile dysfunction
(a) having a clinically significant mood disorder with depressive features or a clinically significant anxiety disorder at the time of the clinical onset of erectile dysfunction; or
(b) smoking at least fifteen pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of erectile dysfunction; or
…
(h) having diabetes mellitus at the time of the clinical onset of erectile dysfunction; or
…
(p) having alcohol dependence or alcohol abuse at the time of the clinical onset of erectile dysfunction;
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Instrument No 2 of 2009 for alcohol dependence
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b) experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
(c) experiencing a category 1B stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties.
“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.
"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
Instrument No 31 of 2004 for chronic bronchitis and emphysema
(a) smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;
“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
Clinical Onset
Each of the factors in the Statements of Principles requires consideration of the concept of “clinical onset”. In Kaluza v Repatriation Commission (Kaluza),[23] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission[24] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[23] [2010] FCA 1244.
[24] (2002) 125 FCR 331
Depressive disorder
Dr Stephenson was reluctant to identify a specific time of clinical onset of depressive disorder, preferring to note that it is a condition of insidious onset. However, she recognised the significance of the motor vehicle incident involving the injured driver as a “last straw” in that process. She also accepted the long-standing nature of the veteran’s depression and his decision to leave the Army some months after the incident, declaring to Dr Stephenson that he was in “no state of mind to return to work” after a period of leave. Dr Likely accepted that the incident contributed to the veteran’s condition and that depressive symptoms were present at the time of the veteran’s discharge in 1981.
I have noted the absence of reference to any psychological conditions in the veteran’s medical records at the time of his discharge. Despite that, I am reasonably satisfied that, on the basis of the evidence of Dr Likely and Dr Stephenson, the motor vehicle incident in April 1981 was one in which the veteran experienced a severe traumatic event as provided for in the Statement of Principles as a category 1B stressor for depressive disorder and that the clinical onset of the condition occurred within two years of that incident. I am reasonably satisfied that the veteran’s depressive disorder is a defence-caused condition in accordance with the Statement of Principles. As noted above, this was conceded by Mr Williams.
Diabetes mellitus
No concession was made by Mr Williams in relation to the relationship between the veteran’s diabetes mellitus and his service. However, a factor in the Statement of Principles for diabetes mellitus is the presence of depressive disorder at the time of the clinical onset of diabetes mellitus. The Statement of Principles does not require the depressive disorder to be “clinically significant” at that time. The evidence of Dr Rudolphy is that a glucose tolerance test in 2009 revealed that the veteran suffered from diabetes mellitus. I accept that as the clinical onset of the condition. That post-dates the time-frame provided by Dr Stephenson and Dr Likely for the clinical onset of depressive disorder. Accordingly, I am reasonably satisfied that diabetes mellitus is a defence-caused condition in accordance with the Statement of Principles for that condition.
Erectile dysfunction
Various estimates have been given for the clinical onset of erectile dysfunction. Dr Rudolphy referred to 2002 as the year when the veteran consulted him about the condition though, in an earlier report, he nominated 1990 as the year of onset. Dr Rudolphy’s reports as well as the history of the condition noted by the veteran’s wife and by Dr Stephenson point to a clinical onset of erectile dysfunction in the early 1990s.
Mr Williams conceded that the veteran’s erectile dysfunction was defence-caused in accordance with the Statement of Principles for that condition on the basis that it had its clinical onset some time after the onset of his depressive disorder. While I am satisfied that that chronology is correct, another element of the Statement of Principles for erectile dysfunction must be considered. For erectile dysfunction to be causally associated with it, the depressive disorder must have been a “clinically significant” condition at the time of the clinical onset of erectile dysfunction. According to the Statement of Principles, this means that the severity of the depressive disorder must have been “sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.” There is no evidence of any management such as referred to in the Statement of Principles until many years after the onset of erectile dysfunction. Dr Stephenson did not identify treatment in 2002 and she provided “sample” medication to the veteran in 2003. Dr Rudolphy noted the first consultation with the veteran for depression in 2002. On that evidence, I am reasonably satisfied that the veteran’s erectile dysfunction had its clinical onset before the depressive disorder became clinically significant as that term is defined in the Statement of Principles. Accordingly, I am reasonably satisfied that, in accordance with the Statement of Principles, erectile dysfunction is not defence-caused on the basis of the veteran’s depressive disorder.
The Statement of Principles for erectile dysfunction also provides for the condition to be defence-caused if the veteran’s defence-caused diabetes mellitus was present at the time of the clinical onset of the erectile dysfunction. As noted above, I am satisfied that erectile dysfunction had its clinical onset in the early 1990s and that of diabetes mellitus was in 2009. Because the clinical onset of the diabetes mellitus post-dated that of the erectile dysfunction, I am reasonably satisfied that the factor in the Statement of Principles relating to diabetes mellitus is not satisfied and that erectile dysfunction is not defence-caused on that basis.
Erectile dysfunction may also be related to service through defence-caused smoking or defence-caused alcohol dependence. The veteran commenced both of these practices before he enlisted at almost 24 years of age. He soon began to attend the mess in the evenings with other soldiers and his alcohol consumption increased, along with the level of his smoking. This continued in Australia for 14 months and increased further in Singapore where he served for five months before the commencement of his eligible defence service in December 1972. By then, I am satisfied that he had become a regular consumer of cigarettes and alcohol and that this was through the exercise of his personal choice and, even if the culture of service life in that 19 month period promoted the practices, that service was not eligible defence service. The veteran continued to increase his smoking and alcohol consumption during the remainder of his service in Singapore and I am reasonably satisfied that this reflected the natural progression of both practices, encouraged by the lower costs associated with each of them and the opportunity presented by the wide range of social activities in which he and other soldiers engaged. Aspects of the veteran’s duties were considered by him to be stressful, such as performing in the role of the pistol-gun; but that was not an incident where there was any realistic prospect of encountering “enemy” forces. Indeed, his evidence was that his custom was to volunteer for maintenance duty at the range, where he was able to indulge his liking for alcohol, rather than return to his home. His duties in clearing munitions on the range were described as stressful for him. However, he recalled only one incident, in the many hundreds that he identified as having completed, as being noteworthy. This was where the blast was felt some distance from the point of detonation although no injuries were incurred.
Dr Rudolphy identified the veteran as being alcohol dependent from 1971. No service medical records were available at the hearing from 1971 until 1977 but, by then, his service records reveal that medical staff expressed significant concerns about the levels of his alcohol consumption. While I am reasonably satisfied that the veteran was alcohol dependent and had smoked 15 pack years of cigarettes before the clinical onset of erectile dysfunction in the early 1990s, I am also reasonably satisfied that neither his alcohol consumption nor his cigarette smoking was causally related to his defence service.
On all of the material before me, I am reasonably satisfied that no factor in the Statement of Principles for erectile dysfunction is met in this matter and that the condition is not defence-caused.
Alcohol dependence
Life threatening events and being an eye-witness to a person being injured were described by the veteran in relation to his experience with the burnt child and the attempted rescue of the driver of the Land Rover on the range in 1981. The first of those occurred when he was at his home and off duty and, therefore, does relate to his defence service. The second occurred some years after the medical evidence clearly points to his already being alcohol dependent. Therefore, the condition pre-dates that incident. It also pre-dates the clinical onset of the veteran’s defence-caused depressive disorder. I am reasonably satisfied that no factor in the Statement of Principles for alcohol dependence is met in this matter and that that condition is not defence-caused.
Chronic bronchitis and emphysema
The relevant factor in the Statement of Principles for this condition requires defence-caused cigarette smoking of at least 10 pack years of cigarettes before its clinical onset. While Dr Rudolphy noted the presence of the condition in 2007, Dr Simpson concluded that the veteran had a mild permanent airflow limitation in 2002. He related it to cigarette smoking. However, for the reasons outlined above, I am reasonably satisfied that the veteran’s smoking habit was well established by the commencement of his defence service and that its continuation or increase was unrelated to it. It follows that the requirements of the Statement of Principles are not satisfied and the veteran’s chronic bronchitis and emphysema is not defence-caused.
DECISION
The Tribunal:
(1)sets aside the decisions under review in relation to depressive disorder and diabetes mellitus; substitutes its decisions that those conditions are defence-caused in accordance with s 70 of the Veterans' Entitlement Act 1986 (Cth); that the veteran is entitled to receive a pension for associated incapacity with effect from 17 October 2010; and that the matter of assessment is remitted to the Repatriation Commission; and
(2)affirms the decisions under review in relation to alcohol dependence, erectile dysfunction and chronic bronchitis and emphysema.
I certI I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
..................[SGD]................................
Associate
Dated 24 May 2013
Date of hearing 2 May 2013 Advocate for the applicant Mr David Chalk
Advocate for the respondent Mr Bruce Williams
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