Lynn and Repatriation Commission
[2011] AATA 903
•16 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 903
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4976
VETERANS' APPEALS DIVISION ) Re ROBERT JAMES WILLIAM LYNN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Lt Col R Ormston (Ret'd) (Member)Date16 December 2011
PlaceAdelaide
Decision The Tribunal:
(a) sets aside the decision under review and in substitution for that decision decides that Mr Lynn’s conditions of generalised anxiety disorder and alcohol dependence are war-caused with a date of effect of 12 March 2009; and
(b) remits the matter to the respondent for assessment of the disability pension payable to Mr Lynn as a consequence of this decision.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Generalised anxiety disorder and alcohol dependence – Operational service in first Gulf War – Deledio steps – Generalised anxiety disorder war-caused – Alcohol dependence also war-caused – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408Repatriation Commission v Milenz (2006) 93 ALD 107
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 1 of 2009REASONS FOR DECISION
16 December 2011 Senior Member K Bean
Lt Col R Ormston (Ret'd) (Member)introduction
1.The applicant, Mr Lynn, served in the Royal Australian Navy for 20 years from July 1971 to July 1991. Just prior to the ending of his service, he was deployed on operational service in the first Gulf War, between 20 November 1990 and 19 April 1991. During his operational service in the Gulf, he was Chief Petty Officer, Coxswain aboard HMAS Brisbane.
2.Following his service in the Gulf, Mr Lynn suffered a number of very significant psychiatric symptoms and in January 2010, he was diagnosed as suffering from a generalised anxiety disorder, together with alcohol dependence.
3.Prior to that formal diagnosis, in June 2009, Mr Lynn lodged a claim for a disability pension on the basis of his psychiatric symptoms. However, whilst the Repatriation Commission (the Commission) accepted that he was suffering from an anxiety disorder, the Commission decided that his anxiety disorder was not related to his service[1]. On 23 September 2010, the Veterans’ Review Board (the VRB) affirmed that decision, also concluding that his anxiety disorder was not war-caused.
[1] T4/24-29
4.On 16 November 2010, Mr Lynn applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
the issues
5.It follows that in general terms the issues before us are as follows:
(a)whether Mr Lynn suffers from any psychiatric conditions;
(b)if so, the diagnosis for those conditions; and
(c)whether any conditions from which Mr Lynn is suffering are war-caused.
legal framework
6. Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly 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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
8. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that Mr Lynn’s service in the Gulf from 20 November 1990 to 19 April 1991 was operational service.
9. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether any psychiatric condition suffered by Mr Lynn is war-caused. That section provides relevantly as follows:
“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.”
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
10. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
11. Section 120A(3) provides relevantly:
“(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
...
that upholds the hypothesis.”
Sub-section (4) of s 120A excludes the operation of sub-s (3) in certain circumstances which are not relevant to the present proceedings.
12. The application of ss 120(1) and (3) and 120A(3) of the VE Act was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where the Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
“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). 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 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.”[2]
13. It is also established by the authorities that an hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
[2] The second sentence of Step 2 in Deledio was obiter and is not correct: Bull v Repatriation Commission (2001) 66 ALD 271. Where no SoP is in force, the veteran’s application will not necessarily fail, but must be determined in accordance with s 120(1) to (3) on the basis of the medical evidence before the Tribunal.
consideration
14.As we have indicated above, before proceeding to consider whether any condition suffered by Mr Lynn is war-caused, we propose to first address the question of the conditions from which he is suffering and the proper diagnosis of those conditions.
Diagnosis
15.Dr Ewer, psychiatrist, has assessed Mr Lynn on a number of occasions commencing in February 2002, and is currently Mr Lynn’s treating psychiatrist. Dr Ewer has provided reports dated 13 February 2002[3], 15 July 2009[4], 19 January 2010[5] and 23 March 2011[6]. Dr Ewer also gave oral evidence at the hearing.
[3] T14/83
[4] T16/89
[5] T18/98
[6] Exhibit 2
16.In his report of 19 January 2010, Dr Ewer stated that he believed Mr Lynn to be suffering from a generalised anxiety disorder together with alcohol dependence, in partial remission[7]. He adhered to both diagnoses in the course of his oral evidence, noting that Mr Lynn’s alcohol dependence was in “early remission”.
[7] T18/103-104
17.As indicated in his reports, Dr Ewer also confirmed in his evidence that he considered the clinical onset of Mr Lynn’s generalised anxiety disorder had occurred either whilst he was in the Gulf on operational service or shortly thereafter.
18.Having regard to this evidence, which is not contradicted, we are satisfied that the appropriate diagnoses in respect of Mr Lynn are generalised anxiety disorder and alcohol dependence.
19.We accordingly propose to consider whether each of those conditions is war-caused, commencing with generalised anxiety disorder.
Is Mr Lynn’s generalised anxiety disorder war-caused?
20.The answer to this question depends upon our consideration of the issues raised at each of the four Deledio steps outlined above. We accordingly propose to address each of those steps in turn, by reference to the material before us and the contentions of the parties.
Does the material point to an hypothesis connecting Mr Lynn’s generalised anxiety disorder with his service?
21.Mr Lynn’s hypothesis is that he was subjected to extreme stress during his operational service in the Gulf which led to the development of his generalised anxiety disorder, either during or shortly after the end of his operational service.
22.We are satisfied that the material points to facts which support this hypothesis and that the hypothesis is otherwise reasonable. Accordingly, we consider that step 1 of the Deledio test is satisfied and we did not understand Mr Crowe, who appeared as advocate for the respondent, to contend to the contrary.
Is there an applicable SoP?
23.There is an SoP currently in force which is applicable to generalised anxiety disorder, namely Instrument No 101 of 2007 relating to “anxiety disorder”. That SoP relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor 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 is:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified only:
...
(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or
...
Other definitions
9. For the purposes of this Statement of Principles:
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;”
Does the hypothesis fit the SoP?
24.Having regard to the terms of the SoP, and the material before us, the answer to this question depends in turn upon whether the material points to the existence of “a Category 2 stressor” within one year before the clinical onset of Mr Lynn’s generalised anxiety disorder.
25.Mr Lynn gave evidence that he found his operational service in the Gulf extremely stressful. He explained that during his operational service, he was Chief Petty Officer, Coxswain aboard HMAS Brisbane. He also explained that this was an extremely responsible role which involved operating the ship’s steering when the ship was in peril. In his statement he said:
“I consider that my role was very intense, I had to concentrate for long periods of time and I had no margin for error.”[8]
[8] Exhibit 4, [5]
26.Mr Lynn said that even the period leading up toward transit to the Gulf was extremely stressful as the ship had not passed its final “battle problem” and the ship’s company was required to work extremely long hours so as to pass this requirement before the ship entered the Gulf. Mr Lynn said that he recalled not sleeping for 72 hours straight during this period.
27.Mr Lynn also explained that once the ship had entered the Gulf, the demands upon him increased. He stated:
“During this period; my defence watch, special sea duty man and action station required me to steer and operate the ship’s engine telegraphs at the command of the Officer of the Watch (OOW), (in most cases this was the Commanding Officer - Captain). It was critical that when I was on any of these stations and in control of the ship that I did not make a mistake. Should I have missed a command, allowed the ship to drift slightly off course or was too slow in telegraphing an engine order, the results could have [been] catastrophic for not only HMAS Brisbane but other ships and their crews.”[9]
[9] Exhibit 4, [19]
28.Mr Lynn encountered a number of other stressful events and situations during his time in the Gulf and also gave evidence of feeling constantly exhausted and increasingly unwell physically while he was in the Gulf. He stated that shortly after it was announced that hostilities had ceased, he developed severe cramps in his solar plexus and stomach. This resulted in him being treated in Oman hospital on 24 March 1991, with a resulting diagnosis which was recorded as “? biliary colic”[10].
[10] T6/51
29.As we have noted above, Dr Ewer gave evidence that he considered Mr Lynn’s generalised anxiety disorder had developed in response to the stressors he was subjected to during his operational service in the Gulf, and that the clinical onset of the condition occurred either during Mr Lynn’s operational service or a short time after his operational service. Dr Ewer also explained in his evidence that he considered Mr Lynn’s hospital admission in Oman to be consistent with his opinion in terms of both diagnosis and clinical onset.
30.Turning to the terms of the SoP, we note that the definition of “a Category 2 stressor” relevantly includes:
“(c) having concerns in the work ... environment including:
...
perceived lack of control over tasks performed and stressful workloads.”
31.In our view, Mr Lynn’s experiences in the Gulf, particularly his description of an unrelenting and stressful workload involving considerable responsibility, satisfies the definition of “a Category 2 stressor” within the meaning of the SoP.
32.Having regard to Dr Ewer’s evidence, we are also satisfied that Mr Lynn’s generalised anxiety disorder had its onset within one year of him experiencing “a Category 2 stressor”, as required by factor 6(a)(v) of the SoP.
33.It follows that Mr Lynn’s hypothesis fits the SoP and his claim for generalised anxiety disorder therefore also satisfies step 3 of the Deledio test.
Are we satisfied beyond reasonable doubt that Mr Lynn’s generalised anxiety disorder is not war-caused?
34.We acknowledge that some aspects of the evidence before us could be seen as being inconsistent with the conclusion that Mr Lynn’s condition was caused by his operational service. For example, just prior to his deployment to the Gulf, in late 1989 and early 1990, Mr Lynn appears to have suffered a serious emotional crisis in connection with marital discord and a temporary separation from his wife. This crisis was reported by a psychologist, Mr Pascoe, as have required “urgent clinical intervention” in March 1990, approximately eight months before Mr Lynn commenced his deployment to the Gulf. Mr Pascoe subsequently reported, on 23 May 1990, that Mr Lynn had “achieved a remarkable, complete recovery from the acute depression and anxiety state” he had been suffering from two months previously[11].
[11] T6/48
35.Mr Crowe contended that these records nevertheless raised significant doubts as to whether Mr Lynn’s anxiety state did in fact originate in his operational service, or had been present beforehand. He also pointed to evidence potentially suggesting that Mr Lynn may have sought to minimise his psychological symptoms prior to deployment, at least partly because he was under consideration for promotion and seeking sea service in early 1990.
36.However in the course of his evidence, Dr Ewer’s attention was directed to the records relating to Mr Lynn’s psychiatric state in late 1989 and early 1990, and his evidence was that these did not alter his opinion that Mr Lynn’s generalised anxiety disorder had its onset either during or shortly after his operational service and not earlier. In light of that evidence, we are not satisfied beyond reasonable doubt that Mr Lynn’s generalised anxiety disorder was present prior to his deployment to the Gulf and therefore not attributable to that deployment.
37.Turning to events after his operational service, Mr Lynn also attempted suicide in 1995, potentially suggesting that the condition had its onset at a later time. Mr Lynn was also assessed by Dr Ewer in 2002, when he reported becoming depressed prior to his suicide attempt, but did not report the stress he now says he was subjected to during his operational service.
38.In relation to this latter issue however, Mr Lynn explained in his evidence that at the time he saw Dr Ewer in 2002 he did not want to admit to what he saw as his weakness or inadequacy in not coping better with his operational service. Dr Ewer also made reference in his evidence to the fact that it is not uncommon for defence personnel to “under-report” psychological symptoms for this reason.
39.In relation to Mr Lynn’s suicide attempt in 1995, in our view the fact that Mr Lynn reported depression and attempted suicide in 1995 is not difficult to reconcile with Dr Ewer’s opinion that he had in fact been suffering from a generalised anxiety disorder since his operational service in the Gulf which he was having difficulty coping with. Therefore the fact that Mr Lynn attempted suicide in 1995 does not cause us to doubt that his generalised anxiety disorder resulted from his operational service some four to five years earlier.
40.Accordingly, none of these matters nor any other aspect of the evidence causes us to be satisfied beyond reasonable doubt that Mr Lynn’s generalised anxiety disorder is not war-caused.
41.It follows that Mr Lynn’s claim in respect of generalised anxiety disorder also satisfies step 4 of the Deledio test and we have accordingly concluded that the condition is war-caused within the meaning of the VE Act.
Is Mr Lynn’s alcohol dependence war-caused?
42.The answer to this question of course also depends upon our consideration of the issues raised at each of the four Deledio steps. We accordingly propose to also address each of those steps in turn with respect to Mr Lynn’s alcohol dependence.
Does the material point to an hypothesis connecting Mr Lynn’s alcohol dependence with his operational service?
43.There was no dispute between the parties that Mr Lynn’s condition of alcohol dependence had its onset prior to his operational service. However, Mr Ower, who appeared as counsel for Mr Lynn, contended that his operational service and the generalised anxiety disorder resulting from that operational service had in turn caused an aggravation or “clinical worsening” of Mr Lynn’s alcohol dependence such that that condition was also war-caused.
44.We propose to consider the material in more detail in the context of assessing whether Mr Lynn’s hypothesis fits the template of the relevant SoP. However, we should indicate at this stage that we consider the material does point to an hypothesis connecting Mr Lynn’s alcohol dependence with his service, by means of an aggravation of Mr Lynn’s alcohol dependence resulting from his operational service. The material which we consider to be of particular relevance in this regard is the evidence of Mr Lynn that he significantly increased his drinking in the period immediately after his operational service, particularly during the three months following his return from operational service. We have also had regard to Dr Ewer’s evidence, to the effect that he considered Mr Lynn’s alcohol dependence had worsened in the three months after his return from the Gulf.
45.Accordingly, we consider that step 1 of the Deledio test is satisfied in respect of this condition.
Is there an applicable SoP?
46.There is an SoP currently in force relating to alcohol dependence and alcohol abuse, namely Instrument No. 1 of 2009. That SoP relevantly provides as follows:
“Kind of injury, disease or death
3.(a) This Statement of Principles is about alcohol dependence and alcohol abuse and death from alcohol dependence and alcohol abuse.
(b) For the purposes of this Statement of Principles:
"alcohol dependence" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
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 the alcohol to achieve intoxication or desired effect; or
(b)markedly diminished effect with continued use of the same amount of the alcohol.
(2) Withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for the alcohol; or
(b)the same (or a closely related) alcohol is taken to relieve or avoid withdrawal symptoms.
(3)The 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 the alcohol, use the alcohol or recover from its effects.
(6)Important social, occupational, or recreational activities are given up or reduced because of alcohol use.
(7)The 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 the alcohol (e.g., continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
…
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor 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 is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
...
(g)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; ...”
Does the hypothesis fit the SoP?
47.Having regard to the terms of the SoP, and the material before us, the answer to this question depends in turn upon whether the material points to Mr Lynn having a “clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence”, pursuant to factor 6(g). As we have noted above, it is clear from the material before us and not in dispute between the parties that Mr Lynn’s alcohol dependence had its onset well before his operational service, so the only factor which is potentially relevant to his circumstances is factor 6(g).
48.There was also no dispute between the parties that, if we were satisfied that Mr Lynn was suffering from a war-caused generalised anxiety disorder either during or shortly after his operational service, then he was suffering from a “clinically significant psychiatric condition” related to his service in the period immediately following the ending of his operational service. In effect therefore, the real issue between the parties was whether Mr Lynn had suffered a “clinical worsening” of alcohol dependence at that time.
49.The parties agreed that in determining whether Mr Lynn had suffered a “clinical worsening” of alcohol dependence, we should have regard to the decision of Finn J in Repatriation Commission v Milenz (2006) 93 ALD 107. Finn J stated in that decision (at [33] – [34]):
“The question whether a disease “as defined” in a SoP has clinically worsened is a medical one, raising as it does a diagnostic question. I have emphases “as defined” for the reason that the clinical worsening must be of the disease having the features, symptoms and manifestations prescribed in the relevant SoP’s definition: compare Lees v Repatriation Commission (2002) 125 FCR 331; 74 ALD 68; [2002] FCAFC 398 at [16].
As I have already indicated, the definition of “alcohol abuse” provides its own diagnostic criteria. I need not repeat them here. These contrive the inquiry to be undertaken by a doctor in determining for the purposes of the SoP whether the disease is, or was, present at a particular time: compare Repatriation Commission v Cornelius [2002] FC 750 at [26]; or whether that disease, being present, had worsened. In other words, to use the language of the definition, the worsening is in the “clinically significant impairment or distress” which resulted from the maladaptive pattern of alcohol abuse and which, importantly for present purposes, was “manifested” in one or more of the prescribed ways within a 12 month period.”
50.It follows that in order for the material to point to a clinical worsening of Mr Lynn’s condition, it must point to a clinical worsening of the manifestations listed in the definition of alcohol dependence in the SoP.
51.In relation to his alcohol consumption prior to his operational service, Mr Lynn said in his evidence that by 1988 he was drinking six cans of full strength beer every day, usually after work. He said this improved later. However in his statement he also said:
“From about 1973 onwards, (not at sea) I estimate I was consuming anywhere between 6 and 10 cans of full strength beer a day.”[12]
[12] Exhibit 5, [5]
52.He also said in his evidence that following the end of his operational service in April 1991, he drank “solidly” for three months. He said that during that period, he drank a dozen pints of full strength beer every day. He also said that his relationship with his wife became strained during this period. He said that at the end of that three month period he obtained employment with a rehabilitation service and cut back on his drinking at that stage. However, he continued to drink reasonably heavily and said he was “often hung over at work”. He said he was intoxicated when he attempted suicide in 1995. He also stated in his oral evidence that during the whole period from when he returned from operational service through to his suicide attempt in 1995 he was drinking too much and estimates he was hung over two days per week.
53.The documentary records also include an alcohol questionnaire completed by Mr Lynn in November 2001. In answer to the questions “Did the amount of alcohol you consumed change significantly at any time after you first started drinking alcohol?” Mr Lynn ticked the box “Yes” and indicated that “From 1975” he engaged in “binge drinking to excess” to “relieve stress”.[13] Mr Lynn’s Navy medical records also record a diagnosis of “Acute alcoholism” in January 1973[14].
[13] T11/79
[14] T6/35
54.In his oral evidence, Dr Ewer confirmed that Mr Lynn’s alcohol dependence was present prior to his service in the Gulf, possibly dating back to the 1980s.
55.As to whether the condition had worsened as a result of Mr Lynn’s generalised anxiety disorder, Dr Ewer stated in a report of 19 January 2010:
“Mr Lynn’s Alcohol Dependence was present prior to the stressors that Mr Lynn described to me as occurring the Gulf War and therefore it cannot be seen to have been caused by his experiences during the Gulf War. Those experiences and more particularly, his psychiatric symptoms of anxiety, could have exacerbated his pre-existing Alcohol Dependence.”[15]
[15] T18/104
56.In his oral evidence, Dr Ewer stated that Mr Lynn’s alcohol dependence had worsened in the three months after his return from the Gulf. He noted that one of the manifestations of this was that he was having difficulties with his relationship with his wife during that time, which Dr Ewer said was indicative of a worsening of the condition. Dr Ewer also stated that the fact Mr Lynn drank more than he had previously during this period and that he spent a great deal of his time in this period drinking, was also indicative of a clinical worsening of the condition, as was the fact that he reported being more impaired during this period. Having said that, he also observed that the condition had “waxed and waned” over time and noted that whilst there was a worsening of his alcohol dependence following Mr Lynn’s return from the Gulf, the condition had improved recently such that it was currently in early remission.
57.As to whether this material pointed to Mr Lynn having suffered a clinical worsening of his alcohol dependence, Mr Crowe submitted that Mr Lynn had drunk heavily before his operational service and that there had been no significant change in his drinking thereafter. He submitted that Mr Lynn was not working during the three month period following the ending of his operational service, and contended that the fact he was drinking more during a period when he was not working did not indicate a worsening of his alcohol dependence. He contended that Mr Lynn was drinking more during that period at least partly because he had more time in which to drink. As to any worsening in the manifestations of alcohol dependence contained within the SoP, he submitted that it was not apparent on the material that during that period Mr Lynn was drinking in larger amounts or over a longer period “than was intended”, that he had made unsuccessful efforts to cut down or control his alcohol use, or that he had spent a great deal of time in activities necessary to “obtain the alcohol, use the alcohol or recover from its effects”.
58.Mr Ower contended that the material did point towards clinical worsening. In particular he drew attention to Mr Lynn’s increased consumption of alcohol, together with his evidence that during the period between his operational service and 1995 he had gone to work hung over, which he apparently had not done previously. Mr Ower also contended that the material suggested Mr Lynn’s functioning was more affected by his alcohol dependence in the period after his operational service.
59.Having carefully considered the material and the submissions on behalf of each party, we have found this question to be a finely balanced one. We acknowledge that it is possible Mr Lynn drank more following his return from the Gulf because he had more time for drinking, and had been abstaining from alcohol whilst he was at sea. However Dr Ewer’s evidence was that he considered there had been a clinical worsening in Mr Lynn’s alcohol dependence in the period following his return from the Gulf, evidenced not only by his increased alcohol consumption but more impaired functioning and difficulties in his relationship with his wife.
60.Having carefully considered the material before us, including Dr Ewer’s evidence, we have concluded that some of this material points to a clinical worsening of Mr Lynn’s alcohol dependence in the period following his return from the Gulf, manifested in a worsening of the diagnostic criteria for alcohol dependence in the SoP, including the time spent using alcohol and impaired social and other functioning.
61.It accordingly follows that Mr Lynn’s claim in relation to alcohol dependence satisfies step 3 of the Deledio test.
Are we satisfied beyond reasonable doubt that Mr Lynn’s alcohol dependence is not war-caused?
62.As we have noted above, Dr Ewer’s evidence was that in his opinion Mr Lynn suffered a clinical worsening of his alcohol dependence in the period following his operational service as a result of his generalised anxiety disorder. There was no contrary medical evidence before us and in light of Dr Ewer’s opinion, together with Mr Lynn’s evidence, which we accept, we are not satisfied beyond reasonable doubt that Mr Lynn’s alcohol dependence was not war-caused by reason of being aggravated by his war-caused generalised anxiety disorder.
63.We have some doubts as to whether Mr Lynn’s increased drinking in the period after his operational service and his resulting difficulties amounted to a temporary exacerbation rather than a clinical worsening of his condition. However, in light of the evidence we have referred to above, we are not satisfied beyond reasonable doubt that he did not suffer a clinical worsening of the condition after his operational service and as a result of his generalised anxiety disorder.
64.It follows that we also consider Mr Lynn’s condition of alcohol dependence to have been war-caused within the meaning of the VE Act.
conclusion
65.We have decided that Mr Lynn’s generalised anxiety disorder and alcohol dependence conditions are both war-caused, and that the matter should be remitted to the Commission for calculation of the pension payable to Mr Lynn as a consequence of our decision. We have also decided that the date of effect should be 12 March 2009, being three months before his claim was lodged[16].
[16] VE Act, s 20(1)
decision
66.The Tribunal:
(a) sets aside the decision under review and in substitution for that decision decides that Mr Lynn’s conditions of generalised anxiety disorder and alcohol dependence are war-caused with a date of effect of 12 March 2009; and
(b) remits the matter to the respondent for assessment of the disability pension payable to Mr Lynn as a consequence of this decision.
67.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
And Lt Col R Ormston (Ret'd) (Member)Signed: .....................................................................................
AssociateDate of Hearing 20 October 2011
Date of Decision 16 December 2011
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask BentleyAdvocate for the Respondent Mr A Crowe
DVA
0
8
3