Madden and Repatriation Commission

[2005] AATA 1218

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1218

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1615

VETERANS' APPEALS DIVISION		)
Re		PATRICK MADDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Ms R Hunt
Member Dr M Thorpe

Date9 December 2005

PlaceSydney

Decision

The tribunal varies the decision under review as to the applicant’s psychiatric illness as follows: The Tribunal determines that Mr Madden suffers from general anxiety disorder which is war-caused. The tribunal affirms the decisions that Mr Madden does not suffer from war-caused post traumatic stress disorder, alcohol abuse and drug abuse. The matter is remitted for assessment in accordance with the findings made.

..............................................

Ms R Hunt
  Presiding Member

CATCHWORDS

VETERANS' AFFAIRS – Veterans' entitlements – Disability pension – Generalised Anxiety Disorder war-caused - Alcohol dependence not war-caused – Cannabis abuse not war-caused - Statements of Principles – Consideration of stressors – Clinical onset within two years of stressor – Reasonable hypothesis - Decision under review varied.

LEGISLATION

Veterans’ Entitlements Act, ss 9, 13(1), 120(1), 120(3) and 120A

CASES

East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Cooke (1998) 52 ALD 1

Repatriation Commission v Deledio (1998) 49 ALD 193
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission (2002) 125 FCR 331

Stoddart v Repatriation Commission (2003) 74 ALD 366

Statement of Principles concerning Generalised Anxiety Disorder, Instrument No 1 of 2000

Statement of Principles concerning Alcohol Abuse, Instrument No 76 of 1998

Statement of Principles concerning Drug Dependence or Drug Abuse, Instrument No 78 of 1998

REASONS FOR DECISION

9 December 2005 Senior Member Ms R Hunt
Member Dr M Thorpe         

INTRODUCTION

1.        Mr Madden is seeking an increased rate of pension based on his claim that he is suffering from war-caused Generalised Anxiety Disorder (GAD) with alcohol and cannabis abuse and post traumatic stress disorder (PTSD). The respondent accepts that Mr Madden carried out operational service in the Royal Australian Navy. Mr Madden claims that the disorders of which he complains came about due to stressors that occurred during his period of operational service. The claim for PTSD was not pursued at the hearing and the applicant and respondent agreed that the preferred diagnosis would be anxiety disorder. The tribunal has decided that he suffers from GAD attributable to incidents that occurred during his relevant service but has found no other injury or disease attributable to this cause. This means that Mr Madden has been successful in part.

BACKGROUND

2.        Mr Madden enlisted in the Navy on 8 July 1966. He rendered service for several periods between 1966 and 1975. Mr Madden performed operational service on the HMAS Sydney in Vietnam several times in 1968 to 1970, as follows:

• 21 May 1968 to 13 June 1968
• 13 November 1968 to 28 November 1968
• 8 February 1969 to 25 February 1969
• 8 May 1969 to 30 May 1969
• 17 November 1969 to 5 December 1969
• 16 February 1970 to 5 March 1970

3.        The decision under review is the decision to increase Mr Madden’s disability pension to 40% of the general rate but to refuse a claim for GAD with alcohol and cannabis abuse and PTSD.

ISSUES

4.        We must decide whether Mr Madden suffers GAD with alcohol and cannabis abuse as a result of operational service. Several issues arise in order for the tribunal to review Mr Madden’s claim. The first question as to each condition is diagnosis followed by consideration of the hypothesis put by Mr Madden. If the condition claimed is diagnosed, we must then consider whether the hypothesis connecting the condition to service is reasonable. In order to consider Mr Madden’s application, we need first to look at diagnosis. If he suffers from GAD, alcohol abuse and cannabis abuse, we then need to look at whether an SoP is in place for each condition. There is an SoP for each of the conditions that Mr Madden claims and each SoP has an important requirement.  In order to satisfy the SoP for each condition, Mr Madden needs to show that he suffered a psychosocial stressor during service and that clinical onset was within 2 years of experiencing the stressor.

ANALYSIS OF EVIDENCE

Mr Madden’s evidence

5.        In his written claims, Mr Madden contends that he has an anxiety disorder brought about when he was in the navy. He places emphasis on an incident in Vung Tau harbour, in Vietnam when he was in the engine room of HMAS Sydney. Further, Mr Madden states that he started drinking alcohol when he first enlisted and was based at Leeuwin. Although underage, he would get intoxicated each time he drank. He would drink 2-3 times a week after he left the navy and was convicted for drink driving in 1982. He says he now drinks everyday and drinks 10 cartons of beer as well as 2 bottles of spirits a month. As well, Mr Madden states that he first started smoking marijuana on the HMAS Sydney. He continues to smoke it as a cigarette and has about 20 a month. Currently, Mr Madden lives in a tin shed at an isolated location and with very few amenities. His marriage broke down around 2002.

6.        Mr Madden told the Tribunal that he had a happy childhood although his father was away a lot driving trucks and collecting timber. He was one of eight children. His father was an ex-veteran himself. One of Mr Madden’s motivations in joining the navy was to impress or identify with his father. He thought his childhood was not entirely normal because of the number of children in the family and his father‘s absences and non-jovial personality. Mr Madden said his father had several strokes before Mr Madden joined the navy and spent a lot of time in hospital. At an early age, Mr Madden had to do things to help the family such as cutting wood because things were difficult once his father was unwell. He was not particularly bright at school and said he had no parental guidance. He left school at the age of 14 although the minimum age was 15. He had refused to go back although his mother and relatives tried to make him. He joined the navy because he thought it was something he could do and like and would give him a goal. He was then aged 15 ½.

7.        Mr Madden told the tribunal he did navy training at Leeuwin south of Perth. He said the training was okay but Leeuwin was “a terrible place”. He was among 800 trainees aged 16 to 17 and it was “fairly brutal for a kid”. Physical punishment was normal. He started to drink alcohol about the second time he left the base although the legal drinking age was then 21. The trainees used to ask passers-by to buy them a drink. He first tried vodka and orange in a bottle. He got drunk, silly and sick but probably did this every time he “went ashore” or left the base. This was about once a week or fortnight.

8.        Mr Madden was then drafted on HMAS Sydney, a troop carrier. He knew it would be taking troops to Vietnam but did not know much about Vietnam. They picked up troops at Australian ports on the way to Vietnam. On the first trip, they had further training and saw old war films including a film called “Fire Down Below” which was about a ship torpedoed in World War II. It showed how to escape a burning ship and “was pretty graphic”. It was frightening and gave Mr Madden a sense of foreboding. He told the tribunal that the engine room of the Sydney was a fearsome place with massive boilers. Mr Madden expressed his impressions and memories of it vividly. He said the steam in the engine room was like an invisible chainsaw and could kill you. When they approached Vietnam, the ship was closed up and he was always in the engine room. He felt this was a bad place to be.

9.        On the first tour of duty, Mr Madden said they came out of the morning mist into Vung Tau harbour, a war zone. He came up for a break after 4 hours and saw they were anchored fairly close to the coast off the Mekong Delta. He told the tribunal scare charges were dropped overboard from time to time. He says each charge contained 4 pounds of explosives and they were used on all trips he made.

10.      Mr Madden explained that, while the ship was in Vung Tau harbour, crew threw scare charges off the flight deck from time to time. He said one exploded just off the hull when he was below and he thought it was a torpedo that had hit the side of the ship. He claimed there was no warning and he was frightened because there was no escape from the engine room. The more he thought about this the worse he felt. He had not known about scare charges and could not believe that someone would let this off from the ship. He told the tribunal he never really recovered from the experience although he later knew what scare charges were. There was no communication with the deck and he never knew what was going on. He never knew when a scare charge would go off. It made him angry and inwardly distraught because he could do nothing about his situation. After the first incident, he became apprehensive and anxious. He was on rifle station as well and he contends that the hopelessness of his situation affected him.

11.      Mr Madden said that during his service he drank when alcohol was available. He thought it was available when steaming but not in harbour. Later, he gave evidence that he could not have alcohol on the trip back because he was not old enough to receive the ration. He did not have a clear recollection but gave evidence that some older sailors sold their ration for 20 cents. People going off duty would give away their cans. He drank 4 big cans about every fourth night.

12.      Mr Madden gave further evidence that he began to smoke marihuana on HMAS Sydney. He explained that the troops returning from Vietnam on the Sydney carried marijuana and some of them gave him quantities. He took it as self-medication and as part of the scene. He said it was not a big deal then. It was a distraction and relieved his apprehension. It had a calming effect. Customs officers came aboard back in Australia but he said to the officers he had nothing to declare and was not searched.

13.      Mr Madden told the Tribunal that his second tour of duty was similar to the first and that he remained fearful. He had six trips in total but became no less frightened and continued to smoke marijuana and drink. He wanted to get off the ship and said he asked for a transfer several times but this was refused. He thought he had marijuana on every return trip as it was freely available.

14.      Mr Madden’s father died in 1969 between tours of duty. Mr Madden was devastated as he was trying to be the apple in his father’s eye and had never really gotten to know him. He attended the funeral. Mr Madden said he had two more tours after his father’s death. He told the tribunal his father’s death made things worse for him and he started to get very depressed. Everything became intolerable and he still could not get a transfer. He told the tribunal that he became irrational and the next time he came ashore he did not go back to his ship. There was no such thing as counselling and he could not take it any more. He went AWOL twice, the first time was between the third and fourth tour. After the last tour, he ran away. He was in a hopeless situation having to go back to Vietnam all the time. After he left the navy, Mr Madden said he drove trucks.

DIAGNOSIS

15.      Several doctors have treated or examined Mr Madden and provided reports or records which are before the tribunal. Clinical notes of Dr Jamal Rifi show that he has been treating Mr Madden since December 2002 and referred him to specialists for various ailments including sleep problems. Dr Keshava’s report, dated 20 December 2000, sets out his opinion that Mr Madden suffers from GAD with substance abuse, involving both alcohol and cannabis. Dr Koller and Dr George both saw Mr Madden and assessed his psychiatric condition in 2004. Drs Dinnen and Champion furnished reports as well as giving oral evidence. They agreed on some points but not that Mr Madden had any mental disorder or condition attributable to his operational service.

16.      In reviewing the decision, the tribunal must first determine the correct diagnosis as to the conditions Mr Madden claims he suffers. This must be determined on the balance of probabilities: see Repatriation Commission v Cooke (1998) 52 ALD 1 and Benjamin v Repatriation Commission (2001) 70 ALD 622 per Moore, Emmett & Allsop JJ. As their Honours noted, at paragraph 41, SoPs are not relevant to the question of diagnosis.

Generalised Anxiety Disorder

17.      The diagnosis of anxiety disorder is agreed by several psychiatrists who have examined and assessed Mr Madden and the respondent conceded Mr Madden suffers anxiety disorder. We have therefore next considered whether it was brought about by a stressor during service and the date of clinical onset.

Dr Dinnen’s opinion

18.      Dr Anthony Dinnen, psychiatrist, furnished a report dated 12 May 2005, in which he came to the conclusion that Mr Madden has “an anxiety disorder associated with alcohol and cannabis abuse”. He wrote that Mr Madden’s disorder and substance abuse “seem to date from service” and had been present for many years but had worsened since the breakdown of his marriage. In his report of 12 May 2004, Dr Dinnen wrote that there was no doubting the patient had severe symptoms of anxiety and depression but did not analyse his condition in terms of DSM-IV. In oral evidence, Dr Dinnen gave his opinion that Mr Madden was a vulnerable person when he joined the navy at 15 and that the death of his father was “the final nail in the coffin for him”.  Being below decks when scare charges went off had caused his psychiatric disorder. He did not believe that Mr Madden’s condition was PTSD but considered his operational service was relevant and that his anxiety disorder would satisfy the SoP for that disorder. He suggested the hypothesis as to causation might seem far-fetched but veterans had described similar experiences to him repeatedly and he believed not being told about the scare charges would make a difference. Dr Dinnen noted that Dr Keshava shared this opinion. Dr Dinnen further gave evidence that he agreed in large part with both Dr Champion and Professor Mattick, whose written reports he had read. He differed from Dr Champion as to the incident that caused Mr Madden’s condition.

Dr Champion’s opinion

19.      Dr Champion, psychiatrist, furnished reports dated 13 May 2005 and 2 June 2005. Dr Champion noted in his report of 18 May 2005 that alcohol is a depressant and marihuana was far from a recreational drug.  He further wrote that those who consume high levels of alcohol invariably develop psychological difficulties. He commented on page 5 of his report dated 13 May 2005 that, despite his unhappy history on HMAS Sydney, “any suggestion of [Mr Madden] having suffered a psychiatric disorder associated with Naval service must be considered most unlikely given his return to difficult maritime work which he enjoyed. “ He also noted that Mr Madden divorced in 2002 and blamed himself for the marriage breakdown. He observed that self blame was indicative of depression which often follows loss of an important relationship. He found Mr Madden’s description of the frightening event that he claimed caused his problems not convincing as to the requirements of the SoPs for general anxiety and alcohol abuse suggested. He opined that Mr Madden’s background with his father’s health problems in formative years had significant input into the creation of an anxious individual. However, if one were looking for a cause of a recently emerging psychiatric disorder involving reaction to a traumatic incident, Dr Champion thought a reported rolling of a bulldozer during work at Menai tip was a more likely cause.

20.      At the hearing, Dr Champion gave oral evidence that he did not consider the scare charge incident was a severe psychosocial stressor. He found no pattern of avoidance of continuing at sea in his later jobs as a fisherman and then improving his qualifications for work at sea and working for a maritime services authority. He thought that a naval medical record, at T3 made on 10 March 1969, showing that Mr Madden was prescribed medication for 5 days when his father was hospitalised, did not indicate an anxiety state but simply that he was anxious about his father. Dr Champion said the medication prescribed at the time was simply a barbiturate. Dr Champion further gave evidence that Mr Madden was unhappy in the navy and that he took this into account in reaching his opinion. He did not think Mr Madden’s going AWOL twice, experiencing scare charges and being fearful because of his station below in the engine room nor his experiences in the navy caused his anxiety disorder.

21.      Dr Champion said Mr Madden would be in the same condition whether or not he had gone to Vietnam. He accepted that Mr Madden may have been vulnerable as to alcohol but not in terms of over-reacting to scare charges. He thought the claimed stressors unlikely to have caused the condition. He remarked that Mr Madden had displayed pathological behaviour before he performed operational service, citing incidents that occurred at age 14 before he entered the navy and the heavy drinking at age 15 while stationed at Leeuwin. However, Dr Champion did concede under cross-examination that it was possible that the onset of Mr Madden’s disorder commenced during his operational service.

THE HYPOTHESIS

22.      The hypothesis put to us was that Mr Madden suffered GAD with alcohol and cannabis abuse related to his operational service. In reviewing the decision that refused Mr Madden’s claim, we must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206. 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. The tribunal must form an opinion as to the reasonableness of the hypothesis. The Tribunal is mindful of the approach it should follow, as outlined in East v Repatriation Commission (1987) 16 FCR 517 at 533 where it was stated that "a reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

23.      The hypothesis put forward was that Mr Madden’s period of operational service in Vung Tau harbour, while he was still a youth and an inexperienced sailor, exposed him to stressors. His reaction to the stressors was to find relief by consuming alcohol and cannabis. He showed other symptoms of anxiety and received medical attention and treatment in March 1969 when he was engaged in his duties and learned that his father had suffered a stroke. The medical officer attending to him reported that he required treatment for an anxiety state (T3).

Generalised Anxiety Disorder

24.      Under step 1 of Deledio, the tribunal has to take into account all of the material before it. Based on the applicant's evidence, which was given in a frank and open manner, the record of March 1969 at T3, and the report of Dr Dinnen, as well as that of other practitioners, we find that the material raises a hypothesis connecting his anxiety state with his period of operational service in Vietnamese waters in 1968 to 1970. We further note the respondent's concession that Mr Madden suffers from the disorder, with its onset being after that period of service.

25.      As to step 2, we note there were relevant Statements of Principles (SoPs) in existence at the time of Mr Madden’s claim. The relevant SoP concerning GAD was Instrument No 1 of 2000 as amended by No 2 of 2000.

26.      As to step 3, it was submitted that the hypothesis is consistent with factor 5(b) of the template in the SoP. Factor 5(b) states the factors that must as a minimum exist before it can be said that a reasonable hypothesis connecting the disorder with the circumstances of a person’s relevant service. Options set out at paragraphs (a) to (c). Mr Madden’s claims are governed by paragraph (5)(a)(ii), that is, experiencing a severe psychosocial stressor within the 2 years immediately before the clinical onset of anxiety disorder. Mr Madden contended that he met this criterion. The respondent, however, disputes whether Mr Madden should receive a pension based on his anxiety disorder. In this, it relies on the opinion of Dr Champion who found that the clinical onset occurred more than 2 years after the service stressors mentioned by Mr Madden.

Psychosocial stressor and GAD

27.      Clause 8 of the SoP sets out the definition of severe psychosocial stressor. This definition says the term means an identifiable occurrence of specified kinds that evoke feelings of substantial distress in an individual. The occurrences described are major events such as being shot at, death and serious injury of a close friend or relative, assault, major illness, loss such as divorce or separation, loss of employment and major financial or legal problems. Mansfield J considered the meaning of “experiencing a severe stressor” in Stoddart v Repatriation Commission (2003) 74 ALD 366 in the context of SoP 76 of 1998 as follows:

“[55] In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury or to physical integrity. “

28.      Material put to us as supporting the hypothesis mainly concerns Mr Madden's evidence that the scare charges were dropped without warning, and they sounded very close, vibrated the ship and scared him. Nevertheless, despite his reaction of fear, he had to work through such a stressor and continue to operate in constant fear that the explosions would continue whenever he was in Vung Tau harbour. Dr Dinnen could understand his reaction, which Dr Dinnen said was relayed to him as having “put the fear of God into me”.  Dr Dinnen reported that Mr Madden thought the initial explosion was a torpedo and that he was fearful of what would happen after seeing the training film, “Fire Down Below”. Mr Madden gave similar evidence to us at the hearing. As well, Mr Madden was an inexperienced youth, only 16 or 17 at the time.

29.      Mr Madden did experience a real event when he was exposed to the shock of scare charges going off while he was in the engine room. We accept his account of how frightened he was when the first charge exploded nearby and how this continued to worry him after that event. While there was no real danger to him, his evidence explaining his feelings had the effect of convincing us of his extreme reaction to the explosion and of his fear of being trapped. This is quite believable when one takes into account that warnings might not be heard above the noise in the engine room or that it is possible no warning was given for some reason. Judged objectively as well as subjectively, we find that Mr Madden did suffer a severe psychological stressor in reaction to the scare charge explosion and developed feelings of substantial distress as a result. It follows that we have decided that Mr Madden’s hypothesis is reasonable.

Clinical onset of GAD

30.      Clinical onset takes place at the first appearance of signs and symptoms of the condition such as to enable diagnosis at the time: Lees v Repatriation Commission (2002) 125 FCR 331. In reaching our finding in this respect, we place weight on the record at T3 of Mr Madden’s treatment in March 1969 for an “anxiety state”. While we note that Mr Madden had behavioural problems prior to service, we also agree with Dr Dinnen that insufficient importance has been attached to Mr Madden’s behaviour in twice going AWOL but being discharged without any disciplinary action being taken when he surfaced some 5 years later. Also relevant, although not conclusive without Mr Madden’s evidence about events around this time, we note that he required treatment when his father suffered a stroke. At T3 is a navy medical report of his being prescribed Nembutal over 5 days, which ties in with his evidence as to the distress he was suffering at the time. As well, we have taken into account Dr Champion’s concession that it was possible, albeit unlikely, that clinical onset occurred during Mr Madden’s operational service. We conclude, on balance, that the clinical onset of GAD occurred well within the operational service period and was evident and required treatment in March 1969.

31.      As to step 4, the question is whether the Tribunal is satisfied beyond reasonable doubt as to the inaccuracy of Mr Madden's evidence. In a matter of this kind, the tribunal does not make findings on the balance of probabilities. Mr Madden will succeed unless the tribunal is satisfied beyond reasonable doubt, that it should not accept his evidence about experiencing events that involved actual or threat of death or serious injury, evoking intense fear or helplessness. The tribunal is not satisfied beyond reasonable doubt that the facts necessary to sustain the hypothesis have been negatived beyond reasonable doubt. Therefore, the Tribunal finds that the fourth step is satisfied and that Mr Madden’s GAD was war-caused. It follows that Mr Madden’s claim in respect of GAD succeeds.

DIAGNOSIS

32.      We next examined whether we accepted Dr Dinnen's diagnosis of Mr Madden’s anxiety condition being associated with alcohol and cannabis abuse. Dr Champion and Professor Mattick both took a different view. In giving oral evidence, Dr Dinnen disagreed with Professor Mattick’s opinion that Mr Madden’s use of cannabis was merely recreational. Dr Champion noted early heavy use of alcohol by Mr Madden in his teens was confirmed and was likely to be Mr Madden’s more significant substance abuse problem. In his final report of 2 June 2005, Dr Champion reviewed the later reports of Dr Dinnen and Professor Mattick and agreed with the position taken by Professor Mattick regarding cannabis use/abuse. 

Alcohol abuse

33.      Dr Champion and Professor Mattick both noted that Mr Madden suffered from alcohol abuse before he entered service. Professor Mattick is a registered psychologist, who provided a report dated 27 April 2005. He took a detailed history from Mr Madden and provided a comprehensive report repeating a similar history to other reports before the tribunal. Professor Mattick assessed Mr Madden for alcohol abuse and found he met criteria under the DSM-IV. The diagnosis of alcohol abuse is generally agreed by the specialists who have seen Mr Madden and we find that Mr Madden does suffer from alcohol abuse.

34.      In order for Mr Madden to be successful in his claim for alcohol abuse, although we have diagnosed alcohol abuse, he must also satisfy the SoP in relation to alcohol dependence, Instrument No. 76 of 1998. To satisfy the SoP, Mr Madden must show that he suffered a psychosocial stressor during service and that clinical onset of alcohol abuse was within 2 years of experiencing the stressor.

Psychosocial stressor

35.      From the history taken, Professor Mattick opined that Mr Madden did not experience a severe stressor as defined in the SoP. He thought the fear reaction was relatively transitory. He did not accept that Mr Madden had any psychiatric disorder. However, we find that Mr Madden did experience a psychosocial stressor, being the incident of the scare charges, for the reasons given above.

Clincal onset

36.      Professor Mattick found that Mr Madden’s alcohol problem had not become clinically worse and had perhaps improved. Professor Mattick went on to note that Mr Madden met the criteria in his teens and before eligible service (para 7.2.8). He did not believe there was evidence that Mr Madden’s alcohol consumption problems worsened as a consequence of eligible or operational service events (para 12.3.2).

37.      Taking Mr Madden’s evidence into account, we note that he commenced heavy drinking before his operational service. Apart from Dr Dinnen’s opinion, the evidence is that clinical onset of Mr Madden’s drinking habit was entrenched in his teens and we agree with the opinions of Professor Mattick and Dr Champion that clinical onset was not within 2 years of operational service as required by the SoP in force. See, for example, the reports of Dr Champion of 13 May 2005 and 2 June 2005. The report of Professor Mattick, dated 27 April 2005, also states that the alcohol abuse dates to Mr Mullen’s teenage years.

38.      While we accept the diagnosis as to alcohol abuse, we find the hypothesis that it is related to Mr Madden’s service is not reasonable in accordance with s.120A and the relevant SoP, Instrument No 76 of 1998, as clinical onset did not occur as required. The abuse was not the result of any severe stressor within the 2 years immediately before the clinical onset but was already established before operational service took place.

Cannabis abuse

39.      As to cannabis use, Mr Madden states that he first started smoking marijuana on the HMAS Sydney when travelling from Vietnam. He now smokes it as a cigarette and has about 20 a month according to his oral evidence. Professor Mattick took a history of about 2 or 3 cigarettes a week and suggested Mr Madden’s habit was recreational only. Professor Mattick also noted that Mr Madden did not meet the criteria for cannabis use (para 9.1.4). He wrote that regular use did not always mean there was a psychological disorder. Dr Champion took a history of 20 or 30 a month and sees the clinical onset as “progressive” and “given the good stable functioning over several decades after leaving the Navy” concludes the clinical onset occurred around the time when his marriage broke down. He also noted that, as the alcohol came first, it was the primary substance abuse with cannabis being a lesser cause of possible substance abuse. Dr Dinnen concluded that Mr Madden had anxiety disorder associated with alcohol and cannabis abuse but was less conclusive about clinical onset, saying “his anxiety disorder and substance abuse seem to date from service”.

40.      Overall and on balance, we are not satisfied that Mr Madden suffers from cannabis abuse. While Professor Mattick sees the use as recreational only, Dr Champion observes that the dividing line between substance use and substance abuse is a grey area. However, he considers the alcohol use the more significant problem. He adds to his report in the “opinion” section that he does not disagree with Professor Mattick as to the marijuana use. Accordingly, we do not find that Mr Madden has any claim concerning substance abuse.

DECISION

41.      The tribunal varies the decision under review as to the applicant’s psychiatric illness as follows:

• The Tribunal determines that Mr Madden suffers from general anxiety disorder which is war-caused.

The tribunal affirms the decisions that Mr Madden does not suffer from war-caused post traumatic stress disorder, alcohol abuse and drug abuse. The matter is remitted for assessment in accordance with the findings made.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms R Hunt and Member Dr M Thorpe

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 23 August 2005
Date of Decision: 9 December 2005         
Solicitor for the Applicant: Fairbairn Lawyers      
Solicitor for the Respondent: Department of Veterans’ Affairs