MALCOLM J BURNET and REPATRIATION COMMISSION
[2009] AATA 272
•21 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600212
VETERANS' APPEALS DIVISION ) Re MALCOLM J BURNET Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
Mr W G Evans, MemberDate21 April 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
....(sgd) Mr A Sweidan.......
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant claims that he suffers post traumatic stress disorder, alcohol dependance and anxiety disorder and that these conditions are war-caused – evidence does not support applicant's claims – decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 (Cth) ss. 5D(1), 7(1), 9(1), 120, 196,
CASES
Repatriation Commission v Gorton (2001) 110 FCR 321
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION
21 April 2009 Mr A Sweidan, Senior Member
Dr D Weerasooriya, Member
Mr W G Evans, MemberBackground
1. Malcolm John Burnet (the applicant) served in the Royal Australian Navy (RAN) from 4 April 1968 to 2 October 1971. He had eligible RAN operational service in Vietnamese waters as follows:
14 May 1969 to 25 May 1969 HMAS VAMPIRE
21 October 1970 to 12 November 1970 HMAS SYDNEY
15 February 1971 to 4 March 1971 HMAS SYDNEY
26 March 1971 to 8 April 1971 HMAS SYDNEY
13 May 1971 to 1 June 1971 HMAS SYDNEY
20 September 1971 to 2 October 1971 HMAS SYDNEY
2. Applicant contends that he suffers from post traumatic stress disorder and alcohol dependence and anxiety disorder, which he claims are RAN operational service-related disabilities, i.e. war caused.
3. On 18 July 2003, the applicant submitted a claim for acceptance as war-caused of “Depression”, “Anxiety” and “Neurosis”.
4. On 30 October 2003, a Delegate of the Repatriation Commission determined that post-traumatic stress disorder is not war-caused.
5. On 16 December 2003, the applicant applied for review of the Delegate’s decision by the Veterans’ Review Board (VRB).
6. On 17 May 2006, the VRB varied the decision by amending the diagnosis to Post Traumatic Stress Disorder and Alcohol Dependence and then affirmed the Delegate’s decision as varied.
Threshold Issue And The Tribunal’s Determination
7. The threshold issue for the Tribunal’s determination is whether, based on the material before it, a reasonable hypothesis can be raised that the claimed conditions:
a.arose out of or are attributable to, or
b.were contributed to in a material degree or aggravated by,
the particular circumstances of the applicant’s RAN operational service.
8. For the reasons that follow, the Tribunal is of the opinion that it cannot form the required reasonable hypothesis. Accordingly the Tribunal after consideration of the whole of the material before it, and applying s.120(3) of the VE Act, is satisfied beyond reasonable doubt that there is no sufficient ground for determining that any of the applicant’s claimed conditions are war-caused. It follows that the decision under review must be affirmed having regard to the relevant provisions of the legislation set out below.
The Relevant Legislation
The Veterans’ Entitlements Act (VE Act)
9. Section 9(1) relevantly provides:
“… 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:
…
(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;
…”
Section 7(1) relevantly provides:
“…for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The word “disease” is defined in s 5D(1) as follows:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
S 120, which deals with standard of proof, relevantly provides:
“(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) … 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 …;
(b)that the disease was a war-caused disease …; or
(c)that the death was war-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.
…”
Section 120A relevantly provides:
“…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
(ca)warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
…”
The Evidence
10. The evidence before the Tribunal comprised:
(a)the “T” documents (T1 – T13, pp1 – 63) lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 (Cth) including a written statement from the applicant;
(b) the oral evidence of the applicant;
(c)various reports from Dr James Fellows-Smith (psychiatrist);
(d)the Writeway Research Service Pty Ltd reports on claims made by Mr Burnet relating to his defence operational service and other aspects;
(e) a written report from Dr Oleh Kay (psychiatrist);
(f) various written reports from Dr Anthony J. Mander;
(g) oral evidence from Dr Mander; and
(i) oral evidence from Dr Fellows-Smith.
(j) other medical evidence relating to the applicant.
Analysis of Evidence
11. On enlistment, the applicant stated that he had not suffered from any mental illness or nervous breakdown (T3/16). The examining medical officer considered the applicant’s emotional stability was normal (T3/15).
12. On discharge, the examining medical officer considered the applicant’s emotional stability was again normal (T3/13). The applicant declared at the time of his discharge medical on 17 September 1971 (T3/17) that he was:
(a) not suffering any disabilities at that time;
(b) had not suffered any disabilities during service;
(c)was not suffering any disabilities which he considered aggravated by his service, and that he;
(d)had served outside Australia only on “HMAS VAMPIRE in 1968 in the Far East”.
13. On 2 May 2003 applicant submitted a claim for a disability pension citing the disabilities of Depression and Anxiety Neurosis. The applicant cites “Accute (sic) Mood Swings, Unable to enter dark spaces” as signs and symptoms of his alleged condition. He also states that he is taking medication but fails to identify it. He further states that he first became aware of his condition in 1971 but the reporting doctor states that the veteran first consulted him about the condition in 1990.
14. After discharge from the Navy, the applicant was apparently gainfully employed as a maintenance hand by Gardener & Perrott at Naval Base until 2000 (T4/23).
15. In the applicant’s handwritten statement (T4/27) submitted with the claim, he claimed that he suffered a post-traumatic stressor during his operational service on HMAS SYDNEY. He states inter alia:
“I was a young sailor serving on HMAS SYDNEY whilst carrying troops to and from Vietnam. My job on the last trip was watch keeping (sic) on fridges. Part of my duties was (sic) to make ice. The priority was to make:
1) “Dead Man’s” Ice
2) Ice for general purpose
Dead man’s ice was called that because it was made to keep the corpse of the young soldier who was killed in Vietnam and his body was being transported to Australia, in the Troop Carriers (sic) freezer room. The body was placed at the back of the freezer with the carcasses of beef and other frozen meats, that were used for the ships companies (sic) meals.
This has effected (sic) me for the rest of my life.”
16. The applicant further states in that document that:
“The relationship with people around me because of my mood swings etc. I used to drink excessively to deaden the memories and then become (sic) very aggressive and nasty.
My first marriage broke up in 1975 because of this. I was angry and drinking too much.”
17. At T4/30 the applicant goes on to state:
“On my last trip to Vung Tau on the SYDNEY, the ship drifted onto a sandbar. This caused the sea water intakes to suck up sand causing the ship to black out and the boilers to shut down. I was on watch in the boiler room, without warning we were in complete darkness. In an act of war zone (sic).
I was terrified, not knowing if we were under attack or what happened. The Chief and Petty Officer were running around with torches. Like (sic) chook’s (sic) with their heads cut off.
I was frozen with fright and unable to move.
I cannot go into dark confined spaces because of this incident. At work I was lucky to be the boss and send other people to do those job’s (sic). I’m being treated by my doctor for nervous problem’s (sic) with “Lovan”.
18. At T5/38, Dr James Fellows-Smith reports on his interviews with the applicant on 5 June 2003, 24 July 2003 and 8 August 2003. Dr Fellows-Smith identifies another possible stressor suffered by the applicant, this time referring for the first time, to the applicant having purportedly witnessed an American ship opening fire on a Chinese junk in Vung Tau harbour. Dr Fellows-Smith reports the applicant as saying in his own words “I couldn’t believe it when I saw that happen. There was no remorse. The ship fired upon the vessel as if it was a daily routine.” Dr Fellows-Smith further reports that Mr Burnet witnessed helicopter gunships dropping napalm on vegetation close to Vung Tau. He (Burnet) was horrified by the proximity of the destruction. On Burnet’s second tour aboard HMAS SYDNEY the applicant purportedly witnessed “the body of a sailor whose corpse was placed in a freezer. He was maintaining the fridges, as cook (sic) showed him the body of a soldier killed in action. Mr Burnet was on ‘deadman’s ice’ duty”. Mr Burnet describes being in the engine room when the (moored) SYDNEY drifted onto a sandbar in Vung Tau harbour. Mr Burnet was concerned that the ship had hit a mine as there was a temporary power failure “which lasted about five minutes”. He (Burnet) describes being battened down whilst scare charges were detonated to deter enemy divers.
19. Dr Fellows-Smith goes on to state that Mr Burnet presents with Post Traumatic Stress Disorder and secondary Alcohol Dependence Syndrome directly due to his wartime service in Vietnam. He provides Mr Burnet a GARP score of 35 points accordingly (T5/41).
20. For reasons unexplained (in view of T8/45), the Veterans’ Review Board (VRB) conducted a review of Mr Burnet’s case on 17 May 2006. At that hearing, Mr Burnet altered his initial statements made to Dr Fellows-Smith as follows:
(a)He did not see the Chinese junk actually hit by small arms fire, he “just assumed that it had been hit.” (T12/58)
(b)The napalm incident that purportedly occurred whilst Mr Burnet was on board HMAS VAMPIRE, originally reported to have been “dropped by helicopter gunships” was changed to having been “dropped by a jet a couple of miles from VAMPIRE.” (T12/58)
(c)The (running aground and) loss of power incident had occurred on VAMPIRE not on HMAS SYDNEY. (T12/58)
(d)He agreed that ships’ company were routinely informed of the detonation of scare charges. (T12/59)
21. Exhibit 5 is the Auscript Australia transcript of the VRB hearing conducted on 17 May 2006. In that transcript, Mr Burnet makes the following statements:
(a)Page 3 and 4. Mr Thomson (VRB) asks Mr Burnet which trip is it that the body-in-the-bag incident occurred. Mr Burnet responds by saying that it was “the trip that we took 4 RA (sic – meaning 4 RAR) and brought 7 RA (sic – meaning 7 RAR) back.”
(b)Asked, “Are you able to say whether it was the first, second, third (trip)?” Mr Burnet responds, “This is my first trip on the Sydney”. (The emphasis on ‘first’ is this Tribunal’s.)
(c)Page 5. When asked by Mr Thompson whether the ship’s cook might be having a lend of him, Mr Burnet responded, “Not really because I asked my brother. I asked him if any of his platoon had been killed or what not and he said he didn’t really – couldn’t recollect it”
22. Dr Oleh Kay appears to be unconvinced of the start time of Mr Burnet’s alleged alcohol abuse, stating, “I assume that he (Burnet) was a binge drinker, as many sailors when on leave (sic), before his experiences on HMAS Vampire, but afterwards his drinking became heavier.” Dr Kay summarises by stating; “My diagnostic formulation is of an Acute Stress Disorder being complicate (sic) by Alcohol Abuse that developed into Alcohol Dependence and a Substance Abuse Anxiety Disorder all of which are attributable to his wartime experiences and although he has many of the features of PTSD he does not suffer from the disorder as such.”
23. Exhibit 8 is a report from Dr Anthony J Mander, consultant psychiatrist, who was asked by the DVA to assess Mr Burnet. Dr Mander’s report dated 15 February 2007 refers to three sessions he had with Mr Burnet, namely 18 January, 8 February and 15 February 2007. Mr Burnet again refers to his experience with the bodybag on the SYDNEY and the Chinese junk incident when on HMAS VAMPIRE as the major cause of his subsequent problems. Dr Mander established that Mr Burnet’s problems had worsened since he stopped working six years ago. Mr Burnet also stated that he had ceased drinking about November 2006 following the death of his “best mate”.
Mr Burnet introduced another reaction during these interviews, referring to his severe reaction to watching a butcher chop meat in a butcher shop. He relates this reaction to his experience of the alleged body in the fridge on HMAS SYDNEY.
24. Exhibit 9 is a further letter from Dr Mander addressing issues raised in Dr Fellows-Smith’s letters dated 8 December 2006 (Exhibit 3) and 13 April 2007 (Exhibit 4). Dr Mander concludes that in his opinion, Mr Burnet did not suffer a severe psychological stressor as defined by the Statement of Principals nor was Mr Burnet confused such that he would have been incompetent at the VRB hearing on 17 May 2006.
Dr Mander’s Evidence
25. In his letter dated 15 February 2007, Dr Mander (for the Respondent) states that he has interviewed the applicant on three occasions: 18 January, 8 February and 15 February 2007. Under the heading Psychiatric Status After Service, Dr Mander writes:
“Getting a clear description of the time line of his symptom onset was not easy. He would answer questions vaguely saying that he had been like this, referring to the description of how he is currently, for 20-25 years. However I put it to him that a number of his symptoms could not have been so severe given that he worked regularly until approximately 6 years ago and work involved him dealing with others, presenting himself sober and managing his mood, at the very least. The Veteran believes that he has always had symptoms and these have got progressively worse over the years since his time in the Navy but in the end agreed that things had been much worse since he stopped work.”
“He has twice been charged with drink driving under the influence and gets alcoholic blackouts.”
When I asked him how he connected his symptoms with his time in the Navy he told me that it was due to his reaction when in a butchers shop. He said that although he would not avoid going into such a shop if meat was being chopped ‘my whole body would change’. On pursuing this more closely he told that he gets sweaty and irritable. His defacto notices this and tells him to go outside although he usually refuses to do so stating that it is not necessary. He relates this to the storage of a body in the fridge when onboard HMAS Sydney.”
26. Under the heading of Past Personal History, Dr Mander writes:
“…he joined voluntarily and served 4 years in the Navy. However he said towards the end of his time he lost interest in the Navy and given the difficulties that he was having with his wife he left.” ….. “He spent most of the next 30 years painting working mainly for 2 companies who obtained contract work…..Approximately 5 years ago the contract was lost and he was made redundant. He has tried to work subsequently as a TA in the power plant at Kwinana but told me that his back and legs caused him significant pain and in the end he was retired on medical grounds and receives a disability pension.”
27. Under Family History Dr Mander writes:
“He has two daughters from his first marriage who are now in their 30’s. They were aged approximately 3 and 18 months when his 5 year marriage failed. He seems to have had little contact with them over the years and said that it was difficult given that his wife threw him out and she had a new man and his children called him dad. He believes that Navy life didn’t suit her especially the requirement for him to move and recognises that alcohol was an issue”.
“He has been with his defacto partner for over 20 years. They have 3 children, 2 in their 20’s and 1 still living at home who is 15”….However, although they still live in the same house they are essentially estranged. He told me they that they sleep in separate rooms and increasingly his defacto has been complaining about his drinking and the problems that it causes them.”
28. Under the Heading Mental State Examination: Dr Mander writes:
“He sat at ease in the interview situation and maintained good eye contact. He gave his history clearly and coherently. He appeared neither depressed nor anxious, (sic) he was orientated in time, place and person and reality testing was intact.”
29. Dr Mander concludes that Mr Burnet suffers:
“Past history of alcohol abuse, now partly controlled.
Alcohol dependence syndrome. This is still active and despite the Veteran reducing his drinking the hallmark of alcohol dependence is that it always remains with an individual.
Anxiety disorder secondary to alcohol abuse.
None of the above diagnoses have a connection to service.”
30. In his subsequent letter dated 6 June 2007 (Exhibit 9), Dr Mander responds to argument presented by Dr Fellows-Smith dated 13 April 2007 refuting Dr Mander’s opinion. Dr Mander opines on Dr Fellows-Smith’s alleged new evidence that shows the applicant suffering PTSD resulting from the caved-in cubbyhouse incident allegedly experienced by Mr Burnet when he was 10 or 11 years old. Dr Mander argues that Dr Fellows-Smith appears to be searching for any incident that will meet DSM IV or the Statement of Principles criteria. Dr Mander states: “it appears that Dr Fellows-Smith has used a further interview (which is what I take to mean when he says ‘on further examination’) to try to search for such an incident. At the very least, this suggests that the incident is not of sufficient severity in the veteran’s mind to have been spontaneously recounted in any of the interviews that he has had.”
31. Dr Mander further argues that in his letter of 8 December 2006, Dr Fellows-Smith introduces the concept of “(the applicant’s) confusion occurring whilst under cross-examination” (during the VRB hearing due to his neurological state having been affected by the tomahawk blow to the head some years before) and Dr Mander’s observation of “whether it damaged the Veteran’s cognitive capacity or not.” Dr Mander then states; “There are clear medicolegal tests set down which define the whole issue of capacity to give testimony. Presumably at no time was the veteran so obviously impaired that such an examination was spontaneously offered before the hearing or concern was raised at the VRB such that they asked for such an examination to take place. Confusion has a very specific meaning within psychiatry and essentially means that there is a clouding of consciousness which could indeed render an individuals testimony quite misleading. However no such evidence is offered that any such impairment existed or indeed has ever been experienced by the veteran.”
“After reading Dr Fellows-Smith’s reports I have not changed my view that the veteran did not suffer a severe psychological stressor as defined by the Statement of Principles, nor do I consider that his experiences as a 10 or 11 year old were sufficient to make it reasonable to lower the standard of severe psychological stressor in order to allow a diagnosis of post traumatic stress disorder to stand. With regard to his report of 8 December 2006, as far as I can see, no evidence is offered by Dr Fellows-Smith to underpin his opinion that the veteran was confused and presumably therefore he was competent to take part in his examination before the Veteran’s Review Board.”
Dr Fellows-Smith
32. In his letter dated 27 November 2007 (Exhibit 4), Dr Fellows-Smith drew on the opinion of his colleague “Dr Oleh Kay who had diagnosed overlapping symptoms of psychiatric disorder including Alcohol Dependence Syndrome, Anxiety Disorder and some post traumatic stress symptomatology.” Dr Fellows- Smith goes on to state:
“Dr Kay’s opinion that Mr Burnet has Anxiety Disorder aetiologically related to his naval service supports my diagnosis of Anxiety Disorder however he stops short of making a diagnosis of Post Traumatic Stress Disorder possibly due to category A of 309.84 not being met. Neither does he express an opinion regarding the time of onset however I note that he diagnosed acute stress disorder suggesting that the onset of symptoms is within six months after the stressor event.
On this basis I am willing to revise my diagnosis to Anxiety Disorder Not Otherwise Specified as described in DSM IV 300.00 based on the idiosyncratic nature of Mr Burnet’s presentation.”
Alcohol Dependence and Alcohol Abuse
33. Statement of Principles No 17 of 2008 describes alcohol dependence and alcohol abuse as follows:
"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 (e.g., visiting multiple doctors or driving long distances), 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).
"alcohol abuse" means a psychiatric condition that meets the following diagnostic criteria (derived from DSM-IV-TR):
A.A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to alcohol use; alcohol-related absences, suspensions, or expulsions from school; neglect of children or household).
(2)Recurrent alcohol use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by alcohol use).
(3)Recurrent alcohol-related legal problems (e.g., arrests for alcohol-related disorderly conduct).
(4)Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the alcohol (e.g., arguments with spouse about consequences of intoxication, physical fights).
B. The symptoms have never met the criteria for alcohol dependence.
34. Mr Burnet put to the Tribunal that he was chronically dependent on alcohol, however, in his verbal and written evidence, he referred only to:
(a)his attempts to get additional ration of beer from soldiers aboard his return trips on HMAS Sydney (not an uncommon practice by sailors at the time);
(b)the time that he hit a lamppost in his car and that he was charged with drink driving;
(c)that he “brewed his own beer” for a time (probably as a cost-saving measure);
(d)that “the relationship with people around me because of my mood swings etc. (sic) I used to drink excessively to deaden the memories and then become very aggressive and nasty”
(e)that his heavy drinking contributed to his first marriage breaking up, although there was no corroborating evidence presented.
35. The Statement of Principles criteria are clear but there is no evidence other than the word of the applicant (even through the various psychiatrists) that he is actually suffering from alcohol dependence or alcohol abuse. He was consistently unable to date the onset of his alleged alcohol problems and provided no clinical proof of alcohol abuse such as a doctor’s evidence of kidney or liver damage. Mr Burnet served only 3.5 years in the Navy yet subsequently worked for 30 years in industry as a painter and a supervisor without any apparent symptoms of his alcohol dependence or abuse affecting that activity. He stated that his work life was terminated firstly due to redundancy then later because of a (work-related) back injury for which he receives a pension unrelated to his DVA claims.
36. The Statement of Principles 17 of 2008 indicates that certain factors must be extant in determining alcohol dependence and/or alcohol abuse 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 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
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(d)experiencing the death of a significant other within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
(e)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(f)experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
(g)experiencing a category 1B stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
(h)experiencing the death of a significant other within the two years before the clinical worsening of alcohol dependence or alcohol abuse; or
(i)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Factors that apply only to material contribution or aggravation
7.Paragraphs 6(e) to 6(i) apply only to material contribution to, or aggravation of, alcohol dependence or alcohol abuse where the person’s alcohol dependence or alcohol abuse was suffered or contracted before or during (but not arising out of) the person’s relevant service.”
37. Whilst Dr Mander is of the opinion that Mr Burnet suffers a degree of alcohol dependence and alcohol abuse with secondary anxiety disorder, there is no evidence to support the contention that the applicant suffered the required category 1A or 1B stressor, sufficient to warrant recognition of alcohol dependence or alcohol abuse as being Defence-service caused. In the Statement of Principles:
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"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;
"a significant other" means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;
"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;
"DSM-IV-TR" means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
"relevant service" means:
(a) operational service under the VEA;
(b) peacekeeping service under the VEA;
(c) hazardous service under the VEA;
(d) warlike service under the MRCA; or
(d) non-warlike service under the MRCA;
38. Dr Mander in his verbal evidence was strongly of the view that Mr Burnet’s alcohol abuse and alcohol dependence is not Defence service related.
39. Dr Fellows-Smith, in his report dated 27 November 2007 revised his diagnosis to:
“…I am willing to revise my diagnosis to Anxiety Disorder Not Otherwise Specified as described in DSM IV 300.00 based on the idiosyncratic nature of Mr Burnet’s presentation.”
40. There is no evidence of the date of onset of the applicant’s alleged alcohol abuse/dependence.
Anxiety Disorder
41. The Statement of Principles No. 101 of 2007 concerning Anxiety Disorder not Otherwise Specified states, inter alia:
"anxiety disorder not otherwise specified" means a psychiatric disorder (derived from DSM-IV-TR) with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood.
This definition of anxiety disorder excludes the other anxiety spectrum disorders: posttraumatic stress disorder, acute stress disorder, phobia, obsessive-compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
Basis for determining the factors
4. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that anxiety disorder and death from anxiety disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
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:
“(c) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
(i) experiencing a category 1A stressor within the five years before the clinical worsening of anxiety disorder; or
(ii) experiencing a category 1B stressor within the five years before the clinical worsening of anxiety disorder; or
(iii) having a significant other who experiences a category 1A stressor within the two years before the clinical worsening of anxiety disorder; or
(iv) experiencing a category 2 stressor within the one year before the clinical worsening of anxiety disorder; or
(v) having a clinically significant psychiatric condition within the ten years before the clinical worsening of anxiety disorder; or
(vi) having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical worsening of anxiety disorder; or
(vii) having epilepsy at the time of the clinical worsening of anxiety disorder; or
(viii) having chronic pain of at least three months duration at the time of the clinical worsening of anxiety disorder; or
(ix) experiencing the death of a significant other within the two years before the clinical worsening of anxiety disorder; or
having a medical condition as specified at the time of the clinical worsening of anxiety disorder; or
inability to obtain appropriate clinical management for anxiety disorder.”
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(c) to 6(e) apply only to material contribution to, or aggravation of, anxiety disorder where the person’s anxiety disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service.
Inclusion of Statements of Principles
8. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Other definitions
9. For the purposes of this Statement of Principles:
"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;
"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;
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"a medical condition as specified" means an endocrine, cardiovascular, respiratory, metabolic, infectious, or neurological condition, that causes symptoms consistent with anxiety, panic attacks, obsessions or compulsions, as a direct physiological consequence of the condition;
"a significant other" means a person who has a close family bond or a close personal relationship and is important or influential in one’s life;
"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;
"chronic pain" means continuous or almost continuous pain, which may or may not be ameliorated by analgesic medication and which is of a level to cause interference with usual work or leisure activities or activities of daily living;
"death from anxiety disorder" in relation to a person includes death from a terminal event or condition that was contributed to by the person’s anxiety disorder;
"DSM-IV-TR" means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), Fifth Edition, effective date of 1 July 2006, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86487 772 3;
"relevant service" means:
(a)operational service under the VEA;
(b)peacekeeping service under the VEA;
(c)hazardous service under the VEA;
(d)warlike service under the MRCA; or
(e)non-warlike service under the MRCA;
"terminal event" means the proximate or ultimate cause of death and includes:
(a)pneumonia;
(b)respiratory failure;
(c)cardiac arrest;
(d)circulatory failure; or
(e)cessation of brain function;
"the general medical condition is a direct physiological cause of the anxiety" means one or more of the general medical condition’s signs or symptoms present as signs or symptoms of anxiety, panic, obsessions or compulsions and are directly related to the pathological process of the general medical condition, and
(i) the anxiety disorder has a close temporal relationship with the onset or exacerbation of the general medical condition, and the anxiety disorder developed at the same time or after the onset of the general medical condition;
(ii) treatment which causes remission of the general medical condition also results in remission of the anxiety symptoms; or
(iii) features of the anxiety disorder, such as an unusual age of onset, a qualitative difference in symptoms, or disproportionately severe or unusual symptoms, are inconsistent with a primary diagnosis of any of the anxiety spectrum disorders.
Application
10. This Instrument applies to all matters to which section 120A of the VEA or section 338 of the MRCA applies.
Statements of Principles
42. Three possible diagnoses have been put forward to support the applicant’s claims in this case. They are anxiety disorder, alcohol dependence or abuse and post traumatic stress disorder. At the time the initial decision was made, the statements of principles that applied were as follows:
Anxiety disorder: instrument 1 of 2000
Alcohol dependence or abuse: instrument 76 of 1998
Post traumatic stress disorder: instrument 3 of 1999
Since that time, new statements of principles have been published and are:
Anxiety disorder: instrument 101 of 2007
Alcohol dependence and abuse: instrument 17 of 2008
Post traumatic stress disorder: instrument 5 of 2008
43. The Tribunal’s task is to apply the statements of principles current when it makes its decision. Should use of those statements result in a decision unfavourable to the Applicant, he has an accrued right to the use of those current at the time the initial decision was made. Repatriation Commission v Gorton (2001) 110 FCR 321.
44. At the heart of this matter is whether the Applicant experienced a “stressor” as defined in each statement of principles. The definitions of “stressors” have changed with the statements of principles and the current statements’ definitions are much more difficult to satisfy than those of earlier statements.
45. It is also of note that Dr James Fellows-Smith has altered his opinion and that he now considers that the Applicant satisfies the diagnostic criteria for anxiety disorder rather than those for post traumatic stress disorder. On the psychiatric opinions before the Tribunal, it would appear that the Tribunal need only consider the diagnoses of anxiety disorder and alcohol dependence or abuse, albeit that it does need to consider alternative diagnoses in order to be reasonably satisfied as to diagnosis.
Historical Material
46. In his report of 16 October 2007, Lt Col Warren Barsley (ARA ret.), a mariner as well as an Army officer reported that there was no written record of a body of a soldier being returned to Australia aboard HMAS Sydney. Bodies were transported back to Australia by air in aluminium caskets, not in body bags.
47. Captain John Macdonald (RAN ret) provided a report dated 22 May 2008. Capt. Macdonald could find no record of HMAS Sydney running aground. Such an incident would certainly have been recorded in the ship’s Reports of Proceedings. There was, however, a loss of vacuum on the port main engine, resulting in loss of vacuum to the port turbo generator on Sunday, 1 November 1970, when HMAS Sydney was coming to anchor at Vung Tau. Only diesel generators remained operational. This was caused by jungle debris blocking cooling water intakes. According to Capt. Macdonald, battery-powered emergency lighting would have operated within the machinery spaces and elsewhere throughout the ship, while auxiliary power sources would have been supplied immediately to essential services. There was a fear at first that the ship had run aground but this was soon found to be incorrect. Certainly, there were some anxious moments for the engineering staff but the ship anchored and unloaded as normal. The core period of the crisis may have lasted about 30 minutes.
48. Captain Macdonald also reported on scare charge use. As he pointed out in his report, when heard from inside the ship and below the waterline, the explosion of a scare charge presents as a short, sharp ‘thud’ or ‘crump’, startling when unexpected but not the kind of sound or effect that occurs when ordnance impacts or a mine explodes on or near the ship.
49. On 12 June 2008, Capt. Macdonald produced a second report, concerning the Applicant’s service aboard HMAS Vampire. There is no record of a grounding of HMAS Vampire or of a loss of electrical power on its trip to Vung Tau. It is of note that Vampire was only in Vung Tau harbour at anchor from 0645 hrs to 11.00 hours on 19 May 1969. 8 scare charges were dropped in the vicinity of B13 anchorage in 10 fathoms of water. Given that this was in daylight and was described as being an opportunity taken, the Officer of the Watch would have almost certainly warned the ship’s company of the imminent explosions with an announcement over the ship’s main broadcast system to the effect, “Stand by scare charge!”
Medical Information
50. The Tribunal notes that Dr Mander, a psychiatrist and an ex-naval rating, has examined the Applicant on a number of occasions and has also reviewed the documents and reports of other psychiatrists. He gave evidence in person and opined that the Applicant’s psychiatric problems stem from his alcohol abuse, which has resulted in him developing an anxiety disorder. This has persisted, notwithstanding moderation of his alcohol intake, the damage to his psychiatric state having already been done. Dr Mander could not get a sense that the claimed “stressors” were sufficient to precipitate the misuse of alcohol in the manner put forward by the statements of principles. The Tribunal prefers the evidence of Dr Mander which the Tribunal finds is more persuasive than the conflicting evidence of Dr Fellows-Smith.
51. A report was obtained from Dr Oleh Kay, dated 22 October 2007. Dr Kay saw the key experience in understanding the Applicant’s psychiatric state is his time in HMAS Vampire and his treatment by a particular petty officer. He formed the opinion that the Applicant developed an acute stress disorder causally related to this treatment, which precipitated alcohol abuse and then caused a persisting anxiety disorder.
52. Dr Fellows-Smith also provided reports and gave evidence by telephone. Dr Fellows-Smith also considers that the Applicant has an anxiety disorder that he attributes to stressors while on operational service. Dr Fellows-Smith opined that the Applicant had been sensitised to such stressors by his upbringing, his father having been a serviceman and other experiences from his childhood. He was of the opinion that the Applicant’s experiences on HMAS Vampire, particularly his treatment by PO Webb, and the blackout aboard HMAS Sydney in Vung Tau harbour were important in the development of his psychiatric disorder. He noted the possibility of frontal lobe damage following a head injury when the Applicant was assaulted with a tomahawk but was of the opinion that the Applicant’s problems predated this assault.
53. Clinical notes concerning the Applicant’s head injury have been obtained and show that he was assaulted on 17 May 2004 and suffered a significant head injury.
54. Associate Professor Jonathan Foster, D Phil, a consultant neuropsychologist, has assessed the Applicant and has opined that the Applicant manifests difficulty with a relatively small number of elements of learning and memory. More generally, his neuropsychological profile may be related to the Applicant’s reported heavy use of alcohol, which has a degenerative effect and may interact synergistically with the consequences of normal ageing.
55. Dr Terri, the Applicant’s local doctor, has reported that on 30 May 2008, the Applicant showed no signs of alcohol abuse in the form of spider naevi, peripheral neuropathy or hepatomegaly. Liver function tests on 19 May 2008 were normal.
Tribunal’s Findings
56. It is the Tribunal’s opinion that the Applicant does not meet the requirements of the current or the earlier statements of principles in respect of anxiety disorder or alcohol dependence and abuse. He did not view corpses or see people killed or experience a life-threatening event as defined during his operational service. At most, he saw a bundle in a freezer (well-lit, as Dr Mander, a former Naval serviceman, noted), heard some thuds in the form of scare charges and was given an unpleasant time by a Petty Officer. He saw aircraft in the distance dropping napalm and saw a naval vessel protecting ships in the anchorage (including his own) by firing at the stern of a local Vietnamese vessel. He cannot say that he saw the local vessel hit or any injury to anyone on board – he can only surmise that that is what happened.
57. The applicant was aboard HMAS Sydney when there was a loss of power caused by a blockage of the cooling water intakes. There was a blackout and a degree of urgency amongst engineering staff in putting things to rights. It is of note, however, that in Captain Macdonald’s opinion, emergency lighting would have gone on immediately. Engineering staff knew the cause of the problem very quickly and the core period was about 30 minutes. Even so, this did not cause HMAS Sydney any problems in coming to anchor and unloading.
58. There is no record of a grounding or loss of electrical power aboard HMAS Vampire in its brief visit to Vung Tau. The opportunity (emphasis added) was taken to drop scare charges on what was described as an uneventful visit of a few hours.
59. The Tribunal has had regard to the earlier statements of principles in which “stressor” is not so exhaustively and strictly defined as in the current statements. In this regard the Tribunal notes that in White v Repatriation Commission (2004) 39 AAR 67, Spender J noted that a severe psychological stressor involves both an objective occurrence and a subjective response. The occurrence needs to provoke substantial distress, however, an idiosyncratic and personal perception of a particular event will not satisfy the definition if the event does not meet the objective requirements.
60. The Tribunal finds that the applicant’s perceptions of the purported body in the freezer, the dropping of scare charges, the blackout aboard HMAS Sydney, the dropping of napalm in the distance, the firing on a local vessel by an American gunboat, the results of which he did not see and the response to the stories of PO Webb were idiosyncratic and personal perceptions and do not, therefore, meet the requirements of the statements of principles current at the time the initial decision was made. The required reasonable hypothesis for purposes of s120(3) of the VE Act is therefore not raised under either the current or the former statements of principles.
Decision
61. The Tribunal affirms the decision under review.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member, Dr D Weerasooriya, Member and Mr W G Evans, Member
Signed: (sgd) T Freeman.........
AssociateDates of Hearing 3 December 2007, 15 October 2008 and 23 February 2009
Date of Decision 21 April 2009
Representatives of the Applicant Mr P Lofdahl and Mr A West
Representative of the Respondent Mr C Ponnuthurai
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