Milenz and Repatriation Commission
[2005] AATA 1038
•20 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1038
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/770
VETERANS' APPEALS DIVISION ) Re YURGEN MILENZ Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date20 October 2005
PlaceMelbourne
Decision The decision under review is set aside and in substitution IT IS DECIDED the applicant suffers from alcohol abuse and dependence, depressive disorder and irritable bowel syndrome which are war-caused. The application is remitted to the respondent to calculate pension entitlement. ..............................................
Senior Member
VETERANS’ ENTITLEMENTS – applicant a member of crew of HMAS Yarra – called to action stations – unidentified vessel – not an exercise – applicant confined below sealed hatches – applicant experienced a severe stressor and a psychosocial stressor – pre-existing alcohol abuse and depression – worsened by service – decision set aside
Veterans’ Entitlements Act 1986 (C’th)
Woodward v Repatriation Commission (2003) 131 FCR 473
Guy v Repatriation Commission [2005] FCA 562
Delahunty v Repatriation Commission [2004] FCA 309
Hill v Repatriation Commission [2005] FCAFC 23
Stoddart v Repatriation Commission [2003] FCA 334
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
20 October 2005 Mr John Handley, Senior Member 1. The applicant applied to review a decision made by the Veterans’ Review Board (“the VRB”) on 20 May 2004. The VRB was then reviewing a decision previously made by the respondent on 13 February 2003 to refuse his claim for acceptance of the conditions of alcohol dependence or abuse, irritable bowel syndrome and generalised anxiety disorder. The VRB decided to amend the diagnosis with respect to “generalised anxiety disorder” and substituted the diagnosis of “anxiety disorder”. The remainder of the decision was affirmed.
2. Mr Milenz is 57 years of age having been born on 29 July 1948. He currently receives pension at 90 per cent of the general rate for the accepted conditions of osteoarthrosis of right knee, cervical spondylosis, bilateral sensorineural hearing loss and tinea. A number of other illnesses or injuries have been rejected as war-caused. However, this review only concerns the conditions refused by the respondent.
3. The hearing of the application commenced in Wangaratta on 5 April 2005 and resumed in Melbourne on 2 June 2005. Mr Larkin appeared on behalf of Mr Milenz and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
4. Mr Larkin indicated at the commencement of the hearing that there was no intention to call any witnesses other than the applicant, and reliance would be made on reports that had been filed. Mr Douglass indicated that he would call evidence from Drs Strauss and Percival, who are both medico-legal psychiatrists, and from Commodore Mulcare.
yurgen horst milenz
5. Mr Milenz adopted a statement that he completed on 30 June 2004 and which was received into evidence as Exhibit A. That statement is reproduced as follows:
I served in the RAN from 12 February 1966 to 11 February 1978. I had operational war service in Vietnam from 22 February 1971 to 1 March 1971.
I served on HMAS Yarra during my period of operational war service in Vietnam. The Yarra escorted HMAS Sydney into and out of Vung Tau Harbour. At the time my duties were as stores/victualling.
My recollection is that our vessel anchored at Vung Tau Harbour in the morning and sailed from the Harbour in the afternoon of the same day. During the time that we were in Vietnamese waters were closed up in defence watch. I was generally apprehensive whilst we were anchored at Vung Tau Harbour. I had heard stories of Viet Cong divers attaching mines to the hulls of vessels and I was concerned that that may happen to the Yarra. Furthermore, prior to operational service whilst serving on HMAS Duchess in the South China Seas, my vessel nearly collided with another Australian vessel (I cannot recall whether the other vessel was HMAS Vendetta or HMAS Vampire). I had been apprehensive whilst at sea ever since that incident.
There was no specific stressor, however, which occurred whilst we were anchored at Vung Tau Harbour.
Whilst escorting HMAS Sydney from Vung Tau Harbour our vessel was closed up at action stations. I was below decks at the time as part of a medical party. I recall the action stations alarm being sounded but I do not recall any announcement of the reasons for going to action stations. I now understand that the reason for going to action stations was that my vessel was ordered to investigate an unidentified vessel some 7 miles ahead, but I did not know this at the time. Accordingly, I was below decks knowing that we had been called to action stations but not knowing the reason. It is also my belief that during the period where we were at actions [sic] stations our vessel fired a shot. The period during which I thought we were in danger and at action stations lasted approximately half an hour. During that time I was fearful for my life. I was below deck and knew that hatches had been locked and therefore we were sealed. I felt not only fearful but also felt claustrophobic.
Prior to the incident when we were called to action stations, I slept well and do not recall suffering nightmares or being anxious. I agree with Dr. Ratnayake’s summary that I currently suffer panic attacks, depression, irritability, impaired concentration, forgetfulness, decreased libido and insomnia. Furthermore, I started suffering nightmares about being trapped following the incident and I continue to suffer nightmares. I relate all of my current symptoms to the incident on board HMAS Yarra when we were called to action stations.
I was a non-drinker of alcohol prior to my enlistment. My parents did not permit me to drink alcohol and I obeyed them. Prior to my operational service in Vietnam I had commenced drinking alcohol and I agree that invariably I would consume some alcohol on every occasion that I was permitted shore leave prior to my service in Vietnam. It is the case that on some rare occasions I consumed alcohol to the point of intoxication before my period of operational war service. The Department of Veterans’ Affairs obtained a report from Dr. Percival which I have read. I believe that Dr. Percival exaggerated the history which I gave him as to my drinking habits before operational war service. On most occasions before my service in Vietnam I only drank moderate amounts of alcohol in a sitting. Generally, I drank not more than about 8 to 10 pots of beer per occasion prior to service in Vietnam. After my operational war service I recall that the first port our vessel reached was in Freemantle,[sic] Western Australia. I recall drinking to excess at Freemantle [sic] because I was still on edge. Prior to my operational war service I was a beer drinker only but I started drinking whisky in Fremantle [sic] in order to settle my nerves. My intake of alcohol increased from that time onwards, to the point that I became regularly inebriated. It was not the case before hand that I was regularly inebriated. Accordingly, I do believe that my alcohol abuse or dependence was contributed to by the incident during the operational war service.
I started suffering diarrhoea and pain and cramping in the abdomen from soon after my operational war service. I relate these symptoms to my anxiety state.
My treating family doctor is Dr. J. Pedrotti of 65 Nixon Street, Shepparton. Dr. Pedrotti did refer me to a psychologist (Ron Thompson) whom I saw on 2 occasions. I discontinued counselling with Thompson because I could not afford the expense of that treatment.
6. By way of an attack upon the history taken by Dr Percival, Mr Milenz pointed to a number of errors that he said existed in a report completed on 28 January 2003, found at T-documents, page 11. He noted that his father was recorded as having died “in his late 90’s” when Mr Milenz said that his father had died when he was in his 70’s. Additionally, Mr Milenz pointed to the fact that Dr Percival had recorded him as being a member of the Army, when in fact he was enlisted in the Navy. Significantly, he pointed to the second paragraph on page 2 which records a history of Mr Milenz “drinking every day when he was on shore, getting so drunk that he has no idea of his total consumption of alcohol and experiencing frank alcoholic blackouts as a consequence” at the end of his first year of service and prior to departure for Vietnam. Mr Milenz said that history was incorrect and he did not give it to Dr Percival. After discharge he said he was drinking considerably more and was also consuming whiskey. He said that he did not ever suffer blackouts prior to Vietnam, that he had not ever had trouble with civil authorities, but in service he had been demoted because of an incident involving the consumption of alcohol. Prior to leaving for Vietnam he had only been out of Australia on one occasion when he was a member of the crew of HMAS Duchess which was part of the Far Eastern Strategic Reserve (“FESR”).
7. Mr Milenz was also referred to a report of Commodore Mulcare found at page 130 of the T-documents. He agreed that between 8 August 1970 and 5 February 1971, he had been engaged in exercises only. He said on those occasions he would move to a designated part of the ship, consistent with his membership in a medical party onboard. In exercises, when “action stations” was alarmed, he would then be required to attend and care for wounded personnel. On those occasions the whole of the ship would be “closed down” and the exercise would be conducted as if the ship was under threat. Lights would remain on and an alarm would have been sounded.
8. When at Vung Tau Harbour, he said that HMAS Yarra (Yarra) had been on “alert” but had not been on “action stations”. He said that Yarra would have been patrolled to check for divers and he recalled having heard that some scare charges had been dropped overboard. He said that it was possible to walk normally around the vessel but guns had been manned.
9. Shortly after Yarra left Vung Tau Harbour as an escort for HMAS Sydney, he said that an alert had been sounded to move to “action stations”. He said there were “three blasts of the buzzer” and that indicated to him that it was not an exercise. He described it as “the real deal”. He said there was no announcement over the ship that it was an exercise and in the absence of an announcement, he said that the call to “action stations” was “real”.
10. Mr Milenz said that he went to his designated part of the ship as a member of a medical party and was below decks for between 20 and 30 minutes. Whilst in that position he heard a “bang” that he presumed to be a gun firing. Mr Milenz acknowledged that Commodore Mulcare reported that a gun had not been fired. However, Mr Milenz was adamant that he “did hear a noise”. When the alert was over, Mr Milenz said that there was a rumour about the ship that another vessel had been sighted during the time that the vessel had been placed on action stations.
11. Mr Milenz acknowledged part of a history taken by Dr Strauss, a medico-legal psychiatrist engaged by the respondent who, in a report of 11 October 2004,recorded at page 8, that the occasion when he was below decks was a “frightening experience”. However, Mr Milenz denied a later comment that he had “recovered from that experience”. Mr Milenz said that he did not say that to Dr Strauss. He did agree with a history also taken by Dr Strauss that subsequent to service he did not sleep well, that he was restless, that he suffered from broken sleep and his memory and concentration were poor. He also agreed with a history taken by Dr Ratnayake, (another medico-legal psychiatrist who was engaged by the respondent and who reported on 23 June 2003) that Mr Milenz suffered from panic attacks “manifesting as sweating, dry mouth, hot flushes and palpitations”. He also agreed with her history that he suffered from low mood and was unable to restrain himself from heavy consumption of alcohol.
12. Prior to the occasion when Mr Milenz said that he and others had been called to “action stations”, he had suffered from claustrophobia but concealed it. He said that since that incident, the claustrophobia “has got worse”.
13. In 1972, being the year after the above episode occurred, Mr Milenz said that he applied for discharge from naval service. He “wanted to get out because I wasn’t myself anymore”. He said that he was affected by heavy consumption of alcohol and panic attacks and he no longer wanted to go to sea. He said that his medical records indicated that he was suffering from significant weight gain which he associated with alcohol consumption (refer page 8 and 9 of T-documents). Mr Milenz was transferred into other positions and was discharged in 1978.
14. Subsequent to discharge, Mr Milenz said that he does keep in touch with other service colleagues but he does not attend a local RSL branch, except on Anzac day. He said that he has difficulty maintaining relationships with other persons and does not socialise with workmates. He said that he does not have psychiatric treatment but he did consult Dr Thompson, a psychologist in Shepparton, on two occasions. Subsequent to service, Mr Milenz consumed cigarettes but ceased smoking approximately 12 months ago.
15. In cross-examination, Mr Milenz acknowledged that Dr Pedrotti, in a report at page 87 of the T-documents, recorded symptoms of generalised anxiety disorder, panic disorder and depressive disorder as having an onset in 1978 and symptoms of an adjustment disorder having an onset in 1976. Mr Milenz that he had given those dates to Dr Pedrotti but said on reflection that those symptoms had occurred much earlier. He could not explain why he had given that history to Dr Pedrotti. He also said that despite the existence of those symptoms he did not then seek any treatment.
16. Mr Milenz was again taken to the report of Dr Percival, who recorded “he showed no signs, other than his relatively poor memory, of psychiatric disorder….”. Mr Milenz denied that he then presented with an absence of “signs” and only displayed “poor memory”. He denied that he had developed any psychiatric disorder subsequent to the interview with Dr Percival. Mr Milenz said that he could not recall describing himself as (previously being) “happy go lucky” (as is recorded) but acknowledged that if those words appear, that he must have given that description of himself to Dr Percival.
17. Despite comments made by Dr Percival in the first paragraph at page 92, that suggested that anxiety was associated with failed promotion in 1974, Mr Milenz pointed to his records (page 27), that demonstrate that he had failed promotion in 1970 prior to travelling to Vietnam. Mr Milenz could not explain why Dr Percival would have recorded that he had failed promotion in 1974.
18. Mr Milenz said that he had been treated by Dr McKellar, a former family general practitioner from 1979. He acknowledged that the records of Dr McKellar do not record any symptoms or treatment of psychiatric or emotional type illnesses. He said he did not ever refer these illnesses to Dr McKellar and only attended him for treatment of high blood pressure and gout.
19. Mr Milenz was then taken to a questionnaire found at page 69 of the T-documents where he was asked to record his alcohol history. Mr Milenz agreed that he completed the document which records that he began to consume alcohol on a regular basis in 1966 upon entering Naval service. The reason recorded is “socially acceptable as a means of easing the stress of shipboard life”. He recorded that he was drinking alcohol on two or three occasions per week and on those occasions he drank beer, which he described as “binge drinking and I would drink up to 15/20 cans per session”. In answer to a question of whether his alcohol consumption changed significantly, Mr Milenz recorded that he changed to spirits in the early 1970’s “to lessen liquid consumption”.
20. When questioned about the content of this document, Mr Milenz denied that he was drinking 15 to 20 cans upon enlistment but could have been consuming that quantity towards the end of his service. He said that at age 17, when he enlisted, consuming that quantity of beer would have been “impossible”. He said that he later consumed spirits in order to reduce his weight. Mr Milenz had his attention drawn to a comment by Dr Percival (at page 92, second paragraph) where he recorded:
By the end of his first year’s service in the Navy, that is prior to his departure for Vietnam, he was drinking every day when he was on shore, getting so drunk that he has no idea of his total consumption of alcohol, and experiencing frank alcoholic blackouts as a consequence whilst he was still managing in spite of the theoretical restrictions to drink some six 750 millimetre bottles of full strength beer whilst at sea. Later in his career he freely conceded that aided by his role as a storeman he was smuggling whiskey onto the ship to see him through his time off shore.
21. Mr Milenz said that history was not consistent with the contents of the questionnaire at page 69. He said that he did not remember giving that history to Dr Percival, nor did he recall giving any history of suffering blackouts prior to travel to Vietnam. He said he did not drink six 750 millilitre bottles of beer when at sea because beer was then rationed in cans and was opened. He acknowledged that he did smuggle whiskey on board ship and was aware that it was a serious offence. He also agreed that it would have been an offence to have been caught drunk whilst on board. Mr Milenz did agree that his alcohol consumption did interfere with his career in the Navy and opportunities for promotion had been lost because of alcohol consumption.
22. Mr Milenz relied on comments he recorded in his claim for acceptance of alcohol abuse found at page 79 where he reported “caused through my stressful operational service in South Vietnam. I took up heavy drinking in Feb 1971 whilst in SVN to calm my nerves. I’m still a heavy drinker today”. Mr Milenz said whilst he did take up heavy drinking in South Vietnam, he did not drink heavily whilst at sea.
23. Mr Milenz was then referred to the Transcript of the VRB hearing where, at page 5, his advocate submitted that he ‑
(i)would have had no opportunity to consume alcohol whilst his vessel had been closed down;
(ii)that he had consumed alcohol prior to operational service; and
(iii)the diagnosis of “alcohol dependence” provided by Dr Percival had preceded operational service.
24. Mr Milenz said that he could not remember informing his advocate of that history or of his dependence. He denied dependence prior to the commencement of operational service and described his service at that time as being sociable. Nonetheless he agreed that the Transcript at page 6 records him as having said to the Presiding Senior Member that the submissions of his advocate contained a correct history.
25. Mr Milenz was then asked to comment on the written submissions provided to the VRB by his advocate which in part are found at page (viii) of the T-documents. The written submissions record that the applicant was an “experienced sailor who had received a briefing of what to expect, he suffered claustrophobia in enclosed spaces, he was sailing into a war zone, he was below the bridge and not aware of actually what was going on. He also believed there was gun fire and did not know whether or not it was enemy fire”. Mr Milenz said that he did not recall being briefed prior to sailing to Vung Tau, but did agree with the history summarised by Commodore Mulcare at page 129a that the records showed that he had been trained and was familiar with NBCD (nuclear biological chemical defence) procedures and the procedures with respect to watertight integrity and damage control states of readiness. These procedures involved comprehending the markings on all hatches, doors and ventilation openings. He said that he had experienced being closed down as part of the watertight integrity and damage control state of readiness procedures prior to Vietnam. He said that the manholes had internal latches which would permit exit if he felt claustrophobic and in those circumstances he agreed that he would not have been “locked in”. He also agreed that on the occasions where exercises had been conducted, there had been oral communication of it being an exercise only. He acknowledged that during action stations, on this occasion, he would have been able to open the hatch to avoid any sense of claustrophobia, but said that during action stations there would be an expectation that he would not.
26. Mr Milenz was then taken to an application he made for discharge from service on 9 November 1972. The records at pages 46 and 47 record that on 26 March 1973 he elected to revoke that application. Mr Milenz said that at about that time he had been promoted to leading seaman status on HMAS Tarangau and assumed that he had withdrawn his application because of that promotion. He said he initially applied for discharge because he preferred to be on shore but when he was promoted to leading seaman on Tarangau it became a shore based position. Three years later, when he was required to return to sea, he again applied for discharge and eventually obtained it.
27. In relation to the episode on board Yarra, Mr Milenz said that he heard “a number of shots” but did not know the number. He also described having heard “noise” and having heard a “bang”. He agreed that the records of Yarra, referred to in the report of Commodore Mulcare, do not have any report of a weapon being fired. He said the ship was armed by a 4½ inch gun which would have been noisy. He said that his position on board the ship was some distance from the gun turret and the Yarra was a noisy vessel which would have emitted other noises from time to time.
28. Mr Milenz was then taken to a report completed by Mr Ron Thompson, a psychologist who treated him (page 73 of the T‑documents). Mr Thompson obtained a history of “Two at sea incidents which have had a considerable psychological impact” upon him. The first incident is described as having occurred in 1966 when Mr Milenz was on watch on board HMAS Duchess in the Coral Sea during an exercise. The history recorded is of Mr Milenz observing a New Zealand vessel cutting across the bow of his vessel and observing the vessel as “coming out of nowhere”. The history recorded Mr Milenz having a continuing recollection of that image, his vessel requiring an emergency redirection and a sense of “imminent disaster remaining powerful to this day”. Mr Milenz agreed that he continues to have recollections of that type, that he was aware of previous Naval collisions and was also aware that HMAS Duchess was the vessel that replaced HMAS Voyager.
29. With respect to his service in Vietnam, Mr Milenz agreed that the history taken by Dr Ratnayake of being at Vung Tau was incorrect, and that he in fact was at Vung Tau Harbour for eight hours only. He did agree with her history (page 234) that he was anxious at the time of consultation about paying off his mortgage and about losing his job.
30. Mr Milenz also agreed with the comments in the report of Dr Strauss that he did have a sense of non-achievement because of his consumption of alcohol, that he had difficulty concentrating throughout his life but denied that it had affected his promotions. He agreed that promotion did not occur at a steady rate during service which he had anticipated and the absence of promotion was a disappointment. He also said that he initially felt a sense of rejection but no longer felt it after he had been discharged.
31. Mr Milenz disagreed with the history taken by Dr Strauss at page 4 that he would drink eight pots of beer “in a session” after joining the Navy and said that consumption at that level occurred much later. He did agree that in the mid 1970’s he was drinking heavily and that his alcohol consumption thereafter did gradually increase. He agreed that his memory may have been affected by the consumption of alcohol. He also agreed that he had given a history to Dr Strauss (at page 6) that he felt as if his life had been a failure.
32. In re-examination Mr Milenz said that there was a significant difference in practice between being called to action stations during an exercise, and being called to action stations when there is a “real threat”. He said during an exercise there is oral communication that the call to action stations was part of an exercise. He said “you knew before hand” and did understand that there was to be an exercise drill.
dr strauss
33. Dr Strauss is a consulting psychiatrist who examined Mr Milenz at the request of the respondent on 11 October 2004. It was his opinion that Mr Milenz suffered from dysthymic disorder and alcohol abuse. He was also of the opinion that Mr Milenz suffered from depression but as a consequence of the alcohol abuse. Dr Strauss was aware of the episode described by Mr Milenz of being below decks onboard Yarra in 1971, and concluded that that episode was “a frightening experience for this man but he recovered from that experience”. Dr Strauss regarded the incident as being a “severe psychosocial stressor” but there was no long term consequence from that episode. Rather, it was his opinion that Mr Milenz suffered from well established psychiatric illnesses prior to commencement of service. He acknowledged that the applicant did suffer from depression after commencement of operational service, evidenced by his abuse of alcohol and overeating, but he said that those features were a consequence of a constitutionally based psychiatric disorder, which did not arise out of service.
34. In evidence, Dr Strauss said that on the history that he obtained, Mr Milenz had suffered from behavioural problems from an early age, was a poor student and had difficulty concentrating. He was satisfied that the applicant did gradually increase his consumption of alcohol after enlistment. He said Mr Milenz had been claustrophobic prior to enlistment and had seen himself as being “a failure”. He said that when observing Mr Milenz describe the episode onboard Yarra, he did not appear to be “affected”. Accordingly he was of the opinion that episode did not have a significant impact and Mr Milenz would have inevitably developed depression irrespective of the circumstances of service. He dismissed the suggestion put to him in cross-examination that if his opinions were well founded as to pre-existing personality features, that a reasonable hypothesis existed that those conditions had been aggravated by service. Rather, he preferred the opinion that by reason of his age and immaturity and living in close proximity to other persons who consumed alcohol, Mr Milenz would have inevitably consumed alcohol to excess, become dependant and consequently depressed.
dr percival
35. Dr Percival is a consulting psychiatrist in private practice in Shepparton. He examined Mr Milenz at the request of the respondent and provided a report dated 28 January 2003. It was his opinion that Mr Milenz suffered from alcohol dependence and “a rumbling depressive illness” which he thought preceded alcoholism rather than being a consequence of it. Additionally, he held the opinion that there was no connection between Mr Milenz’s service and these illnesses. He reported that Mr Milenz suffered from a sense of non-achievement by an inability to obtain promotion and a sense of failure and rejection.
36. In evidence, Dr Percival explained that the quotations contained within his report are an exact reproduction of the words used by Mr Milenz when he was giving his history. Further, Dr Percival said that he did not exaggerate the history that he obtained. His references to Mr Milenz being drunk, having no idea of the total quantity of alcohol consumed and suffering blackouts, were a true reflection of the history taken, as were the quantities of alcohol consumed by Mr Milenz and recorded in the report.
37. It is not apparent from the report of Dr Percival whether he was asked to consider whether any particular SOP was applicable and, or, whether any factor within a SOP existed as a minimum. Indeed it would appear from the report that Dr Percival has treated the episode onboard the Yarra as one of many service events and has not drawn particular attention to that episode in his report or in the expression of his opinions.
submissions
38. Mr Larkin said that upon enlistment, Mr Milenz had been a 17½ year old young man without exposure to alcohol prior to service, who subsequently developed either depressive or dysthymic disorder, by reason of the event onboard Yarra which would have evoked feelings of fear and stress. He pointed to the opinions expressed by Dr Strauss that the episode would have been frightening and reliance was made upon the recent Federal Court decision of Guy v Repatriation Commission [2005] FCA 562 (Guy).
39. Based on Dr Strauss’ opinion that Mr Milenz suffered from a constitutional depression, he submitted that it was open to find that there was a clinical worsening by service and it was submitted that factor 5 (f) of Instrument 58 of 1998 existed as a minimum.
40. Mr Larkin submitted that Dr Ratnayke offered the diagnosis of generalised anxiety disorder, yet there was common ground between all of the doctors that Mr Milenz suffered from alcohol abuse and that the applicable SOP would be satisfied. Additionally, by reason of Mr Milenz suffering from a psychiatric condition within six months of the clinical onset of depression, Mr Milenz would satisfy factor 5 (b) of the Instrument with respect to irritable bowel syndrome. That is to say, if it was found as a fact that Mr Milenz suffered from a war-caused depression, irritable bowel syndrome must also be found to be war-caused.
41. Mr Douglass submitted that due to Mr Milenz’s failure to call any medical witnesses, it was open to the Tribunal to find that he had been unable to find any support for the hypotheses which were advanced. Whilst it was conceded that Mr Milenz did suffer from depressive disorder and alcohol abuse, the weight of the evidence pointed to both of those conditions existing prior to operational service, without clinical worsening by service. It was submitted that there was nothing which pointed to Mr Milenz having treatment for those conditions (which would be expected in the event of worsening) and the history of alcohol consumption and abuse was contradictory and inconsistent with some of the histories of alcohol consumption prior to operational service.
42. It was submitted that there was evidence which pointed to Mr Milenz suffering claustrophobia and difficulties in gaining promotion during service. Additionally it was submitted that nothing pointed to Mr Milenz having been “locked down” during the episode onboard Yarra. Indeed on the material, Mr Milenz was an experienced seaman who was engaged in an exercise and knew that he was only engaged in an exercise. Objectively, Mr Milenz was not exposed to any severe psychosocial stressor nor did he experience a severe stressor, because at all relevant times he was engaged in a routine naval patrol exercise.
43. Mr Douglass submitted that the decision of the Federal Court in Guy should be distinguished, because in that case the Veteran was exposed to an incident which was capable of causing severe injury or death, but in the present case no such material existed.
44. On balance it was submitted that no reasonable hypothesis existed and the attack by Mr Milenz on the report and the history of Dr Percival demonstrates the weaknesses in his case. On balance it was submitted that the history taken by Dr Percival was sound and was generally consistent with histories given by Mr Milenz to other practitioners.
conclusion and reasons for decision
45. The first issue to be determined is of course diagnosis. The respondent, at first instance, made a decision with respect to generalised anxiety disorder. The VRB amended that diagnosis to “anxiety disorder”. Having had the benefit of hearing the evidence of doctors Percival and Strauss and reading their reports, I am of the view, and find as a fact, that the appropriate diagnosis is depressive disorder. Dr Strauss made the primary diagnosis of dysthymia. It was his opinion that the applicant had suffered from an underlying depressive illness and depressed mood for many years best described by a diagnosis of dysthymia, but acknowledging that the description fell within the diagnosis of depressive disorder within DSM IV. Dr Percival described Mr Milenz as suffering from a “rumbling depressive illness” but did not make a specific diagnosis of depressive disorder. Dr Ratnayake diagnosed generalised anxiety disorder in reports that she provided at the request of the respondent, but she was not called to give evidence. I am satisfied on balance, that the appropriate diagnosis is depressive disorder.
46. There was no dispute between the doctors that Mr Milenz also suffered from alcohol abuse and alcohol dependence. Having regard to the quantities of alcohol consumed by Mr Milenz that diagnosis is beyond doubt.
47. Mr Milenz also suffers from irritable bowel syndrome. Little attention was given to that at the hearing and scant attention was given to it in the medical reports lodged. I am satisfied that Mr Milenz suffers from that condition and as a fact it can properly be diagnosed.
48. Statements of Principles have been issued with respect to the above three conditions which have been in force throughout the assessment period. The Instrument with respect to depressive disorder is No 58 of 1998. The Instrument with respect to alcohol dependence or alcohol abuse is No 76 of 1998 and the Instrument with respect to irritable bowel syndrome is No 103 of 1996.
49. In Repatriation Commission v Deledio (1998) 83 FCR 82, at 91 – 92, a Full Federal Court described four stages of analysis in deciding whether a hypothesis was reasonable. Those four stages are as follows:
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.
50. There is material which points to a hypothesis connecting depressive disorder, alcohol abuse and irritable bowel syndrome with the service of Mr Milenz. Additionally there are SOPs in force. Accordingly the first two stages of Deledio have been satisfied.
51. With respect to the Instrument concerning depressive disorder, the applicable factor is 5 (f) namely:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:
. . .
(f) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical worsening of depressive disorder; or
. . .
52. The expression “severe psychosocial stressor” is defined at paragraph 8 in the following terms:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
53. The applicable factor under the Instrument with respect to alcohol abuse is 5 (d) as follows:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
. . .
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
. . .
54. The expression “experiencing a severe stressor” is defined at paragraph 8 in the following terms:
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
55. The applicable factor under the Instrument with respect to irritable bowel syndrome is 5 (b) which is reproduced as follows:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service are:
. . .
(b) suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
. . .
56. The expression “a specified psychiatric condition” is defined at paragraph 7 of the Instrument in the following terms:
(a) a psychiatric condition with features of anxiety, including:
(i) generalised anxiety disorder, ICD code 300.02; or
(ii) panic disorder, ICD code 300.01; or
(iii) adjustment disorder with features of anxiety, ICD code 309.24, 309.28, 309.3, 309.4, or 309.9; or
(iv) post traumatic stress disorder, ICD code 309.81; or
(b) a psychiatric condition with depressive features, including:
(i) major depressive disorder, ICD code 296.2 or 296.3; or
(ii) neurotic depression, ICD code 300.4; or
(iii) other depressive disorders, ICD code 311; or
(iv) adjustment disorder with depressed mood, ICD code 309.0, 309.1, 309.4 or 309.28;
57. For the purposes of the latter Instrument, I am satisfied that depressive disorder is a “psychiatric condition with depressive features” within the meaning of the above definition. This finding is made having regard also to the Instrument with respect to depressive disorder defining that condition as attracting ICD Code 296.2 and 296.3 being the same code numbers referred to in the above definition.
58. For the purposes of the third stage of Deledio, I am satisfied that a hypothesis has been raised which is reasonable. On Mr Milenz’s account of the circumstances upon leaving Vung Tau Harbour, he did have feelings of substantial distress by an identifiable occurrence and accordingly he did experience a “severe psychosocial stressor” within the meaning of the depressive disorder Instrument. Consequently the factor with respect to irritable bowel syndrome is also satisfied. Additionally those events, as described, caused Mr Milenz to experience or confront an event involving a threat to his physical integrity which upon his account, did evoke “intense fear, helplessness or horror”. Accordingly he did experience a “severe stressor” within the meaning of the alcohol abuse Instrument. Accordingly each hypothesis with respect to depressive disorder, irritable bowel syndrome and alcohol abuse is consistent with the template of each respective SOPs. There is also material pointing to alcohol abuse and depressive disorder existing prior to operational service being worsened by service.
59. Only at the fourth stage at the Deledio analysis are facts to be found, and then, on the probabilities.
60. Mr Milenz said that his vessel was called to action stations but he had no memory of, and denied, that there was any broadcast over the ship’s speakers. He said he was closed up below decks and felt claustrophobic. Whilst he acknowledged that he could unlock the sealed hatches, nonetheless he believed that he and his vessel were in danger, that he was in fear for his life and he thought that he had heard a shot fired. He denied the contention put by the respondent that this episode involved an exercise only.
61. At this stage I must digress slightly to indicate that immediately prior to the first day of hearing of this application I indicated to both representatives that I had recently completed a hearing in an application of Re Donnelly and Repatriation Commission (V2003/436) where Mr Donnelly was onboard Yarra during the same voyage which has given rise to these proceedings. In that application Mr Milenz provided a written statement which was found at page 170 of the T‑documents. Mr Milenz did not give evidence at the hearing. I gave both parties a copy of the statement Mr Milenz had lodged in those proceedings. Ultimately I published reasons for decision ([2005] AATA 612) and at paragraphs 106 – 109 I summarised the documented evidence from the persons who were not called. At paragraph 106 I recorded that Mr Kennedy wrote a statement where he said that the vessel was ordered to action stations as a result of contact with an unidentified ship and the event was not an exercise. Mr Milenz, in his statement, recorded that he did hear one or two gun shots, that he did not know why the hatches were “clogged down”, that he could not see or gain access to the upper deck and that the vessel was not then engaged in an exercise. At paragraph 108 I recorded that Mr Selwood recalled being ordered to action stations, the 4.5 inch gun being directed towards the intended target and the main gun jamming. He could not recall a shot being fired but the vessel was not engaged in an exercise.
62. I also recorded in that decision the documented evidence of Commodore Baird who was in command of the vessel. He confirmed (paragraph 110) that he had ordered the vessel to action stations, he increased the speed of the vessel to 29 knots and did position the vessel by “developing a firing solution if I needed it”. Eventually he became satisfied that his vessel was not under threat as the unidentified vessel was USS Energy. No gun was discharged.
63. On balance, I am satisfied and find as a fact, that a gun onboard Yarra was not fired. Nonetheless, I am satisfied and find as a fact, that Mr Milenz did hear “a bang” or similar noise which he at the time, interpreted as the discharge of a gun.
64. I am satisfied also and find as a fact, that the vessel was called to action stations and it was closed down. Commodore Baird recorded this in the Record of Proceedings (T‑documents page 223). Commodore Mulcare in his report (T15, page 127) confirms that the vessel was closed up at action stations at 1641 hours at a location 20 miles south east of Vung Tau with increasing speed. The purpose was to investigate an unidentified vessel. That vessel was identified at 1652 hours and Yarra was secured from action stations at 1657 hours. Accordingly the vessel was at action stations for 16 minutes. Commodore Mulcare also records that this episode was the only occasion that Mr Milenz visited South Vietnam.
65. Commodore Mulcare described action stations as “The first degree of readiness with all hands closed up, all positions fully manned and ready for immediate action. First aid and damage control parties were dispersed throughout the ship and the highest degree of watertight integrity was adopted”.
66. Mr Milenz said that action stations were either not broadcast or he did not hear the broadcast. Commodore Mulcare said that “action stations were ordered by sounding the action alarm . . .” (page 129a). The source of that information is not known. Mr Selwood and Mr Kennedy in the Donnelly application both recorded in their statements that they were ordered to action stations.
67. I acknowledge that the persons who provided statements in Re Donelly were not called nor did they lodge statements in these proceedings. (In fairness also to Mr Douglass, he did not appear in Re Donnelly and I assume he would not have been aware of the evidence then received). The relevance of that evidence is only on the issue of whether the event described by Mr Milenz was “the real deal” or an exercise. The Record of Proceedings completed by Commodore Baird confirms that he did order Yarra to proceed to action stations.
68. On balance, I am satisfied as a fact, that there would have been an alarm and, or, an audible broadcast notifying personnel onboard Yarra that they were being ordered to action stations. I cannot conceive why persons would secure and lock down the ship in the absence of such a warning or a broadcast. Mr Kennedy and Mr Selwood said that they were ordered to action stations. It follows that they must have heard such a warning.
69. Accordingly, Mr Milenz was a person who on his first voyage to Vietnam was locked down below deck for at least 16 minutes, suffering from feelings of claustrophobia and fear (refer statement at paragraph 5). He also reported to Dr Strauss that the experience was “frightening”. In evidence, in these proceedings, he described the episode as “the real deal” (refer paragraph 9 earlier). This was in response to a suggestion put to him that the event was an exercise only. Whilst dismissing that contention, Mr Milenz did say that he had been involved in previous episodes where the vessel had been called to action stations but during an exercise only and when there had been an announcement as such. He acknowledged that there were “three blasts of the buzzer” (refer paragraph 9) which indicated to him that the call to action stations was not an exercise.
70. Dr Strauss formed the opinion that this episode would have been a “frightening experience”. Dr Percival gave the episode little attention. Dr Ratnayke thought that the episode contributed to generalised anxiety disorder.
71. I accept the contention put by Mr Douglass that Mr Milenz could have released himself from the closed position below decks however I do not accept that this was a realistic option given that Mr Milenz was of the belief that the vessel was at action stations. He would have been unlikely to place himself potentially in further danger by moving to a position above deck.
72. All things considered I am satisfied that the circumstances in which Mr Milenz then found himself, when judged objectively, point to him experiencing a threat of the risk of death or serious injury. That is to say the concept of “experiencing” contains a partially subjective element (refer Woodward v Repatriation Commission (2003) 131 FCR 473).
73. I am satisfied that the applicant genuinely held the belief of the risk of death or serious injury. Tamberlin J in Guy v Repatriation Commission [2005] FCA 562 heard an appeal concerning a veteran who claimed a connection between alcohol abuse and service thereby having to satisfy one of the factors in these proceedings namely; “experiencing a severe stressor”.
74. At paragraphs 19 and 20 of Guy, His Honour recorded:
19 This reasoning by the Tribunal is self-contradictory and indicative of an error of law. Once it is accepted that the veteran had perceived that there was a risk of serious injury or death and was confronted with an event which might evoke the relevant feelings, the definition in the SoP was satisfied. The Tribunal, in my view, in reaching its conclusion that the veteran had not experienced a severe stressor because there was only "an anxious moment" was applying the wrong test. Rather than asking whether the incident was of a type which might, as the Tribunal found, evoke the relevant emotions, the Tribunal asked whether the incident did evoke these emotions. Hence the reference to the incident being only "an anxious moment".
20 The correct approach to take is to ask whether the event might, or could possibly, evoke the relevant emotions. Despite its initial finding on this question, the Tribunal made a contradictory finding, without any explanation, that there was no severe stressor within the definition in the SoP. This contradictory finding indicates to me that, in applying the definition, the Tribunal must have misdirected itself or misunderstood the definition. In my view, it is not conclusive whether the veteran left the boiler room, thereby removing himself from the danger. The focus is rather on the type and nature of the danger, namely, whether it can be characterised as being capable of evoking the relevant emotions.
75. Having regard to the above I am also satisfied that Mr Milenz was exposed to a “severe psychosocial stressor” being an identifiable occurrence that evoked feelings of substantial distress.
76. In reaching these conclusions, I am not satisfied that Mr Milenz experienced an “idiosyncratic perception” (refer Stoddart v Repatriation Commission [2003] FCA 334) or an “irrational perception” or “baseless apprehension” (refer Delahunty v Repatriation Commission [2004] FCA 309) nor does he suffer “a fertile imagination with a selective rendition of the evidence” (refer Hill v Repatriation Commission [2005] FCAFC 23).
77. As a fact I am also satisfied that there has been a clinical worsening of both the depressive disorder and the alcohol abuse.
78. The history of alcohol consumption is confusing and inconsistent, however, it was consumed prior to operational service. On occasions the quantity was immodest. But after operational service, the quantity, type and frequency of alcohol consumed was far greater. It follows that there has been a clinical worsening of alcohol abuse. The worsening, in my view is referable to him having experienced a severe stressor, as defined and within two years of the worsening. There was an event which objectively did occur and from which Mr Milenz suffered a subjective reaction. His increased alcohol consumption was an element of that reaction.
79. It would also appear from the evidence heard in these proceedings that Mr Milenz did suffer from a depressed state prior to enlistment and certainly before commencement of operational service but was obviously not detected on pre-enlistment or other medical examinations. On the evidence of Dr Strauss, Mr Milenz suffered a “constitutionally based psychiatric disorder” which appears to have manifested by a sense of failure, behavioural problems, difficulty concentrating and immaturity (refer paragraphs 33 and 34 earlier). Mr Milenz’s mood, behaviour, increased alcohol consumption and symptoms subsequent to the episode onboard Yarra clearly point to a worsening of his depressed state. The worsening in my view is referable to him having suffered a severe psychosocial stressor as defined and within two years of the worsening. The stressor did evoke feelings of distress and is in the nature of a subjective reaction contemplated by Spender J in his discussion of the objective and subjective elements of “experiencing a severe psychosocial stressor” in White v Repatriation Commission [2004] FCA 633 at paragraphs 27 – 32 inclusive.
80. On Mr Milenz’s own evidence, the irritable bowel syndrome commenced after operational service (refer second last paragraph of statement found at paragraph 5 earlier). Because I am satisfied as a fact that the depressive disorder was clinically worsened within two years of having experienced a severe psychosocial stressor it follows that the irritable bowel syndrome occurred within six months of suffering from a “specified psychiatric condition”.
81. On balance therefore I am not satisfied beyond reasonable doubt that the respondent has established that the conditions of alcohol abuse, depressive disorder and irritable bowel syndrome are not war-caused. Accordingly the claim must
succeed. The decision under review will be set aside and in substitution it will be decided that a reasonable hypothesis has been raised connecting these conditions with service.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 5 April and 2 June 2005
Date of Decision 20 October 2005
Counsel for the Applicant Mr A Larkin
Solicitor for the Applicant Williams Winter
Departmental Advocate Mr R Douglass
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