Moran and Repatriation Commission
[2004] AATA 294
•22 March 2004
|
DECISION AND REASONS FOR DECISION [2004] AATA 294
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1619
| VETERANS’ APPEALS DIVISION | ) No N2002/1320 | ||
| Re | Robert Francis Moran | ||
Applicant
| And | Repatriation Commission |
Respondent
DECISION
| Tribunal | Ms SM Bullock, Senior Member |
Date 22 March 2004
Place Sydney
| Decision | Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor, decides: (i) The condition of gout is war-caused and Disability Pension is payable with effect from 25 June 2000. (ii) The condition of generalised anxiety disorder is war-caused and Disability Pension is payable with effect from 7 August 2001. (iii) The assessment of all of Mr Moran’s war-caused disabilities is remitted to the Respondent. |
……………………….
Ms SM Bullock
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability Pension - Entitlement – Anxiety Disorder - Gout
LEGISLATION
Veterans’ Entitlements Act 1986 ss 119, 120, 120A
AUTHORITIES
O’Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Stoddart [2003] FCAFC 300
Woodward v Repatriation Commission (2003) 75 ALD 420
REASONS FOR DECISION
| 22 March 2004 | Ms SM Bullock, Senior Member |
Mr Robert Francis Moran, the Applicant, served in the Royal Australian Navy (“the Navy”), from 2 July 1966 to 1 July 1978. He had Operational Service in Vietnam for various periods in 1968, 1969 and 1970 (T3, p4, Bundle 1). Mr Moran also has Defence Service from 7 December 1972 until 1 July 1978. Mr Moran wishes to obtain a Disability Pension for the conditions of generalised anxiety disorder and gout, the causation of which he contends is related to his service. Mr Moran has made a review application to the Administrative Appeals Tribunal (“the Tribunal”) of two decisions of the Veterans’ Review Board (“the Board”). On 23 July 2001, the Board refused Mr Moran’s claim for gout and acute sprain of the left ankle and increased pension to 80 per cent of the General Rate (T12, Bundle 1). On 22 July 2002, the Board refused Mr Moran’s claim for anxiety disorder (T12, Bundle 2).
The Hearing was held in Sydney on 30 September 2003 and resumed on 8 October 2003. Mr Moran provided oral evidence. Concurrent medical evidence was also provided by Dr A Dinnen, Consultant Psychiatrist and Dr R Haik, Consultant Psychiatrist. Evidence was also provided by Dr R J Butler, Consultant Physician. Mr Moran was represented by Mr N Dawson of Counsel and the Respondent, the Repatriation Commission, was represented by Mr S Modder, Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents”: T1-T17, N2001/1619, Bundle 1; T1-T15, N2001/1320, Bundle 2). A number of further documents were taken into evidence and are listed as exhibits in Schedule 1 to this decision.
issues
At hearing, it was confirmed that Mr Moran is not pursuing the matter of entitlement for Disability Pension in relation to the condition of acute sprain of the left ankle.
There are two matters at issue for determination by the Tribunal. Firstly, does Mr Moran have a psychiatric condition and if so, what is the correct diagnosis of this condition and is it war or defence-caused? The second issue is whether or not Mr Moran’s condition of gout is war or defence-caused.
legislation
A determination in this matter requires consideration of the provisions of the Veterans’ Entitlements Act 1986 (“the Act”). The relevant specific legislative provisions are found in Schedule 2 of this decision.
evidence of mr robert francis moran
Mr Moran’s date of birth is 12 June 1949. He was born in Henty, New South Wales, but grew up in Sydney. Mr Moran left school at age 15 years, working initially for the railways for a period of approximately 18 months prior to joining the Navy. Mr Moran’s initial Navy training occurred in HMAS Cerberus. From here he was transferred to HMAS Sydney undertaking a number of trips to various Australian ports.
Mr Moran undertook six trips in HMAS Sydney to Vietnam and served in the catering services. Mr Moran referred to his first trip as not being “too bad” until he reached Vung Tau Harbour. Mr Moran stated that the trips started as “a bit of an adventure”. He was still finding out what was going on. Mr Moran recalled arriving in Vung Tau Harbour for the first time and there were American helicopters buzzing overhead. The helicopters had their radio at full volume and Mr Moran was concerned that this would be inviting the enemy to know exactly what was going on and where his ship was located. Mr Moran described HMAS Sydney as a big ship and he felt like a “sitting duck” in HMAS Sydney.
Mr Moran stated that HMAS Sydney was closed up at “Action Stations” in Vung Tau Harbour. Mr Moran was questioned about his understanding of what Action Stations meant. He stated it was his impression that in HMAS Sydney, he was at Action Stations the whole time he was in Vung Tau Harbour. There were those naval personnel who were specifically involved in taking off the troops or equipment in either helicopters or trucks and those service men were given clearance not to be closed up at Action Stations. To Mr Moran’s knowledge, while they were off the coast of Vietnam, the ship was also closed up at Action Stations. Mr Moran noted that this was all 30 years ago and perhaps, he could be incorrect. He acknowledged that if the official records were of the ship being at other than Action Stations, these records would truly reflect the situation. Mr Moran stated that he saw no casualties in Vietnam and he was not involved in any active fighting.
Mr Moran stated that there was a briefing on board the ship just before arriving into harbour. On the first occasion in Vung Tau Harbour, Mr Moran recalled there being a pipe announcement of a scare charge. He stated that he did not recall on subsequent trips or later in the first trip, whether he heard a further announcement about scare charges. Mr Moran stated that scare charges came at regular intervals, but he noted that after the first scare charge, they all sounded different on different trips and even during the same trip, scare charges sounded different to him. Mr Moran stated that he was always worried whether or not a scare charge was just that or whether in fact it was an enemy device blowing up the ship. Mr Moran stated that the sound of the exploding scare charge below deck was much louder than above deck.
Mr Moran stated that on that first trip in HMAS Sydney, he did not know what was going on and on subsequent trips, his feelings of anxiety and fear worsened. Mr Moran stated that after leaving Vung Tau on the first occasion, for two days he felt very unhappy and very tense. In this regard, Mr Moran noted that he found it difficult to eat, he could not sleep and he was experiencing headaches. He described the situation of the hair standing up on the back of his neck and reiterated that the tension for him was unbelievable. After those first two days of the first trip to Vietnam, Mr Moran believed he settled down. Mr Moran thought however that his tensions and anxiety were noticeable when he first arrived back in Sydney and he stated that his friends and family noted that he had changed after the first trip to Vietnam. Mr Moran stated that he undertook two trips to Vietnam in 1968. In 1969 he went on three voyages in HMAS Sydney to Vietnam and one trip in 1970.
Mr Moran stated that he had problems with officers and sailors and stated that prior to his trip in HMAS Sydney such contact never used to worry him. When in HMAS Sydney, issues that had not previously been of any concern to him became issues for him.
When Mr Moran returned to Australia, he was constantly worrying about the possibility of having to return to Vietnam. He also worried that he might be posted to HMAS Melbourne which in fact eventually took place in 1971 and 1972. Mr Moran was serving in HMAS Sydney for about three weeks when there was a dispute with his Divisional Officer over an assessment made of him by the Divisional Officer. Mr Moran was assessed below standard and he did not wish to sign the assessment. The Divisional Officer told Mr Moran that he must sign even if he did not agree with it. Mr Moran’s reaction was to rip the assessment up and he then he held the officer by his shirt and threatened to rearrange the officer’s face. The Divisional Chief Officer walked in at that point and that was the last thing Mr Moran remembered. He next recalled being in Sick Bay. Mr Moran believes he was prescribed “Valium” at the time and that this was for a period of approximately four months. After that, Mr Moran was posted to HMAS Penguin. Mr Moran did not wish to be posted to a big ship again and in fact, was posted to HMAS Perth which is a smaller destroyer ship.
Mr Moran served for two years in HMAS Perth and he undertook general duties there. He was busy and thus there was not much time to think about things, he stated. After HMAS Perth, Mr Moran believes he was posted to HMAS Vampire where he served as the Captain’s Valet. This ship was smaller and Mr Moran enjoyed the atmosphere. He was working for one man and he did not have to worry about what was going on around him or in any other part of the ship.
Mr Moran was discharged from the Navy in 1978. After discharge he worked for the Kings School as the Laundry Manager. Next, Mr Moran worked as a bar man for the Fairfield RSL Club. The laundry position was for a period of six to 12 months and he served as a bar man at the RSL Club for approximately eight months. Mr Moran next worked at the Total Oil Refinery near Sydney Airport and later, at a refinery in Marrickville for a period of approximately 18 months. Mr Moran’s next position was at CSR Chemicals for a period of 18 months. He moved to Oberon in NSW working for a particle board company Amcor, working there until 1987 whereupon he was retrenched from this position after nine years. That was the longest period of employment that Mr Moran had undertaken.
Mr Moran liked his work at Amcor because he believed his opinion counted. It was a new company and he was able to progress from an operator to a supervisor in a short time, stating that he ran the factory side of the company. He was able to keep his anxiety and tension under control because he was working 12 hour shifts, he stated. He would work, come home, eat and drink and then sleep and return to work the next day. Mr Moran believed this was a mechanism for him controlling his anxiety. Mr Moran stated that he finds it difficult to tolerate liars and fools and many of his civilian bosses were both. He stayed longer than he might have in the position because he had a wife and children to care for.
Mr Moran’s first marriage broke up in 1976. There are no children from that marriage although his wife had two children from a previous marriage. He has no contact with those children. Mr Moran has subsequently remarried and that relationship is supportive.
In terms of his current situation, Mr Moran believes that medically he is worsening. He becomes angry very easily and “snaps”. Mr Moran was provided with the name of Dr K Koller, Consultant Psychiatrist, by a fellow veteran. Mr Moran has consulted Dr Koller on about three occasions and was to see him again in the month after the hearing. Dr Koller has recommended medication for Mr Moran but he does not wish to take this as he is on so much other medication for his other various conditions. It seems that taking antidepressant medication concerns Mr Moran in that he feels it may cause him to lose control.
The precipitating issue for Mr Moran in consulting Dr Koller was his sleep disturbance. In this regard, Mr Moran explained that he may go to bed and sleep for two hours but then he wakes up and is unable to return to sleep. He stated that he spends more time during the night in the lounge room in front of the computer because he simply cannot sleep. Mr Moran stated that prior to seeing Dr Koller and still continuing now, he is anxious, irritable and is afraid for the continuance of his second marriage. He stated that he did not want to go through another divorce.
Mr Moran stated that he does not make friends easily. He has a small number of friends who are veterans and he will socialise with them and their partners. Sometimes his friends will drop in to see him or he will drop in and have a cup of coffee with his friends. Ever since he was discharged from the Navy, Mr Moran stated, he has done what he has had to do, particularly relating to socialising and dealing with what was required of him in relation to his children. Once his children grew up, he did not need to have anything much to do with people any more and was able to ignore people if he felt like it.
Currently, Mr Moran takes medication including: “Zoton”, 30 milligrams, once in the morning; “Lanoxin”, 62.5 mcg, three tablets in the morning; “Zocor”, 20 milligrams, one tablet per day; “Dilatrend”, 25 milligrams per day, one tablet in the morning and one at bedtime; “Coumadin”, two milligrams, two tablets before going to bed; “Cardizem”, 240 milligrams, one tablet in the morning; “Primavil”, 20 milligrams, one tablet in the morning; “Lasix”, 40 milligrams, one tablet in the morning; “Diabex”, 50 milligrams, one tablet each at morning, lunch and dinner; “Folic Acid”, five milligrams, one tablet in the morning on Tuesdays, Wednesdays and Thursdays; “Methotrexate” 25 milligrams, one tablet on Sunday mornings only; “Colgout”, 0.5 milligrams, one tablet in the morning, at lunch and bedtime; “Aylotrim”, 400 milligrams, one tablet in the morning; and “Cosopt Eye Drops”, one drop in each eye. Mr Moran also takes “Insulin” and “Tramal”.
In terms of his current symptoms, Mr Moran stated that he is still irritable. His children used to call him a “cranky old man”. Mr Moran stated that he worries a great deal and although he knows he lacks control over many issues, he still worries. His thoughts hark back to Vietnam and what happened to him there. He worries about the welfare of his wife and children and about his own welfare. He stated that he thinks that someone is ”going to knock me off”. He told the Tribunal that things would not be as bad now if he had been shot in Vietnam and that he wished “someone had tried to shoot me”. Mr Moran stated he worries all the time, the anxiety worsens and then he becomes more tense. Mr Moran spends his day mainly working in his workshop at the back of his house. He loves woodturning as his hobby but is not able to do that every day because of severe arthritis which is a very debilitating condition for him.
If everything is going well, Mr Moran has had enough sleep and his arthritis is not severely disabling him, he will get up and have breakfast at about 7.00 am. Mr Moran will then spend the whole day in his workshop. He stated that he stays away from his wife so he cannot get into trouble and that at about 3.30pm, he will come back to the house, have a shower and a few drinks. Mr Moran stated that he drinks from a 750 millilitre bottle of scotch, which will last him for two to three days. After his day in the workshop, he may have 40 minutes sleep in a chair and then he is as bright as a button, he stated.
In relation to his “Alcohol Questionnaire” completed in 1995, Mr Moran stated that when he filled that out he must have been having a good day. Mr Moran acknowledged that some of the medication he takes may have stickers on the packets or bottles notifying that he should not mix alcohol with that medication. Such notices do not make any difference to him. Mr Moran stated that he has been drinking since he joined the Navy in 1968. He did not drink at all before that. In terms of his consumption of alcohol, Mr Moran stated that he never let that impinge upon his working in civilian life as work meant a lot to him and he was a perfectionist. He acknowledged in relation to alcohol consumption, that he had a charge in 1974 for driving under the influence of alcohol but maintained that he learnt from that experience. He has had no further convictions or charges and he always asks his wife to drive when he is likely to be drinking.
Mr Moran was asked about service records in the “T Documents” which referred to him having problems with separation from his first wife. Mr Moran acknowledged that he had been accused by his first wife of being unfaithful. He stated that this was a false allegation and it was very upsetting for him.
Mr Moran and his current wife have attended a five day in-house counselling course arranged by the Vietnam Veterans’ Association. He undertook one five day course in 2001 at Ulladulla but on the second day of the course, he had to leave because of the severity of his arthritis. He then attended a second five day course held at Braidwood. Mr Moran noted that counselling helped. There was a psychologist running the course and he had been told by the psychologist that it was a surprise that Mr Moran had not had his anxiety state recognised for the purposes of a Disability Pension. The course was very supportive and was useful for Mrs Moran as it helped her to understand what her husband was going through, Mr Moran explained.
Mr Moran said that he and his wife work as a team and in this regard, for about 14 or 15 months worked as Welfare Officers helping veterans. He stated that he could do this because it took his mind off his own problems. Mr Moran stated that he was there for a specific purpose to help other people and there were no instances of counselling others which impacted on his feelings about his own condition. Mr Moran left the Welfare Officer position because he felt he was wrongly accused of falsely recording his mileage for the purposes of conducting their welfare work. Mr and Mrs Moran have in the last two months been helping as Legatees, helping various people through Legacy. Also recently, Mr Moran has been assisting in a voluntary capacity helping his local Member of Parliament – this work is once a week for about four hours.
evidence of dr r j butler, consultant physician
Dr Butler examined Mr Moran on 12 December 2002. He prepared two reports dated 8 April 2003 (Exhibit A1 (a)) and 1 September 2003 (Exhibit A1 (b)).
Referring to the Statement of Principles, Instrument Number 11 of 2000 concerning Gout, Dr Butler opined that the Lasix medication Mr Moran had been taking for some time is a “Frusemide” drug, which appears in the Statement of Principles as a “specified drug” as referred to in Factor 5(b) and as defined in the Table of Drugs in paragraph 8 of the relevant Statement of Principles.
Dr Butler had come to the conclusion that the onset of gout was probably in 1998, arriving at this opinion following discussions with Dr Harmelin, an endocrinologist, also involved in Mr Moran’s care, in addition to the evidence provided to Dr Butler by Mr Moran. Dr Butler noted that Dr Harmelin reported a high uric acid level in July 2002. It was difficult to know whether or not there was gout evidenced by high uric acid prior to July 2002. For Dr Butler, the pointer to an earlier onset of gout possibly in 1998, was Mr Moran being hospitalised in 1998 with a high uric acid level and recurrent acute episodes of pain. There was a difficulty in trying to ascertain how much of Mr Moran’s disability related to gout and how much of it related to another of his conditions, psoriatic arthropathy. Dr Butler could not be absolutely sure that the episodes of arthritis in 1998 which precipitated hospitalisation was not due to psoriatic arthropathy. Dr Butler noted that gout tends to come on as an acute disabling attack whereas the psoriatic arthropathy tends to be a more progressive, less acutely disabling attack. Dr Butler noted that when he discussed the diagnosis with Mr Moran, Mr Moran noted that his rheumatologist had proposed undertaking a joint aspiration to try to obtain confirmation but was reluctant to do this because Mr Moran was at the time on anticoagulant medication for atrial fibrillation. Without a contemporary record, it would be difficult to be absolutely certain, Dr Butler opined, whether the disablement that Mr Moran is experiencing now from gout is the same as the disablement he was experiencing in 1998. Dr Butler noted that obviously Mr Moran’s medical advisers at the time were sufficiently impressed to put him on “Colchicine” which is not a very benign agent.
In conclusion, Dr Butler opined that one could say definitely the diagnosis of gout in 2002 was accurate and that it was probable in 1998 that a diagnosis could be made. Dr Butler noted that it might not necessarily be unusual to be admitted to hospital in 1998 because in a country hospital, if there is someone who is disabled as Mr Moran was, there may be concern that there is something present, such as septic arthritis. Otherwise, in usual circumstances it would be unusual to hospitalise someone for gout. Exhibit A2 certainly showed high uric acid levels as at the date of collection of 1 July 2002, and that certainly, in the presence of acute joint symptoms made the diagnosis of gout highly probable. In relation to Exhibit R2, the clinical notes of Dr R Jaworski, there is a report dated 1 August 2002 indicating that Mr Moran was examined on 5 July 2002 and that at that time, he was taking Lasix (Exhibit R2, p25). The length of time between the definite diagnosis and the taking of Lasix, was sufficient to meet the Statement of Principles, Dr Butler concluded.
evidence of dr k koller, consultant psychiatrist
Dr Koller provided a report dated 19 October 2001 (T8, Bundle 2).
Dr Koller reported that Mr Moran was irritable, tense, depressed and concerned during examination. Dr Koller diagnosed generalised anxiety disorder dating from his Navy service. Dr Koller opined that Mr Moran experienced severe psychosocial stressors within two years immediately before the clinical onset of anxiety disorder. In this regard, Dr Koller noted that Mr Moran made six voyages to Vietnam and he described these voyages as anxiety provoking particularly as he was in closed Action Stations at all times. Mr Moran was concerned about the scare charges and of enemy divers circling the ship. Mr Moran was aware he was in a war zone and became conscious of his anxiety and “hatred” for aircraft carriers. Dr Koller opined that the anxiety disorder with its associated aspects of irritability and anger, translated into a violent incident with an Officer in HMAS Melbourne leading to the prolonged use of tranquillisers by Mr Moran for the remainder of that voyage.
Dr Koller reported that Mr Moran experiences with increasing intensity symptoms of generalised anxiety, excessive worry, sleep disorder, angry irritability, poor concentration and feeling tense and uptight at all times. There is a difficulty with authority figures, Dr Koller noted. Mr Moran’s report of the worsening of his anxiety disorder is reasonable in Dr Koller’s opinion. This is also because Mr Moran is aging and his physical health is in decline.
Dr Koller noted that Mr Moran drinks heavily, in excess of six stubbies of beer per day. Dr Koller opined that Mr Moran is alcohol dependent in the full knowledge that he should reduce the alcohol consumption given the precarious state of his physical health.
In relation to the assessment of his psychiatric conditions of generalised anxiety disorder and alcohol dependence, Dr Koller concluded that the correct assessment from Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”) is 48 points (T8).
evidence of dr p l harvey-sutton, consultant occupational physician
Dr Harvey-Sutton provided a report dated 12 March 2003 (Exhibit R3).
Dr Harvey-Sutton opined that in relation to Mr Moran’s accepted conditions of essential hypertension, gastro-oesophageal reflux disease, bilateral sensorineural hearing loss, tinnitus, diabetes mellitus and contact dermatitis, the appropriate rating from the relevant chapters of the Guide would provide a Disability Pension at 100 per cent of the General Rate.
In relation to the non-accepted conditions of rheumatoid arthritis, that would have an impairment of 20 points from Table 3.1.2 of the Guide for the right upper limb and 20 points for the left upper limb, with the lower limbs having an impairment from Table 3.2.2 of 30 points. In relation to Mr Moran’s psychiatric condition, this would attract a rating of 39 points from Chapter 4 of the Guide.
Dr Harvey-Sutton opined that Mr Moran would be incapacitated to undertake work of either eight hours per week or 20 hours per week because of his rheumatoid arthritis which continues to be actively treated with “Methotrexate”. If Mr Moran’s accepted conditions alone were only to be taken into account in relation to his ability to his work, Dr Harvey-Sutton opined that there would appear to be no reason why Mr Moran could not undertake work for more than 20 hours per week. It appeared to Dr Harvey-Sutton that Mr Moran developed ill health some 12 months after being retrenched. The onset of Mr Moran’s emotional and behavioural condition and arthritis appeared to Dr Harvey-Sutton to have been in 1998 and 2002 respectively.
evidence of commodore pm mulcare, write way research service
Commodore Mulcare provided a report dated 1 May 2003 (Exhibit R5).
In relation to Mr Moran’s belief that he was at Action Stations during his periods in Vung Tau Harbour in Vietnam, Commodore Mulcare opined that veterans sometimes believe they have been at Action Stations when in fact their ship has been closed up at “Defence Stations” also known as “Defence Watches”. Commodore Mulcare explained that at Action Stations, a ship is at 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 are dispersed throughout the ship and the highest degree of watertight integrity is adopted. The second degree of readiness called “Action Stations Relaxed” could be adopted during a lull in an engagement or when action was not imminent, to allow a small proportion of hands away for a meal or a break. In the third degree of readiness, referred to as “Defence Stations” sensors and weapons systems were manned to provide an immediate initial response to any threat and skeleton “Damage Control” parties were in place. A lesser degree of watertight integrity was permissible, such as passageway doors or hatches remaining open. The ship’s company was generally in three watches and hands not closed up could work a normal routine. Defence Stations was the normal cruising state in war and could be sustained over a long period and modified to accommodate particular circumstances. Commodore Mulcare noted that in most cases, ships first closed up for Action Stations, to prove all the ship’s systems before reverting to Defence Stations.
Commodore Mulcare noted there is no record of HMAS Sydney closing up at Action Stations for any prolonged period during her Vietnam voyages. However Action Stations were exercised on each voyage for example, on Mr Moran’s first voyage to Vung Tau, Action Stations were exercised twice on 27 May, also on 28 May and 31 May and on the latter occasion, almost certainly immediately prior to reverting to Defence Stations. On each of Mr Moran’s voyages, HMAS Sydney and her escort ship closed up at Defence Stations at about 1600, the day before arrival. HMAS Sydney anchored off Vung Tau Harbour early the next morning for periods ranging from five to just over six hours and secured from Defence Stations a few hours after leaving Vung Tau Harbour. During Mr Moran’s periods of operational service, the ship was at Defence Stations for approximately 24 hours while near, or at anchor off Vung Tau Harbour. In relation to the issue of helicopters, HMAS Sydney carried four Wessex ASW on each voyage when Mr Moran was on board. In Vung Tau, Chinook and Skycrane helicopters were used extensively in the loading and unloading operations, while other helicopters from the RAN Helicopter Flight Vietnam also visited the ship. There is no record of any untoward incidents during any of Mr Moran’s periods of operational service.
concurrent evidence of dr a dinnen, consultant psychiatrist and dr r haik, consultant psychiatrist
Dr Dinnen and Dr Haik provided evidence concurrently. Dr Dinnen provided two reports dated 20 December 2002 and 23 May 2003 (Exhibit A3). Dr Haik provided three reports dated 6 February 2003, 3 May 2003 and 22 August 2003 (Exhibit R4).
Dr Dinnen
Dr Dinnen noted that the essence of Mr Moran’s history was that he had become anxious from the time he had made the first trip to Vietnam, which continued from that time onwards. Mr Moran’s anxiety was associated with an increase in his use of alcohol. Dr Dinnen noted that it should be understood that the nature of an anxiety condition in addition to dependence upon or abuse of alcohol, is that there is a fluctuation from time to time and this appears to have been the case with Mr Moran. Dr Dinnen stated that there is corroboration of the presence of anxiety from the medical records emanating from Mr Moran’s service in the Navy. Thus, in 1972, Mr Moran required medical attention and he was treated for a long time with sedative medication, Tryptanol, because of emotional disturbance, whatever the diagnosis might have been at that time. There was then a further episode in about 1977 when there was not only medical attention but there was also a psychiatric consultation at that time as there had been in 1972. There is also evidence of hand tremor in 1968/1969 with Valium used for treatment.
Dr Dinnen noted that the ship’s doctor’s records of 23 March 1972 and 21 April 1972 referred to Mr Moran as having acute depression and anxiety state (T3, pp 27, 28, Bundle 2). The report of 23 March 1972, described Mr Moran as being tense, wringing his hands, weeping and not being very articulate. The second report noted that Mr Moran had been greatly upset, had one month’s treatment with Tryptanol, 150 millilitres daily, that Mr Moran was more settled but should continue on this medication. Tryptanol in a large dose was given, Dr Dinnen opined, because of Mr Moran’s emotional distress at the time and Dr Dinnen assumed this because Mr Moran was being treated symptomatically. By the time Dr Gill examined Mr Moran in May 1972, Dr Gill recommended that Tryptanol be continued at 50 millilitres daily. This treatment with psychotropic medication was agreed by Dr Haik and Dr Dinnen to have been prescribed because of its sedative effect. It is also known from the records that Mr Moran was being treated with Valium for four months while aboard ship.
It seemed to Dr Dinnen that there was a clear link to be drawn between the medical entries in early 1969, the report from Dr Gill, Consultant Psychiatrist, in May 1972 and the further review by Dr Gill in June 1977, to indicate Mr Moran was disturbed enough emotionally to require medical and psychiatric attention. The difficulty at that time was that there were not many diagnoses available to the medical profession and at that time a person could be diagnosed with depression, anxiety disorder or schizophrenia.
Dr Dinnen’s view is that Mr Moran’s history and the medical records are very much in accord with the account Mr Moran gave to Dr Dinnen of ongoing symptoms of anxiety present from his trips to Vietnam. The first trip into Vung Tau Harbour was a stressor for Mr Moran with subsequent trips providing accumulative stressors. During that time of entering Vietnam in a battle ship until the time of leaving port, Mr Moran described his exposure to American helicopters and that sound still distresses him. There was also the experience or the awareness of the risk of the ship being mined and Mr Moran’s awareness that there was vigilance in terms of searching for enemy divers. That was the reason, Dr Dinnen noted, scare charges were being thrown over the ship, to deter the enemy.
Dr Dinnen noted that there is a great deal of emphasis on scare charges as being stressful without a good understanding of why it is a stressful event, quite apart from the sound of the explosion. It is the context of these devices being let off that impinges on the mind of servicemen, Dr Dinnen opined. Dr Dinnen further opined that the potential threat of enemy divers was real, why else would scare charges be used as a deterrent. It is a real threat and the fact that no mine was ever planted on HMAS Sydney does not mean that there was not a risk, Dr Dinnen stated. It is not just a perceived risk, but a realistic risk. That is why, Dr Dinnen stated, precautions were taken every time a ship entered harbour. That is also why, when the ship was in harbour it was in for the shortest possible time and that it left harbour at night. Dr Dinnen opined that he did not think that the technicalities of whether one was at Action Stations or Defence Stations is as significant from the psychological point of view, as the awareness of the young seamen, Mr Moran, that there is some threat to the vessel. What counted, Dr Dinnen opined, is what Mr Moran perceived. Mr Moran described to Dr Dinnen that when he was in Vietnam he was caused to be more anxious. The six trips were examples of severe stress such as is likely to have given rise to an ongoing anxiety disorder and that is what, Dr Dinnen concluded, gave rise to an ongoing anxiety disorder in Mr Moran.
Dr Dinnen stated that there was no mention in Dr Gill’s report of the stressful event(s) of Mr Moran being in Vietnam, because he was dealing with the situation at the time. This is best explained by understanding that one copes best with a traumatic experience by not talking about it, by not thinking about it, by trying to suppress it and when it rears its head, one tries to put it out of ones mind again. For example, a person may be woken by a stressful dream, then tries to return to sleep and put it out of his or her mind. Certainly the interview that Dr Gill had with Mr Moran in 1972 appeared to Dr Dinnen to be a standard interview and the information which was obtained was relevant to the assessment at that time about Mr Moran’s problem on his ship. The previous history of anxiety or problems including health problems and family background was established. It was not possible to conclude from Dr Gill’s report whether Mr Moran was happy talking about anything or unhappy talking about anything at the interview.
It was also significant, Dr Dinnen noted, that Mr Moran’s evidence was that when he was working hard such as for 12 hours a day, his mind was occupied with other things and he did not have to think about or go back over issues or events that upset him years ago. It is very common in clinical practice, Dr Dinnen stated, to find that people will not talk about the most important issues that affect them. When Dr Gill examined Mr Moran, he was dealing symptomatically with what faced him at that time. Dr Gill took a very good history and the fact that Mr Moran did not mention the trips to Vietnam as a stressor did not, in Dr Dinnen’s opinion, exclude the diagnosis of anxiety disorder.
Dr Dinnen noted that the symptoms Mr Moran describes now are the same sort of symptoms that were present during his time in the Navy. There is thus a pattern of an anxiety disorder with variation over time. The current symptoms include waking at night, perspiring, shaking, recalling Vietnam experiences, feeling out of control, tense, experiencing headaches and being worried and anxious every day, in addition to use of alcohol.
52. In evidence provided to Dr Dinnen, Mr Moran is aware that it is not recommended to combine alcohol with medication and this suggested to Dr Dinnen an alcohol abuse problem.
Dr Dinnen opined that the diagnosis of anxiety disorder is straightforward as is the relationship to service and this is corroborated by the medical records.
54. In terms of assessment using Chapter 4 of the Guide, the appropriate impairment rating is 29. Such an impairment is indicative of what Dr Dinnen regarded as a mild to marked impairment. The anxiety disorder is not of the level which would prevent Mr Moran from working. He may however have some difficulties at work and he may overreact to a particular situation because of his anxiety.
Dr Dinnen also noted Dr N Waddy’s report dated 15 November 1995, which noted Mr Moran’s symptoms at that time of disturbed sleep, being sweaty, having a pounding heart, avoidance of crowds, being terrified of planes and having panic attacks (T5, Bundle 2). Dr Dinnen noted that Dr Waddy seemed to imply that Mr Moran had at that time a drinking problem, when she noted that she had talked to Mr Moran about “safe drinking”.
In relation to Mr Moran’s son being diagnosed with a tumour approximately seven years ago, Dr Dinnen noted that this circumstance was peripheral to trying to evaluate the relationship of Mr Moran’s pattern of anxiety symptoms over the years with his service in the Navy. Dr Dinnen’s notes recorded at the time of his interview with Mr Moran, that Mr Moran felt in some way responsible for his son’s tumour because of his possible exposure to Agent Orange in Vietnam. Dr Dinnen had reported that Mr Moran’s history also indicated that he had a relatively happy marriage.
Dr Dinnen strenuously disagreed with Dr Haik that Mr Moran had an ongoing pattern of difficulty with authority. Furthermore, Dr Dinnen opined that to say that Mr Moran had some type of pathological personality trait because he did not wish to work in a menial job or because he had a problem with personality clashes, indicated an avoidance of the facts. Dr Dinnen opined that there is no indication that Mr Moran had done anything other than cope well with his condition through the years. In addition, Dr Dinnen did not place a great deal of weight on adverse reports from Commanding Officers about Mr Moran’s ability to work. Although having some general relevance, Dr Dinnen believed that this does not help with regards to diagnosis and it certainly did not establish a diagnosis of personality disorder.
Again referring to Dr Gill’s report dated 24 May 1972, which related that Mr Moran had always been a worrier, had polio as a child and that he has spent 12 months in hospital being seldom visited was instructive and particularly the notation by Dr Gill that Mr Moran had “separation anxiety ++” (T3, p26, Bundle 2). Dr Gill’s report indicated that Mr Moran had a pre-existing tendency to anxiety but not a pre-existing personality disorder, Dr Dinnen opined. Dr Gill was examining Mr Moran for the purpose of assessing him for possible medical discharge. What is clear from Dr Gill’s report is that Mr Moran had an anxiety or depressive problem which warranted ongoing treatment. It is not reasonable to conclude that Mr Moran had isolated explosions in a person with personality disorder or personality trait.
In terms of treatment, Dr Dinnen opined that in his clinical experience particularly with veterans and certainly in general psychiatric practice, although the SSRI drugs [Selective serotonin-reuptake inhibitors] are useful in some cases of anxiety, depression or even phobic anxiety, they very seldom provide symptom relief that can be obtained from a sedative such as alcohol or Valium. Mr Moran was using alcohol and it is common with people suffering from anxiety disorders to also have alcohol or other substance abuse present as a co-morbid association, Dr Dinnen explained.
Dr Dinnen noted that, considering all the evidence, it was possible that Mr Moran had an adjustment disorder with an underlying anxiety state, noting that there could be psychosocial stressors in 1972 and 1977, in the form of adverse reports from superiors. However Dr Dinnen’s preferred view is that Mr Moran suffers from an ongoing anxiety disorder. This best explained the whole range of Mr Moran’s problems, Dr Dinnen opined.
Dr Haik
Dr Haik noted that Mr Moran served in the Navy between 1966 and 1978 as a Steward. Dr Haik opined that Mr Moran had difficulties in the Navy particularly with authority figures and this was borne out in the report from his Commanding Officer made in July 1977. The Commanding Officer noted that Mr Moran:
“Marginally performs all tasks required of him…He seems to have an over large “chip on his shoulder” about anything and everything. No task is ever straight forward and simple”. (T3, p16, Bundle 2)
These characteristics in combination with the difficulties Mr Moran had during his service are consistent, Dr Haik opined, with what is known as a passive aggressive personality trait. Dr Haik noted that such people are difficult to deal with, nothing seems to be easy for them and everything is a complication. Dr Haik further opined that Mr Moran’s history in the Navy conforms to the view expressed by the Commanding Officer. Mr Moran had difficulties with the Commanding Officer’s report in 1972 and as Dr Haik understood it, Mr Moran wanted to “rearrange the DO’s face” (Transcript, 30 September 2003, p61). In 1977, Dr Haik noted that Mr Moran had a further problem with an Officer. In Mr Moran’s civilian life, Dr Haik noted, Mr Moran had a conflict with a supervisor because he did not want to undertake menial work. Dr Haik opined that Mr Moran had “cut off his nose to spite his face” by not taking further work and as a result did not work thereafter, even though he had worked in that position for ten years. Dr Haik opined that Mr Moran has been annoyed at the way his life has not offered him what he would have liked. Thus, Mr Moran is easily frustrated by those around him who do not do what he wishes.
Dr Haik opined that Mr Moran has consumed alcohol to excess perhaps as a tranquillising medication. The amount varies considerably, Dr Haik noted. In this regard, in 1995 within a two week period, Mr Moran reported a large variation in the alcohol he consumed. In Mr Moran’s “Alcohol Questionnaire” dated 2 November 1995 (T6, p49, Bundle 2), Dr Haik calculated from this that Mr Moran was consuming approximately 240 grams of alcohol in a week, yet Mr Moran had reported to Dr Waddy two weeks later on 15 November 1995 (T5, p47, Bundle 2), that he was consuming a maximum of 60 grams of alcohol per week. It was significant, Dr Haik opined, that Mr Moran stated that he went to the South Coast of New South Wales after his last job knowing that there was not a great deal of work available there. Dr Haik opined that it seemed that Mr Moran was not willing to apply himself, as he had done since he left the Navy. Furthermore, it also seemed to Dr Haik that Mr Moran was willing to give up work and seek a type of pension that would allow him to live comfortably with his wife. That scenario suggested to Dr Haik that this was part of Mr Moran’s passive aggressive personality.
Dr Haik stated that Mr Moran does have a low stress threshold, with his problem being predominantly a personality trait problem (Transcript, 30 September 2003, p62). While Mr Moran suffered from passive aggressive type of personality traits, Dr Haik did not consider that Mr Moran conformed to the criteria of an anxiety disorder. Dr Haik also concluded that Mr Moran does not have a personality disorder. Dr Haik also considered whether or not Mr Moran had been suffering from an adjustment disorder and he noted that this condition is evidenced by marked distress. Of interest to Dr Haik was the fact that, despite Mr Moran taking a variety of medications for other illnesses and that he may well use alcohol as a means of tranquillising himself, Mr Moran does not use medically prescribed tranquillisers which theoretically would calm him down if he did have anxiety symptoms. Referring to Dr Waddy’s report dated 15 November 1995 (T5, Bundle 2), Dr Haik stated that he could not ascertain why Dr Waddy did not make a diagnosis unless there was no diagnosis to be made. Furthermore, Dr Haik noted that Dr Waddy did not recommend any medication. Thus, Dr Haik concluded that if Mr Moran did have an anxiety disorder, why was he not taking medication that doctors would prescribe to alleviate his symptoms. While there may be a vulnerability of Mr Moran’s personality present for a long time, Dr Haik opined Mr Moran was not wise enough to seek medication. If Mr Moran was as disabled as he claimed he is, Dr Haik asked, why was it that he drank to excess rather than taking medication? (Transcript, 30 September 2003, p67) In forming this opinion, Dr Haik was aware that Mr Moran was treated with Tryptanol in Vietnam and Dr Haik noted that this was the first antidepressant ever made. The medication has a sedating effect but that was all that was available in 1972.
It is Dr Haik’s view that Mr Moran has matters that upset him from time to time and he experiences symptoms, but then they wane (Transcript, 30 September 2003, p64). Although Mr Moran had some symptoms on occasion of anxiety these were never significantly distressing or impairing, Dr Haik opined. Referring specifically to the diagnostic criteria for anxiety disorder contained in the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders”, Fourth Edition (“DSM-1V”), Dr Haik opined Mr Moran did not meet Criteria E that requires that anxiety, worry or physical symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Dr Haik thought from the history provided to him by Mr Moran indicated that he was socially active, meeting on occasion with some couples. Furthermore, Mr Moran had been able to function occupationally even if he did have a number of jobs. He was not out of employment for any length of time. Under cross-examination, Dr Haik agreed that apart from the incidents in the Navy in 1972 and 1977, there were no other problems recorded with authority. Mr Moran had not been terminated from any employment and nor was there any mention of difficulty with authority at school or in training for the Navy. Dr Haik opined that Mr Moran does not have a degree of flexibility or buffering in his personality as a result of his terrible background and hence the “explosions” in behaviour reported on service in 1972 and 1977 (Transcript, 30 September 2003, p66).
Dr Haik noted that he believes that Mr Moran is looking for a reason based on what happened to him in HMAS Sydney, supported by Dr Dinnen, to explain a personality that has been present for many years. In this regard, Dr Haik noted that Mr Moran was in serious trouble with an Officer having pinned that Officer against a wall. Mr Moran then had to make a point, Dr Haik opined, that he was ill and “weepy” so as he was not discharged from the Navy. Mr Moran relied on his emotional state to explain his behaviour, Dr Haik concluded. It is in Dr Haik’s view that this is not truly reflective of Mr Moran’s actual mental health and there is no anxiety state as a result Mr Moran’s service in Vietnam.
Dr Haik further concluded that Mr Moran has personality trait problems based upon his unfortunate early years. When stressful circumstances confront him, he reacts adversely and develops marked distress. This distress then settles, with Mr Moran getting on with his life as best he can. Dr Haik opined that Mr Moran has worked fairly effectively in many jobs but with very little time off work. When Mr Moran confronts another problem similar to that experienced with his supervisor in the Navy, then there is an explosion. It is also Dr Haik’s opinion that Mr Moran suffers from episodic adjustment disorder based upon a flawed personality structure. He is vulnerable and has a vulnerable personality, without being specific and labelling this as a psychiatric disorder. The closest Dr Haik believed that Mr Moran could come to a psychiatric diagnosis would be to have a passive aggressive personality disorder as defined by DSM-IV. Dr Haik did not think that having vulnerable personality traits made Mr Moran more susceptible to suffering from an anxiety disorder. Mr Moran has certainly has symptoms from time to time but then, Dr Haik noted, the population in general when confronted with stress, may experience dread, fear and symptoms of anxiety as a normal reaction. In Mr Moran’s case, his reactions last longer than most people but he is not totally disabled by it, Dr Haik opined. Mr Moran seems to be able to get on with his life. He has maintained a marriage and has been able to keep working.
consideration and findings
We have reached a decision taking into account the oral and documentary evidence, the legislation, submissions and case law.
There are two issues to be determined in this matter in relation to entitlement to Disability Pension. Firstly, does Mr Moran have a war-caused condition of gout and secondly does he have a psychiatric condition and if so, what is the correct diagnosis. The issue then must be determined as to whether or not the correctly diagnosed psychiatric condition is war-caused.
In relation to the claim for gout, Dr Butler agreed with the diagnosis of gout based on an elevated serum uric acid, episodes of acute joint inflammation and a long history of diuretic therapy. Dr Butler noted that diuretics cause retention of uric acid in the body and consequently predispose a person to gout. Dr Butler opined that the definite onset of gout was by 2002, but probably in 1998. The diagnosis of gout is unchallenged and we are reasonably satisfied that Mr Moran had gout by 2002 and based on expert opinion of Dr Butler most probably in 1998. We also note that Mr J V Juryga, General Practitioner, reported that he was treating Mr Moran for gout on 9 June 2000 (T4, p8).
The relevant Statement of Principles concerning Gout is Instrument Number 11 of 2000. The relevant Factor is Factor 5(b), which requires a person to have been treated with a specified drug before the clinical onset of gout. Pursuant to subsection 120(3) of the Act, we are required to determine whether or not on the material a reasonable hypothesis has been raised. There are no findings of fact to be made at this stage. We find that there is material which indicates that Mr Moran was being treated for hypertension, an accepted condition, with Lasix (Exhibit R2) which is a Frusemide drug and part of the specified drugs detailed in paragraph 8 of the relevant Statement of Principles. The material indicates that Mr Moran was being treated for hypertension since 1976 (T3, p9, Bundle2) including with “Hygroton” which is a “Thiazide diuretic”, also one of the specified drugs in the Statement of Principles. Thus the material indicates that over a long period of time, Mr Moran was being treated with either a Frusemide drug or a Thiazide diuretic. Dr Butler also noted that Mr Moran had taken medication for hypertension over a long period. On the material then, it is not fanciful or unrealistic to conclude that a reasonable hypothesis is raised pursuant to subsection 120(3) of the Act such that Lasix or a Thiazide diuretic was used to treat hypertension before the onset of Mr Moran’s gout.
Considering subsection 120(1) of the Act, we must consider whether or not there are any facts which are present which would disprove the raised reasonable hypothesis beyond reasonable doubt. Mr Moran does have an accepted condition of hypertension. There is documentary evidence within the material indicating the medication used to treat Mr Moran’s hypertension. This is confirmed by Dr Butler’s opinion when he undertook a search of such relevant material. Thus, Dr Butler concluded that Mr Moran has been treated with a specified drug namely a Thiazide diuretic or a Frusemide drug in the form of Lasix. If the diagnosis of gout is accepted in 1998, then the specified drug as far as can be seen from the documents was a Thiazide diuretic. However if there is a later onset of gout in 2002, similarly, Mr Moran has been treated with “Lasix” which is also a specified drug. There is nothing in the material to disprove that Mr Moran was taking the specified drugs before the onset of gout. This conclusion is also supported by expert opinion and has not been challenged. Accordingly, we are not satisfied beyond reasonable doubt for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Moran has a war-caused condition of gout with the date of effect being from 25 June 2000.
Turning to the issue of the psychiatric condition, we must determine to our reasonable satisfaction whether or not there is a psychiatric condition present and what is its diagnosis. Dr Koller in his report dated 19 October 2001, diagnosed Mr Moran as suffering from generalised anxiety disorder dating from Mr Moran’s naval service and that Mr Moran experienced a severe psychosocial stressor in Vung Tau Harbour where scare charges were being exploded and divers were checking for mines. Dr Koller noted that Mr Moran was anxious and experienced other symptoms of generalised anxiety disorder, such as fear of aircraft carriers, excessive worrying, sleep disorder, anger, being tense and experiencing poor concentration.
Dr Haik opines that Mr Moran has passive aggressive personality traits but not sufficient to allow a diagnosis of personality disorder under DSM-IV. Furthermore, Dr Haik believes that Mr Moran had difficulties with authority and that he may from time to time have suffered from adjustment disorders in relation to specific events. The records from Mr Moran’s naval service detailing medical examinations by various doctors and specifically Dr P M Gill, Consultant Psychiatrist, and a report of a Commanding Officer, indicated to Dr Haik that Mr Moran was suffering from passive aggressive personality traits rather than a full blown diagnosable psychiatric disorder.
Dr Dinnen referred to Dr Gill’s reports about Mr Moran on service with reference to Mr Moran’s feelings of anxiety and also of him being treated with Tryptanol, a sedative. The reports from Dr Gill in particular were entirely consistent with Dr Dinnen’s opinion that the preferable diagnosis of Mr Moran’s psychiatric condition from DSM-IV was anxiety disorder.
In relation to Diagnostic Criteria A from DSM-IV concerning generalised anxiety disorder, there is evidence from Mr Moran that he experienced excessive anxiety, was worrying for more than six months and this is borne out in reports from Dr Koller, Dr Dinnen and various medical reports in the service records. In this regard, Mr Moran finds it difficult to control his worrying and his evidence is supported by the majority of expert medical opinion (Criteria B). In relation to Diagnostic Criteria C, the Tribunal is reasonably satisfied that for more days than not in the past six months, Mr Moran has suffered from sleep disturbance, irritability, difficulty in concentrating, and feeling keyed up, thus more than satisfying the diagnostic criteria. On the Tribunal’s understanding of Mr Moran’s evidence and the majority of expert medical opinion, the anxiety and worry are not confined to an Axis 1 Disorder. Dr Haik opined that there were episodic adjustment disorders, but the Tribunal is reasonably satisfied that the best explanation for Mr Moran’s consistent symptoms is anxiety disorder (Criteria D).
Mr Moran has suffered impairment in social situations in terms of the evidence he provided, of not mixing well and also of him experiencing work conflicts such as when he was in the Navy and in civilian life (Criteria E). Mr Modder for the Respondent submitted it was Criteria E which was most difficult for Mr Moran to satisfy, given that he had a long work history and furthermore, given that his evidence was that he would mix socially from time to time. In terms of occupational issues, it is clear from Mr Moran’s naval medical and performance documents, that he was having some difficulty from time to time with work and working with others. Dr Dinnen opined in his report that while Mr Moran had worked and possibly could still work, he would be limited in his work because of his irritability and inability to get on with others. Dr Waddy in her report on 15 November 1995, noted that Mr Moran needs to have everything running smoothly and must feel in control at work and at home. Dr Waddy noted that Mr Moran avoided crowds, parties and meeting strangers. He has suffered panic states and avoids situations that will provoke them. He managed well but Dr Waddy indicated in her report that she had to explain the “concept of safe drinking” and had referred him to the Vietnam Veterans’ Program at Northside Clinic (T5, Bundle2).
We accept Mr Moran’s evidence about the limited amount of social contact he has and also accept the expert opinions from Dr Dinnen and Dr Koller about Mr Moran’s occupational difficulties. While Dr Waddy did not provide a psychiatric diagnosis in her report, she has, in our opinion, described symptoms which would meet the criteria for anxiety disorder from DSM-IV. Certainly, during his Naval service there are references in the material to symptoms of anxiety being suffered by Mr Moran, of him not being successfully treated by reassurance and having to be prescribed sedative medication in the form of “Tryptanol” and also the mention of Mr Moran suffering from an anxiety state.
On all of the evidence available to the Tribunal, we are reasonably satisfied that the diagnosis of anxiety disorder in the form of generalised anxiety disorder, as specified in DSM-IV, has been made out.
Having established the diagnosis, the Tribunal must now determine the causation of anxiety disorder in the form of a generalised anxiety disorder. Firstly, the process is to determine whether or not pursuant to subsection 120(3) of the Act, a reasonable hypothesis can be raised and if so, then pursuant to subsection 120(1), it must be determined whether or not we can accept sufficient of the facts as to support the raised reasonable hypothesis beyond reasonable doubt. This exercise is somewhat repetitive in that there has already been a diagnosis made to our reasonable satisfaction of anxiety disorder which has necessarily meant accepting facts. However, it must always be borne in mind that the path to establishing causation requires a different standard of proof and different steps in coming to a conclusion.
The relevant Statement of Principles in this matter to which we are required to refer is Instrument Number 1 of 2000 concerning Anxiety Disorder. The Factor considered relevant by the Tribunal is Factor 5(a)(ii) which for generalised anxiety disorder, requires experiencing a severe psychosocial stressor within two years immediately before the clinical onset of generalised anxiety disorder where “severe psychosocial stressor” is defined as:
“…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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…”
The material indicates that Mr Moran was 19 years of age when he first went to Vietnam. The material also indicates that there were scare charges let off as a matter of course as a detriment to enemy divers who might be attempting to place mines on allied ships in Vung Tau Harbour. Further material indicates that HMAS Sydney was closed up to Action Stations on a number of occasions and then went to Defence Stations, the third state of readiness. Thus while not constantly at Action Stations, Mr Moran described feeling tense, anxious and frightened. The material also indicates that he was told by friends and family upon his return to Australia that he had changed.
Other material such as service medical reports, including those from Dr Gill, noted that while Mr Moran was on service he was anxious. He was reported to be having difficulty with his work and was later in 1972 prescribed, it seems, Tryptanol. The service material indicates that Mr Moran had been prescribed in 1968 and 1969 with Valium for a tremor of his left hand. The service material indicates in 1977, that Mr Moran has suffered in the past from “anxiety neurosis” (T3, p14, Bundle 2). There is material from 31 October 1972 (T3, p20, Bundle 2), indicating Mr Moran had a disability of an anxiety state. Further material indicated that during 1972, Mr Moran had presented with acute anxiety state (T3, p25, Bundle 2) and that he had been treated with much reassurance and “Tryptanol”, he was still acutely depressed on board ship and had problems coping with particular “P.O.’s”. It was further noted that Mr Moran had always been a “worrier”. Dr Gill noted on 24 May 1972, that it may have been that there was a clash of personalities with Mr Moran’s “D.O.” and it should be discussed as to whether he should have a new “D.O.” to avoid Mr Moran making an impulsive decision to be discharged. Dr Gill noted that if Mr Moran was not able to get a “free discharge”, then Mr Moran’s anxiety symptoms would increase even more than had been present in the past two years. Dr Gill recommended the continuation of Tryptanol (T3, p26, Bundle 2). The material would indicate that by the 1970’s, there were symptoms of anxiety which caused Mr Moran to come to the attention of naval medical officers and he was diagnosed with suffering from nervous tremor, anxiety state, some depression and prescribed a sedative.
There is also material that indicates there were scare charges when Mr Moran’s ship entered Vung Tau Harbour and that this occurred at random intervals. There is material which indicates that HMAS Sydney would leave the harbour at night and if necessary return to harbour the next day to continue the loading or unloading. There is also material indicating that the ship was not at the highest state of alert constantly but mostly at the third highest state of readiness. The material indicates that Mr Moran was anxious and afraid as a result of experiencing the scare charges in Vung Tau Harbour and that this single occurrence and his feelings arising out of that single occurrence were compounded on his further five trips to Vietnam. Thus the Tribunal is satisfied pursuant to subsection 120(3) of the Act that a reasonable hypothesis is raised, that as a result of a severe psychosocial stressor, being in Vung Tao Harbour in 1968 and experiencing the effects of scare charges, that this lead to the development within two years of an anxiety disorder in the form of generalised anxiety disorder.
Turning to subsection 120(1) of the Act, there is no dispute that Mr Moran’s service medical records from 1968 through 1972 report symptoms of anxiety, anxiety state, anxiety neurosis, difficulty with his working situation and treatment in the form of Tryptanol.
In terms of the severe psychosocial stressor it is not disputed that scare charges were released randomly during the time Mr Moran was in Vung Tau Harbour. The Respondent submits that these are not however sufficient to allow a conclusion to be made that such occurrences would satisfy the definition of a severe psychosocial stressor. In this regard, the Tribunal has been referred to O’Neil v Repatriation Commission (2001) 34 AAR 290 which rejects the suggestion that a severe stressor is determined on a purely objective test. Furthermore, in Repatriation Commission vStoddart [2003] FCAFC 300, the Full Federal Court noted in the full court decision in Woodward v Repatriation Commission (2003) 75 ALD 420, that the definitions in the Statement of Principles did not require there to be an actual threat judged objectively and with full knowledge of the circumstances. It is noted that in Woodward v Repatriation Commission (supra) (at paragraph 139),
“… the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation…”
In the Full Federal Court decision in Repatriation Commission v Stoddart (supra), it was recognised by the Court that it was an error or a vice in looking at the definition of a severe psychosocial stressor, if there was failure to take account of the possibility that events that are objectively “neutral in character” might, nevertheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experienced them given his or her position at that time. Thus, in Mr Moran’s situation, where he is described as a worrier being aged 19, inexperienced and facing scare charges, the perception that he has provided of being anxious, feeling at risk and being tense and fearful are expressions or perceptions which he experienced. That another person who was not psychologically vulnerable, might not experience the same reactions or perceptions and indeed not develop an anxiety disorder cannot be used to disentitle this man. We accept Mr Moran as being credible. His evidence may have some inconsistencies in terms of his memory of certain events, but precisely reflects the intention of section 119 of the Act in terms of such deficiencies. Mr Moran’s case is assisted however because of the presence of objective medical evidence attesting to the symptoms of anxiety disorder. Thus, we find nothing within the material to disprove beyond reasonable doubt that there were objective risks associated with being in Vung Tau Harbour and that the perception of scare charges held by Mr Moran as possibly being bombs exploding, lead him to be anxious, tense and to develop an anxiety disorder.
In relation to the diagnosis of anxiety disorder, Dr Haik used the Statement of Principles as a diagnostic tool and appeared to be looking at the issue of the severe stressor as part of the diagnosis, not referring to DSM-IV. Even so, Dr Haik’s opinion that Mr Moran had passive aggressive personality traits and from time to time an adjustment disorder not related to service, on the Tribunal’s understanding of all of the evidence is not our preferred view, particularly given the evidence of Dr Gill, Dr Waddy, Dr Koller, Dr Dinnen, Mr Moran and the service medical documents.
While the Respondent has contended that Mr Moran does not meet the DSM-IV diagnostic criteria for anxiety disorder, specifically Criteria E, when a careful look at the evidence in the service medical records is undertaken, there were problems experienced at work recognised by Dr Gill. Furthermore, the difficulties Mr Moran experienced later on in civilian life as described by Dr Waddy, Dr Koller and Dr Dinnen are persuasive in leading the Tribunal to find that there was occupational impairment as a result of anxiety disorder certainly within the Navy and later.
The further contention by the Respondent that Mr Moran must not have had an anxiety disorder because he received no treatment after the Navy, must be contrasted with the evidence accepted that Mr Moran was drinking if not abusively or to the level of dependence, still in sufficient quantities to cause Dr Waddy to discuss with him safe alcohol consumption and refer him to the Vietnam Veterans’ Program at the Northside Clinic. Dr Dinnen noted that in his opinion it is not unusual for veterans suffering from an anxiety disorder not to talk about it nor undergo treatment and it did not dissuade him from his opinion that Mr Moran suffers from anxiety disorder dating back to naval service. It is also not unusual and the Tribunal accepts Dr Dinnen’s opinion, that at the time Mr Moran was being treated specifically by Dr Gill and other doctors in the Navy, that he did not at that time mention his fears as a result of the scare charges. It is certainly, in the Tribunal’s experience and as noted by Dr Dinnen, not unusual for veterans to have little insight into why it is that they feel and act the way they do in the context of them suffering from a psychiatric disorder.
Mr Moran did work for some considerable time in the one position in civilian life in Oberon. He was working 12 hour days. Mr Moran’s evidence was that when the focus of work was taken away he was no longer able to keep his anxiety symptoms at bay. While Dr Haik and the Respondent made much of the length of employment of Mr Moran’s last job, consideration must be given, as Dr Dinnen noted, to the many short term positions Mr Moran had prior to his last employment. This is a common occurrence as expressed by Dr Dinnen and noted by the Tribunal in its experience of such matters. The circumstances in this matter do not indicate to the Tribunal a convenience of claiming pension once work had ceased. The Tribunal is of the view that there is clear pathology now and that this has been present since naval service.
In all of the circumstances pursuant to subsection 120(1) of the Act, on an evaluation of all of the evidence before us we are not satisfied beyond reasonable doubt that there is no sufficient ground for finding that Mr Moran’s anxiety in the form of generalised anxiety disorder is war-caused. Hence Disability Pension is payable for generalised anxiety disorder with effect from 7 August 2001.
Accordingly for all of the reasons set out above pursuant to subsection 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefore decides:
(i)The condition of gout is war-caused and Disability Pension is payable with effect from 25 June 2000.
(ii)The condition of generalised anxiety disorder is war-caused and Disability Pension is payable with effect from 7 August 2001.
(iii)The assessment of all of Mr Moran’s war-caused disabilities is remitted to the Respondent.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr MEC Thorpe, Member
Signed: .....................................................................................
Associate
Dates of Hearing 22 September 2003, 8 October 2003
Date of Decision 22 March 2004
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant Mr A Halstead, Legal Aid CommissionRepresentative for the Respondent Mr S Modder, Departmental Advocate
SCHEDULE 1
EXHIBITS
| exhibit number | description | date |
| A1 (a) | Report by Dr RJ Butler, Consultant Physician | 8 April 2003 |
| A1 (b) | Supplementary Report by Dr RJ Butler, Consultant Physician | 1 September 2003 |
| A2 | Letter to Dr J Juryga from Mr A Halstead, Legal Aid Commission, and two pathology results of Mr Moran | 3 January 2003 |
| A3 | Two Report by Dr A Dinnen, Consultant Psychiatrist | 20 December 2002 23 May 2003 |
| R1 | Clinical Notes from Dr J Juryga | Various |
| R2 | Clinical Notes of Dr R Jaworski, Rheumatologist | Various |
| R3 | Report from Dr PL Harvey-Sutton, Consultant Occupational Physician | 12 March 2003 |
| R4 | Three Reports from Dr R Haik, Consultant Psychiatrist | 6 February 2003, 3 May 2003 & 22 August 2003 |
| R5 | Report from Commodore PM Mulcare, Writeway Research Service | 1 May 2003 |
SCHEDULE 2
1. Section 119 of the Act states as relevant:
“119 Commission not bound by technicalities
(1)In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
(b) a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;
(ba) a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus); or
(c) a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;
(d) the suspension or cancellation, under subsection 31(6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31(8);
(da) a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;
(e) the suspension, cancellation or variation of a pension; or
(ee) a review, under subsection 115(1), of a decision of the Commission in respect of an application for an allowance or benefit specified in that subsection;
the Commission:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
(2) In subsection (1):
application means:
(a)an application to increase the rate of:
(i) a pension granted under Part II or IV; or
(ii) a service pension granted under Part III; or
(iii) income support supplement granted under Part IIIA; or
(b) an application for a pension under Part II or IV made in accordance with subsection 15(2); or
(c) an application to be provided with treatment under Part V; or
(d) an application for an allowance or benefit specified in subsection 111(1); or
(e) an application under Part IIIAB for registration as a member of the pension bonus scheme.
claim means:
(a) a claim for a pension under Part II or IV; or
(b) a claim for service pension or other benefit under Part III; or
(c) a claim for a qualifying service determination under Part III; or
(d) a claim for income support supplement under Part IIIA; or
(e) a claim for a pension bonus under Part IIIAB.”
2. Section 120 of the Act states, as relevant:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
3. Section 120A states, as relevant:
“120A Reasonableness of hypothesis to be assessed by reference to
Statement of Principles(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(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.”
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