Nelli and Repatriation Commission
[2008] AATA 770
•28 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 770
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1173
VETERANS' APPEALS DIVISION ) Re DENNIS RICHARD NELLI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Brigadier A Warner, Member
Dr D Weerasooriya, MemberDate28 August 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
..(sgd) Mr A Sweidan..............
Senior Member
CATCHWORDS
Veterans' Affairs - whether applicant's conditions of post traumatic stress disorder, anxiety disorder and alcohol abuse are war-caused - determination that not war-caused - decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986
Safety Rehabilitation and Compensation Act 1988
CASES
Repatriation Commission v Budworth [2001] FCA 1421
Lees v Repatriation Commission (2002) 125 FCR 331
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 38 AAR 176)
Woodward v Repatriation Commission (2003) 200 ALR 332
Delahunty v Repatriation Commission (2004) FCA 309REASONS FOR DECISION
28 August 2008 Mr A Sweidan, Senior Member
Brigadier A Warner, Member
Dr D Weerasooriya, Member1. History and Background to Application
1.1On 8 July 2004, the applicant submitted claims for acceptance as war-caused of conditions described as generalised anxiety disorder and alcohol abuse.
1.2On 19 May 2005, a delegate of the Repatriation Commission determined that the applicant’s anxiety disorder is not war-caused.
1.3On 21 July 2005, a delegate of the Repatriation Commission determined that the applicant’s alcohol abuse is not war-caused.
1.4On 22 September 2005, the applicant applied for a review of the delegate’s decisions of 19 May 2005 and 21 July 2005 by the Veterans’ Review Board (the Board or VRB).
1.5On 26 February 2007, the Board varied the delegate’s decision of 19 May 2005 by adding a diagnosis of post traumatic stress disorder and otherwise affirmed both that decision and the delegate’s decision of 21 July 2005. The applicant now seeks a review of that decision.
2. Issues
2.1What, on the material before it, the Tribunal is reasonably satisfied are the appropriate diagnoses of the applicant’s claimed conditions.
2.2Whether, on the material before it, the Tribunal may form the opinion that the material raises a reasonable hypothesis that the claimed conditions:
(a) arose out of or are attributable to; or
(b) were contributed to in a material degree or aggravated
by the particular circumstances of the applicant’s operational service.
3. Relevant documents and Evidence
3.1The Tribunal had before it the Section 37 statement and T documents number T1/1 to T29/213. The Tribunal also heard evidence from Dr John Kemp who is the applicant’s treating psychiatrist and who had previously provided evidence to the VRB. The applicant was present but did not give evidence.
4. Facts not in Dispute
4.1 The applicant was born on 21 November 1938.
4.2The applicant served in the Royal Australian Navy (RAN) from 1957 to 1963. He rendered operational service as follows:
Far East Strategic Reserve (HMAS Melbourne)
7 April 1060 to 28 April 1960
6 May 1960 to 20 May 1960
6 June 1960 to 16 June 1960
5. Proceedings before the Board and findings by the Board
5.1As the Tribunal is of the opinion that the VRB decision should be affirmed it is appropriate to have regard to the evidence before the Board and the Board’s findings, edited extracts from which are set out below:
“REASONS FOR DECISION
On 22 September 2005 Denis Richard Nelli (the veteran) applied for review of Repatriation Commission decisions dated 19 May 2005 and 21 July 2005 which refused a claim for medical treatment and pension for incapacity from, respectively, ‘stress disorder/PTSD’ (later diagnosed as anxiety disorder) and ‘alcohol dependence/abuse’ (later diagnosed as alcohol abuse) on the ground that the conditions were not war-caused.
The application for review by the Veterans’ Review Board is to be decided under the provisions of the Veterans’ Entitlements Act 1986 (the Act).
The veteran attended the hearing and gave evidence. He was represented by Mr D Dixon of RSL, Donnybrook. There was no appearance on behalf of the Repatriation Commission.
In conducting the review the Board had available to it the Departmental Report under section 137 of the Act prepared for this application, the Departmental files (marked CSR and MSR, and numbered 40582) and the Board file in the matter.
The following exhibits were also tendered to the Board:
· “A” A submission prepared by Mr Dixon;
· “B” A psychiatric report dated 27 April 2006 by Dr John Kemp.
The veteran served in the Royal Australian Navy from 26 April 1957 to 25 April 1963. His eligible war service (which is also operational service) was on board HMAS Melbourne from 7 April 1960 to 28 April 1960, from 6 May 1960 to 20 May 1960 and from 6 June 1960 to 16 June 1960 in the far East Strategic Reserve.
In respect of the periods of operational service, subsections 120(1) and 120(3) of the Act apply. Therefore, the Board is required to find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Board must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered.
The Board is also required to apply section 120A of the Act in reaching its decision. This means that the Board is required to assess the reasonableness of hypotheses in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
The Repatriation Medical Authority is an independent medical body that issues Statements of Principles based on sound medical-scientific evidence. The Statements of Principles set out factors relating to service at least one of which must exist in order to establish a causal connection between particular disease, injuries or death and service. The Statements are binding on decision-makers at all levels, including the Veterans’ Review Board.
Anxiety disorder
This diagnosis was adopted in the decision under review on the basis of a psychiatric report dated 6 April 2002 by Dr John Kemp. He also diagnosed alcohol abuse.
Dr Kemp stated:
‘His anxiety disorder appears to have arisen primarily due to factors associated with his naval service including his initial service on HMAS Vampire and anxiety associated with severe storm and subsequent rekindling and permanent exacerbation of his anxiety related symptoms due to factors associated with service on HMAS Melbourne whilst attached to the Far East Strategic reserve. His alcohol abuse could be seen as having arisen secondarily to his anxiety symptoms in an effort to self medicate and control his sleep disturbance and high levels of arousal.’
A number of incidents said to have occurred during the veteran’s operational service on HMAS Melbourne during FESR service were referred to Writeway Research Service for investigation and report. A report dated 30 July 2002 was prepared by Commodore RAN Rtd P M Mulcare. This report )to which was attached relevant Reports of Proceedings by Melbourne’s Captain) made it clear that of the incidents referred to by Dr Kemp, only one (which occurred on 9 May 1960) was during the veteran’s operational service. All others were during non-eligible periods of service.
The veteran’s claim in respect of the diagnosed conditions was refused and an application for review by the Board resulted in the delegate’s decision, of 7 August 2002, being affirmed by the Board on 21 May 2003.
The Board found that the factor in Statement of Principles No 76 of 1998, concerning anxiety disorder, was raised by the evidence before it on that occasion. The Board also found the veteran not to be a credible witness, that the anxiety disorder was clinically of recent onset and that the raised hypothesis was not supported by the facts.
On 21 June 2004 the Administrative Appeals Tribunal (AAT) affirmed the Board’s decision.
The veteran’s fresh claim, which led to the decisions presently before the Board, was lodged on 8 July 2004.
It is apparent that neither the Board nor the AAT was aware that the veteran had been referred for another psychiatric assessment for the purposes of the Safety Rehabilitation and Compensation Act and that a report dated 14 April 2003 had been provided by Dr Gosia Wojnarowski. This was prior to the Board and AAT hearings.
Dr Wojnarowski examined the veteran, having been provided with a copy of Dr Kemp’s report dated 6 April 2002. She noted the incidents described to her by the veteran, which had been referred to by Dr Kemp, but without distinguishing between operational and non-eligible service, and diagnosed post traumatic stress disorder ‘… related to the events that occurred while he was serving in the Navy.’
She concluded by expressing the opinion that the veteran’s ‘… exposure to trauma resulted in him developing Post traumatic Stress Disorder with prominent Anxiety symptoms.’
The Board interprets Dr Wojnarowski’s report as reflecting the opinion that trauma to which the development of the PTSD is attributed is the collective trauma of the several incidents. No distinction was made between those incidents.
She also diagnosed alcohol abuse as an additional diagnosis which ‘… is not directly related to the exposure to trauma.’
Mr Dixon tendered in evidence at the hearing on 2 August 2006 a further report by Dr Kemp, dated 27 April 2006. This report, which confirms the previous diagnoses provided by Dr Kemp, makes no reference to Dr Wojnarowski’s report – suggesting to the Board that Dr Kemp was not aware of its existence.
Faced with these conflicting psychiatric diagnoses the Board is unable to determine the appropriate diagnosis in answer to the claim in respect of ‘stress disorder/PTSD’ and thus the relevant Statement of Principle to apply.
In these circumstances the Board decided to adjourn the hearing pursuant to section 152 of the Act pending a response to (a letter sent to the Secretary, Department of Veterans’ Affairs seeking a further psychiatric report).
Alcohol abuse
The Board considered it inappropriate to proceed to consider this decision independently of the other diagnosed condition and adjourned the hearing pursuant to section 151 of the Act pending re-listing of the hearing in relation to the other condition.
6.FURTHER VRB HEARING FOLLOWING RECEIPT OF REPORT FROM DR ASSUMPTION
RESUMED HEARING – ADDITIONAL DOCUMENTS BEFORE BOARD
6.1 The additional document before the Board is a medical report from consultant psychiatrist Dr I. Assumption dated 29 September 2006.
“APPLICANT'S CASE
7. At the previous hearing the Board was of the view that it could not be reasonably satisfied as to the diagnoses answering the veteran's claims on the basis of the conflicting specialist psychiatric opinion before it. The Board now has the report from Dr Assumption (folios 169 to 174) who has diagnosed the veteran as suffering from post traumatic stress disorder, generalised anxiety disorder and alcohol abuse. Dr Assumption recorded the following history provided by the veteran:
"He reports the major incident that traumatized him as occurring in 1960, when an aircraft 'fell off' a ship. He also reports two or three more minor incidents. He told me he lost three friends when the Voyager 'went down' (he told me that he had served on this vessel).
He recounted in graphic detail the incident during which an aircraft crashed into the water off the ship. At this stage he was uncertain whether the pilots were alive or dead. He said that he was fearful for their lives at this stage.”
He gave a long history of alcohol abuse, which he reported has decreased somewhat in recent years but is still constant. He is clear that he did not suffer from alcohol abuse prior to his service in the Navy. He attributes his alcohol use to mood disturbance and anxiety symptoms, which he believes are a result of his service in the navy".8. In regard to the diagnoses of post traumatic stress disorder and generalised anxiety disorder Dr Assumption opined:
'With respect to the specific causation of the post-traumatic stress disorder, the single incident that Mr Nelli describes as being the most relevant is likely to be the incident during which an aircraft crashed into the ocean while attempting take-off.With respect to the generalised anxiety disorder, however, it is likely that his chronic symptoms reflect the other multiple incidents he describes during his Naval service”.
9. Dr Assumption was of the view that the veteran’s alcohol abuse was part of “a coping style after service in the Navy”.
10. At the resumed hearing Mr Dixon put to the Board that all three conditions diagnosed by Dr Assumption are attributable to the single incident of 9 May 1960 when the Gannet aircraft ditched into the sea ahead of HMAS Melbourne and the veteran thought that the pilot and crew had been killed. Mr Dixon acknowledged Dr Assumption's opinion that the veteran's generalised anxiety disorder was attributable to multiple incidents but was of the view that this included the incident which caused his post traumatic stress disorder. He agreed with Dr Assumption that the veteran's alcohol abuse was secondary to post traumatic stress disorder and generalised anxiety disorder.
11. The Board observed that the veteran had given various histories in his claims and to psychiatrists who had examined him and in evidence to a previous Board panel and the Administrative Appeals Tribunal (AAT). The Board referred the veteran to these, viz:
·Claim for disability pension and medical treatment of 6 August 2001 (folio 5) - response to the question "How do you believe your service caused, contributed to, or aggravated this disability?"
“Exposed to horrific events during my service in Malaya i.e. Aircraft crashes on Board HMAS Melbourne – two seaman cut in half by snapped cable”.
·Medical report from consultant psychiatrist Dr J. Kemp dated 6 April 2002 (folio 12)
" ... He described his service on HMAS Melbourne in the Far East Strategic Reserve as being fairly turbulent. During this period he reported that the Melbourne lost approximately five planes due to crashes on deck and having one pilot killed .... During this period he also believes that two sailors died when a steel stern cable broke and whipped over the deck. He reported that the death of the pilot and the apparent frequent number of aircraft crashes and the death of two sailors contributed to making him increasingly persistently anxious." (Board emphasis added)
·Medical report from consultant psychiatrist Dr G. Wojnarowska of 14 April 2003 (folio 12)
" ... He then described his service on HMAS Melbourne as equally stressful. During this period he reported that the ship lost approximately five planes due to crashing on deck and having one pilot killed ....he actually witnessed the pilot being killed.
He also reported that he saw two sailors killed when a steel cable broke and whipped over the deck. He told me that one was cut in half." (Board emphasis added)
• Board decision of 21 May 2003 (folio 74)
''The veteran said that whilst he could recall that five aircraft were lost he could not recall the details of each one." (Board emphasis added)
• AAT decision of 21 June 2004 (folio 95) - statement attributed to veteran
"I believe witnessing the incident of an aircraft being catapulted off an aircraft carrier with the engine not running and ditching into the sea in front of the ship, which seemed to go over the aircraft, would certainly be experiencing a severe psychosocial stressor. At the time we believed the pilot was killed and the two other crew to be rescued by an English destroyer who was in company. I did not learn until recently that the pilot was rescued by helicopter”. (Board emphasis added)
12. The veteran's responses to the Board were:
·Dr Kemp's reporting that he said a pilot was killed was "not right'. He would have told Dr Kemp that he did not know what happened as he did not know for some time that the pilot was not killed and he assumed that the pilot had been killed. He believed that as Dr Wojnarowska had read Dr Kemp's-report she simply repeated what he had reported about the aircraft crashes and the pilot being killed.
·The incident involving the two sailors being cut in half occurred in Australia and not during his operational service. He actually saw one sailor (who was not quite separated into two parts) taken away by Sick Bay personnel and then by ambulance. He heard later that the sailor died. He could not recall telling Dr Wojnarowska about this event.
·He was "100% sure" that he would not have told Dr Wojnarowska that he saw the pilot killed.
·The Board's reporting of his evidence at the hearing of 21 May 2003 was "not accurate". He remembers all the aircraft crashes "quite vividly' and could not therefore recall saying anything to the contrary.
·The AATs reporting of his evidence at the hearing of 21 June 2004 was "not right'. He said, "It was definitely a day or two later', that he found out that the pilot had not been killed. He found out about the other crew members "at different times".
13. The Board referred the veteran to the written submission he tendered on 17 August 2005 (folios 138 to 140), specifically his reference to the "Veterans Review Board transcript of May 21st 2003", where he claimed to have stated on two separate pages that he said, "/ can remember each crash vividly'. The veteran denied having either a copy of the audio tape from the Board's hearing or a transcript of the tape.
14. The Board asked the veteran to describe the event of 9 May 1960. His evidence was:
·His place of duty at the time was on the bridge. His duty there was in the role of electronic maintenance. He explained that he was monitoring a radar screen to detect any defects and he was there to repair any defects reported to him. He was also required "to keep a visual lookout'.
·The orientation of the radar screen he was monitoring had him facing toward the bow and he had a view of the aircraft going over the bow. There were about 15 to 20 aircraft still flying and he had to maintain his duty station and continue performing his duties as he was trained to do. The event was 'just another crash" and he had to carry on. He described the event as "horrific" and he 'just assumed' that the crew had been killed.
15. The Board put to the veteran that the event and whether the crew had been killed or saved would have been a prominent topic of conversation in the mess deck.
16. The veteran said that was not so. He estimated that he was on the bridge for about 14 hours during that duty shift and at its conclusion he immediately went to his bunk and slept. He indicated that there were about 1,500 crew members, each with their own job to do, and there was no conversation with other sailors about the incident.
17. Mr Dixon put to the Board that the veteran's recall of the 9 May 1960 incident had initially not been clear but after having been asked to elaborate by psychiatrists and determining authorities he has been able to remember more details.
BOARD'S DETERMINATION
Diaqnoses Answerinq Claims
18. In determining matters of diagnosis, the standard of proof is detailed in subsection 120(4) of the Act as confirmed in the decision of the Full Court of the Federal Court in Repatriation Commission v Budworth [2001] FCA 1421. Pursuant to that provision, the Board is required to determine issues to its reasonable satisfaction.
19. On 6 April 2002 Dr Kemp diagnosed the veteran as suffering from generalised anxiety disorder and alcohol abuse and he reaffirmed these diagnoses on 27 April 2006. Dr Wojnarowska has provided diagnoses of post traumatic stress disorder and alcohol abuse. Dr Assumption has opined that the veteran suffers with post traumatic stress disorder, generalised anxiety disorder and alcohol abuse. Accordingly, the Board is reasonably satisfied that the diagnoses answering the veteran's claim are post traumatic stress disorder, generalised anxiety disorder and alcohol abuse.
Raised Hypothesis
20. In the Board's view the contention that the veteran was exposed to a stressful event during his operational service and this caused his post traumatic stress disorder and generalised anxiety disorder, which in turn caused his alcohol abuse raises a hypothesis.
21. The decision under review (W05/0202) is accordingly amended to include the diagnosis of post traumatic stress disorder.
Statements of Principles22. The RMA has issued the following relevant SOPs:
·Post traumatic stress disorder – Instrument No. 3 of 1999 amended by No. 54 of 1999
·Anxiety disorder - Instrument No.1 of 2000.
Alcohol dependence or alcohol abuse - Instrument No. 76 of 1998.
23. The SOPs list a number of causal factors, anyone of which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the specific condition with the circumstances of a person's relevant service. In this case the factors proposed by Mr Dixon are:
Post traumatic stress disorder
(a) experiencing a severe stressor prior to the clinical onset of post traumatic stress disorderAnxiety disorder
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only(ii) experiencing a severe psychological stressor within the two years immediately before the clinical onset of anxiety disorder;
Alcohol abuse
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe psychological stressor within the two years immediately before the clinical onset of alcohol abuse;
24.For the purposes of these SOPs:
"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 another person's, physical integrity.
In the setting of service in the Defence Force, 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;
"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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
and
"psychiatric disorder" means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
Board's Consideration
25. Commencing with his original claim for acceptance of a stress related disorder the veteran has cited, and been reported to have cited, a plethora of events and situations that he believes have caused his emotional and behavioural symptomatology. These events include:
· having been at sea in a heavy storm while serving in HMAS Vampire;
· two seaman being cut in half by a snapped cable;
· being in "enemy waters" with the unknown possibility of an attack;
· the pressures and stresses of serving in a war ship at sea - work periods of up to 20 hours duration; being closed up to "Action Stations" for long periods and never knowing if it was the "real thing" or just another exercise; and being 21 years of age and inexperienced;
· harsh conditions while serving in HMAS Melbourne that were "rigorous, stressful and exhausting";
· a sailor lost overboard and never found;
· witnessing five aircraft crashes on ~board HMAS Melbourne;
· being intimately involved in the aircraft crashes as he was an electronics and radar specialist and the procedure would be to strip the radar and electronics equipment out of the airplanes that were wrecked and ditching them over the side of the carrier; and
· required to man radar and radio, thus at times was directly aware of when pilots were having trouble and was in communication with them when they were crash landing.
26. The primary focus of the veteran latterly has been the aircraft crash occurring on 9 May 1960 when a Gannet aircraft went overboard after a failed take-off.
27. Although the historical record is that the pilot was immediately recovered by helicopter and received only minor injuries and the other two crew members were unhurt, in the Board's view such an incident would have involved a threat of death or serious injury. The veteran states that he witnessed this event. As such this falls within the ambit of experiencing a severe stressor and a severe psychosocial stressor. The medical evidence is that the veteran was suffering from post traumatic stress disorder and anxiety disorder at the time he developed alcohol abuse.
28. For these reasons the Board finds that the factors set out in paragraphs 5(a) of the SOP for post traumatic stress disorder, 5(a)(ii) of the SOP for anxiety disorder and 5(a) and 5(b) of the SOP for alcohol dependence and alcohol abuse are raised by the evidence in this case. The Board is therefore of the opinion that the material raises a reasonable hypothesis within the meaning of subsection 120(3). Accordingly, the Board turned to the application of subsection 120( 1) to determine whether the hypothesis is disproved beyond a reasonable doubt.
29. It is clear that the veteran intended to rely on the various events and situations described in paragraph 23 as the causes of his emotional and behavioural conditions. Following the 30 July 2002 report provided by Writeway Research Service (WRS) which indicated that the only aircraft incident cited by the veteran to have occurred during his periods of operational service was on 9 May 1960, this event has assumed far greater significance for him. However, the Board must consider the totality of his evidence in assessing his credibility.
30. The Board has closely examined the evidence given by the veteran in support of his claim and finds it to be flawed by significant inconsistencies. The veteran has also indicated that medical practitioners and determining authorities have erroneously accorded to him statements he did not make or have misquoted him.
31. In his claim of 6 August 2001 the veteran referred to horrific events during his "war service in Malaya". The examples he provided were the aircraft crashes on board HMAS Melbourne and two seaman cut in half by a snapped cable.
32. Dr Kemp reported (folio 12) "During the period he also believes that two sailors died when a steel stern cable broke and whipped over the deck'. The period referred .to was during the veteran's operational service. Dr Wojnarowska reported (folio 118) "He also reported that he saw two sailors killed when a steel cable broke and whipped over the deck. He told me that one of them was cut in half'. However, the WRS report advised that HMAS Melbourne's Report of Proceedings for February 1960 indicated that when leaving Adelaide, "While casting off from No.4 berth at 11.45 on Monday 29 February the after tug wire surged round the bollard and carried away, causing serious injury to one rating, who was landed and sent to hospital by ambulance".
33. In the Decision and Reasons of the Board dated 21 May 2003 the veteran was reported to have said (folio 73) "that he had later been told that the badly injured sailor had died. The other injured sailor had stayed on board the ship when it left Adelaide . ... he was about 20 feet from the sailors when they were injured'.
34. The veteran's evidence in respect to this event has been modified from believing that two sailors died during operational service, to seeing two sailors killed, to being told one sailor died and knowing that the other stayed aboard prior to his operational service.
35. The veteran has relied in part on his age at the time of his operational service and his lack of experience (folios 61, 66, 83 and 86). However, Dr Kemp has reported the veteran as saying that (folio 12) "He was also required to man radar and radio, thus at times was directly aware of when pilots were having trouble and was in communication with them when they were crash landing". Dr Wojnarowska also reported (folio 118) "He was also required to man the radio and at one time was directing a pilot who was having trouble and he was in communication with them when they were crash landing".
36. Attachment 2 of the WRS report (folios 23 and 24) contains the following statement by Commander R. Jemesen RAN TRtd:
'While REMs did maintain ships' radars and communication systems, they did not operate them, and would only have access to live communications if these were relayed over a broadcast system (never in my experience) or if the maintainer had access to headphones and plugged into the circuit at the relevant moment. In any event, positive aircraft control and communications during any emergency would be the responsibility of the ship's Air Direction Officers, not maintenance personnel. "
37. Although Commander Jemesen admits to not being on HMAS Melbourne at the same time as the veteran, his explanation is consistent with the Board's own knowledge of naval air operations. The Board is of the opinion that in an emergency situation an inexperienced electrical maintenance rating would not be given responsibility for "directing a pilot who was in .trouble" during a crash landing
38. Dr Kemp reported that the veteran told him (folio 12) "that the Melbourne lost approximately five planes due to crashes on deck and having one pilot killed'. Dr Wojnarowska reported (folio 118) “…he reported that the ship lost approximately five planes due to crashing on deck and having one pilot killed .... he witnessed the plane accidents and he actually witnessed the pilot being killed'. The Board does not accept the veteran's submission that Dr Wojnarowska was quoting what she had read in Dr Kemp's report. While the description is similar, Dr Wojnarowska has added that the veteran actually witnessed the death, indicating that she took her own history from him.
39. The veteran has told the Board that the AAT's reference to a statement made by him was "not right'. The Board notes that the reference used by the AAT was "Exhibit A 1" and dated 7 April 2004. The Board further notes that a written statement signed by the veteran on 7 April 2004 (folios 84 to 87) and received by the AAT on 15 April 2004 contains the following submission:
"I believe witnessing the incident of an aircraft being catapulted off an aircraft carrier with the engine not running and ditching into the sea in front of the ship, which seemed to go over the aircraft, would certainly be experiencing a severe psychosocial stressor. At the time we believed the pilot was killed and the two other crew to be rescued by an English destroyer who was in company. I did not learn until recently that the pilot was rescued by helicopter. "
40. In responding to the Board's questions the veteran has stated that "he did not know for some time that the pilot was not killed as he had assumed that he had been killed" and later "it was definitely a day or two later' that he found out.
41. The veteran has stated that the Board's reporting of his evidence about not recalling the details of the five aircraft incidents was "not accurate". He claims to have stated that he said, "I can remember each crash vividly'. This was said to be contained in a Board transcript of 21 May 2003, which was the date of the hearing. However, in questioning by this Board the veteran denied having either a copy of the audio tape or a transcript. Yet, in his submission to the MT (folio 84), he claimed that he would "provide evidence in the form of an audiotape of the proceedings of the Veteran's Review Board'. Thus it appears that the veteran's assertion about his statements to the Board on 23 May 2003 cannot be sustained.
42. There is no evidence before the Board that during the veteran’s service in HMAS Melbourne a sailor was lost overboard and never found.
43. Dr Assumption reported (folio 170) that the veteran told him "he lost three friends when the Voyager 'went down' (he told me he served on the vessel". The Board has scrutinised the veteran's Record of Service (folios 21 and 22) and can find no record of him serving in HMAS Voyager.
44. On the basis of its examination of the available evidence the Board does not .find the veteran to be a credible witness. His evidence has changed significantly as matters that have been detrimental to his case have come to light.
45. The Board considered whether any of the other factors contained in the SOPs might be implicated with the veteran's service circumstances but there was no evidence or contention that any of them applied in this case.
Conclusion
46. Consequently, having reviewed the whole of the material before it and for the reasons given above, the Board is satisfied beyond reasonable doubt that the hypothesis is disproved. It follows that the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120( 1), that there is no sufficient ground for determining that the veteran's post traumatic stress disorder, anxiety disorder and alcohol abuse were war-caused. In these circumstances, the Board is required to affirm the decisions under review.
DECISION OF THE BOARD:
On 26 February 2007 the Veterans’ Review Board decided to:
W05/0202
· VARY THE DECISION under review in relation to anxiety disorder by including the diagnosis of post traumatic stress disorder; and
· AFFIRM the decision under review as amended in respect to post traumatic stress disorder and anxiety disorder.
W05/0203
· AFFIRM the decision under review in relation to alcohol abuse. This means that the Repatriation Commission’s decision is unchanged in relation to that matter.”
47. Previous AAT Decision
47.1As noted by the Board this Tribunal has previously (in 2004) heard and determined an application for review by the applicant.
47.2It is appropriate and relevant to consider various aspects of the Tribunal’s previous decision, edited extracts from which follow:
47.3 “Generalised Anxiety Disorder (GAD)
The relevant SOP is Instrument Number 1 of 2000. According to clause 2(b) of the SoP, “anxiety disorder” is defined, for the purposes of the SoP, to include, inter alia, “generalised anxiety disorder”, for which expression is, in turn defined in clause 8 of the SoP. In his report of 6 April 2002 (T10) Dr John Kemp, Consultant Psychiatrist, opined that the applicant fulfils the criteria for a diagnosis of GAD as outlined in DMS-IV (which, the Tribunal notes, are very similar to the diagnostic features set out in the definition of GAD in clause of the SoP). On the basis of Dr Kemp’s report the Tribunal is satisfied, and finds, that the applicant suffers from GAD. The more problematic question is whether the applicant’s GAD is a war-caused disease.
48. In his DVA claim form (T5) the applicant described the relationship between his claimed "stress disorder PTSD" and his RAN service as· follows:
exposed to horrific events during my war service in Malaya, ie, aircraft crashes on board HMAS MELBOURNE - two seamen cut in half by snapped cable.
49. Dr Kemp, Consultant Psychiatrist, who examined the applicant in February and March 2002 at the request of a DV A Medical Officer, recorded in his report of 6 April 2002 (TIO), the history given to him by the applicant as follows:
Mr Nelli complained that ever since his military service in the Navy and in particular his service upon the HMAS MELBOURNE, he has had major difficulties with feeling excessively anxious, worried and preoccupied. He reported having a frequently disturbed sleep pattern and often is troubled by unpleasant dreams and nightmares regarding a multitude of themes, some of which revolve around experiences that occurred on HMAS MELBOURNE relating to aircraft crashes. He reported frequently feeling agitated and restless, having high levels of irritability and symptoms of muscle tension with shoulder and neck aches. He reported being easily fatigued and having developed a variety of avoidance symptoms with avoidance of social contacts, avoidance of discussing aspects of his naval service and difficulties in showing positive emotions to his children and wife. He also reported that he has significant difficulties with excessive alcohol consumption, reporting that he did not consume any alcohol prior to his naval service, began drinking during his naval service and escalated his consumption dramatically, particularly following his service upon HMAS MELBOURNE. He reported that in the latter part of his service career he had significant disciplinary problems related to alcohol consumption and in civilian life he has had one drunk driving charge in 1985. His wife reported that his excessive consumption of alcohol has been of concern to her and caused fairly frequent arguments. Over the years he has continued to consume excessive quantities of alcohol, drinking at least seven cans of beer per day and a bottle of Scotch per week.
Mr Nelli reported that he joined the Navy in 1957 when aged 18 and served for approximately 6 years. He was initially posted to the antisubmarine frigates HMAS QUICKMATCH and HMAS QUEEN BOROUGH Following this he saw service on HMAS VAMPIRE, Ja D Class destroyer, and then on the aircraft carrier, HMAS MELBOURNE. HMAS MELBOURNE was engaged in operations off Malaya attached to the Far East Strategic Reserve between April 1960 and June 1960. Mr Nelli reported that his service on board the anti-submarine frigates was relatively uneventful, although the frigates did practise warlike manoeuvres, going to action stations, manning gun turrets and the like. He reported first having major problems with his psychological and emotional state following his service on HMAS VAMPIRE on its maiden voyage in 1959. During this voyage HMAS VAMPIRE apparently was caught in a storm with very heavy seas, as a result of which its lifeboats and fo ' c 'sle were smashed in. Mr Nelli recalled having become very frightened, anxious and scared during this storm but then having subsequently settled down again. He described his service on HMAS MELBOURNE in the Far East Strategic Reserve as being fairly turbulent. During this period he reported that the MELBOURNE lost approximately five planes due to crashes on deck and having one pilot killed. Mr Nelli became intimately involved in the aircraft crashes as he was an electronics and radar specialist and the procedure would be to strip the radar and electronics equipment out of the airplanes that were wrecked before ditching them over the side of the carrier. He was also required to man radar and radio, thus at times was directly aware of when pilots were having trouble and was in communication with them when they were crash landing. During this period he also believes that two sailors died when a steel stern cable broke and whipped over the deck. He reported that the death of the pilot and the apparent frequent number of aircraft crashes and the death of two sailors contributed to making him increasingly persistently anxious. This was coupled with stressors associated with the MELBOURNE going into action stations for prolonged periods during operational time.
50. The applicant made various statements to the DVA dated 12 August 2002 (TI4), 18 October 2002 (TI6), and 22 December 2002 (TI7), and provided supporting documentation. He also made a statement to the Tribunal, dated 7 April 2004 (Exhibit AI) and gave some oral evidence. The Tribunal has considered all the material before it and is satisfied that that material raises a hypothesis connecting the applicant's GAD with the circumstances of his "operational service".
51. As previously mentioned, the relevant SoP is Instrument Number 1 of 2000. Clause Sea) of that SoP sets out the factors, at least one of which must be related to the applicant’s "operational service" before it can be said that a reasonable hypothesis has been raised connecting GAD with the circumstances of that service. The factors sought to be relied on by the applicant are those specified in subparas (H), (Hi), (v) and (vii) of clause Sea). The factors specified in subparas (ii) and (v) involve
experiencing a severe psychosocial stressor within the 2 years immediately before the clinical onset, or the clinical worsening, respectively, of anxiety disorder.
52. The factors specified in subparas (Hi) and (vii) involve
having a clinically significant psychiatric condition within the 2 years immediately before the clinical onset, or the clinical worsening, respectively, of anxiety disorder.
53. "Anxiety disorder" is, as previously mentioned, defined in clause 2(b) of the SoP to include GAD. Clause 8 of the SoP contains the following relevant definitions:
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), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems.
psychiatric condition means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV.
psychiatric condition means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV.
54. The T documents contain Reports of Proceedings of HMAS MELBOURNE for the months of April, May and June 1960 (T12, pages 79-101) and a "Writeway Research Service" report of Commodore P M Mulcare dated 30 July 2002 (T12, pages 69-72). Commodore Mulcare's report refers to 4 incidents which, according to the Reports of Proceedings of HMAS MELBOURNE, occurred in February and March 1960 (that is, outside the period of the applicant's "operational service"). As regards the Reports of Proceedings for the months of April, May and June 1960 - during which the applicant's periods of "operational service" occurred - Commodore Mulcare's report refers to only the following specific incident (which is recorded at para 14 of the Report of Proceedings of HMAS MELBOURNE for May 1960):
At 1330 Hours 9 May a Gannet aircraft developed a fault on one engine on being catapulted, and ditched in the sea ahead of the ship. The pilot was immediately recovered by the helicopter planeguard and the observer and telegraphist were recovered within a few minutes by HMAS CAVALlER, a destroyer on the anti-submarine screen. The pilot received only minor injuries, and the other two aircrew were unhurt.
55. (TI2, page 88). In his statement of 7 April 2004 (Exhibit AI) the applicant referred to this incident as follows:
I believe witnessing the incident of an aircraft being catapulted off an aircraft carrier with the engine not running and ditching into the sea in front of the ship, which seemed to go over the aircraft, would certainly be experiencing a severe psychosocial stressor. At the time we believed the pilot was killed and the two other crew to be rescued by an English destroyer who was in company. I did not learn until recently that the pilot was rescued by helicopter.
56. In the Tribunal's opinion the hypothesis raised by the material before it in relation to that particular incident which occurred during the applicant's "operational service" - including the applicant's own statement – does not fit either of the factors specified in subparas (ii) and (v) of clause 5(a) of the SOP because that hypothesis and material do not refer to that particular incident or occurrence evoking “feelings of substantial distress" in the applicant and, accordingly do not include a severe psychosocial stressor" (as defined in clause 8 of the SoP) as required by each of subparas (ii) and (v) of clause 5( a) of the SoP.
57. The applicant also referred, in his statement of 7 April 2004 (Exhibit AI) and in his earlier statements to the DV A (TI4, Tl6 and TI7), more generally to the harsh and rigorous conditions experienced on HMAS MELBOURNE, including watch periods of up to 20 hours in duration, closing up for action stations and manning guns for long periods, wearing asbestos hoods and helmets, and not knowing whether approaching aircraft were friendly or the enemy. Likewise, the Tribunal does not regard that material as referring to a "severe psychosocial stressor" (as defined in clause 8 of the SoP). Instead, it refers generally to conditions on HMAS MELBOURNE rather than to particular identifiable occurrences, and, again, does not in terms refer to the evoking of feelings of substantial distress. In the Tribunal's opinion the relevant hypothesis raised by the material before it does not accord with, or fit, either of the factors specified in subparas (ii) and (v) of clause 5(a) of the SoP.
58. Alternatively, if the relevant raised hypothesis were to be regarded as including the applicant's having experienced a "severe psychosocial stressor" (as defined in clause 8 of the SoP) within the 2 years immediately before the clinical onset or worsening of GAD (as required by subparas (ii) and (v) of clause 5(a) of the SoP), the Tribunal would then be required to make findings of fact in relation to those matters on the basis of the material before it. Having regard to that material the Tribunal is satisfied beyond reasonable doubt that, during the periods of the applicant's "operational service" on HMAS MELBOURNE; there was no identifiable occurrence - including, in particular, the Gannet aircraft incident of 9 May 1960 - that evoked feelings of substantial distress in the applicant, within the meaning of the definition of "severe psychosocial stressor" in clause 8 of the SoP. The Tribunal notes that in para 14 of the Report of Proceedings of HMAS MELBOURNE for May 1960 it is stated that the pilot of the Gannet was "immediately recovered by the helicopter planeguard" and had ''received only minor injuries". The Tribunal does not accept the applicant’s statement that at that time he believed that the pilot had been killed and that he did not learn until recently that the pilot had been rescued by helicopter (Exhibit A1, page 2). The Tribunal also notes that Dr Kemp’s report of 6 April 2002 (T10) does not address the SoP and , in particular, the requirement in subparas (ii) and (v) of clause 5(a) of experiencing a “severe psychological stressor” (as defined in clause 8). Nor does Dr Kemp’s report, when recording the relevant history given to him by the applicant, refer specifically to the Gannet aircraft incident of 9 May 1960, let alone any feelings of the applicant allegedly evoked by that particular incident. The Tribunal further notes that that particular incident was not mentioned by the applicant in his claim form or in any of his subsequent statements to DVA in connection with his claim and that, furthermore, in his evidence at the VRB hearing on 21 May 2003 he acknowledged that he could not recall the details of that incident but said that it was “most likely” that he would have been on the bridge at that time because, as part of his duties he was ''mainly on the bridge" when the planes were flying (Exhibit R1, pages 40-41,44--45). In addition, subpara (ii) of clause 5(a) of the SoP requires that a relevant "severe psychosocial stressor" be experienced "within the 2 years immediately before the clinical onset of anxiety disorder". As regards the date of clinical onset of the applicant's GAD there is material before the Tribunal namely, the applicant's evidence and three statutory declarations by Joseph Anderson, Harold Martin and Shirley Nelli (the applicant's wife) (TI7, pages 115-117) - to the effect that he was being treated by a civilian general practitioner, Dr Coffey, for sleeping problems, anxiety and depression in 1960/1961 following his service on HMAS MELBOURNE. There is also a letter from the MCRS, DVA dated 9 December 2002 (Exhibit A2) confirming that it had been determined, for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), that the applicant was suffering from GAD "due to the nature of [his] military service" and that the relevant date of injury was 1 January 1962 on the basis that that was the date on which he "first sought medical treatment for the claimed condition". On the other hand, the Tribunal notes the following evidence which is before it:
·the applicant's contemporaneous service medical records which contain no reference to any psychiatric or psychological problems or treatment;
·the applicant's contemporaneous service records indicate that in the period 1960-1961 he attained advancements in ratings and his efficiency was described as either satisfactory or superior;
·the applicant did not consult a civilian psychiatrist or psychologist during that period; indeed, the first psychiatrist to examine the applicant was Dr Kemp in February 2002 and that arrangement was made by the DVA;
·although Dr Kemp diagnosed GAD in February 2002, his report of 6 April 2002 does not specify the date of clinical onset of that disorder;
·the applicant’s discharge medical examination report dated 5 April 1963 indicated that his emotional stability was normal at that time.
59. The Tribunal also notes the definition of "generalised anxiety disorder" in clause 8 of the SoP and the DSM-N diagnostic criteria for that psychiatric disorder. In Lees v Repatriation Commission (2002) 125 FCR 331 the Full Court of the Federal Court of Australia held that, in order to meet the factor specified in subpara (ii) of clause 5(a) of the SoP, the various features of GAD (as defined in clause 8 of the SoP), and not merely some of them, must be present within 2 years of having experienced the relevant severe psychosocial stressor before it can be said that the clinical onset of GAD occurred within that period.
60. The Tribunal is prepared to accept that the applicant consulted Dr Coffey regarding sleeping problems, anxiety and depression during 1960-1961 but, having regard to the whole of the material before it, the Tribunal is satisfied beyond reasonable doubt that, although the applicant may have been experiencing some psychological symptoms at that time, the clinical onset of the applicant's GAD, as explained by the Federal Court in Lees, had not then occurred and, furthermore, had not occurred by the date of his discharge medical examination on 5 April 1963.
61. It follows from the last mentioned finding that the Tribunal is satisfied beyond reasonable doubt that the clinical onset of the applicant's GAD did not occur within 2 years of the Gannet aircraft incident of9 May 1960 or, indeed, of the completion of the applicant's "operational service" on 16 June 1960, and that, accordingly, the factor specified in subpara (ii) of clause 5(a) of the SoP is not met in this case. It necessarily also follows that the Tribunal is satisfied beyond reasonable doubt that the factor specified in subpara (v) of clause 5(a) of the SoP is likewise not met in this case.
62. The applicant, in his statement of 7 April 2004 (Exhibit AI), also sought to rely on the factors specified in subparas (Hi) and (vii) of clause 5(a) of the SoP. The material before the Tribunal includes the applicant’s evidence and the three previously mentioned statutory declarations by Joseph Anderson, Harold Martin and Shirley Nelli (TI7, pages 115-117) to the effect that he was being treated by a civilian general practitioner, Dr Coffey, for sleeping problems, anxiety and depression in 1960-1961 following his service on HMAS MELBOURNE, and a letter from the MCRS, DV A dated 9 December 2002 (Exhibit A2) confirming that it had been determined, for the purposes of the SRC Act, that the applicant was suffering from GAD "due to the nature of [his] military service’, and that the date of that condition was 1 January 1962.
63. The Tribunal has reservations that that material raises a hypothesis which fits either subpara (Hi) or subpara (vii) of clause 5(a) of the SoP in respect of the requirement of a prior "clinically significant psychiatric condition". However, even if that material were to be regarded as raising a reasonable hypothesis connecting the applicant's GAD with his "operational service", the Tribunal, having regard to the whole of the material before it, is satisfied beyond reasonable doubt that the applicant did not have a "clinically significant psychiatric condition", within the meaning of subparas (iii) and (vii) of clause 5(a) of the SoP, in the period 1960-1961. The Tribunal bases that finding on the following evidence referred to earlier, namely:
· the applicant's contemporaneous service medical records which contain no reference to any psychiatric or psychological problems or treatment;
· the applicant's contemporaneous service records indicate that in the period 1960-1961 he attained advancements in ratings and his efficiency was described as either satisfactory or superior;
· the applicant did not consult a civilian psychiatrist or psychologist during that period; indeed, the first psychiatrist to examine the applicant was Dr Kemp in February 2002 and that arrangement was made by the DVA;·the applicant’s discharge medical examination report dated 5 April 1963 indicated that his emotional stability was normal at that time.
64. The Tribunal, as previously mentioned, is prepared to accept that the applicant consulted Dr Coffey during the period 1960-1961 but, having regard to the considerations just mentioned, the Tribunal is satisfied beyond reasonable doubt that the applicant's condition at that time did not constitute a "clinically significant psychiatric condition" within the meaning of subparas (iii) and (vii) of clause 5( a) of the SoP. The applicant did not seek to rely on any of the other subparagraphs of clause 5(a) of the SoP.
65. The Tribunal, therefore, applying section 120(1) and (3) of the VE Act, is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s GAD is war-caused. Accordingly, the Tribunal finds that the applicant's GAD is not a war-caused injury or a war-caused disease, within the meaning of section 9 of the VE Act.
(3) Alcohol abuse
66. The relevant SoP is Instrument Number 76 of 1998. Clause 2(b) of that SoP contains a definition of "alcohol. abuse" which incorporates the DSM-IV diagnostic criteria for alcohol abuse~ In his report of 6 April 2002 (TI0) Dr Kemp opined that the applicant fulfils the criteria for a diagnosis of alcohol abuse, as outlined in DSM-IV. On the basis of Dr Kemp's report the Tribunal is satisfied, and finds, that the applicant suffers from alcohol abuse.
67. The final matter for the Tribunal's consideration is whether the applicant's alcohol abuse is war-caused.
68. In his DVA claim form (T5) the applicant claimed that his alcohol abuse was ''related to [his] stress disorder caused by [his] war service". As set out earlier, Dr Kemp in his report of 6 April 2002 recorded the applicant's history, including his history of alcohol consumption. Dr Kemp also recorded the following additional history of the applicant's substance usage:
Mr Nelli reported that he did not drink or smoke prior to joining the Navy and did not use any substances up until about 1960. He smoked cigarettes through until about 1990. He has been a heavy consumer of alcohol over the years and has received a drunk driving conviction in 1985. He also had disciplinary problems in the latter part of his Navy service associated with his alcohol abuse. He is currently consuming in excess of seven cans of beer per day and a bottle of Scotch per week. He denied any symptoms associated with alcohol dependence, ie, he has no alcohol withdrawal phenomena or craving but has significant psychosocial disability with marital conflict. Mr Nelli denied any usage of illicit substances.
69. In his statement to the Tribunal (Exhibit AI) the applicant submitted that his alcohol abuse is connected with his operational service - specifically, with his witnessing the Gannet aircraft incident on 9 May 1960 on HMAS MELBOURNE.
70. Having regard to the material before it, the Tribunal is satisfied that that material raises a hypothesis connecting the applicant's alcohol abuse with the circumstances of his "operational service".
71. Turning to the SoP - clause 5 sets out the factors, at least one of which must be related to the applicant's "operational service" before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of that service. The factors sought to be relied on by the applicant are those specified in paras (a), (b), (c), and (d) of clause 5. The factors specified in paras (a) and (c) involve
suffering from a psychiatric disorder at the time of the clinical onset, or the clinical worsening, respectively, of alcohol abuse.
72. The factors specified in paras (b) and (d) involve
experiencing a severe stressor within the 2 years immediately before the clinical onset, or the clinical worsening, respectively, of alcohol abuse.
73. Clause 8 of the SoP contains the following relevant definitions:
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;
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
psychiatric disorder means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM-IV.
74. As regards the factors specified in paras (a) and (c) of clause 5 of the SoP, the only "psychiatric disorder" (as defined in clause 8 of the SoP) relied on by the applicant, and raised by the material before the Tribunal, is GAD. The Tribunal has, however, already found that the applicant's GAD is not connected with the circumstances of his "operational service". Accordingly,. the applicant's GAD cannot suffice for the purpose of raising a reasonable hypothesis connecting the applicant's alcohol abuse with the circumstances of his "operational service" through either of the factors specified in paras (a) and (c) of the SoP.
75. The Tribunal next turns to the factors specified in paras (b) and (d) of clause 5 of the SoP. Each factor first requires the "experiencing [of] a severe stressor" (as defined in clause 8 of the SoP). The proper understanding of that expression has been explained in recent decisions of the Federal Court of Australia, namely, Stoddart v Repatriation Commission (2003) 197 ALR 283 (upheld on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176), Woodward v Repatriation Commission (2003) 200 ALR 332:> and Delahunty v Repatriation Commission (2004) FCA 309. In Stoddart Mansfield J (at first instance) said (at 295,296):
… a claimant experiences ‘a severe stressor’ if that person experience, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity and which, with that person’s knowledge and in that person’s experience, could reasonably be so perceived
…
In my judgment the language of the definition of 'experiencing a severe stressor' caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of, and with the knowledge of, the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.
76. In his statement of 7 April 2004 (Exhibit AI), the applicant asserted that he "experienced a severe stressor", for the purposes of the SoP, when he witnessed the Gannet aircraft incident on board HMAS MELBOURNE on 9 May 1960. The Tribunal, having regard to the previously mentioned considerations, including the description of that incident which appears in the HMAS MELBOURNE Report of Proceedings for May 1960, has grave reservations whether the material before it supports the proposition that the applicant's witnessing the Gannet aircraft incident constitutes his "experiencing a severe stressor" (as defined in clause 8 of the SoP). The Tribunal has those reservations, notwithstanding the "partially subjective connotation" (Woodward, at page 357) which is to be attributed to the word "experiencing", and the subjective perception of the risk of death or serious injury which is connoted by the word ''threat'', in the definition of the phrase "experiencing a severe stressor" in clause 8 of the SoP, as explained in the Federal Court authorities referred to earlier.
77. It is, however, unnecessary for the Tribunal to reach a firm conclusion on that l aspect of the factors specified in paras (b) and (d) of clause 5 of the SoP because, in its opinion, on the material before it the remaining aspects of those factors are not met in this case. In particular, for the purposes of para (b) of clause 5 of the SoP, the material before the Tribunal does not point to the clinical onset of alcohol abuse (as defined in clause 2(b) of the SoP) in the applicant within the period of 2 years after allegedly "experiencing a severe stressor” by witnessing the Gannet aircraft incident on 9 May 1960. The Tribunal notes that the applicant's contemporaneous service records make no reference to any alcohol problem and the applicant's own evidence, together with the three supporting statutory declarations referred to earlier, refer generally to his having commenced drinking alcohol during his RAN service and continuing to do so after his return from overseas service but do not refer to any medical diagnosis of alcohol abuse at that time. Furthermore, in his DVA claim form (T5) the applicant stated that he first became aware of the signs and symptoms of alcohol abuse in 1963 - that is, more than 2 years after the Gannet aircraft incident - and that he sought medical treatment for that condition in 1990 (T5, pages 46-47). The Tribunal also notes that, although Dr Kemp diagnosed alcohol abuse in February 2002, in his report of 6 April 2002 he refers very generally to the applicant's having had symptoms of alcohol abuse "over four decades" but he does not specify a date of clinical onset of that condition.
78. In the Tribunal's opinion the relevant hypothesis raised by the material before it does not accord with, or fit, either of the factors specified in paras (b) and (d) of clause 5 of the SoP. The Tribunal adds that, if it were necessary for it to make factual findings in relation to those matters, its findings would be that it is satisfied beyond reasonable doubt that, assuming (without finding) that the applicant experienced a severe stressor (within the meaning of the SoP) when he witnessed the Gannet aircraft incident on 9 May 1960, neither the clinical onset, nor the clinical worsening, of his condition of alcohol abuse (as defined in clause 2(b) of the SoP) occurred within the period of 2 years immediately after that incident.
79. The applicant did not seek to rely on para (e) of clause 5 of the SoP.
80. Having regard to the Tribunal's findings regarding paras (a), (b), (c) and (d) of clause 5 of the SoP, and applying section 120(1) and (3) of the VE Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's alcohol abuse is war-caused. Accordingly, the Tribunal finds that the applicant's alcohol abuse is not a war-caused injury or a war-caused disease, within the meaning of section 9 of the VB Act.
81. The Tribunal notes, in conclusion, that, as previously mentioned, the applicant's conditions of GAD and solar keratosis have, on 9 December 2002 and 22 August 2003, respectively, been determined by the MCRS, DV A to be related to his RAN service, for the purposes of the SRC Act (see Exhibits A2 and A4). The Tribunal observes, however, that its findings that those conditions are not war-caused, for the purposes of the VE Act, are not necessarily inconsistent with the determinations of the MCRS because the Tribunal was concerned only with the applicant's brief periods of "operational service" rather than with his entire RAN service, and its findings have been made in accordance with the VE Act and the relevant SoPs - legislative provisions which are quite different from the SRC Act under which the MCRS’s determinations were made.
82. For these reasons the Tribunal affirms the decision under review.”
83. Evidence before this Tribunal
83.1As already noted the applicant elected not to give evidence before this Tribunal.
83.2Accordingly, apart from the evidence previously considered by the Board and the Tribunal as set out above the only additional evidence to be considered by this Tribunal is that of Dr Kemp.
83.3The applicant’s closing submissions seek to place reliance on the following passages from the evidence of Dr Kemp as supporting the applicant’s case:
“Q) In the reports of Dr Assumption, he seems to indicate that what you call exacerbation is the onset of PTSD as opposed from the anxiety disorder?---
R) Yes.Q) Would you agree with that classification?---
R) I don’t think so. I see Mr Nelli as primarily having a hidden anxiety disorder all the way but I could see that it s quite plausible and reasonable for another specialist to come to the conclusion that he had an anxiety disorder related to the first event with the storm and lifeboats and focus of being smashed in but then as the separate disorder is due to a stressor which caused PTSD but it is also quite arguable that the second stressor actually resulted in the exacerbation of the anxiety disorder that was previously there. It’s kind of somewhat of an academic debate to say which it is.Q) Unfortunately it will be, I think, more of an academic debate for the tribunal because they will need to make that determination and I suppose my question to you is, do you disagree with the view that is put by Dr Assumption, that Mr Nelli, his view that Mr Nelli suffers from both the conditions and if you do, you know, the strength of that disagreement?---
R) I disagree. As I said, I feel that Mr Nelli suffers from generalised anxiety disorder and there had been exacerbating events and I guess how does one measure disagreement with a colleague? I can understand his point of view but I think on the balance of probability he’s wrong.Q) On the basis of the stressor that you mentioned on the Melbourne, which my understanding is the incident with the aircraft in front of it?---
R) Yes.Q) In your view, is that a significant stressor in the sense of the causation or contribution to his anxiety disorder?---
R) Absolutely. Yes. I think that that is a permanently exacerbating factor that occurred during service in the Melbourne.Q) As I understand your evidence, you can understand how that stressor could be considered by a colleague to be sufficient to constitute the cause of PTSD, though not necessarily agreeing with the diagnosis?---
R) Yes.”
84. In the Tribunal’s opinion it is clear that Dr Kemp’s evidence as quoted above relies on the applicant’s account of the event in question as given by him to Dr Kemp as being a truthful account.
85. However the Tribunal notes that the applicant (who gave evidence at the Board hearing but did not give evidence to this Tribunal) was found by the Board to be not a credible witness for the reasons stated by the Board. Accordingly the Tribunal does not give any weight to Dr Kemp’s evidence in this regard, as it is entirely based on what he was told by the applicant.
86. The Tribunal also notes the previous Tribunal’s findings and is of the view that those findings were correct, and that they together with the VRB’s findings, should be followed by this Tribunal.
87. TRIBUNALS CONCLUSIONS
87.1 The Tribunal is of the view that the decision of the Board should be affirmed for the reasons stated by the Board, which the Tribunal adopts in all respects, and for the additional reasons set out above.
87.2 The Tribunal notes the following:
87.2.1 The relevant Statements of Principle to which regard has been had by the Tribunal are those in force at the time of the initial decision, as asserted by the applicant, as those are more favourable to the applicant;
87.2.2. The Tribunal accepts that the applicant’s diagnosed conditions of post traumatic stress disorder and generalised anxiety exist co-morbidly as asserted by the applicant; and
87.2.3. The Tribunal, applying section 120(1) and (3) of the Veterans’ Entitlements Act 1986 (the Act) is satisfied beyond reasonable doubt that there is no sufficient ground for determining the applicant’s conditions of post traumatic stress disorder, anxiety disorder and alcohol abuse are war caused.
87.2.4 The Tribunal finds therefore that the applicant’s conditions are not war caused disease or war caused injuries within the meaning of section 9 of the Act.
88. DECISION
88.1 The Tribunal affirms the decision under review,
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member, Brigadier A Warner, Member and Dr D Weerasooriya, Member.
Signed: ..(sgd) T Freeman........
AssociateDate/s of Hearing 19 June 2008
Date of Final Submissions 14 August 2008
Date of Decision 28 August 2008
Applicant’s Representative Mr C Mills
Veterans Advocate
Respondent’s Representative Mr C PonnuthuraiDepartment of Veterans’ Affairs
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