NICHOLAS CHATTINGTON and REPATRIATION COMMISSION
[2013] AATA 524
[2013] AATA 524
Division VETERANS' APPEALS DIVISION File Number
2012/0219
Re
NICHOLAS CHATTINGTON
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 25 July 2013 Place Brisbane The Tribunal affirms the decision under review.
.....................[Sgd]...................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Defence service with Royal Australian Navy – Statements of Principles for posttraumatic stress disorder, depressive disorder, alcohol dependence, gastro-oesophageal reflux disease, diabetes mellitus, sleep apnoea and gout – Clinical onset – Whether veteran experienced a category 1A or 1B stressor – Relevance of “dissociative amnesia” to experiencing a category 1A or 1B stressor – Whether obesity or alcohol consumption related to defence service – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5, 14, 70, 120B, 196B
CASES
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Smith (1987) 15 FLR 327
Newlands and Repatriation Commission (2005) AATA 413SECONDARY MATERIALS
Statements of Principles:
Instruments No’d 12 of 2000[1] and 31 of 2010 for gout
Instruments No’d 14 of 2005 and 42 of 2013 for sleep apnoea
Instruments No’d 12 of 2004[2] and 90 of 2011 for diabetes mellitus
Instrument No 12 of 2005 for gastro-oesophageal reflux disease
Instrument No 28 of 2008[3] for depressive disorder
Instrument No 6 of 2008 for posttraumatic stress disorder[1] As amended by Instrument No 44 of 2003 in relation to the definition of being obese.
[2] As amended by Instrument No 10 of 2008 in a manner not material to this matter.
[3] As amended by Instrument No 41 of 2010 in a manner not material to this matter.
Instrument No 2 of 2009 for alcohol dependence
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND RECOMMENDED
On 25 August 2009, Nicholas Chattington (the applicant) lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension on the basis that certain conditions from which he suffers were related to his Royal Australian Navy (RAN) service in accordance with s 70 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 19 October 2009 and by the Veterans’ Review Board on 7 December 2011.
SERVICE
The applicant’s RAN service was from 5 July 1972 until 24 August 1975. He rendered defence service in accordance with section s 70 of the Act from 7 December 1972 until his discharge.
CAUSATION
Subsection 70(1) of the Act provides that, where a member of the Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The term “disease” is defined in s 5(1) of the Act to mean any physical or mental ailment, disorder, defect or morbid condition. The criteria of causation are set out in s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service of the member.
Where defence service was rendered, the standard of proof applicable to the determination is set out in s 120(4) of the Act which requires that the matters are to be determined to the decision-maker’s reasonable satisfaction. This imports the civil standard of proof so that matters must be determined on the balance of probabilities.[4] The application of that provision is affected by the terms of s 120B(3)of the Act which reads:
[4] Repatriation Commission v Smith (1987) 15 FLR 327 at 335.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12);or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
The conditions claimed by the applicant to be service–related are posttraumatic stress disorder, alcohol dependence, depressive disorder, gastro-oesophageal reflux disease, diabetes mellitus, obstructive sleep apnoea[5] and gout. The Tribunal must determine whether any of those conditions arose out of, or was attributable to, any defence service rendered by him.
CONTENTIONS
[5] See diagnosis of “OSA” by treating doctor Dr B Bennett at exhibit 1, p. 70.
Mr David Chalk
For the applicant, Mr Chalk submitted that the applicant witnessed another sailor being injured while on board the HMAS Yarra (the Yarra) on 14 August 1973 when it was departing Hong Kong Harbour to avoid the impact of the threatened tropical storm Georgia. The Yarra was under tow from a tug-boat which was easing the Yarra sideways from the berth. An order was given for the tow rope to be slipped by releasing it at the point where it was attached to the Yarra. The tow rope was tightly drawn and, when released, it flailed across the deck of the Yarra where it struck the sailor, breaking his legs. The applicant has no memory of the incident. He became aware of it when he accessed a decision of the Tribunal, Newlands and Repatriation Commission (Newlands),[6] where the incident is recorded. On reading that decision, the applicant realised that he had been on the Yarra at the time of the incident and his claim is based on his having dissociative amnesia in relation to it. Mr Chalk submitted that the incident comprised a stressor which was responsible for the applicant’s posttraumatic stress disorder.
[6] (2005) AATA 413.
Another incident relied on by Mr Chalk for attributing posttraumatic stress disorder to service occurred on 17 August 1973 when the Yarra, having avoided the tropical storm Georgia, was returning to Hong Kong Harbour. The applicant was on duty in the radar room when the Yarra passed over a typhoon buoy which caused the mooring cable for the buoy to scrape along the keel of the Yarra and to cause damage to one of its propellers. The noise of the scraping action of the cable on the keel of the Yarra caused the applicant to fear for the ship and his personal safety, particularly because he could not swim. Mr Chalk submitted that this incident constituted a life-threatening event such that it caused the applicant to suffer from posttraumatic stress disorder which, accordingly, was defence-caused.
Mr Chalk submitted that the applicant’s alcohol dependence and depressive disorder are directly related to the posttraumatic stress disorder and are also defence-caused in that way. Mr Chalk further submitted that gastro-oesophageal reflux disease, diabetes mellitus, sleep apnoea and gout are defence-caused per medium of excessive alcohol consumption, consequential obesity and the taking of medication for posttraumatic stress disorder.
Mr Bruce Williams
For the respondent, Mr Williams submitted that, as the applicant has no independent recollection of seeing the hawser incident, he did not witness the incident. He also submitted that the incident with the mooring cable on the buoy was not a life-threatening event. While conceding that the applicant may suffer from posttraumatic stress disorder because of other aspects of his life, in particular his post-RAN service of 22 years with the Victorian Police Force, Mr Williams submitted that posttraumatic stress disorder was not defence-caused and that the remaining conditions claimed by the applicant to be related, directly or indirectly, to that condition were not attributable to defence-service.
EVIDENCE
RAN records
A copy of the Yarra’s Report of Proceedings for August 1973 was in evidence. It confirmed that a sailor was injured on 14 August 1973 in the hawser incident and that, by the end of that month, had made a “good recovery” and was to be evacuated to Australia.[7] The Report also noted damage to a propeller on 17 August 1973 after the vessel overran a buoy. The incident was confirmed in a report by Mr Brecht (Former RAN Commodore) who, for Writeway Research Service Pty Ltd, completed a report on 1 December 2010.
[7] Exhibit 1, T-documents, p. 313.
A statement of the applicant’s service record was in evidence. It records that the applicant was discharged from the RAN on 24 August 1975 “at his own request”.[8]
The applicant
[8] Exhibit 1. T-documents, p. 18.
The applicant has no recollection of the hawser incident. His references to it are taken from what he has read about it. On reading the Newlands case, he became aware that he had been aboard the Yarra when the hawser incident occurred. He said that his station as the Yarra was leaving Hong Kong would have been on the deck in proximity to the incident or in the radar room. He had no recollection of which of those two positions he had occupied when the hawser incident occurred. Neither does he have any recollection of his reaction to the incident when it happened. He believed that he had a repressed memory of it because he had made reference to it on occasions when he was heavily intoxicated, such as when he was in the company of friends on periodic fishing trips. They told him that he had spoken of it while intoxicated. They also told him of an occasion when he began to advance across the beach into deep water in what they believed was an apparent suicide attempt from which he was rescued when they realised what he was doing.
The applicant recalls the buoy incident. He heard a scraping sound as the Yarra passed across the buoy and feared that the Yarra may have hit a mine. He was in fear for the ship and for himself because he was not able to swim. He ran from the radar room where he had been on duty but was directed to return to his position. He did so and, in his evidence, said that, subsequently, he made no enquiry about what had occurred.
The applicant began to consume alcohol when he joined the RAN but increased this after the buoy incident. He was drinking heavily at the end of his RAN service and sought to change his mustering. He commenced training in alternate courses but did not complete them. He fell into disputes with RAN officers and decided to leave the RAN. He then joined the Victoria Police Force where he served for some 22 years, rising to the rank of detective sergeant. He continued until 1996 when he was unable to work because of psychiatric conditions. He left the police force in 1998 and was involved in compensation claims relating to his service.
Alcohol questionnaire
An undated alcohol questionnaire was in evidence. It was signed by the applicant. It declares that he commenced to consume alcohol on a regular basis in August 1972. The reason provided was:
Pressure from my mates to get on the grog. If I hadn’t done that I would have been a loner with no mates.[9]
His level of consumption at that time was described as 6 to 8 beers on 2 to 3 occasions per week with an increase, after the Hong Kong incident, “to the point where he would just drink to get drunk”.[10] He identified his signature on the alcohol questionnaire but could not recall completing it.
Eric O’Rourke, Brian Johnstone, Daryl Eyre
[9] Exhibit 1, T-documents, p. 22.
[10] Exhibit 1, T-documents, p. 23.
Mr O’Rourke, Mr Johnstone and Mr Eyre are friends of the applicant. They completed statutory declarations in September and October 2008. In which they referred to occasions when they would undertake recreational activity such as fishing trips with the applicant. Each of them wrote that, when heavily intoxicated, the applicant would refer to an incident in the RAN where a sailor was injured by a flying rope or a steel cable. They wrote that he had not referred to the incident while sober but, after learning of the incident in about 2007, spoke to them about it and was surprised to hear that he had previously recounted the incident to them.
Mr Johnstone also gave evidence. He recalled the occasion on one of the fishing trips when the applicant began walking into the sea and had to be pulled back to the beach. He said that this had occurred after he completed his statutory declaration. He agreed that he, the applicant and the others with him at that time, and when the applicant referred to the injured sailor, were intoxicated from alcohol consumption.
Medical evidence
Reports prepared in relation to the applicant’s claim under the Act were provided by psychiatrists Dr John Rogers, dated 21 October 2002, 17 June 2004, 7 October 2004, 16 April 2010, 8 November 2010, 23 September 2011, 16 August 2012 and an undated report received by the respondent on 5 October 2012; Dr Peter Mulholland, dated 27 May 2004; Dr Una Stephenson, dated 2 February 2010 and 21 September 2011; Dr George Mendelson, dated 8 June 2012, 14 September 2012 and 26 October 2012; and Dr Philip Morris, dated 11 January 2013. Dr Rogers, Dr Stephenson and Dr Mendelson also gave evidence.
Dr Rogers has treated the applicant since 2000. In his first report, he noted a motor vehicle accident at Cerberus in which the applicant was involved and also the buoy incident on the Yarra “which caused alarm and panic generally”.[11] He was not advised by the applicant of the hawser incident. Dr Rogers diagnosed the applicant with posttraumatic stress disorder which commenced after and because of the buoy incident. He noted that the applicant began to consume alcohol heavily from that time and that this continued during his subsequent police service where he experienced further life‑threatening and distressing events. In his second report, Dr Rogers described posttraumatic stress disorder and depression which he said were “principally relating to his work as a Detective in the Victorian Police Service”.[12] Dr Rogers identified the applicant as suffering from recurring dreams and flashbacks in respect of RAN and police events. In his report of 7 October 2004, he confirmed the relationship between posttraumatic stress disorder and the buoy incident about which he wrote:
In storm conditions in an enclosed operations room, as radar plotter, he became aware of a large metal object scraping the bottom of the boat. He had real reason to believe this may have been a mine and clearly was a threat to the life of him as well as the ship, particularly as in a watertight compartment he would have gone down with the vessel. Subsequently he became aware that this metal object was probably some sort of submerged emergency buoy but at the time he was unaware of this.[13]
Dr Rogers described a change in the applicant’s mental state and general functioning after the buoy incident. He also identified police service events, in particular the Russel Street bombing, which further caused a marked deterioration in the applicant’s mental state.
[11] Exhibit 1, T-documents, p. 24.
[12] Exhibit 1, T-documents, p. 139.
[13] Exhibit 1, T-documents, p. 232.
On 16 April 2010, Dr Rogers advised that he had been made aware of the hawser incident. He noted that the applicant had no memory of the incident. Dr Rogers’ opinion was that the memory had been repressed but made available in the circumstances where he spoke of it under the influence of alcohol in the company of his friends. He described disassociation and lack of memory as highly characteristic of posttraumatic stress disorder. In his next report, Dr Rogers confirmed his opinion that the applicant witnessed the hawser incident but that it had been dealt with by dissociative amnesia. He noted his recall of the incident when intoxicated and considered that the alcohol acted in a manner similar to that of intravenous drugs in older forms of treatment for traumatic amnesia where sedative hypnotic drugs allow memory to be recovered. Dr Rogers confirmed his opinions in his subsequent reports and in his evidence. He disagreed with the opinion of Dr Mendelson that psychogenic amnesia is incompatible with a diagnosis of posttraumatic stress disorder.
Dr Stephenson agreed with the opinion of Dr Rogers about the applicant’s dissociative memory concerning the hawser incident. While accepting that traumatic events during his police service contributed to the applicant’s posttraumatic stress disorder, her opinion was that “the seed had been planted” for this during his RAN service, although the memory was repressed by him. She conceded that the applicant had not described reactions of fear, helplessness or horror in relation to RAN events but said that this was because, at the time, he simply “got on with it” and took to drink.[14] She explained that servicemen were unable to display those feelings because it would be fatal for them. She wrote that the buoy incident was not a dangerous accident and that it caused the applicant “for a short while” to expect “the worst, that he was going to land in the water”. Dr Stephenson described as “stuff and nonsense” the opinion of Dr Mendelson that total amnesia in relation to an event, as opposed to amnesia about aspects of it, was inconsistent with a diagnosis of posttraumatic stress disorder. Dr Stephenson wrote that she and the applicant had been able to “put together a tale which begins to make sense”.[15]
[14] Exhibit 1, T-documents, p. 156.
[15] Exhibit 1, T-documents, p. 155.
Dr Morris completed a report in 1996 where he diagnosed posttraumatic stress disorder on the basis of the applicant’s police service. In his recent report in 2013, he noted the incidents on RAN service which had not been revealed to him earlier. He was not supportive of the applicant’s posttraumatic stress disorder being related to his RAN service.
In preparing his reports, Dr Mendelson reviewed the various psychiatric reports completed in relation to the applicant’s police service and the diagnosis of posttraumatic stress disorder which was related to aspects of that service. He also noted the applicant’s RAN records and the examination by an RAN psychologist in May 1975 before his free discharge, the Writeway report noted above and the case of Newland which, on being accessed by the applicant, made him consider the impact on him of the hawser incident.
Dr Mendelson concluded that there was no basis for the view that the applicant had symptoms of posttraumatic stress disorder or of depression when he was discharged from the RAN. His opinion was that there was no record of the heavy alcohol consumption claimed by the applicant after the events of July 1973 on the Yarra and he noted the reference in a previous Tribunal hearing where the applicant was described as having an “illustrious career with the Victorian police”.[16] As to the diagnosis of posttraumatic stress disorder, Dr Mendelson wrote:
The essential feature of Posttraumatic Stress Disorder is the persistence of traumatic memories; it is due to this essential manifestation of this condition that Posttraumatic Stress Disorder is a “disorder of memory” because of the person’s inability to overcome the emotions evoked by the intrusive recollection of the traumatic event that can be triggered by reminders or occur spontaneously. It is for this reason that DSM-IV-TR refers to possible “amnesia” for “aspects” of the event, as total amnesia for the event would, by definition, exclude the diagnosis of Posttraumatic Stress Disorder.[17]
[16] Exhibit 2, p 3.
[17] Exhibit 2, p 6.
In his evidence, Dr Mendelson confirmed his opinion and acknowledged that he had read Dr Rogers’ latest reports. He accepted that the applicant suffered from posttraumatic stress disorder but concluded that it was attributable to the events which occurred to him during his service with the Victoria Police.
Dr Mulholland, in his report, noted the applicant’s compensation claims in relation to posttraumatic stress disorder from his police service and also was aware of the buoy incident. His opinion was that the applicant suffered from posttraumatic stress disorder but this was not related to aspects of his RAN service.
In evidence were reports prepared in relation to the applicant’s claims for compensation as a result of psychiatric conditions attributable to his Victoria Police service. These were from Dr Arthur Klepfisz, dated 4 September 1996, 22 November 1996 and 16 December 1997; Dr Morris, dated 19 August 1996; and Dr Ian Parkin dated 2 July 1997.
In his report, Dr Morris diagnosed posttraumatic stress disorder on the basis of the following incidents that occurred while the applicant was serving with the Victoria Police: being in the building when the bombing occurred at Russel Street in 1987, being a close associate of one of the two police officers who were shot in 1988, being asked to attend a cot death, attending a series of fatal motor vehicle accidents, the cot death of his own daughter, and being involved in a car chase of armed robbers, that resulted in the death of an accomplice.
In his first report, Dr Klepfisz referred to the report of Dr Morris and reiterated the work‑related stressors responsible for the applicant’s posttraumatic stress disorder. He also noted some non-work related stressors such as the death of the applicant’s daughter. Dr Klepfisz noted that the applicant described recurrent dreams to him and that these were associated with aspects of his police work. He also noted the applicant’s reference to commencing heavy drinking after “pulling out the first body from a car”.[18]
[18] Exhibit 1, T-documents, p. 188.
The applicant’s treating doctor, Dr B Bennett, completed a report, dated 18 September 2007, in which he noted that the applicant was obese from 2001. He attributed this to the medication the applicant took for posttraumatic stress disorder and to an inability to exercise because of his feet.
STATEMENTS OF PRINCIPLES
The Statements of Principles relevant to the applicant’s claim, factors relied upon and associated definitions are:
Instrument No. 6 of 2008 for posttraumatic stress disorder
Diagnostic criteria 3(b): For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
Factor 6(a): experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;Factor 6(b): experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eye witness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;"an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident;
Instrument No. 2 of 2009 for alcohol dependence
Factor 6(a): having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
Factor 6(b): experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or
Factor 6(c): experiencing a category 1B stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse;
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
For category 1A stressor, category 1B stressor and eyewitness, see above.
Instrument No. 28 of 2008[19] for depressive disorder
[19] As amended by Instrument No. 41 of 2010 in a manner not material to this matter.
Factor 6(a)(i): experiencing a category 1A stressor within the two years before the clinical onset of depressive disorder; or
Factor 6(a)(ii): experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder; or
Factor 6(a)(vi): having a clinically significant psychiatric condition within the one year before the clinical onset of depressive disorder;
For category 1A stressor, category 1B stressor, clinically significant psychiatric condition and eyewitness, see above.
Instrument No. 12 of 2005 for gastro-oesophageal reflux disease
Factor 5(b): being obese at the time of the clinical onset of gastro-oesophageal reflux disease; or
Factor 5(d): consuming an average of at least 500 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease;“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of thirty or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink
Instruments No’d 12 of 2004[20] and 90 of 2011 for diabetes mellitus
[20] As amended by Instrument No. 10 of 2008 in a manner not material to this matter.
Factor 5(a) of Statement of Principles 12 of 2004: in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus;
For being obese, see above.
Factor 6(b)(i) of Statement of Principles 90 of 2011: being overweight for a period of at least five years before the clinical onset of diabetes mellitus;
Factor 6(b)(xi) of Statement of Principles 90 of 2011: having depressive disorder…at the time of the clinical onset of diabetes mellitus;
"being overweight" means an increase in body weight by way of fat accumulation which results in at least one of the following:
(i) a Body Mass Index (BMI) of 25 or greater; or
(ii) a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;
The BMI = W/H2 and where: W is the person’s weight in kilograms and H is the person’s height in metres;
Instruments No’d 14 of 2005 and 42 of 2013 for sleep apnoea;
Factor 5(b) of Statement of Principles 14 of 2005 and Factor 6(a)(ii) of Statement of Principles 42 of 2013[21]: being obese at the time of the clinical onset of sleep apnoea;
For being obese, see above.
Instruments No’d 12 of 2000[22] and 31 of 2010 for gout
Factor 5(c) of Statement of Principles 12 of 2000 and factor 6(c) of Statement of Principles 31 of 2010: being obese at the time of the clinical onset of gout;
Factor 5(f) of Statement of Principles 12 of 2000: drinking at least 220kg of alcohol (contained within alcoholic drinks) within the ten years immediately before the clinical onset of gout;
Factor 6(f) of Statement of Principles 31 of 2010: consuming an average of at least 200 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of gout;
Factor 6(g) of Statement of Principles 31 of 2010: consuming at least 70 grams of alcohol within the 24 hours before the clinical onset of gout;
For alcohol, see above.
For being obese, see above.
[21] Both of these Statements of Principles identify alcohol consumption as a factor but only for the worsening of the condition, a matter not relied on by the applicant.
[22] As amended by Instrument No. 44 of 2003 in relation to the definition of being obese.
Clinical Onset
Each of the factors in the Statements of Principles requires consideration of the concept of clinical onset, in the context of the applicant’s posttraumatic stress disorder. In Kaluza v Repatriation Commission (Kaluza),[23] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission,[24] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. [25]
[23] [2010] FCA 1244.
[24] (2002) 125 FCR 331.
[25] [2010] FCA 1244 at [92], [93].
It is not in dispute that the applicant’s alcohol dependence, depressive disorder, gastro-oesophageal reflux disease, diabetes mellitus, sleep apnoea, obesity and gout had their clinical onset after he developed his posttraumatic stress disorder and were, directly or indirectly, associated with that condition.
CONSIDERATION
The applicant’s case rests on the issue of whether his posttraumatic stress disorder is defence-caused. This was conceded by Mr Chalk. Clearly, on that issue, there is conflict in the psychiatric evidence. The diagnostic criteria for posttraumatic stress disorder are set out above in criteria A to D in s 3(b) of the Statement of Principles.[26] Criterion A requires that the applicant:
(i)was exposed to a traumatic event in which he experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and
(ii)his response involved intense fear, helplessness, or horror.
[26] Instrument No. 6 of 2008.
In relation to the hawser incident, Dr Rogers is supported by Dr Stephenson in his opinion that the applicant has posttraumatic stress disorder because he witnessed that incident but repressed the memory of it. Dr Mendelson’s evidence was that complete amnesia about an event, as opposed to partial amnesia, is inconsistent with posttraumatic stress disorder. In that, I prefer the opinion of Dr Mendelson. His well-reasoned, objective analysis contrasted with that of the treating psychiatrist Dr Rogers and also that of Dr Stephenson who, at a point in her evidence, declared that she and the applicant had been able “to put together a tale” which began to make sense. I have noted the evidence of Mr O’Rourke, Mr Johnstone and Mr Eyre. This provided only vague references to a rope or cable incident and did not, on the balance of probabilities, refer to the hawser incident. It would also seem that all of them, as well as the applicant, were operating under the influence of alcohol at the relevant times. Also, I am satisfied that the second element of criterion A has not been made out on the evidence in that there is no evidence of the applicant’s required reaction to the incident. Surprisingly, Dr Stephenson’s evidence was that a serviceman in the field would never be able to experience intense fear, helplessness, or horror and yet that is an essential element of the diagnostic criteria.
In relation to the buoy incident, it is not disputed that the applicant witnessed it. Dr Rogers’ opinion was that the applicant’s reaction to this was sufficient to meet the response element of the diagnostic criteria. However, the basis on which he reached that conclusion is not supported by the evidence before me. He concluded that the Yarra was operating in stormy weather and that the applicant had “real reason to believe” that the Yarra had hit a mine.[27] He also described the incident as causing “alarm and panic generally” and providing the crew of the Yarra with “very serious grounds for believing the boat and their lives were at risk”.[28] The Yarra was not operating in stormy conditions and was entering Hong Kong Harbour after avoiding a storm; there is no evidence that anyone had “reason to believe” that the entry to the harbour was mined or that there was general alarm and panic among the crew or fear that their lives were at risk. Dr Rogers’ opinion is not supported by Dr Mulholland, Dr Mendelson or Dr Morris and I am reasonably satisfied that the reaction of the applicant to the buoy incident was not in accordance with criterion A(ii) of the Statement of Principles.[29]
[27] Exhibit 1, T-documents, p. 232.
[28] Exhibit 1, T-documents, p. 24.
[29] Instrument No 6 of 2008.
Even if the diagnostic criteria for posttraumatic stress disorder were met in relation to aspects of the applicant’s RAN service, I am reasonably satisfied that he did not experience a category 1A or 1B stressor as these terms are defined in the Statements of Principles for posttraumatic stress disorder, alcohol dependence and depressive disorder. In relation to the hawser incident, I am reasonably satisfied, on the basis of the applicant’s complete absence of memory of that incident, that he did not “experience” a category 1A stressor, which includes the “experiencing” of a life-threatening event. Also on the complete absence of memory of that incident, I am reasonably satisfied that he did not “experience” a category 1B stressor, which includes a maiming and, in other cases, being an “eyewitness” able to give direct evidence of the event.
Posttraumatic stress disorder
Factors 6(a) and 6(b) of the Statement of Principles for posttraumatic stress disorder are not met and I am reasonably satisfied that posttraumatic stress disorder did not arise out of and is not attributable to the applicant’s defence service. The psychiatric evidence is to the effect that he does suffer from posttraumatic stress disorder but that it is attributable to factors unrelated to his defence service.
Alcohol dependence
Factors 6(b) and 6(c) of the Statement of Principles for alcohol dependence are not met. Further, as posttraumatic stress disorder and, as referred to below, depressive disorder are not attributable to the applicant’s defence service, factor 6(a) of the Statement of Principles for alcohol dependence is not met. I am reasonably satisfied that alcohol dependence did not arise out of and is not attributable to the applicant’s defence service.
Depressive disorder
Factors 6(a)(i) and 6(a)(ii) of the Statement of Principles for depressive disorder are not met. Further, as posttraumatic stress disorder and alcohol dependence are not attributable to the applicant’s defence service, factor 6(a)(vi) of the Statement of Principles for depressive disorder is not met. I am reasonably satisfied that depressive disorder did not arise out of and is not attributable to the applicant’s defence service.
Gastro-oesophageal reflux
There is evidence that the applicant is obese but Dr Bennett attributed this to medication for his posttraumatic stress disorder and to his inability to exercise because of problems with his feet. Neither of those conditions has been determined to be related to the applicant’s defence service and, accordingly, his obesity is unrelated to his defence service. For that reason, factor 5(b) of the Statement of Principles for gastro-oesophageal reflux is not met. Factor 5(d) of that Statement of Principles refers to a level of alcohol consumption. Alcohol dependence is not a defence caused condition and there was no evidence that the continued consumption of alcohol until the onset of gastro-oesophageal reflux is related to any aspect of his RAN service. Factor 5(d) of that Statement of Principles is not met and I am reasonably satisfied that gastro-oesophageal reflux did not arise out of and is not attributable to the applicant’s defence service.
Diabetes mellitus
While the applicant meets the requirements of the Statement of Principles for being obese, I have determined that this is not related to his defence service. I am reasonably satisfied that such is also the case for his being overweight. Depressive disorder is not a defence caused condition in the applicant. It follows that the requirements of the two Statements of Principles, noted above, for diabetes mellitus are not met and I am reasonably satisfied that the applicant’s diabetes mellitus did not arise out of and is not attributable to his defence service.
Sleep apnoea
The applicant’s obesity is unrelated to his defence service and, accordingly, factor 5(b) of Instrument No. 14 of 2005 and factor 6(a)(ii) of Instrument No. 42 of 2013 are not met. I am reasonably satisfied that the applicant’s sleep apnoea did not arise out of and is not attributable to his defence service.
Gout
The applicant’s obesity is not related to his defence service and, accordingly, factor 5(c) of Instrument No. 12 of 2000 and factor 6(c) of Instrument No. 31 of 2010 are not met. As noted above, alcohol dependence is not a defence caused condition in the applicant and there was no evidence that the continued consumption of alcohol until the onset of gout is related to any aspect of his RAN service. It follows that factor 5(f) of Instrument No. 12 of 2000 and factors 6(f) and 6(g) of Instrument No. 31 of 2010 are not met. I am reasonably satisfied that gout did not arise out of and is not attributable to the applicant’s defence service.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ................[Sgd]........................................................
Associate
Dated 25 July 2013
Dates of hearing 29 and 30 April 2013, 11 July 2013 Representative for the Applicant Mr David Chalk For the Respondent Mr Bruce Williams, Departmental Advocate
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