Nielsen and Repatriation Commission
[2008] AATA 777
•1 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 777
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600186
VETERANS' AFFAIRS DIVISION ) Re GARRY NIELSEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date1 September 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Egon Fice
Member
VETERANS AFFAIRS – operational service in Vietnam – depressive disorder – alcohol abuse – diagnosis based on DSM IV – date of clinical onset – application of current SoP – opinion evidence – inconsistent evidence at VRB – sub-hypothesis based on ischaemic heart disease ‑ smoking
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327
Byrnes v Repatriation Commission (1993) 177 CLR 564
McKenna v Repatriation Commission [1999] FCR 323
REASONS FOR DECISION
1 September 2008 Mr Egon Fice, Member 1. Mr Garry Nielsen served with the Royal Australian Navy (the Navy) between 1963 and 1969. He served in Malaysia and Singapore and in Vietnam between 6 and 8 June 1966. This qualifies as operational service under the Veterans’ Entitlements Act 1986 (the VE Act). He has a number of medical conditions which the Repatriation Commission (the Commission) has accepted as being service related, including ischaemic heart disease on 11 May 1999. However, the Commission rejected his claims for the disability pension because of depressive disorder and alcohol abuse, on the basis that those conditions were not related to his service.
2. Following a review of the Commission’s decision on 14 July 2004, the Veterans’ Review Board (VRB) also rejected Mr Nielsen’s claims that his depressive disorder and alcohol abuse were war-caused as that term is defined in the VE Act. Mr Nielsen seeks review of that decision before this Tribunal.
3. There is no dispute about diagnoses and the only issue which I need to decide is whether Mr Nielsen’s depressive disorder and alcohol abuse arose out of his operational service.
RELEVANT BACKGROUND
4. Mr Nielsen was born in Bendigo on 24 November 1944. He joined the Navy on 1 July 1963. After his initial recruit training at HMAS Cerberus (Cerberus) he entered the Communications Branch and completed specialist courses before joining HMAS Derwent (Derwent) in April 1964. He was promoted to the rank of Tactical Operator on 16 May 1965.
5. Mr Nielsen had operational service on‑board Derwent and HMAS Teal (Teal) in Malaysia and Singapore between December 1964 and July 1966. In addition, he also had operational service between 6 and 8 June 1966 when Derwent escorted the troop transport HMAS Sydney (Sydney) into Vung Tau Harbour. This was along with another escort HMAS Vendetta (Vendetta). According to Mr Nielsen, it was while Derwent was anchored in harbour at Vung Tau that he experienced an event which he said caused his depressive disorder and alcohol abuse.
6. In late 1996 or early 1997, Mr Nielsen was diagnosed as suffering from ischaemic heart disease which led to him having an operation for the insertion of stents in 1997.
LEGISLATIVE SCHEME
7. Section 9 of the VE Act provides that, subject to s 9A (which does not apply in this case):
… an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, by the veteran:
(i)…
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
8. Section 13(1) of the VE Act provides that:
(1)Where:
(a)…
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
9. No issue arises in this case about Mr Nielsen satisfying the definition of Veteran under s 5C of the VE Act, having rendered eligible war service which is defined in s 7 to include operational service. Mr Nielsen’s service in Vietnam was clearly operational service.
10. Section 120 of the VE Act sets out the standard of proof which must be established to enable a determination to be made that the injury, disease or death of the veteran was war-caused. Section 120(1) of the VE Act requires a finding, where operational service was rendered by the veteran, that the injury, death or disease of the veteran was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Given Mr Nielsen rendered operational service, s 120(1) applies to his claim for the purposes of establishing the causal connection between his war service and his depressive disorder and alcohol abuse.
11. Section 120(3) of VE Act, which must be considered when applying s 120(1), requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that an injury, disease or death was war-caused if, after considering the material before it, the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran. A hypothesis is a proposition made as a basis for reasoning without the assumption of its truth. To determine whether the hypothesis or proposition is reasonable, where claims are made on or after 1 June 1994, s 120A of VE Act must be applied. In particular, s 120A(3) provides that, for the purposes of s 120(3), a hypothesis connecting an injury, disease or death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP), determined under s 196B(2) or (11) of VE Act, which upholds the hypothesis. Section 120A(3) does not apply in relation to a claim for incapacity resulting from injury or a disease, or death of a person where the Repatriation Medical Authority (RMA) has neither determined an SoP under s 196B(2) nor declared that it does not propose to make an SoP in respect of the kind of injury, disease or death, as the case may be.
12. The method by which s 120(1), s 120(3) and s 120A(3) are to be applied was explained by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82. There Beaumont, Hill and O’Connor JJ said:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
DIAGNOSES AND CLINICAL ONSET
Depressive disorder
13. The authorities establish that where there is an issue as to whether a veteran is suffering from a claimed injury or disease, the Tribunal must decide that issue to its reasonable satisfaction, as required, by s 120(4) of the VE Act (Benjamin v Repatriation Commission (2001) 34 AAR 270 at 282; Repatriation Commission v Cooke (1998) 90 FCR 307 at 301-311; Repatriation Commission v Budworth (2001) 116 FCR 200 at 204-205 and Repatriation Commission v Hill (2002) 69 ALD 581 at 598-599). The phrase used in s 120(4), …decide the matter to its reasonable satisfaction, was comprehensively dealt with by the Full Court in Repatriation Commission v Smith (1987) 15 FCR 327 at 334-335. There, Beaumont J, with whom Northrop and Spender JJ agreed, said at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation. …
This means that I am required to decide the question of diagnosis on the balance of probability.
14. The earliest psychiatric report in evidence is that of Dr John Bomford, who saw Mr Nielsen for some 90 minutes in October 1999. After examination, Dr Bomford said:
He presented [Mr Nielsen] as a solidly built man who gave off an air of self‑confidence. There was no evidence of anxiety or depression. He confessed to poor memory for recent and past events. And a fear that he might be subject to Alzheimer’s Disease like his mother and maternal grandmother.
His recording of his past history belied the subjective impression. His memory and concentration were excellent.
15. Dr Bomford’s psychiatric report stands in stark contrast to subsequent psychiatric reports provided by Dr Christopher J Percival and Dr Nigel Strauss, both of whom are psychiatrists.
16. In his first report dated 22 June 2004 Dr Percival said that:
Mr Nielsen presented as an unremarkable fifty-nine year old man who showed no signs of psychiatric disorder on interview, but who clearly and believably described a story of psychiatric morbidity going back to the early 1970s.
Dr Percival recorded a history of a distinct lowering of mood by the mid-1970s; a deterioration in the early 1980s followed by some plateauing; and then a change again in 1997 when he was diagnosed with ischaemic heart disease. Further, Dr Percival recorded that Mr Nielsen rapidly increased his alcohol intake following the diagnosis of ischaemic heart disease. Dr Percival was of the view that there was an Axis Ι diagnosis of major depressive disorder, recurrent according to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (a handbook for mental health professionals that lists different categories of mental disorders and the criteria for diagnosing them, published by the American Psychiatric Association) (DSM IV 296.3) and alcohol abuse (DSM ΙV 305.00). Dr Percival did not suggest a particular date of clinical onset.
17. Dr Percival examined Mr Nielsen again on 2 November 2004 and provided a report in which he indicated that he had continued to see Mr Nielsen after June 2004 on a therapeutic basis, having seen him on five occasions since the first assessment. In his report on this occasion, Dr Percival said there was a picture of ongoing recurrent depressive illness which had fluctuated in its intensity over the years since the middle of the 1970s. He also said there had been an increase in Mr Nielsen’s alcohol intake in association with the course of his depressive illness. He was of the view there was a clinical worsening of the depressive disorder following Mr Nielsen’s diagnosis of ischaemic heart disease.
18. Dr Percival re-assessed Mr Nielsen on 8 March 2005. In this report Dr Percival noted that Mr Nielsen had been assessed by a psychiatrist immediately prior to his discharge from the Navy as unfit for naval duties.
19. At the request of the Commission, Mr Nielsen was examined by Dr Strauss on 27 March 2007. Dr Strauss reported that Mr Nielsen:
… showed no evidence of any concentration or memory problems at interview, although his recollection of dates was a little vague. His thinking was negative but there was no evidence of any psychosis or delusion or thought disorder. …
Dr Strauss noted that after Mr Nielsen was diagnosed with heart problems, his psychological state deteriorated and he became increasingly anxious and depressed. Dr Strauss was of the opinion that Mr Nielsen had a depressive condition or disorder and that he suffered from a substance abuse disorder. Dr Strauss was of the view that Mr Nielsen’s depression commenced when his first marriage floundered. He said there was no evidence to suggest Mr Nielsen was depressed while he was in the Navy but he accepted that he was a heavy drinker at that time. He was of the view that Mr Nielsen’s depression started after he left the Navy and his depression was aggravated by the diagnosis of heart disease at a later time. Although Dr Strauss provided a follow-up report on 10 October 2007, he did not alter his prior opinion.
20. Having considered the evidence of Dr Percival and Dr Strauss, I am satisfied, on the balance of probability, that Mr Nielsen suffers from a depressive disorder. The date of clinical onset of this condition is more difficult to determine. Dr Bomford was very firmly of the view that there was no evidence of anxiety or depression in 1999. However, Dr Percival and Dr Strauss were of the view that when they examined Mr Nielsen, he was suffering from depression. Both agreed that when Mr Nielsen was diagnosed with ischaemic heart disease, his level of depression certainly increased, if it was not brought on by that condition. Although Dr Percival referred to a psychological examination conducted in 1969 which resulted in Mr Nielsen’s discharge from the Navy, there is nothing in the report dated 24 February 1969 which indicates Mr Nielsen was suffering from depression.
21. The problems Mr Nielsen experienced at that time seemed to relate to his first marriage and the psychiatric problems which his wife was experiencing. There was also reference to him not liking taking silly orders. The interviewer described him as being forceful in his arguments and generally on edge. The report indicates that Mr Nielsen’s concern at that time was about going overseas as the ship to which he had recently been posted, was due to sail soon. It was his attitude of dissatisfaction with the service and his lack of interest in seeking promotion which ultimately resulted in his discharge being recommended. Dr Percival’s opinion was that the onset of Mr Nielsen’s depressive symptomology was in the mid 1970s. This was some five or six years after his discharge from the Navy. Therefore, although it is rather imprecise to speak about the date of clinical onset of depression in this case, I am satisfied that Mr Nielsen suffers from a major depressive disorder the clinical onset of which was in the mid 1970s.
Alcohol Abuse
22. The diagnosis of alcohol abuse is not so clear. Dr Bomford made no mention at all about alcohol abuse in his report. Mr Nielsen’s medical records for the period of his Navy service also make no mention of alcohol abuse. However, they do record that Mr Nielsen was involved in a fight in 1964. There is also mention of him having sustained a laceration to his right hand as a result of a broken bottle. Dr Percival’s evidence was that during his early years in the Navy, Mr Neilson would frequently not avail himself of his total alcohol ration while at sea. However, after developing a psychiatric morbidity, Dr Percival noted there was an increase in Mr Nielsen’s alcohol intake and in the years immediately prior to discovery of his ischaemic heart disease, he was drinking substantial quantities of alcohol on each weekend. Dr Percival also said that following Mr Nielsen’s diagnosis of ischaemic heart disease there was rapid increase in alcohol intake. While Dr Percival said that he diagnosed alcohol abuse in accordance with DSM IV, he has not addressed any of the factors which would establish such a diagnosis.
23. The same can be said for Dr Strauss. According to Dr Strauss, Mr Nielsen was not a drinker of alcohol when he joined the Navy but after doing so, and realising that everybody else did so, he began to drink heavily. He said heavy drinking occurred particularly on weekends when Mr Neilson was off duty. Although alcohol was limited at sea, there was a lot of binge drinking when the sailors were on shore. Again, Dr Strauss makes no mention at all of the diagnostic criteria in DSM IV for alcohol abuse. Dr Strauss said in his report that Mr Nielsen continued to suffer from a substance abuse disorder and that there was no evidence to suggest that the substance abuse disorder worsened after his heart condition was diagnosed. However, this is directly contrary to what Dr Percival said in his first report. Dr Strauss was of the opinion that Mr Nielsen’s substance abuse disorder started while he was in the Navy. Merely being a heavy consumer of alcohol does not amount to a person suffering from alcohol abuse. There was no evidence before me which would indicate that Mr Nielsen’s alcohol abuse resulted in a failure by him to fulfil his obligations at work or at home. There was no evidence of recurrent substance abuse in situations which were physically hazardous; recurrent substance related legal problems; or continued substance abuse despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the affects of the substance.
24. In the absence of any evidence that Mr Nielsen meets any of the diagnostic criteria set out in DSM IV for substance abuse, I cannot find, on the balance of probability, that Mr Nielsen suffers from alcohol abuse.
MAJOR DEPRESSIVE DISORDER – REASONABLE HYPOTHESIS
25. In accordance with what the Full Court said in Deledio, the first step I must take is to consider all of the material before me to determine whether it points to a hypothesis connecting Mr Nielsen’s major depressive disorder with the circumstances of his operational service in Vietnam.
26. Mr Nielsen recounted an incident which took place when he was on‑board Derwent and it was anchored in Vung Tau Harbour, having escorted Sydney to that port. He said that one evening he was on‑board one of the ship’s boats which were being used to patrol around the Derwent for the purpose of fending off any divers that might be attempting to attach mines to the ship. He said there were three men on‑board the ship’s boat and the boat was equipped with a searchlight. Quite unexpectedly, according to Mr Nielsen, a fairly large blue wooden hulled boat with a large eye painted on it came out of the darkness. It was not showing any navigation lights. He said the Coxswain hailed the vessel asking it to identify itself and warning that if it did not, it would be fired upon. There was no response from the vessel and he then said that all of the seamen on‑board the ship’s boat were ordered to fire upon the vessel as it passed between Derwent and the ship’s boat. The vessel did not stop. Mr Nielsen said he was extremely frightened because he perceived a threat of an attack when the vessel did not stop. He said that the vessel was of a kind that a family would have lived upon, as it was a common vessel in South-East Asian waters. He did not know if anyone had been injured or killed as a result of the gunfire. That the gunfire may have injured some people on‑board the vessel, including children, has worried him ever since.
27. In my opinion, the material before me satisfies the first step described in Deledio: that is, the material points to a hypothesis connecting Mr Nielsen’s major depressive disorder with the circumstances of his operational service.
DEPRESSIVE DISORDER – STATEMENT OF PRINCIPLES
28. The current SoP concerning depressive disorder is No 27 of 2008. It came into effect on 5 March 2008. Prior to that, the SoP concerning depressive disorder was No 17 of 2007, which came into effect on 10 January 2007. As Mr Nielsen’s claim was lodged on 14 May 2004, SoP No 58 of 1998 concerning depressive disorder may also be relevant. It came into effect on 3 September 1998. This satisfies the second step described in Deledio.
WHETHER MR NIELSEN’S HYPOTHESIS IS REASONABLE
29. In accordance with the third step in Deledio, there being in force a SoP dealing with depressive disorder at the time of Mr Nielsen’s claim, I am required to form an opinion whether the hypothesis raised is a reasonable one. It will be reasonable if it is consistent with the template found in the relevant SoP. The hypothesis must contain one or more of the factors which the RMA has determined to be the minimum which must exist and must be related to the veteran’s service (as required by s 196B(2)(d) and (e) of the VE Act). Only if the hypothesis fits within the template will it be deemed reasonable.
30. The correct approach to be adopted where the SoP which was current at the time the application was made, has subsequently been superseded, was set out by the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321. In that case, Allsop J, with whom Emmett J agreed, said, at pages 334-335:
… That is, while I recognise that Keeley stands for the proposition that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission's decision despite the later revocation of that earlier SoP, Keeley does not stand for the proposition that the SoP in force at the date of the Tribunal hearing must not be applied.
31.Allsop J concluded, at page 336;
[65] If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission's decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley: by reference to the repealed SoP. This is not a right of "election". It is a sequential approach mandated by a combination of the Act and the Full Court's decision in Keeley.
32. The effect of the decision in Gorton is that I am required to first apply the current SoP, No 27 of 2008, to Mr Nielsen’s depressive disorder claim. If his hypothesis is upheld by that SoP, I need not examine whether it is upheld by any of the SoPs which preceded No 27 of 2008. If, however, Mr Nielsen’s claim is not upheld by that instrument, I should then assess his hypothesis under Instrument No 17 of 2007. Likewise, if Instrument No 17 of 2007 does not assist Mr Nielsen, then I should examine Instrument No 58 of 1998 in order to determine whether Mr Nielsen’s claim fits within the template set out in that SoP.
33. Mr Nielsen relied on the following factors set out in SoP No 27 of 2008 concerning depressive disorder:
(a)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
(b)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder;
(c)experiencing a category 2 stressor within one year before the clinical onset of depressive disorder; and
(d)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder.
34. A category 1A stressor is defined in the SoP as follows:
“a category 1A stressor” means one or more 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;
35. A category 1B stressor is defined in the SoP:
“a category 1B stressor” means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
36. According to Dr Percival, the clinical onset of Mr Nielsen’s depressive disorder was in about the mid-1970s. Dr Percival could not be more precise about that. The fact is the incident described by Mr Nielsen in Vung Tau Harbour occurred between 6 and 8 June 1966. Therefore, to satisfy the definitions set out in SoP No 27 of 2008 concerning depressive disorder, Mr Nielsen would need to have a finding that the clinical onset of that disorder was no later than 1971. Nevertheless, given the difficulty that is experienced with the passage of time and with the diagnosis in these types of cases, and taking into account the beneficial nature of this legislation, I am prepared to accept that the clinical onset of Mr Nielsen’s depressive disorder fell within the five year period described in the SoP.
37. I am also satisfied, and I therefore find, that the event described by Mr Nielsen in Vung Tau Harbour was a life-threatening event. I am not satisfied that Mr Nielsen suffered a category 1B stressor, in that he was not eyewitness to a person being killed or critically injured; nor was he involved in the killing or maiming of a person.
38. There is no evidence that Mr Nielson experienced a category 2 stressor within one year before the clinical onset of depressive disorder.
39. The SoP for depressive disorder No 17 of 2007 has a similar time frame to that expressed in the current SoP and it does not offer any further assistance to Mr Nielsen. Likewise, the SoP concerning depressive disorder, No 58 of 1998, is unhelpful to him. It contains a more restrictive time frame regarding the experiencing of a severe psycho-social stressor which is within two years immediately before the clinical onset.
40. Therefore, as Mr Nielsen does appear to meet the criterion of experiencing a category 1A stressor within five years before the clinical onset of depressive disorder, it cannot be said that the hypothesis fails to fit within the template. I therefore find that the hypothesis raised by Mr Nielsen is reasonable.
SATISFACTION BEYOND REASONABLE DOUBT THAT INCAPACITY DID NOT ARISE FROM WAR-CAUSED INJURY
41. It is at this point in the analysis that I am required to make findings of fact from the material before me in support of Mr Nielsen’s claim. I am required to find in favour of Mr Nielsen unless I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis is disproved, either by proof beyond reasonable doubt that a fact, or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact inconsistent with the hypothesis (see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 567).
42. There are some significant problems with the account Mr Nielsen has given of the incident in Vung Tau Harbour in June 1966. Derwent’s Report of Proceedings for the month of June 1966 records that Vendetta and Derwent escorted Sydney into Vung Tau Harbour, anchoring at 1600 hours. The ship’s company remained at defence stations and assumed Awkward State 2 while Sydney unloaded. Sydney lent a Zodiac dinghy to Derwent to assist with bottom searches, enabling Derwent to contribute to the constant boat patrol which was maintained around the anchorage. At 0800 hours on Wednesday 8 June 1966 Derwent weighed anchor in company with Vendetta and carried out a search before both ships screened Sydney as she left Vung Tau Harbour at 1320, escorting that ship to the south. There is nothing in the Report of Proceedings of Derwent over that period of time which suggests any incident occurred while Derwent was in Vung Tau Harbour between 6 and 8 June 1966. The Report of Proceedings of Sydney and Vendetta were also unremarkable during that period.
43. In a written report, Commodore AHR Brecht (Retired) of Writeway Research Service offered his opinion about the way in which security duties were conducted around ships anchored in Vung Tau Harbour. While I do not mean in any way to be disparaging of what Commodore Brecht says in his report, he was not present on any of the ships in Vung Tau Harbour during the period in question. Therefore, much of his evidence is purely speculative and is based on his experience with that type of operation. The opinions he has offered in relation to this matter frequently include phrases such as would have been. That is plainly speculative and has no evidentiary value at all. Likewise, Commodore Brecht’s statements about what was standard practice on‑board ships entering Vung Tau Harbour has little evidentiary value. What in fact occurred on the two days in question may not bear any resemblance to standard practice.
44. On the other hand, some of the research material provided by Commodore Brecht is of evidentiary value. The Reports of Proceedings, for example, are significant and their failure to record any incident of significance weighs heavily against Mr Nielsen’s evidence of the event. Although Mr Nielsen said in evidence that the other two seaman who were on‑board the motor-cutter (or more likely the Zodiac dinghy) started shooting at the boat when it was spotted and failed to stop, nobody reported that incident. That in itself is inconceivable in an operational area where, logically, intelligence of this kind is vital for the protection of all service personnel in the vicinity. Coupled with that evidence was the fact that the vessel in question passed between the motor-cutter and the Derwent when the shots were fired. In other words, the shots were directed towards the Derwent or, at least, in the Derwent’s direction. Although Mr Nielsen suggested that nobody on‑board the Derwent would have heard the shots due to generators and the like running on the ship, he did accept the fact that watches would have been posted on the ship. Again, it is logically inconceivable that a watch posted on‑board the Derwent in the circumstances stated by Mr Nielsen would not have heard gunfire from a range of some 200 metres. Had that been the case, I have no doubt whatsoever that all the ships in Vung Tau Harbour would have been alerted to the potential danger and that would have been recorded in at least one of the ships’ Report of Proceedings.
45. There is one other significant problem with Mr Nielsen’s account of the events he has described. In his evidence before this Tribunal, he said that the other sailors on‑board the motor-cutter fired at the vessel. Although he said that he was armed with a Smith & Wesson pistol, he did not fire upon the vessel. He was cross‑examined about this and maintained that he did not believe that he did. The problem is that in his evidence given to the VRB on 23 February 2006, when asked whether all members on‑board the cutter opened fire he said:
Well, I wasn’t looking at the others, but yes, I know I did and I known [sic], because all I had was a pistol.
He was also asked whether he thought he hit the vessel and he said he thought he did. The fact that his evidence changed dramatically between that date and the date of the hearing is extremely troubling. When asked why he had changed his mind, he simply said that he was almost certain now that he had not fired, although at the time he thought that he had. Again, that does not accord with the evidence he gave at the VRB where he was not only certain that he had fired but he also thought that he had hit the vessel.
46. Commodore Brecht was able to contact Derwent’s Commanding Officer in June 1966, Rear Admiral JD Stevens (Retired), who remembered the visit to Vung Tau in company with Sydney and Vendetta. According to Commodore Brecht, Rear Admiral Stevens had no recollection of any shooting incident by any member of the crew. Commodore Brecht also contacted Commander M Ward (Retired) who was Derwent’s Executive Officer in June 1966. He also recalled Derwent’s visit to Vung Tau in 1966 but he also said he had no knowledge of the shooting incident described by Mr Nielsen. Neither Rear Admiral Stevens nor Commander Ward was called for cross-examination. Commodore Brecht also contacted a number of other officers who served on Derwent in June 1966 and they had no knowledge of such an event. Commodore Brecht also contacted Vendetta’s then Commanding Officer, Vice Admiral DW Leach (Retired). He did not remember the incident described by Mr Nielsen. Vice Admiral Leach said that he kept a detailed diary during his time as Commanding Officer of Vendetta and, after checking that diary, he confirmed it contained no reference to the event described by Mr Nielsen. Vice Admiral Leach also said that the event was of sufficient importance for him to record it in his diary had he known of it.
47. All of the evidence, or more accurately, the absence of any evidence regarding the incident as stated by Mr Nielsen, overwhelmingly points to that incident not having occurred. Accordingly, I am satisfied beyond reasonable doubt that the fact of the shooting incident relied upon to support Mr Nielsen’s hypothesis is not true. It follows that Mr Nielsen’s claim based on the shooting incident must fail.
DEPRESSIVE DISORDER AGGRAVATED BY ISCHAEMIC HEART DISEASE
48. The second way in which Mr Nielsen’s claim was put is that his depressive disorder was present when Mr Nielsen became aware he suffered from ischaemic heart disease in late 1996 and/or early 1997. Having been diagnosed with ischaemic heart disease, that led to a worsening or aggravation of his existing depressive disorder and therefore, in accordance with s 9(e) of the VE Act, was nevertheless compensable. In order for Mr Nielsen to succeed by taking this approach, despite the fact that the Commission has accepted Mr Nielsen’s ischaemic heart disease as war-caused, I am required to review the evidence regarding Mr Nielsen’s ischaemic heart disease to determine the causal nexus for the purposes of this claim. Both parties agreed that this was the way the matter should proceed. They directed my attention to the Full Court of the Federal Court decision in McKenna v Repatriation Commission [1999] FCR 323 (Branson, Sundberg and Kenny JJ). In that case, Mr McKenna put forward a hypothesis that he was suffering ischaemic heart disease and atherosclerotic peripheral vascular disease because, prior to the clinical onset of those diseases, he was suffering from hypertension. Mr McKenna contended that his hypertension was related or connected to his operational service. Although Mr McKenna’s hypertension had been accepted as service related, the Full Court nevertheless held that in order for Mr McKenna to succeed, the sub-hypothesis, being the hypertension, had to be linked to Mr McKenna’s relevant service by way of the SoP. That is because the sub-hypothesis linking Mr McKenna’s hypertension with the hypothesis raised in respect of ischaemic heart disease or atherosclerotic peripheral vascular disease was crucial to either hypothesis. The Court said that neither of the hypotheses could be said to be upheld unless the sub-hypothesis was also upheld. Both parties agreed that I am therefore required to examine both Mr Nielsen’s hypothesis, which was that his depressive disorder worsened because of ischaemic heart disease, and the sub-hypothesis being that his ischaemic heart disease was linked to his relevant service.
49. Mr Moore of counsel, who appeared on behalf of Mr Nielsen, submitted that Mr Nielsen was suffering from depressive disorder at the time that he was diagnosed with ischaemic heart disease. There was no dispute about that and it accords with the evidence. There was also no dispute about the fact that Mr Nielsen’s depressive disorder worsened as a consequence of his diagnosis of ischaemic heart disease. As far as the sub-hypothesis is concerned, Mr Nielsen said in evidence that he did not smoke before joining the Navy. He started to smoke when he went to sea and said that he smoked in order to stay alert and keep awake, particularly when on watch. When asked if there was any increase in the level of smoking over time he said that it definitely increased to 60 cigarettes per day. Given that smoking is one of the relevant factors set out in the SoP for ischaemic heart disease (No 53 of 2003), there is, at least on the face of it, a hypothesis and sub-hypothesis which together are able to be linked to Mr Nielsen’s service in the Navy. On that basis, I am satisfied that the first step in Deledio is met, because the material does point to a hypothesis connecting Mr Nielsen’s worsening of depressive disorder with his service.
50. The relevant SoP concerning depressive disorder is No 27 of 2008. The relevant SoP concerning ischaemic heart disease is No 53 of 2003. There is therefore, in force a SoP in respect of both the hypothesis and sub-hypothesis. Therefore, step two of Deledio is satisfied.
51. In order to determine whether the hypothesis and sub-hypothesis are reasonable, I must determine whether the factors related to the person’s service fit within the template found in each SoP.
52. Mr Moore submitted that factor 6(j) of the SoP concerning depressive disorder was met, in that Mr Nielsen suffered a medical illness or injury which was life‑threatening within five years before the clinical worsening of depressive disorder. The evidence of Dr Percival and Dr Strauss confirms that Mr Nielsen’s depressive disorder was aggravated by or worsened after his heart condition was diagnosed. Mr Moore submitted, in the alternative, that if Mr Nielsen’s depressive disorder commenced or arose out of his diagnosis with ischaemic heart disease, then factor 6(a)(viii) applied. That factor requires the veteran to have a medical illness or injury which is life-threatening within the five years before the clinical onset of depressive disorder. Mr Purcell, who appeared on behalf of the Commission, submitted that factor 6(a)(viii) did not apply due to the provisions set out in paragraph 7 of the SoP. Paragraph 7 provides that factors 6(d) to 6(v) only apply to material contributions to, or aggravations of, depressive disorder where the person’s depressive disorder was suffered or contracted before or during (but not arising out of) the person’s relevant service. Although Mr Moore contended that Mr Nielsen’s depressive disorder did arise out of his relevant service, relevant service being defined under s 9 of the SoP to mean operational service under the VE Act, I have found that not to be the case. In any event, I understood Mr Moore to be putting this submission in the alternative. It follows I am satisfied that the hypothesis is reasonable.
53. Mr Purcell also submitted that although Mr Nielsen appears to satisfy factor 5(e)(iii) of the SoP concerning ischaemic heart disease, the SoP nevertheless did not apply because factor 5 commences with the preamble that it sets out a minimum that must exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease with the circumstance of a person’s relevant service. Relevant service for the purpose of the SoP concerning ischaemic heart disease is defined in paragraph 8 and again, the only relevant service referred to which applies to Mr Nielsen is his operational service. According to Mr Purcell, there is no evidence which links Mr Nielsen’s smoking directly with his operational service, but rather, his levels of smoking were already elevated prior to his trip to Vietnam on 6 – 8 June 1966.
54. In a smoking questionnaire completed by Mr Nielsen on 9 August 1999 he recorded that he first started smoking cigarettes on a regular basis after he joined the Navy. He said that he initially smoked 25 plus cigarettes per day but that increased to 60 per day when at sea. In answer to the question why he started to smoke cigarettes on a regular basis, Mr Nielsen answered: relieve tension. To stay alert during watch keeping. He also noted that he stopped smoking permanently in 1981. Under section two of the smoking questionnaire, where the veteran was required to record if his smoking habit changed over time, Mr Nielsen noted that he did change his smoking habit in December 1964 and that the new amount smoked was 60 plus cigarettes per day. In answer to the question regarding the reason for the change, Mr Nielsen answered as before. This is of course a period of time some 18 months before the relevant service in Vietnam.
55. In his evidence-in-chief Mr Nielsen said that he commenced smoking when he first joined a ship, the Derwent. Mr Nielsen’s service records show that to be on 15 December 1964. He said it was after he started doing sea duties. When asked what caused him to smoke, he said that in his role he was a watch-keeper and in communications he needed to stay alert, so he would smoke to keep awake. Asked whether any peer pressure was involved he said: only just to the problem of being alert. He was asked whether his smoking increased over time and he said it definitely increased to around 60 cigarettes per day. However, he did not connect his increase in smoking with the two days spent in Vietnamese waters.
56. In the history recorded by Dr Strauss, it was said that Mr Nielsen started smoking when he joined the Navy and he became a heavy smoker. Mr Nielsen said cigarettes were easily available; they were duty free and therefore very cheap. He said because he worked in communications there was a good deal of smoking at night and he would smoke to keep himself awake.
57. In his report of 22 June 2004 Dr Percival recorded that Mr Nielsen first smoked cigarettes after joining the navy and that … his consumption escalated progressively during his naval service to a level of some sixty cigarettes a day. In his report of 21 June 2007 Dr Percival again repeated that Mr Nielsen began smoking regularly after he joined the Australian Navy. He then said that by the time of his involvement in an altercation with another sailor at Brisbane, shortly before the shooting of the vessel incident, he was smoking 30 cigarettes a day but that his consumption increased abruptly following that incident to reach a level of 60 cigarettes per day which then continued until he stopped smoking. The incident referred to by Dr Percival is recorded in Mr Nielsen’s medical records and it indicates that he sustained a laceration to his right hand as a consequence of slipping over and cutting himself on a bottle. This is the incident Mr Nielsen referred to in his evidence as the stabbing incident. He said he did not provide the medical officer with the true facts about how he was injured. However, the date of the medical record is 8 September 1964, almost two years prior to Mr Nielsen’s two-day tour in Vietnam. That of course accords with what Dr Percival said in his report, although the use of the word shortly is perhaps not accurate.
58. Having searched through all of the evidentiary material provided to me, I have to agree with Mr Purcell that the hypothesis put forward as connecting Mr Nielsen’s operational service with the aggravation of his depressive disorder caused by the onset of ischaemic heart disease does not fit the template in the SoP concerning ischaemic heart disease relied upon by Mr Nielsen. As the Full Court said in McKenna’s case, in order for the hypothesis to be upheld, the sub-hypothesis must also be upheld. In this case, the evidentiary material before me simply does not permit a finding that the sub-hypothesis is a reasonable one. Accordingly, the claim must fail.
CONCLUSION
59. Although I am satisfied that Mr Nielsen suffers from depressive disorder, I am not satisfied that he suffers from alcohol abuse. That is because there is no evidence to establish one of the diagnostic criteria set out in DSM IV. This is despite the fact that both Dr Percival and Dr Strauss diagnosed Mr Nielsen as suffering from alcohol abuse. Unless there is some evidentiary material upon which that diagnosis is based, it is simply not possible to come to a diagnostic conclusion.
60. Although I have found that there was a reasonable hypothesis put by Mr Nielsen connecting his depressive disorder with operational service, in the process of fact-finding, I found, beyond reasonable doubt, that the event relied on by Mr Nielsen did not occur. Accordingly, I found that Mr Nielsen’s depressive disorder was not war-caused in accordance with the terms of the VE Act.
61. Mr Nielsen’s alternative argument was that his depressive disorder, which was present at the time he suffered from ischaemic heart disease, was worsened or aggravated by the diagnosis of ischaemic heart of disease. However, in order for Mr Nielsen to succeed on that hypothesis, the sub-hypothesis, that is ischaemic heart disease, must also be related to his relevant service which, in this case, means Mr Nielsen’s operational service in Vietnam. For the sub-hypothesis to be reasonable, it must fit within the template set out in the SoP concerning ischaemic heart disease. Although the evidence before me pointed to the fact that Mr Nielsen’s smoking commenced when he first joined the Navy and increased substantially when he was at sea, there was no evidentiary material before me to connect any increase in Mr Nielsen’s level of smoking directly to his operational service for the two days he spent in Vietnamese waters. Because the SoP demands that the factors set out in that document must connect his disease with his relevant service (which in this case means Mr Neilson’s operational service) and there was simply no material upon which to make that connection, the sub-hypothesis cannot be reasonable, as is required under the VE Act. It follows that Mr Nielsen’s claim on this alternative ground must also fail.
62. In my opinion, the decision of the VRB made on 14 February 2006 to refuse Mr Nielsen’s claims for depressive disorder and alcohol abuse was correct and must be affirmed.
I certify that the sixty-two [62] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member
Signed: Olympia Sarrinikolaou
Clerk
Dates of Hearing 18 April 2008 and 8 May 2008
Date of Decision 1 September 2008
Counsel for the Applicant Mr Garry Moore
Solicitor for the Applicant Peter Liefman, Solicitor
Counsel for the Respondent Mr Gerry Purcell
Solicitor for the Respondent Department of Veterans' Affairs
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