O'Neil and Repatriation Commission - [2000] AATA 1071

DECISION AND REASONS FOR DECISION [2000] AATA 1071

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V00/85

VETERANS' APPEALS DIVISION)
Re: JOHN O'NEIL

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member Mr I.L.G. Campbell, mc, Member Dr C. Re, Member

Date:31 October 2000
Place:Melbourne

Decision For the reasons given orally at the hearing, the decision under review is affirmed.

(sgd) H.E. Hallowes
Senior MemberVETERANS' AFFAIRS — entitlement — whether generalised anxiety disorder, psychoactive substance abuse or dependence, diabetes mellitus and chronic pancreatitis war-caused — eligible but no operational service — whether experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder — posted to Cowra after break out by Japanese at Cowra Prison — posted to Kapooka after explosion killing a number of servicemen
Administrative Appeals Tribunal Act 1975 ss.37, 43(2A)
Veterans' Entitlements Act 1986
Statement of Principles concerning Generalised Anxiety Disorder

Instrument Nº 49 of 1994 as amended by Instrument Nº 276 of 1995

REASONS FOR DECISION

31 October 2000  Mrs H.E.   Hallowes, Senior Member
  Mr   I.L.G. Campbell, mc,     Member
  Dr    C.     Re,  Member
At the conclusion of the hearing in this matter the reasons for the decision were stated orally. The parties' representatives were advised that a copy of the settled transcript of the reasons for decision would be furnished to them. However, the applicant's solicitor then made a request that the Tribunal furnish him with a statement in writing of the reasons of the Tribunal for its decision under subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). The oral reasons for decision were transcribed by Auscript, the Commonwealth reporting service. The transcript of the oral reasons is furnished to the applicant's solicitor and to the respondent as the statement in writing of the reasons for the Tribunal's decision. The transcript is as follows.

These are reasons for decision in the application by Mr John O'Neil and Repatriation Commission, reference number V00/85.
On 25 February 1998 Mr O'Neil lodged a claim for pension under the Veterans' Entitlements Act 1986 ("the Act") in respect of stress and anxiety, alcoholism, diabetes and chronic pancreatitis. He advised that he felt that stress and anxiety were factors in his becoming a heavy drinker to the point of becoming an alcoholic. The reasons for this were the Japanese breakout at Cowra Prison and a massive explosion at Kapooka, which killed 25 servicemen including instructors and recruits. It was his belief that the Army was a major contributor to him becoming a very heavy drinker and to his associated problems, diabetes and pancreatitis.
Dr M. Conway, his then general practitioner, diagnosed anxiety neurosis. The evidence for this was "Chronic anxiety state commencing during service period and continues until present". Mr O'Neil was also diagnosed with chronic alcoholism. Dr Conway noted that Mr O'Neil ceased drinking in 1977.
On 10 June 1998 a delegate of the Repatriation Commission advised that the medical names for the claimed conditions were generalised anxiety disorder, psychoactive substance abuse or dependence, diabetes mellitus and chronic pancreatitis. Mr O'Neil's claim for those conditions was refused. This decision was affirmed by the Veterans' Review Board on 25 October 1999 and Mr O'Neil seeks review of the Repatriation Commission decision by this Tribunal which had before it the documents lodged pursuant to section 37 of the AAT Act ("the documents") which include a number of medical reports, together with further material lodged by both parties at the hearing.
Mr G. Moore, of counsel, represented the applicant and Mr E. Nyhof, an advocate with the Department of Veterans' Affairs, represented the Repatriation Commission. The parties advised the Tribunal that it was not in dispute that Mr O'Neil suffers from general anxiety disorder; that is, that his condition meets the description in the DSM4, and the Tribunal, having considered the material before it, so finds.
It was agreed that Statement of Principles ("SoPs"), Instrument Nº 49 of 1994 as amended, applies, the SoPs in effect when the Repatriation Commission determined the matter. What remains in issue is whether Mr O'Neil satisfies a factor which must exist connecting his disease with the circumstances of his service on the balance of probabilities, his service being set out in the documents. It did not include operational service being within Australia between 14 May 1945 and 4 February 1947. The Tribunal must therefore be reasonably satisfied of the connection. The relevant factor in the SoPs provides:
1. . . .
(a)experiencing a stressful event not more than one year before the clinical onset of generalised anxiety disorder . . .

A stressful event is defined as meaning "an occurrence which evokes feelings of anxiety or stress".

It was also agreed between the parties that, if Mr O'Neil's generalised anxiety disorder was war-caused, there was a nexus between his generalised anxiety disorder and his other conditions. Although the parties had intended to call expert medical evidence, the doctors were in transit and it was decided to rely on their reports alone. The Tribunal would have adjourned the matter to hear their evidence if it had not been reasonably satisfied on the evidence before it.
Mr O'Neil gave evidence that he was born in December 1926. He left school aged 15 years and he obtained an electrical apprenticeship which he did not complete before service. He was posted to Cowra on 18 May 1945, then to Kapooka on 14 July 1945, to the War Graves Unit at Watsonia on 28 September 1945 and then to the Heidelberg Military Hospital on 8 November 1945, before being discharged on 14 February 1947. At Heidelberg he was a dark room attendant.
After service, Mr O'Neil became an electrical fitter working for two employers for approximately 16 years before becoming a hotelier in rural Victoria in 1961 and coming back to Melbourne in 1967 to take over a hotel, purchasing the real estate during the time before his retirement in 1979. Mr O'Neil married in 1951 and he has four children. He described his health before service as being good and he said that he had no nerve problems nor speech impediment. He neither drank nor smoked. He thought that he had been a normal teenager before service. He lived with his parents and played football.
He described his time in the Army as overwhelming. He was disgusted by the public nature of the short arm inspection on enlistment. He outlined his training at Cowra where he was first posted. He was aware that there had been an earlier breakout of Japanese from the prisoner of war camp in the vicinity. He was not aware till later that no Japanese were at the prisoner of war camp during his time at Cowra. He undertook guard duty alone on approximately 10 nights. He had an unloaded rifle and bayonet. There were noises. He was scared. He said that it was a bit of a nightmare.
After two months he was posted to Kapooka for more intensive technical training, including approximately three weeks training with explosives. Before posting he was aware of Army talk about an explosion which had occurred. He was told a platoon had been blown up. He was pretty "toey" as he had to undertake the same course. He was apprehensive and anxious. An opportunity then arose for a posting back to Melbourne and Mr O'Neil joined the War Graves Unit in September 1945 for approximately six weeks. As he could do the work, he was not sure why the Commanding Officer decided that he did not fit and he was then posted to Heidelberg Military Hospital where he worked in the X-ray unit. He described an episode at Heidelberg when he was sent to the psychiatric ward, as he understood it, because of a mark on his uniform. He could not understand why he had been sent for psychiatric assessment.
He was pleased to be living with his family in Melbourne again. He had a couple of mates he met for a drink, having started drinking at Cowra at the wet canteen and later in pubs when members of his platoon suggested that he join them. He also started to smoke. Mr O'Neil described himself as a loner during service. He felt different. He had difficulty getting words out.
On discharge, Mr O'Neil worked for two employers as an electrical fitter, as mentioned above, before becoming the licensee of the Rushworth Hotel in 1961 and then in 1967 the licensee of another hotel. Mr O'Neil told the Tribunal that he has had bad dreams since service and that he sleeps poorly. He agreed with Mr Moore that he is irritable and tense. Alcohol relaxes him.
Mr O'Neil did not need to consult medical practitioners after service. After returning to civilian life, he would drink at weekends and perhaps on a couple of nights during the week after work. He was courting his wife whom he married in 1951. He thought his drinking habit was under control until the end of the 1950s. His lunch hours got longer and longer. He liked the atmosphere of pubs and he helped out as a casual barman before deciding to become a publican. There was stress in his other job. He thought he could make a go of being a publican and he was successful thanks to the support of his family.
In the late 1960s Mr O'Neil developed upper abdominal pain. His gall bladder was removed, but his pain persisted. His surgeon referred him to a psychiatrist and he was admitted to hospital for a course of ECT. Mr O'Neil said he had never seen a psychiatrist in his life before, although the Tribunal recalls his evidence about the consultation at Heidelberg.
The Tribunal turns to the relevant SoPs and Mr Moore's and Mr Nyhof's submissions. Mr Moore contended that Mr O'Neil had experienced stressful events which evoked feelings of anxiety and stress during service and that the Tribunal should not confuse the issue with definitions in other SoPs, particularly the SoPs concerning post traumatic stress disorder. That is clearly so.
The Tribunal also accepts Mr Moore's submission that it should take the applicant as it finds him, particularly with respect to his underlying personality and his subjective responses, but it is an objective test as to whether a stressful event occurred. The Tribunal is reasonably satisfied that no stressful event did occur. There was a breakout of Japanese prisoners of war at Cowra. This was not an occurrence which Mr O'Neil experienced. It occurred nine months prior to his arrival at Cowra. Mr O'Neil was on guard duty over a number of nights. He said that although nothing happened, he was scared. His guard duty was without incident. He never saw a prisoner of war. The Tribunal is satisfied his feelings were all subjective.
A similar situation prevailed at Kapooka. There was no occurrence with which Mr O'Neil was involved. He was aware of an earlier training accident when 26 servicemen were killed. Mr O'Neil did not experience that event. His reaction to his undertaking similar training naturally heightened his anxiety as it may have done for many other servicemen and as did the checking of ID tags. He applied to be posted to the War Graves Unit before completing his training at Kapooka. The Japanese had surrendered.
Dr Cole described the history he took from Mr O'Neil with respect to what occurred at Heidelberg as follows:
. . . When the C.O. asked him a question he must have misinterpreted it as he was told to report to the psychiatric ward. He had to wait outside the ward for about an hour wondering what he was doing there and what he had done wrong. When he finally saw the psychiatrist he was questioned about his sexual fantasies before he was sent away and heard no more about it. It had been one of the most distressing experiences of his life sitting outside a ward which was locked and barred with shell shocked soldiers screaming. When his Sergeant heard about it he thought it was a great joke, whereupon he became so angry that he could have killed him.
. . .
Mr O'Neil did not mention this incident to Dr Kenny. Nor did he refer to this incident on his claim form. The Tribunal is reasonably satisfied that this incident does not satisfy the meaning of stressful event in the SoPs because it is no more than Mr O'Neil's subjective reaction to what happened and what was required of him. He was angry with his Sergeant and he has not forgotten.
The Tribunal, being reasonably satisfied that Mr O'Neil did not experience a stressful event, his generalised anxiety disorder is not related to his service.   He does not fit within factor 1(a) of the SoPs concerning generalised anxiety disorder.   His other claimed conditions are therefore also not connected with the circumstances of his service and the decision under review will be affirmed.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E.   Hallowes, Senior Member
Mr   I.L.G. Campbell, mc,    Member
Dr   C.     Re,  Member
(sgd)         Catherine Thomas
                 Personal Assistant
Date of Hearing:  31.10.00
Date of Decision:  31.10.00
Counsel for the Applicant:           Mr G. Moore
Solicitor for the Applicant:           Messrs De March & Associates
Solicitor for the Respondent:       Mr E. Nyhof, Departmental Advocate