Parrotte and Repatriation Commission
[2004] AATA 536
•27 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 536
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2003/1899
VETERANS' APPEALS DIVISION ) Re BRIAN PARROTTE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Date27 May 2004
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D Allen
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – claim for post-traumatic stress disorder, alcohol abuse/dependence, chronic obstructive airways disease and peripheral vascular disease and hypertension as due to war service - whether Applicant experienced a severe stressor - when did smoking habit develop - acceptance of Respondent's expert that Applicant did not suffer from alcohol abuse/dependence - decision under review affirmed
Veterans' Entitlements Act 1986 - s6C, ss120(1), (3) and (6), s120A
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
27 May 2004 Senior Member M D Allen 1. By application made the 2nd day of August 2001, the Applicant sought review of a decision of the Respondent that rejected his claim to have the conditions of post-traumatic stress disorder, chronic obstructive airways disease, hypertension, peripheral vascular disease and alcohol dependence or abuse attributed to his war service.
2. The Administrative Appeals Tribunal delivered its decision affirming the decision under review on 1 August 2003. An appeal was lodged in the Federal Court regarding that decision and on 20 November 2003, a consent decision remitted the matter to the Tribunal to be reconsidered without the parties adducing further evidence.
3. The matter came on before me on 17 May 2004. At the hearing, I took in as an exhibit the Appeal Book produced for the Federal Court appeal and both parties made submissions on the material before the original Tribunal as contained in the Appeal Book.
4. As the Applicant had “operational service” as that term is defined in s6C of the Veterans’ Entitlement Act 1986 (“VEA”), the standard of proof in this matter is that prescribed by ss120(1) and (3) VEA. That is to say, the Applicant’s claim must be granted unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. I am deemed to be so satisfied if there is no reasonable hypothesis connecting the injuries or diseases claimed by the Applicant with the circumstances of the particular service rendered by him.
5. Section 120A VEA provides that a hypothesis raised by the material before the Tribunal shall not be regarded as being a reasonable hypothesis for the purposes of ss120 (3) unless it conforms with a so called Statement of Principle. In this matter, the following Statement of Principles (“SoPs”) are relevant:
Instrument No. 3 of 1999 concerning Post Traumatic Stress Disorder
Instrument No. 54 of 1999 amending Instrument No 3 of 1999
Instrument No. 73 of 1997 concerning Chronic Airflow Limitation
Instrument No. 87 of 1995 concerning Atherosclerotic Peripheral Vascular Disease
Instrument No. 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse
Instrument No. 31 of 2001 concerning Hypertension; and
Instruments No. 35 of 2003
and No. 3 of 2004 being the current SoPs concerning Hypertension.
6. Subsection 120 (6) VEA provides that neither party to this review bears any onus of proof.
7. The first task of the Tribunal in matters such as this is to determine what kind of injuries or diseases are in fact suffered by the Applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. As was pointed out in Benjamin v Repatriation Commission (2001) 70 ALD 622, the SoP regime has no part to play in determining the question of what kind of injuries or diseases afflict the Applicant. Further, this question is one that must be determined to the Tribunals “reasonable satisfaction”, i.e. on balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327).
8. In this matter, there is no dispute that the Applicant suffers from chronic obstructive airways disease (chronic airflow limitation), hypertension and peripheral vascular disease. The Respondent disputed however that the Applicant suffered from post-traumatic stress disorder and alcohol abuse or dependence.
9. Given that there are in existence SoPs concerning the diseases from which it is claimed the Applicant suffers, the manner in which the Tribunal must approach its tasks once the question of whether the Applicant does in fact suffer from the claimed disease, was set forth by the Full Court of Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, namely:
“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 s196B (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 s196B (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 s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case for the 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 for the application of any presumption will be involved.”
10. The Applicant’s service documents reveal that he joined the Navy on 12 June 1951 and was discharged on 22 May 1972 with the rank of Chief Petty Officer. The reason given for his discharge was that his period of engagement had expired. After leaving the Navy, the Applicant worked for 20 years for an engineering firm.
11. The Applicant commenced to smoke cigarettes soon after joining the Navy. In a smoking questionnaire completed by him and dated 10 March 1995, in answer to the question “why did you take up smoking?”, he states that:
“Served on HMAS Sydney during the Monte Bello Explosion 1952, anxiety, slight stress, and seeing the senior sailors smoking and just wanted to be like them. Served on HMAS Melbourne and HMAS Sydney in Vietnam waters.”
He then states that during service from 1952 to 1972, he smoked one packet of cigarettes every second day, whereas after service from 1972 to 1995, he was smoking 1 packet a day.
12. Exhibit A1 in the original proceedings is a statement by the Applicant dated 31 January 2003. In that statement, he said:
“I began smoking in 1952 after Monte Bello. Between 1952 and 1964, I smoked approximately a packet of 20 cigarettes per day.
Between 1964 and 1966, as a consequence of the Voyager incident and my Vietnam service, my consumption of cigarettes more than doubled to 40-45 per day. It has remained at that level since.”
13. On 4 March 2003, in re-examination, the Applicant said:
“I started smoking heavy after the Voyager and the Vietnam experience. From the Voyager in ’64 when the whole new bow was put on, we took it to sea to test it out, and then in ’65 we were sent to Vietnam. So the stress was from the Voyager straight on to the Melbourne to Vietnam in ’65 and ’66.”
In his application to the Veterans’ Review Board, the Applicant stated “that he took up smoking after being present at Monty (sic) Bello in 1952”. There is no mention of increasing smoking after the Voyager collision or his visits to South Vietnam.
14. I am satisfied beyond reasonable doubt that the Applicant has amended his smoking history during the litigation process and that his smoking commenced in 1952 and progressed due to habituation, particularly after discharge from the Royal Australian Navy as originally stated by the Applicant.
15. The Applicant was aboard HMAS Melbourne when it collided with HMAS Voyager. Dr Wenden, in his report of 28 March 2001 to the Respondent, took a history that:
“During the Voyager disaster Mr Parotte lost a lot of shipmates and following this he would periodically dream about the scenes he experienced with young men dying. He attempted to cope with this by ‘putting the memories at the back of his mind’. The collision occurred at approximately 10 pm and he was on duty on the flight deck. His memories are about the large hole in the other ship, men screaming and ‘bits and pieces of bodies’ on the deck of the Melbourne which he had to help clean up. He remembers picking up a (sic) pieces of brain. One of his mates spent 12 hours in the water and there were eighty four men killed. Mr Parotte told me that he felt very upset because he was responsible for the flight deck on this occasion.
Mr Parotte has nightmares and flashbacks to this event and these occur between once and three times per week. He wakes up and often gets up and has a cigarette before going back to bed. These memories and dreams will occur if he meets mates and they talk about the events and also reading books about the war or the sinking of the Voyager will bring up these memories and dreams. The memories will bring back a sense of the experience happening all over again.”
16. Dr Wenden also took a history from the Applicant’s wife and in his report, Dr Wenden states:
“I interviewed Mr Parrotte’s wife who told me that she noticed that his problems began following the fatal incident involving the Melbourne and the Voyager. She told me that her husband has never been the same since that occurred. She told me that he will not talk about what happened and drinks every day.
Premorbidly she described Mr Parrotte as a happy person but since the incident of the Voyager he has been anxious and has ‘the world on his shoulders’ and ‘worries about everything’.”
17. The Applicant in his evidence stated that on the night of the Voyager collision, he had been on the flight deck of HMAS Melbourne and “had seen the lot”. He also told Dr Dinnen that he had bad dreams about the Voyager collision lately but did not want to talk about the events of that night.
18. Both Drs Wenden and Dinnen diagnosed the Applicant as suffering from a post-traumatic stress disorder (PTSD). Dr Wenden opined that the condition was caused by his war experiences but mostly by the experiences aboard the Melbourne with the Voyager disaster. Dr Dinnen implicates the Voyager disaster as the cause of the Applicant’s PTSD, but opined that it was aggravated by operational service in Vietnam.
19. Dr Haik conceded in his evidence that he agreed with Dr Dinnen that the Applicant did not have a PTSD on the Sydney or on the Melbourne and when he left the Navy, but that it was developing and surfaced over the last few years. Dr Haik went on to say:
“…I can’t see how Vietnam has been a problem when in fact, it is the Voyager disaster that was the real stress. He fulfils a criteria outlined by DSM. This is a major catastrophe, a major disaster – people died, body parts were – it is a situation where a lot of people would have suffered considerably. Comparing with that with what happened at Vung Tau Harbour, there is no comparison, therefore if he has PTSD, it would have been as a result of the Voyager and it may well have bubbled to the surface as he has got older.”
20. I am satisfied on the basis of the evidence of Drs Haik, Dinnen and Wenden that the Applicant does indeed suffer from PTSD. Given what the Applicant experienced as a result of the collision between HMAS Melbourne and HMAS Voyager, it is only to be expected that he, along with many others of the crew of the Melbourne, suffered psychiatric injury as a result of the events of that night. Vietnam however is a different matter.
21. At the time the Applicant visited Vung Tau Harbour in South Vietnam, he was a Chief Petty Officer aged 38 years. The evidence from the Applicant and Commander Mulcare is that the Applicant, as a senior non-commissioned officer, was well aware of the defence measures adopted for HMAS Sydney whilst in Vung Tau Harbour (code named Operation Awkward). The Applicant knew that scare charges would be dropped overboard and that they were scare charges. Although at the time one went off, he did not know if it was a scare charge or a mortar round or rocket, he soon knew afterwards that it was not an attack.
22. The Applicant also knew that the aircraft he saw were allied aircraft and the gunboats he referred to were craft from HMAS Sydney. He agreed in cross-examination that HMAS Sydney was well protected when in Vung Tau Harbour and that there were no attacks on the Sydney whilst he was a crew member.
23. I accept that the Applicant may well have been apprehensive when in Vung Tau Harbour, however, the SoP for PTSD requires in factor 5(b) that before the clinical worsening of a PTSD can be accepted as war-caused, the person must have experienced a severe stressor. The term “severe stressor” is defined in Instrument No. 54 of 1999 as follows:
“‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”.
24. In addition, the SoP requires as a diagnostic factor for PTSD that:
“(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;..”
If, as stated by Dr Dinnen in evidence, the Applicant did not have PTSD whilst aboard HMAS Melbourne or HMAS Sydney or even when he left the Navy, I am at a loss to understand how the trips to Vietnam made worse a condition that at that time did not exist.
25. The term “clinical worsening” is not defined in the SoP for PTSD. In Lees v Repatriation Commission [2002] FCAFC 398, the term “clinical onset” of a disease was said to mean the stage where there are present those signs or symptoms of a disease which would allow a clinician to say that the disease was present. In this matter, the Applicant’s PTSD was not clinically present at the time he made his journeys to Vietnam, consequently it cannot be said that it was clinically worsened as opposed, in Dr Dinnen’s view, to being a material factor in the causation of the disease.
26. There is no evidence that the Applicant’s reaction to the events observed or experienced whilst in Vung Tau Harbour in any way amounted to inducing in him a response which involved intense fear, helplessness or horror. I am prepared to accept that as a natural human reaction, the Applicant was apprehensive for his safety whilst in Vung Tau Harbour, however, in my opinion, he has not raised material such that it can be said he had a response involving the high degree of reaction described as “intense fear, helplessness or horror”. Consequently, so far as causation of the PTSD is concerned, the material raised by the Applicant does not fit the template of the SoP. If however, an aggravation is suggested, I am satisfied beyond reasonable doubt that the Applicant did not experience a severe stressor. No actual attack was ever made against HMAS Sydney while the Applicant was a crew member. As stated, I can accept that the Applicant may have been apprehensive as to his safety whilst in Vung Tau Harbour, but there was no actual event that involved a threat of death or serious injury and given the Applicant’s age, rank and experience, I regard it as exaggerated to say that he was frightened.
27. The Applicant may well have been startled by the scare charges dropped during Operation Awkward but conceded that he knew of their purpose and immediately afterwards knew that they were scare charges and not incoming explosive ordinance. There was other activity around, for example, air strikes on suspected Vietcong positions but they afforded no threat to the Applicant. At no stage did he engage with the enemy or witness casualties.
28. As the facts upon which the Applicant based his hypothesis, that the PTSD was made clinically worse by his trip to Vietnam have been negatived beyond reasonable doubt, the claim based on aggravation fails as well.
29. I do not accept that the Applicant suffers from alcohol abuse or alcohol dependence.
30. The Applicant’s evidence is that he goes to the tavern across the road from his dwelling and drinks with neighbours and a couple of blokes he used to work with. The Applicant’s wife said to Dr Wenden that the Applicant drinks in the tavern every day from 3:30pm to 6:00pm and that he then goes to bed early after he has been drinking.
31. In his report of 9 September 2002, Dr Dinnen stated:
“I asked why he drank heavily. He said he did so from the day he left the Navy. He explained ‘all sailors drink heavy’. He said after leaving the Navy he worked for twenty years for an engineering firm, in steel construction, crane driving and transport driving.
The patient said he drinks across the road from his home at Goulburn in the tavern and is there from 3.30 to 6 each day. He drinks about six or eight schooners during that time. ‘It makes me relax’. He said when he started drinking heavy was when he got out of the Navy, but he has never fallen over drunk. As well as the afternoon drinking he has two or three stubbies of beer during the day. He recalled that he would have more to drink when he was ashore when at overseas ports. His drinking between 1951 and 1964 was not as heavy, but he believes he started drinking heavily after the Voyager and more so after he went to Vietnam, that is from 1972 onwards.”
32. Dr Wenden diagnosed the Applicant as suffering from alcohol abuse whereas Dr Dinnen’s diagnosis was that of PTSD with alcohol abuse. Dr Haik on the other hand did not diagnose alcohol dependence or alcohol abuse. In his report of 11 September 2002, he stated:
“Mr Parrotte does not meet the SoP criteria for Alcohol Dependence which requires that there be, in the previous 12 months, 3 of 7 criteria: alcoholic tolerance, withdrawal features, larger amounts required, unsuccessful attempts to cut down, extensive time spent obtaining, using, or recovering from alcohol, given up occupational/recreational activities because of it, and continued use of alcohol despite physical/psychological problems. When he needs to deal with his grandchildren, he may only have 2 beers (para 2.1). By definition does NOT conform to a diagnosis of Alcohol Dependence.
The SoP for Alcohol Abuse requires that there be, in the previous 12 months, one of 4 criteria: Alcohol leads to failure to fulfil work or home obligations; or alcohol is used in situations that are physically hazardous; or presence of recurrent alcohol-related legal problems, or continual alcohol use despite recurrent social or interpersonal problems caused by it. By definition, Mr Parrotte does NOT conform to a diagnosis of Alcohol Abuse.”
33. In a second report dated 18 February 2003, Dr Haik, commenting on Dr Dinnen’s report and diagnosis, comments:
“The doctor does not explain how Mr Parrotte could function so effectively both in the navy and during his 21 years subsequently in the work force if he had such disabling conditions.”
34. Although Dr Haik refers to the SoP for alcohol abuse/alcohol dependence, that SoP recapitulates the diagnostic criteria set out in volume 4 of the Diagnostic and Statistical Manual of Mental Disorders.
35. In evidence, Dr Haik pointed out that the Applicant had been a Chief Petty Officer in the Navy and objectively he functioned quite well. He had good relationships with his family. I also note that the Applicant left the Navy when his term of engagement expired after over 20 years naval service and then the Applicant was employed by the one employer for another 20 years. As Dr Haik pointed out in evidence, although the Applicant drinks a lot, there was no evidence of physical, mental or social impairment caused by alcohol consumption. All of this results in my being reasonably satisfied as to the correctness of Dr Haik’s opinion that the Applicant does not suffer from alcohol abuse or alcohol dependence, as opposed to simply being a heavy drinker (of alcohol). I am satisfied beyond reasonable doubt that the Applicant’s drinking habit is a result of Navel Service over 20 years and not as a result of operational service. The Applicant himself stated that he started drinking more heavily after the Voyager disaster but more particularly, stated to Dr Dinnen “all sailors drink heavily.”
36. The disease of chronic obstructive airways disease is caused by the Applicant’s smoking habit but as stated above, I am satisfied beyond reasonable doubt that the Applicant’s smoking habit was fully developed before his trips to Vietnam.
37. The acceptance of the disease of peripheral vascular disease is dependent upon the Applicant’s smoking habit being accepted as being due to his war service. As I am satisfied beyond reasonable doubt that that smoking habit is not attributable to his war service, then this disease in turn is not attributable to war service.
38. Similarly, acceptance for pension purposes of the Applicant’s hypertension is dependent upon a finding that he suffers from a war-caused alcohol abuse or dependency or an ingestion of alcohol of at least 200 grams per week which consumption is war-caused. As I am reasonably satisfied that the Applicant does not suffer from either alcohol abuse or alcohol dependence and I am satisfied beyond reasonable doubt that his consumption of alcohol is not related to operational service but is an habituation arising from Naval Service generally, then hypertension is not a war-caused disease.
39. The decision under review is affirmed.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (K. Wong)
.....................................................................................Associate
Date of Hearing 17 May 2004
Date of Decision 27 May 2004
Counsel for the Applicant Mr C Colbourne
Solicitor for the Applicant Legal Aid Commission (New South Wales)
Counsel for the Respondent Ms J Jagot
Solicitor for the Respondent Australian Government Solicitor
3
6
0