Preece and Repatriation Commission
[2004] AATA 442
•6 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 442
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1450
VETERANS’ APPEALS DIVISION ) Re DENNIS JOHN PREECE Applicant
And
REPATRATION COMMISSION
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr J C Campbell, Member
Date 6 May 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals TribunalAct 1975, the decision under review is set aside and in substitution therefor, the Administrative Appeals Tribunal decides that:
(i) Mr Preece has a war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia as part of that generalised anxiety disorder with effect from 4 March 2001;
(ii) The assessment of Mr Preece’s war-caused generalised anxiety disorder with associated alcohol abuse, depression and agoraphobia is remitted to the Repatriation Commission for assessment including an updated assessment of Mr Preece’s other war-caused conditions;
(iii) Mr Preece is qualified to receive a pension at the Special Rate with effect from 15 July 2002, the date Mr Preece ceased employment.
..............................................
Ms S M Bullock
Presiding Member
VETERANS’ AFFAIRS - Entitlements– Disability Pension – Special Rate Diagnosis –Generalised Anxiety Disorder – Depression – Alcohol AbuseVeterans’ Entitlements Act 1986 ss 119, 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Gray and Repatriation Commission [2004] AATA 224
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
Delahunty v Repatriation Commission [2004] FCA 309REASONS FOR DECISION
6 May 2004
Ms S M Bullock, Senior Member
Dr J C Campbell, Member1. Mr Dennis John Preece, the Applicant, served in the Royal Australian Navy (“the Navy”) from 9 April 1966 to 8 April 1986 (T3). Mr Preece served in HMAS Duchess in Vietnam from 19 September 1968 until 15 May 1969 and this constitutes operational service (T3). Mr Preece also rendered defence service as defined in Part IV of the Veterans’ Entitlements Act1986 from 7 December 1972 until 8 April 1986 (T2, p7). Mr Preece claims that his naval service in Vietnam has caused him to develop generalised anxiety disorder, with alcohol abuse and depression as part of the generalised anxiety disorder. Mr Preece also claims that he is permanently unable to undertake any paid work and is therefore entitled and qualified for a pension at the Special Rate. Mr Preece has had his claim refused by the Respondent, the Repatriation Commission, by a decision dated 31 October 2001 (T2). Mr Preece made an application for review to the Veterans’ Review Board (“the Board”) which also was refused on 2 September 2002 (T11). Mr Preece made an application for review to the Administrative Appeals Tribunal (“the Tribunal”) of the Board’s decision and that is the decision under review for the purposes of this determination.
2. A Hearing was held in Sydney on 29 July 2003 and resumed on 12 November 2003. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (“T Documents” T1-T15) and a number of exhibits which are listed in Schedule 1 to this Decision. Mr Preece provided oral evidence and was represented by Mr N Dawson of Counsel. The Respondent was represented by Mr N Bunn, Departmental Advocate. Oral evidence was provided concurrently by Dr A Dinnen, Consultant Psychiatrist and Dr A White, Consultant Psychiatrist. Oral evidence was also provided by Dr B White, Consultant Psychiatrist and Captain A H Josephs AM of Write Way Research Services.
issue
3. The issue in this matter is whether or not Mr Preece has a diagnosable psychiatric condition and if so, what the correct diagnosis of that condition is. If there is a diagnosable psychiatric condition present, then the Tribunal must determine, beyond reasonable doubt, what caused this condition by applying the standard of proof for operational service. The Respondent conceded that if Mr Preece is found by the Tribunal to suffer a war-caused psychiatric condition(s), then he would meet the criteria pursuant to section 24 of the Veterans’ Entitlements Act1986 for payment of a pension at the Special Rate.
legislation
4. The legislation which must be applied in a determination in this matter is the Veterans’ Entitlements Act 1986 (“the Act”). More specifically, section 120 of the Act must be applied. Subsection 120(3) of the Act provides that the Tribunal must be satisfied beyond reasonable doubt that a reasonable hypothesis has been raised. If the Tribunal finds that a reasonable hypothesis has indeed been raised then subsection 120(1) of the Act requires a determination as to whether or not there are any facts sufficient to disprove the raised reasonable hypothesis beyond reasonable doubt.
5. In terms of establishing the diagnosis of the Applicant’s psychiatric condition, the Tribunal must do so to its reasonable satisfaction, pursuant to subsection 120(4) of the Act.
6. The Tribunal is also required to apply section 120A of the Act in reaching a decision. Thus, the Tribunal is required to assess the reasonableness of any hypothesis in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. The Statements of Principles set out the minimum factors relating to service that must exist in order to establish a causal connection between the particular disease, injury or death, and service. We consider that the relevant Statement of Principles in this case is Instrument Number 1 of 2000 concerning Anxiety Disorder.
evidence of dennis john preece
7. Mr Preece was born in Camperdown, Sydney on 15 July 1947. He left school in 1963, gaining what he described as the “Intermediate Certificate”. After school, Mr Preece worked in various occupations including clerical work and as a bread vendor. He joined the Navy in 1966, originally signing on for nine years, but actually serving for a period of approximately 20 years. Mr Preece stated that his initial training occurred in HMAS Cerberus for a period of three months. Mr Preece had received general training, including recruit training, fitness, marching and seaworthiness. Mr Preece went to sea firstly for a short period of about three months and then undertook further training in HMAS Cerberus. He later received further training as a Communicator.
8. Prior to joining the Navy, Mr Preece stated that he had not consumed alcohol as he came from a very strict Methodist family and followed their values. Once he had joined the Navy, he would consume alcohol in the amount of “one or two beers” when socialising. He thought that he was likely to consume alcohol once per week.
9. Throughout his evidence, Mr Preece noted that it was difficult for him to remember events some 35 years ago. He thought that he first joined HMAS Duchess in September 1968. He travelled to the Far East including Hong Kong, Singapore, Japan, Penang and Korea. Mr Preece could not remember exactly how long it was before he went to Vietnam in HMAS Duchess but thought that he did so in about November 1968. Mr Preece stated that he had no idea that he was going to Vietnam and in fact only found out that he was being sent to Vietnam very late, in that he thought was going to Singapore. Mr Preece further explained that when he joined the Navy, it had not entered his head that at any stage he would be going to any war. He stated that he had never heard of Vietnam prior to travelling there. Mr Preece stated that he had joined the Navy to have a good time. When Mr Preece became aware that he was going to Vietnam, he became extremely anxious, angry and felt extremely afraid as the trip was unexpected. Mr Preece said that his fear was extreme and he had apprehension about what might happen to him and the others in Vietnam.
10. Mr Preece explained a number of situations in relation to his service in HMAS Duchess. On one occasion, upon entering territorial waters, the men were required to wear special gear which was very confining and very hot in the tropical water conditions. Mr Preece said that this “anti-flash” gear was very uncomfortable. Mr Preece stated that tempers were at flashpoint and the situation was totally unbearable. When in Vietnam, Mr Preece was required to go on patrol duty around the ship. The duty involved four hours on and four hours off duty and his particular area was at the aft of the ship. He was asked to look out for any boats or swimmers around HMAS Duchess.
11. Just prior to entering Vung Tau Harbour he was told about the enemy attaching “limpid mines” to the hulls of ships and he was concerned that this would occur with HMAS Duchess. Mr Preece said that when he undertook his sentry duty, it was dark, perhaps pre-dawn. He also believed that he undertook the patrol duty when HMAS Duchess was anchored in Vung Tau Harbour. Mr Preece was concerned that his ship was going to be blown up and he was very anxious for his own safety. He also felt responsible for others on the ship. When in Vung Tau Harbour, he saw artillery fire and did not know whether it was friendly or not. Mr Preece reiterated to the Tribunal that he was petrified.
12. Mr Preece’s normal duties were undertaken in the Electronic Warfare Office (“EWO”) on his mess deck (Exhibit A1). The EWA was a very small confined space with room for three chairs but where five men had to work. Mr Preece described the situation as being hot and sweaty and that he had to wear heavy-duty clothing. Mr Preece also described the presence of a “standover bullyboy” in that area who would yell at the men. This situation occurred when HMAS Duchess was closed up to Defence Stations. Mr Preece described experiencing frequent nightmares since his time in Vietnam. In the nightmare, he is armed with an SLR rifle patrolling the ship’s upper deck at night. He sees a flash of light and the ship suddenly rolls violently to one side and quickly sinks. There are no survivors (T5, p42).
13. Mr Preece also described his operational service during which his supervisor would, without hesitation, vacate his mess deck at the slightest roll or pitch of HMAS Duchess. Mr Preece stated that at that time he was a young sailor serving in the South East Strategic Reserve and a war zone for the first time. He was looking for leadership, guidance and direction. Mr Preece said that the sight of his supervisor appearing to desert the mess deck without warning was extremely peculiar and he thought that the superior officer was displaying a total disregard for the welfare of the young sailors under his control. Mr Preece felt that he and the men in this group were without a leader and that this tied in with his anxiety about being in Vietnam. He was worried about what might happen if the ship blew up or was attacked by the enemy and how they would cope without the benefit of strong leadership. Mr Preece later found out that his superior officer had been serving in HMAS Voyager and had survived a collision with the carrier, HMAS Melbourne.
14. After leaving Vung Tau, Mr Preece described feeling sick in the stomach, keyed-up, uptight and very angry and irritable. Mr Preece told the Tribunal that he had not been like this before. Mr Preece said that these feelings have not passed and have continued since his time in Vietnam. As a young boy, Mr Preece recalled that he participated in team sports. He was active and very fit. After being in Vietnam, he became a loner. Mr Preece was referred to documents which noted that his mother had died when he was about 13 years old and that she had died suddenly. Mr Preece informed the Tribunal that he was at home and his mother had collapsed. He had called a neighbour to help and to take his mother into their house. She was subsequently taken to hospital but died. This was obviously upsetting for Mr Preece and he told the Tribunal that there was no counselling available for him at that time, but he got on with his life noting “I was into living”.
15. Currently, Mr Preece describes himself as feeling “useless”. He feels anxious, has symptoms of vertigo, does not mix with people and has a fear of being in confined spaces. Mr Preece stated that he has a fear of people in general. Mrs Preece has left Mr Preece on at least two occasions and on one occasion left for a period of three months. During the times that Mrs Preece has separated from her husband, she has always maintained the household key and will come back to check on him from time to time to make sure he is alright. The couple have now been together for approximately 12 months but are sleeping in separate rooms. They are now communicating much better than had previously been the case, Mr Preece stated.
16. In terms of Mr Preece’s alcohol consumption, after his experience in Vietnam, he started to drink heavily. Mr Preece told the Tribunal that he recalls going ashore and drinking to excess by himself. It was Mr Preece’s evidence that he was a very fit person but it did not take much more than six beers to cause him to become inebriated. A pattern continued, where the Applicant would go ashore and drink by himself and become inebriated. When Mr Preece arrived back in Australia after Vietnam, his father and stepmother would not tolerate his drinking at home. This led to his stepmother giving him an ultimatum which resulted in Mr Preece being banned from returning home. From about 1969, when Mr Preece was on leave or at weekends, he would go to an area near the family home but would stay in a hotel, most usually the Rydalmere Family Hotel, which was approximately one kilometre from his home. Mr Preece married in 1975 but continued to consume alcohol to excess.
17. In relation to Mr Preece’s alcohol consumption, he noted that he had been referred, while in the Navy, to the Shepherd Foundation Multiphasic Health Testing Centre in Melbourne. Mr Preece told the Tribunal he had informed the Centre that he drank several times per week, reporting that over the past five years he would consume five or six drinks at a time. He also reported that he was never a problem drinker (T3, p30). Mr Preece told the Tribunal that he lied about his alcohol consumption, wanting to minimise this as a problem, as he did not want the Navy to find out about his alcohol consumption habits.
18. While in the Navy, Mr Preece believed he was charged on two or three occasions with drink-driving offences. He thought the first occasion occurred in the early to mid 1970’s. There was a second occasion in Darwin. After leaving the Navy, Mr Preece stated that he was not charged with any similar offence. He stated that he was able to achieve promotion in the Navy despite his drinking activities, because he would drink alone and as he was an officer, people would leave him alone. When Mr Preece worked in civilian life at the Federal Police, he stated that he would bury himself in his work, covering up his problems by his conscientious activities. In terms of alcohol consumption, when he first joined the Federal Police, there was a culture of drinking and it was common for those around him to drink at lunchtime and not return to work after lunch. However, when a new Commissioner commenced, the Federal Police was referred to as a “dry service”. He continued to drink but covered his activities and, in particular, he would drink alone so that others would not know of his alcohol consumption
19. Mr Preece described his current pattern of consuming about six stubbies of beer in the morning. He will also drink scotch, whisky and wine. Mr Preece shops for his alcohol once per fortnight, purchasing two cartons of beer and a bottle of scotch. He stated that after seven or eight days, he has to buy more alcohol. Mr Preece could not recall a day when he had not consumed alcohol. Mr Preece told the Tribunal that he usually retires at approximately 8.30pm but is not able to sleep and is up again at 10.00pm. He wanders around the house and has intermittent sleep. Mr Preece is troubled by nightmares and stated that he is awake most of the night. Mr Preece said that he will sleep during the day, have six stubbies of beer in the morning and then drink more alcohol later in the day. Mr Preece had not consumed any alcohol on the day of the hearing but the night before, he had consumed half a bottle of wine and at least two stubbies of beer.
20. Turning now to medical treatment received by Mr Preece, he told the Tribunal that he was referred by his general practitioner, Dr Chan, to a Consultant Psychiatrist, Dr B White in Canberra. Mr Preece stated that he consults Dr B White regularly, about once a month or sometimes every second month. The first referral occurred in about 2001. This was precipitated by Mr Preece speaking to a former shipmate who told Mr Preece he appeared uptight and suggested that he obtain some help possibly through the Vietnam Veterans’ Counselling Service. Mr Preece could not recall seeing various doctors through the 1970’s and into the 1990’s as recorded in T3. Mr Preece did not, for example, recall that he had been prescribed “Stelazine” in 1970. Mr Preece could also not recall that in March 1976, he had been serving in HMAS Harmon and was prescribed “Tryptanol”. Furthermore, Mr Preece could not recall having treatment following his collapsing while working behind a bar (T3, p19). He recalled the actual event of collapsing but nothing after that. Mr Preece did not recall any medical attention he received in April 1976. In November 1977, Mr Preece recalled serving in HMAS Coonawarra in Darwin but did not recall receiving treatment by the medication “Sinequan” or that he was diagnosed as suffering from depression (T3, p17). There was also a record of Mr Preece chewing his nails and he noted that he did not bite his nails as a child but thought that such practice commenced after his service in Vietnam. The daily medical record of 7 November 1977 also referred to Mr Preece having a fear of dying (T3, p17). In this regard, Mr Preece explained he is afraid that he will have a stroke. A further daily medical record dated 17 July 1978, indicated that Mr Preece was a “nervous worried man” (T3, p16) and Mr Preece stated that he has been like this since 1968/69. Currently, Mr Preece takes medication from time to time for mood swings, but could not recall the medication name. He is aware that he should take this medication daily but he does not do so as he is afraid of the consequences of mixing the medication with alcohol. Mr Preece takes “Deptran” which he stated assists him to sleep. He takes five tablets per night and finds they do not help him a great deal.
21. In relation to other health issues while serving in HMAS Duchess, Mr Preece told the Tribunal that he had an hospital admission in Singapore. Mrs Preece had prepared a chronology of all Mr Preece’s medical history including hospitalisation. Mr Preece’s recollection was that he was hospitalised in Singapore after his trip to Vietnam, however, Mrs Preece’s record indicates that the admission to Singapore hospital was prior to Vietnam. At the time of that hospital admission, Mr Preece was suffering from severe abdominal problems and diarrhoea.
evidence of dr a dinnen, consultant psychiatrist, and dr a p white, consultant psychiatrist
22. Dr Dinnen and Dr White provided oral evidence concurrently. Dr Dinnen provided a report dated 6 February 2003 (Exhibit A2). Dr W White provided reports dated 10 January 2003 (Exhibit R2) and 6 May 2003 (Exhibit R3).
23. Dr Dinnen opined in his report that the psychiatric diagnosis applicable to Mr Preece is that of generalised anxiety disorder (Exhibit A2, p7). Agoraphobia, panic disorder, depression and alcohol abuse are part of that generalised anxiety disorder. Dr Dinnen opined that Mr Preece met the Statement of Principles, Instrument Number 1 of 2000 concerning Anxiety Disorder and that the circumstances of his operational service in HMAS Duchess in Vietnam as outlined by Mr Preece in his statement (T5, p42) satisfied the factor of experiencing a severe psychosocial stressor. Dr Dinnen stated that the psychosocial stressor involved being closed up at Action Stations in full action working dress and anti-flash clothing. The fear of the attachment by the enemy of limpid mines to the hull of HMAS Duchess was also considered by Dr Dinnen to be a psychosocial stressor. Furthermore, being on patrol looking for enemy divers and mines was a stressor for Mr Preece as was the fear of lack of leadership arising out of the superior officer who fled with the slightest provocation. Dr Dinnen considered that Mr Preece was credible and any inconsistencies apparent in his history are due to the anxiety condition itself rather than deliberate deceitfulness.
24. Dr Dinnen noted that it was clear from the service documentation that Mr Preece had longstanding anxiety symptoms present from about October 1968 with psycho-somatic illnesses leading to hospitalisation in Singapore (Exhibit A2, p7). Dr Dinnen noted that evidence exists throughout Mr Preece’s service of anxiety but there was not a formal diagnosis made until 1973 (Exhibit A2, p7). The experience Mr Preece had in enemy waters when serving in HMAS Duchess may have played a significant part in the development and progression of chronic disability, Dr Dinnen opined.
25. During the Hearing, Dr Dinnen noted that the symptoms of chronic anxiety disorder for Mr Preece are tightness of the chest, sleep disturbance, trouble with balance, subjective feelings of anxiety, worrying excessively about everything, feeling keyed-up and on edge and associated with heavy alcohol consumption through the years (Transcript, 29 July 2003, p11). Mr Preece’s lack of recall is a clear feature of chronic anxiety with patchy and invariable impairment of the memory and concentration. The generalised anxiety disorder commenced, Dr Dinnen opined, consequent to Mr Preece’s trip to Vietnam. This conclusion was reached by Dr Dinnen by reference to Mr Preece’s evidence and the evidence found in the documentation. Dr Dinnen stated that if he had been presented only with the 1973 service medical report of anxiety, for a sailor who at that stage had been in the service for approximately seven years, as a psychiatrist in those circumstances, Dr Dinnen would have given that a great deal of weight because he knows that servicemen generally are reluctant to volunteer that they are having psychological problems as it counts against them in the progression of their career. It may well have been that a broken engagement was a factor, but Dr Dinnen did not go into detail about that. The fact of the matter was, however, that Dr Dinnen in forming his opinion also had the history from Mr Preece of his experiences in Vietnam which was consistent with the 1973 report. This suggested to Dr Dinnen an earlier onset of generalised anxiety disorder. The contemporaneous documentation and reports support that diagnostic conclusion. It may well be, Dr Dinnen further opined, that it was more likely than not that Mr Preece had a constitutional vulnerability to anxiety disorder but for Dr Dinnen, the impact of the trip to Vietnam is consistent with a suggested severe psychosocial stressor. From Dr Dinnen’s review of the documentation and the history provided by Mr Preece, Dr Dinnen opined that alcohol abuse was secondary to the anxiety disorder, in addition to agoraphobia, panic disorder and depression.
26. Dr Dinnen acknowledged that in terms of determining a severe psychosocial stressor, it is difficult to understand how longstanding chronic illness such as a generalised anxiety can be triggered off by one day in Vietnamese waters. Dr Dinnen stated that he relied on what Mr Preece had told him and this enabled him to conclude that Mr Preece had experienced a severe psychosocial stressor. That is, the definition of psychosocial stressor encompasses Mr Preece’s experiences in HMAS Duchess. He was vulnerable, perhaps because of the loss of his mother and constitutional factors. He was apprehensive, having been told only a day before that the ship was going to Vietnam. Furthermore, Dr Dinnen opined that even if the alcohol abuse was treated, Mr Preece would still have a generalised anxiety disorder. Although there was no formal diagnosis of anxiety until 1973, Dr Dinnen relied on Mr Preece’s subjective account of being anxious and his use of alcohol supported by the evidence that he was a changed person after Vietnam. It was noted also by Dr Dinnen that Mr Preece’s friends did not want to have contact with him. Mr Preece got into arguments and fights in the Navy.
27. Dr Dinnen did not consider Dr A White’s opinion to be realistic, concluding it is possible to diagnose comorbid conditions such as generalised anxiety disorder, alongside alcohol abuse. Dr Dinnen could not see why the numerous symptoms that Dr White acknowledged being present in Mr Preece, should be disregarded because of the presence also of an alcohol problem. Furthermore, Dr Dinnen referred the Tribunal to the presence of ongoing significantly disabling anxiety reported by many doctors over the years. Dr Dinnen opined that Mr Preece is “quite significantly disabled by chronic symptoms. The fact that he is able to walk and talk and feed himself and go through his daily business, doesn’t mean that he’s not distressed and suffering” (Transcript 29 July 2003, p14). Dr Dinnen further noted that:
“… it seems to come up from time to time that one is not suffering from an illness unless one is somehow disabled. The only place where one finds that enshrined in institutional life at present is in the workers’ compensation and third party schemes as enacted by the NSW Government where, to have a disabling psychiatric condition, according to my understanding of the tables, the patient has virtually to be hospitalised.” (Transcript 29 July 2003, p14)
28. Despite what Dr White said about Mr Preece not being significantly disabled because of his ability to sustain a career in the Navy for 20 years, Dr Dinnen opined that there are degrees of illness. It is not just about the artificiality of the compensation scheme. Mr Preece’s performance at work was below what it should have been. Dr Dinnen further opined that just because Mr Preece stayed in the Navy for 20 years and attained the level of Warrant Officer, it could not be automatically assumed that there was no ongoing level of disabling symptomology. Dr Dinnen also stated that one must also look at the clinical picture also provided by this applicant.
29. Dr White in his report dated 6 May 2003 (Exhibit R3), noted that Mr Preece’s current problem is alcohol abuse. Dr White opined that Mr Preece did not fulfil Criterion A2 in the DSM-IV requirements for post traumatic stress disorder which requires that there is an “immediate psychological response following the stressor”. Dr White acknowledged in evidence to the Tribunal, that he had incorrectly referred to post traumatic stress disorder and not generalised anxiety disorder. Dr White also acknowledged in evidence that he thought Mr Preece was seeking compensation for a work stress claim related to his service and he misunderstood that Mr Preece was seeking a Disability Pension. Dr White noted that Mr Preece described quite serious psychiatric symptoms including depression, insomnia and suicidal thoughts. Mr Preece also described to Dr White “implausible symptoms of a single recurring dream and no other dreams since his time in Vietnam” (Exhibit R3, p3). Dr White advised that a diagnosis could not be made until Mr Preece was detoxified from his alcohol abuse and had been reviewed six weeks after he became and remained abstinent from alcohol and sedatives. It was Dr White’s reported view that Mr Preece suffered from alcoholism and may have had an underlying constitutional psychiatric disorder, but neither could be reasonably or logically attributed to Mr Preece’s experiences in the Navy, specifically in Vietnam. Dr White stated that he has over 20 years’ experience working in the field of alcoholism.
30. Dr White opined that one cannot make a diagnosis on symptoms alone but it must be also shown that there are characteristics of the condition and the behaviour on examination which looks like mental illness. Mr Preece’s employment history is not consistent with significant cognitive impairment. In this regard, Dr White noted there is no evidence of discipline or charges for aggressive behaviour. Notwithstanding the DSM-IV diagnostic Criterion E which requires clinically significant distress or impairment in social, occupational or other important areas of functioning with the use of the conjunctive “or”, Dr White stated that “the modern opinion is that symptoms without disability and impairment do not equate to mental illness” (Transcript 29 July 2003, p39). The reports from psychiatrists in 1973 and 1976 indicated to Dr White that there were symptoms, but not “a disabling psychiatric disorder”. Later in evidence to the Tribunal, Dr White however amended his report to indicate that he should have said that the symptoms were not evidence of a “significant psychiatric disorder”.
31. In evidence to the Tribunal, Dr White acknowledged that he had not been told in Veterans’ matters that the veteran had no onus or duty to show the Tribunal that he or she was attempting to improve or mitigate their disability and that was, with the clinical observation, part of the basis of his opinion, given Dr White’s experience in the common law personal injury jurisdiction. Dr White reiterated his view that one cannot assess whether or not a person has the capacity to give up alcohol without an attempt to try (Transcript 29 July 2003, p42).
32. In terms of Mr Preece’s credibility, Dr White referred to Mr Preece’s reports of disproportionate levels of severe psychiatric symptomology when in fact his life experiences, particularly his career in the Navy and the Federal Police, did not fit the picture of a person who had been disturbed by mental illness since 1968. Dr White’s “gut feeling” was that there was no psychiatric condition present, even if Mr Preece was detoxified. It is also Dr White’s opinion that the overwhelming majority of people can recover from a life trauma in 12 weeks. Dr White explained that if people are exposed to a trauma which precipitates psychiatric symptoms, the person will either recover or the trauma precipitates through a genetic vulnerability, such conditions as major depression or panic disorder or something similar and the illness will persist until such time as it is treated. Dr White noted that many patients, if exposed to a trauma that leads to their experiencing psychiatric symptoms, may receive endless trauma counselling when, in actual fact they should be prescribed “Prozac” or something similar to assist them to recover from the trauma. It is an important clinical and diagnostic issue, Dr White stated, concluding that chronic persisting symptoms not related to the trauma indicate that the effect of the trauma has worn off, but the ongoing psychiatric underlying constitutional mental illness persists (Transcript 29 July 2003, p32). Dr White opined that there is no credible documentation indicating adequate evidence of disability or impairment due to a psychiatric disorder during or immediately after the events in HMAS Duchess. It was Dr White’s belief that alcohol abuse was a sufficient explanation for the causation of Mr Preece’s symptoms.
33. Dr White’s further opinion in relation to Mr Preece is that he does not follow medical advice and is not motivated to give up alcohol or drugs. Mr Preece’s evidence of behavioural or personality dysfunction could be reversed at any time, if he so chose. Mr Preece’s non-compliance with treatment should not be seen as evidence of permanent mental illness or incapacity, but as behaviour consistent with more short-term goals, such as voluntary intoxication or sedation (Exhibit R3). Dr Dinnen’s view that Mr Preece has untreatable alcoholism linked to an event many years ago in Vietnam and following assessment once in a medico-legal appointment, is, in Dr White’s opinion, “at the most a guess and, in reality, one can say with reasonable medical certainty that [Mr Preece’s] alcohol abuse is unrelated to a particular event many years ago” (Transcript 29 July, 2003, p15).
34. People seeking compensation learn the symptoms, Dr White opined. Furthermore, if Mr Preece ceased drinking, there would no longer be alcohol abuse and Dr White opined that Mr Preece was not going to be found to be seriously mentally ill. While Dr White acknowledged that there is documentation in the 1970’s of anxiety, and of there being trouble with driving under the influence charges, in addition to Mr Preece being treated by “Stelazine” and “Tryptanol”, Dr White opined that if there had been a significant event in 1968, then the effect of the psychosocial stressor would have to be immediate. Dr White then noted that the concept of delayed post traumatic stress disorder is increasingly controversial but was reminded again that the Tribunal was not dealing with a claim for post traumatic stress disorder by Mr Preece (Transcript 29 July 2003, p21). There should be no weight placed on such treatment in the Navy, Dr White opined, because the treating specialist perhaps was going through “an anti-Valium stage” and trying to boost “Stelazine” (Transcript 29 July 2003, p49). Dr White did not wish to minimise the effect on a young Mr Preece being in a combat zone, but stated that what makes a good soldier is somebody who learns to cope with the situation and goes on. Dr White has no doubt that being in a combat zone causes apprehension and it is normal to be frightened (Transcript 29 July 2003, p22).
evidence of dr b white, consultant psychiatrist
35. Dr White provided a report dated 19 August 2001 (T7). Dr White first saw Mr Preece on 25 May 2001 on referral from Dr Chan, General Practitioner. Mr Preece was reviewed on 27 June 2001, 1 August 2001 and 19 August 2001 prior to Dr White’s report. Dr White opined that Mr Preece met the requirements of the Statements of Principles for generalised anxiety disorder caused by his service in Vietnam. In this regard, Dr White opined that Mr Preece experienced stressful events which evoked feelings of anxiety and stress. Mr Preece was a young man in a war zone facing the unknown and had never been away from home. Dr White referred to Mr Preece being poorly supported by his “supervising NCO” (Non Commissioned Officer) and that symptoms of generalised anxiety disorder occurred not more than two years before the clinical onset of generalised anxiety disorder. Dr White noted that Mr Preece had excessive anxiety and worry occurring more days than not for at least six months which he found difficult to control. Mr Preece also had associated symptoms of restlessness, feeling keyed-up and on edge, he was easily fatigued, had concentration difficulties and irritability. There were also other symptoms of muscle tension and sleep disturbance. Referring specifically to the other diagnostic criteria, Dr White noted that Mr Preece’s anxiety caused clinically significant distress and impairment in social and occupational areas of functioning and was not due to the direct physiological effects of a drug abuse, medication or a general medical condition and also did not occur during a mood disorder and that there was some depressive disorder likely to have commenced after the anxiety disorder. Dr White assessed Mr Preece’s level of impairment from Chapter 4 of the “Guide to the Assessment of Rates of Veterans’ Pension (“the Guide”) of being 47 points.
36. Dr White referred to Mr Preece’s navy medical records indicating that he had chest pain in 1971, abdominal pain in 1973 and anxiety and depression, formally noted in 1973. He was treated for depression with “Tryptanol” in 1976 and continued to have chest pain and underlying depression. Dr White noted that Mr Preece was treated with “Doxepin” in 1977. Dr White’s diagnosis is that Mr Preece has a major depressive disorder and generalised anxiety disorder with associated agoraphobia and alcohol abuse, which developed partly as a means of self treatment. Mr Preece does not meet the criteria for post traumatic stress disorder although he has many symptoms. It is likely that the anxiety disorder preceded the depressive disorder and was prominent from his time in Vietnam.
evidence of captain h a josephs am, write-way research service
37. Captain Josephs provided a report dated 16 July 2003 (Exhibit R4) and also provided oral evidence. Captain Josephs corrected his report in oral evidence noting that HMAS Duchess escorted HMAS Sydney, on 20 November 1968 into Vung Tau Harbour. HMAS Duchess was detached at 5:30am on that day and proceeded up the harbour to the anchorage ahead of HMAS Sydney (Exhibit R4, Appendix F). HMAS Duchess would have undertaken a sweep of HMAS Sydney to check she was secure and then HMAS Sydney anchored at about 7.00am (Exhibit R4, Attachment No. 4). HMAS Duchess would not have anchored out of the harbour the night before as this was not part of the standard operating procedure at that time. HMAS Duchess would have been anchored for about four and a quarter hours. Captain Josephs did not check any reports or documents for the period 19 November 1968. HMAS Sydney would have weighed anchor for departure at 11.18am. HMAS Duchess went to Action Stations on 19 November 1968 for approximately 30 minutes and then was closed up to Defence Stations. HMAS Duchess would have been a “darkened ship” while closed up at Defence Stations the night before arrival in Vung Tau Harbour.
38. It would not have been surprising, Captain Josephs stated, that Mr Preece did not know of the trip to Vietnam any sooner than one day before arriving. He would have had little opportunity to know any sooner.
39. After Vietnam, HMAS Duchess went to Singapore for two and a quarter hours and would have been in sight of the dock, it would have then gone to Hong Kong and then Korea.
40. Captain Josephs described “Operation Awkward”. This was a longstanding set of instructions concerning the underwater defence of a war ship while at anchor or alongside in potentially threatening circumstances. Operation Awkward measures were contained in the Ship’s Standing Orders. While ships were at anchor off Vung Tau, the possibility of underwater attack by free swimming saboteurs was recognised and always guarded against. The tidal range in Vung Tau Harbour was about ten feet, the tidal stream ran at about four to six knots and the outflow of the local river system contained a lot of debris including vegetation. The tidal stream made the task of free-swimming saboteurs difficult just as it made it difficult for the ship’s divers to search the ship’s bottom, except in periods of slack water which occurred 30 minutes either side of high or low water. There was a concern that swimming saboteurs could approach the ship under cover of the debris. Another concern was that semi-submerged or submerged mines attached together by line, could be hidden under debris and then float down on the ship, snag the anchor cable and end up on either side of the ship. Typically, Operation Awkward measures would have been adopted off Vung Tau and would have implemented the following measures:
“
· armed sentries posted on the upper deck to watch for any signs of suspicious activity, eg air bubbles or suspicious floating debris;
· ship’s boats patrolled in the vicinity of the ship towing “home made” anti-swimmer devices constructed from grappling hooks, barbed wire and similar items;
· ship’s divers searched the anchored cable and the ship’s hull from time to time;
· scare charges were thrown overboard from the ship and/or the patrolling boats at irregular intervals, except when ship’s divers were in the water;
· the ship remained at short notice to get under way, and main engines were turned from time to time to increase the wash under the hull;
· medium range solar (if fitted) was operated occasionally to disorientate any divers in the vicinity;
· the anchor cable was broken and the overboard end secured (sic) to a slip so that it could be released immediately if the ship needed to get under way;
· the ship remained in Damage Control State 3 Condition Y, a high state of watertight integrity;”(Exhibit R4, p3)
41. Captain Josephs noted that scare charges would be thrown overboard from a ship such as HMAS Duchess and it would explode at a depth of about six metres or a little deeper if it was thrown from the ship’s boats. Scare charges were and are a major deterrent as a scare charge explosion causes death or serious injury to divers in the near vicinity and disorientation at greater ranges. On board a ship, the sound of a scare charge explosion is typically a loud thud but would vary with, amongst other things, distance from the ship, depth of the water, depth of the explosion and the characteristics of the seabed.
42. There is confirmation that on 20 November 1968 that on board HMAS Duchess, ship’s divers searched the ship’s bottom twice during slack water off Vung Tau and that scare charges were dropped at other times. No other unusual activity was observed.
43. Captain Josephs consulted Commodore JA Robertson RAN Rtd, who commanded HMAS Duchess at the relevant time. Commodore Robertson noted that all members of the ship’s company would have been aware of the elements and aims of Operation Awkward and sentries were provided and briefed to deal with underwater threats. They would have been aware these scare charges were deliberately deployed to combat potential saboteurs and there were no threat to the ship’s personnel from these scare charges. When Mr Preece was at sea in HMAS Duchess, he would have had assigned action and defence stations within his communication specialisation. Once at anchor, the emphasis on such functions might have been reduced and he could have been assigned other duties. Mr Preece’s specialist communication training would not have included detailed training in the use of small arms and explosives such as that of a seaman. Captain Josephs opined that it was difficult to comprehend a situation which would have lead to Mr Preece as a Radio Operator Special to be assigned to upper deck sentry duty. However, because such duty assignments were regarded as of short-term interest only, they were not recorded for historical reference and thus it was not possible for Captain Josephs to positively confirm or deny that Mr Preece was employed undertaking patrol sentry duty on 20 November 1968.
44. There is no indication from the ship’s documents of any unusual or potentially threatening action observed taking place onshore during Mr Preece’s visit to Vung Tau. Furthermore, a copy of HMAS Sydney’s Record of Proceedings for November 1968 makes no reference to gun fire or other military action having been observed or heard. Any such activity would have been of operational significance for both ships and unlikely not to have been referred to in the Record of Proceedings. There was a history of infrequent enemy mortar and rocket attacks against the Vung Tau port area launched from Long Son Island, which would have been 5.7 kilometres north east of HMAS Sydney’s anchorage. The attacks launched by Viet Cong squads were usually launched under cover of darkness due to the swift retaliatory response that could be expected from Allied Forces. Captain Josephs opined that the presence of a powerful gun ship escort such as HMAS Duchess was a strong deterrent to such enemy action while HMAS Sydney was off Vung Tau. Captain Josephs noted that there were one ground and three air strikes that day which were located between 43 and 49 kilometres to the north east of HMAS Duchess’ anchorage. Captain Josephs concluded that because of the direction and distance and particularly the intervening terrain, that none of the recorded strikes would have been visible or audible from HMAS Duchess.
consideration and findings
45. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law. First, the Tribunal must determine to its reasonable satisfaction pursuant to subsection 120(4) of the Act, the diagnosis of any of Mr Preece’s conditions and if there is an appropriate diagnosis, determine whether that correctly diagnosed condition was war-caused.
46. From Mr Preece’s service medical documents, there are various notations of his being nervous or worried or anxious including references on 17 July 1973 (T3, p16); on 7 November 1977 where he is noted to have been suffering “depression” (T3, p17); on 26 March 1976 where it was recorded that Mr Preece was suffering from depression and was prescribed Tryptanol (T3, p18); on 2 April 1976 where Mr Preece was diagnosed as having masked depression (T3, p19); on 26 October 1973 he was reported to be suffering from anxiety and depression and was prescribed Stelazine (T3, p20). In a report dated 23 December 1980 (T3, p30), it is reported that Mr Preece was waking up frequently, complaining of fatigue and sleeping too much. It was also noted that he worried a great deal and was feeling angry and often anxious. Dr Dinnen, Consultant Psychiatrist and Dr B White, Mr Preece’s treating psychiatrist diagnosed Mr Preece as suffering from generalised anxiety disorder. DSM-IV has six diagnostic criteria which must be met. Mr Preece has himself reported, as has his treating psychiatrist, Dr B White, excessive anxiety and worry which occurs on more days than most and has been for a continuous period of at least six months, Mr Preece further reports, since Vietnam. There are a number of events such as his troubles at work and his relationship difficulties which indicate to the Tribunal that Mr Preece’s circumstances satisfy Criterion A. This is supported by Dr Dinnen’s opinion. Dr A White acknowledges Mr Preece’s symptoms but is not prepared to offer a diagnosis because of the presence of “alcoholism” or alcohol abuse. The weight of evidence from the service medicals, from Mr Preece himself and from Dr B White and Dr Dinnen is that Mr Preece finds it difficult to control the worry and anxiety and hence, the Tribunal is reasonably satisfied that Mr Preece satisfied the Criterion B.
47. Reports from Mr Preece’s service medicals and from Dr B White, Dr Dinnen and Mr Preece himself, indicate that he is irritable, feels keyed-up, on edge or anxious and nervous. Furthermore, Mr Preece states that he experiences sleep disturbance and the Tribunal is reasonably satisfied that Mr Preece satisfies Criterion C. Mr Preece also reports and it is recorded in documents from time to time, that he has had poor concentration and fatigue.
48. Diagnostic Criterion D requires that the focus of the anxiety and worry is not confined to the features of any other Axis 1 disorder, such as panic disorder, social phobia, excessive compulsive disorder, separation anxiety and that the anxiety and worry do not occur exclusively during post traumatic stress disorder. The Tribunal is reasonably satisfied on all of the evidence that Mr Preece’s anxiety and worry are not confined to the features of any other Axis 1 disorder nor to post traumatic stress disorder.
49. In relation to Criterion E, this requires that the worry or symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning. Criterion E does not require absolutes of clinically significant distress in occupation and social and other areas of function but rather this distress in one or other of those categories. Dr A White looked at the fact of Mr Preece’s career in the Navy and as a civil public servant of some 20 years and cited this as evidence of no distress in occupation. The Tribunal cannot, on all of the evidence including contemporaneous service records, the opinions of a treating psychiatrist and psychiatric experts combined with Mr Preece’s evidence, ignore that there are reports of clinical distress in each of these areas contained in Criterion E. While it is true that Mr Preece did have a career in the Navy during which he was promoted and also a career in the Australian Federal Police, this does not mean of itself that there was no distress. There were difficulties at work with Mr Preece’s attitude, with his consumption of alcohol and as he stated, and the Tribunal accepts, his way of dealing with his anxiety was to work long hours as a means of controlling the anxiety. There is also evidence of relationship difficulties with his wife which indicates significant clinical distress.
50. Dr B White reported that Mr Preece’s relationship with his wife and family is very distant. There are reports of separation from his wife. At work, Mr Preece was irritable, aggressive and at times “looking for trouble”. Mr Preece, on all of the evidence available to the Tribunal would seem to have no social life, no close friends and is socially withdrawn (T8, pp61, 62). Dr Dinnen reported, as did Mr Preece and it is not disputed by the Respondent, that on return from Vietnam, he was asked to leave the family home because of his alcohol consumption. There are reports that Mr Preece was argumentative in the Navy and got into “strife”. Again this is not disputed by the Respondent. Dr A White was concerned that Mr Preece was not motivated to assist himself and because he had done nothing to ameliorate his symptoms, his claim is problematic. Dr A White also was mistakenly referring to post traumatic stress disorder during a number of occasions in his evidence mixing up that Mr Preece was not claiming that condition but rather generalised anxiety disorder. Dr A White had difficulty in the application of Criterion E to Mr Preece’s circumstances, seeming to believe that the criterion required Mr Preece to satisfy each of the categories, whereas, that is not in fact the requirement.
51. Criterion F requires that the anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, psychiatric disorder or a pervasive developmental disorder. Dr A White’s concern and the reason he did not provide a diagnosis, is that he considered that Mr Preece needed to be detoxified from alcohol before a diagnosis could be made. It is also Dr A White’s view, that if detoxification occurred, he would have been very surprised if a psychiatric condition remained. This view is not shared by the treating psychiatrist, Dr B White nor Dr Dinnen and certainly is not evident in the contemporaneous service medical reports and opinions. On all of the evidence, the Tribunal is reasonably satisfied that while there is alcohol abuse present, this is secondary to generalised anxiety disorder. We are also reasonably satisfied, in making this finding, that comorbidity of generalised anxiety disorder and alcohol abuse in this case, is not unusual and is certainly recognised in this jurisdiction through the Statement of Principles and in the “Guide to the Assessment of Rates of Veterans’ Pensions” (“the Guide”).
52. Thus, in all of the circumstances and given the weight of evidence, the Tribunal is reasonably satisfied that a diagnosis of generalised anxiety disorder is made out in line with the diagnostic criteria in DSM-IV and also as noted in the relevant Statement of Principles agreed by the parties and the Tribunal to be Instrument Number 1 of 2000 concerning Anxiety Disorder. As part of the diagnosis of generalised anxiety disorder and in line with the opinions of Dr B White and Dr Dinnen, the Tribunal finds that secondary to generalised anxiety disorder is depressive disorder, alcohol abuse and associated agoraphobia.
53. As was discussed with Dr A White during the Hearing, it is important to establish diagnosis and this is distinct to the issue of causation. In reaching a determination concerning the causation of Mr Preece’s generalised anxiety disorder with its secondary conditions of depressive disorder, alcohol abuse and associated agoraphobia, the Tribunal must apply subsections 120(3) and 120(1) of the Act in combination with section 120A of the Act. The relationship between these legislative provisions was explained in Repatriation Commission v Deledio (1998) 83 FCR 82. Thus, the Tribunal must first establish pursuant to subsection 120(3) of the Act whether or not a reasonable hypothesis is raised linking Mr Preece’s circumstances on service to the condition. In doing so, we are not at this point, making any findings of fact, although it will be noted, as part of the process of establishing a diagnosis of Mr Preece’s psychiatric condition to our reasonable satisfaction, we have necessarily made some findings of fact during that process.
54. The general hypothesis put by the Applicant is that Mr Preece was a psychologically vulnerable individual prior to him going to Vietnam. The anxiety of going to Vietnam in circumstances where he had little notice of it; was exposed to Operation Awkward; the threat of enemy mines; seeing the distant evidence of enemy fire; having a superior officer showing a lack of leadership; being on patrol and exposed to being closed up at Defence Stations together was sufficient as a psychosocial stressor to cause the onset of generalised anxiety disorder. Furthermore, it was submitted that following that trip to Vietnam, there was the onset of generalised anxiety disorder within two years of experiencing a severe psychosocial stressor. “Severe psychosocial stressor” is defined in the Statement of Principles as:
“…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;…”
55. Certainly, the material points to Mr Preece experiencing excessive anxiety and worry since Vietnam and his change in behaviour particularly from his alcohol consumption was apparent when his family turned him out of the family home upon return from Vietnam. The material points to Mr Preece being aggressive and of significantly increasing his alcohol consumption all within two years. The material also points to Mr Preece having sleep disturbance and relationship problems. There is nothing fanciful or unrealistic about this general hypothesis and it is within the realms of possibility. Accordingly, the Tribunal finds that pursuant to subsection 120(3) of the Act, that a reasonable hypothesis has been raised.
56. Given that we have found that the hypothesis is reasonable, Mr Preece’s claim will succeed unless one or more facts necessary to support it are disproved beyond reasonable doubt pursuant to subsection 120(1) of the Act. There are a number of elements in Factor 5 (a)(ii) of the Statement of Principles which must be supported. Thus, there must be an identifiable occurrence of the severe psychosocial stressor. There must be the experience of substantial distress and the onset of generalised anxiety disorder within two years of the psychosocial stressor. Firstly, considering the examples of psychosocial stressors provided by the Applicant, these are diverse as noted in Re Gray and Repatriation Commission (2004) AATA 224. Mr Bunn, for the Respondent, points to there being no identifiable threat of death or injury in Mr Preece’s trip to Vietnam. Dr A White could not identify a severe psychosocial stressor either. Dr Dinnen, on the other hand, opined that Mr Preece was a psychologically vulnerable individual before going to Vietnam and that the experience of being there, having little notice of going to Vietnam, experiencing Defence Stations, undertaking sentry patrol duty in circumstances where it was a known reality that enemy divers could attach limpid mines or mines could float in the current to blow up ships, was a severe psychosocial stressor to the same level, in Dr Dinnen’s opinion, of having severe financial or legal problems as outlined in the definition within the Statement of Principles.
57. In Stoddart v Repatriation Commission [2003] FCA 334, which considered amongst other issues, the definition “experiencing a severe stressor” in relation to the Statement of Principles concerning Alcohol Dependence or Alcohol Abuse, Instrument Number 76 of 1998 and the Statement of Principles concerning Post Traumatic Stress Disorder, Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999, Mansfield J determined at paragraph 40 that there is no doubt a subjective element required to “experience” a severe stressor. While specifically considering that definition which dealt with events which involved the threat of death or serious injury in relation to alcohol liver disease and post traumatic stress disorder, Mansfield J noted, and relevant to Mr Preece’s matter:
“it is not apparent to me why the SOP’s should distinguish between events which actually involved the threat of death or serious injury leading to ALD or PTSD and events which were perceived (and for the sake of considering the contention, I assume reasonably perceived) as involving the threat of death or serious injury leading to ALD or PTSD” (at paragraph 47)
…
In my judgement the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involve the threat of death or serious injury, or a threat to physical integrity, if the event or events, which are said to constitute the threat judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing these events, are capable of and did convey (ie are subjectively experienced) the risk of death or serious injury or to physical integrity” (at paragraph 55).
58. More recently in Woodward v Repatriation Commission [2003] FCA 160, the Full Federal Court considered the reasoning of Mansfield J in Stoddart v Repatriation Commission (supra) to be persuasive and determined, again in relation to post traumatic stress disorder and alcohol dependence, and the definition of experiencing a severe stressor:
“The question then is whether material pointing to a genuine belief based on reasonable grounds that an event or events involve a threat of death or serious injury can satisfy the definition of “experiencing a severe stressor” when there is no material pointing to the reality in fact of what is genuinely and reasonably perceived.(at paragraph 138)
…
In other words, “experiencing” should be construed as having at least this partially subjective connotation.” (at paragraph 142)
59. Captain Josephs in his evidence to the Tribunal stated that it was possible that Mr Preece would not have known he was going to Vietnam until as short as one or two days before arriving. Furthermore, the ship was closed up for Action Stations for a short period on 19 November 1968 and then went to Defence Stations in Vung Tau Harbour. Mr Preece described feeling very anxious and worried and was also afraid about the potential of limpid mines being attached to HMAS Duchess or of other mines blowing up the ship. He noted in his statement that scare charges were exploded and Captain Josephs confirmed in his report that this occurred. Captain Joseph also confirmed that whilst ships were at anchor, there was the real possibility of underwater attacks by free swimming saboteurs and this was recognised by the application of Operation Awkward procedures. There is evidence that on 20 November 1968, when Mr Preece was in Vietnam, divers from HMAS Duchess searched the ship’s hull on two occasions during flat water in Vung Tau Harbour. There is evidence pointing to the reality of the danger to HMAS Duchess of enemy attack from enemy divers. Thus, the potentially threatening circumstances in which Mr Preece found himself were an objective reality. The fact that there was no attack or explosion does not, in the Tribunal’s view, detract from these circumstances which caused Mr Preece to subjectively perceive danger resulting in anxiety and worry about his circumstances. The Tribunal accepts that Mr Preece was on sentry duty and Captain Josephs, while noting that this was unusual, was not able to conclude that this did not occur. The Tribunal concludes that Mr Preece genuinely felt and experienced excessive anxiety and worry arising out of his short period in Vung Tau Harbour.
60. Dr A White and Mr Bunn questioned how it is possible that such a short period in Vung Tau Harbour could constitute a severe psychosocial stressor, particularly as there was no identifiable event(s) which actually caused or threatened harm to Mr Preece or others. While this is a superficially attractive argument, the Tribunal must take into account the individual circumstances of this veteran, Mr Preece. We accept, from all of the evidence that Mr Preece was psychologically vulnerable. Others serving in HMAS Duchess and perhaps the majority, who experienced similar circumstances to Mr Preece, did not develop psychiatric conditions. We are not concerned however with the majority of sailors serving in HMAS Duchess but with the individual who presents himself before this Tribunal, Mr Preece. We accept Mr Preece’s evidence that he was very distressed, fearful and anxious at finding himself in Vung Tau. We have also accepted that Mr Preece has a correctly diagnosed primary condition of generalised anxiety disorder.
61. It is further argued by the Respondent that Mr Preece should have had a reasonable expectation of going to sea in an operational area such as Vietnam. However, as Captain Josephs noted, it is certainly possible that Mr Preece would not have been given much notice of his entry into Vietnamese territorial waters and Vung Tau Harbour as the ultimate destination. Again, while other sailors may not have experienced Mr Preece’s reaction, under his circumstances his reaction is not extraordinary.
62. Applying the principles in Stoddart v Repatriation Commission (Supra), Woodward v Repatriation Commission (supra) and more recently Delahunty v Repatriation Commission [2004] FCA 309 we find that the identifiable occurrence of the explosion of scare charges as part of Operation Awkward is sufficient in our view to constitute Mr Preece experiencing a severe psychosocial stressor, given his psychological vulnerability. Furthermore, other severe psychosocial stressors for this individual would be the undertaking of sentry duty when this was not part of Mr Preece’s normal duties and in circumstances where he had little notice of entering a war zone.
63. In relation to the issue of the onset of generalised anxiety disorder within two years this is difficult in the absence of firm documentation. Certainly, there is a formal diagnosis by 1973 of an anxiety disorder. Dr Dinnen and Dr B White both considered that the generalised anxiety disorder commenced in Vietnam or shortly thereafter, certainly within two years. In the Tribunal’s view, there are symptoms of generalised anxiety disorder present which would indicate that a diagnosis of generalised anxiety disorder could be made prior to 1973. There is no evidence available to disprove the onset within two years and the Tribunal does not consider that the application of section 119 of the Act to Mr Preece’s circumstances, involves speculation or improper use of the section to bolster evidentiary deficiencies. The signs of excessive anxiety and worry, irritability, sleeplessness, aggression and poor concentration as reported by Mr Preece and accepted by Dr Dinnen and Dr B White indicate the onset of generalised anxiety disorder to the Tribunal beyond our reasonable doubt.
64. Dr A White did not diagnose generalised anxiety disorder because he believes that Mr Preece needs to be detoxified. The Tribunal does not accept that Mr Preece could not have generalised anxiety disorder comorbidly with the symptoms of an alcohol abuse or dependence problem. Dr A White’s evidence was less useful to the Tribunal because of his frequent mistaken reference to the diagnostic criteria for post traumatic stress disorder which were not relevant to this case and also because of Dr A White’s mistaken belief about the onus of proof in relation to a veteran seeking a Disability Pension under the Act as opposed to seeking common law lump sum compensation. The further opinion of Dr A White and submissions by Mr Bunn that Mr Preece was able to enjoy full employment which would indicate he was not troubled by any psychiatric condition, is not supported by the weight of evidence which while acknowledging Mr Preece’s longevity in employment, does not take into account the difficulties he had, the obsessive work ethic in order to try to contain his symptoms of anxiety and of other associated symptoms such as alcohol abuse, difficulties in concentration and problems in the work area as identified by Dr Chase, Occupational Physician (Exhibit R1).
65. We conclude that the reasonable hypothesis is not disproved beyond reasonable doubt upon consideration of the available facts. That is, Mr Preece experienced a number of severe psychosocial stressors during his time in Vietnam which, individually or in combination, in a psychologically vulnerable person, involved his arriving in Vietnam without notice, experiencing the operational reality of Operation Awkward procedures, undertaking sentry duty and the vulnerability he felt in all of those circumstances given rise to excessive anxiety and distress. Mr Preece experienced a severe psychosocial stressor(s) within the two years immediately before the clinical onset of generalised anxiety.
66. In all of the circumstances, pursuant to subsection 120(1) of the Act the Tribunal finds that there is no sufficient ground to find beyond reasonable doubt that generalised anxiety disorder with secondary conditions of alcohol abuse, depressive disorder and agoraphobia are not war-caused with effect from 4 March 2001.
67. Turning to the issue of assessment, Mr Bunn conceded that if the Tribunal found that generalised anxiety disorder was determined to be war-caused, then the requirements of section 24 of the Act in relation to qualification for the Special Rate of pension are met. The Tribunal, having considered the application of section 24 agrees with this concession including that the assessment of Mr Preece’s Disability Pension is at least 70 per cent of the General Rate and hence, Special Rate is payable with effect from the date Mr Preece ceased work on 15 July 2002 (Exhibit A1).
68. Accordingly, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and in substitution therefore, the Tribunal determines that:
(i)Mr Preece has a war-caused condition of generalised anxiety disorder with secondary alcohol abuse, depressive disorder and agoraphobia as part of the primary condition of generalised anxiety disorder. Disability Pension is payable in relation to that condition with effect from 4 March 2001 and the assessment of the generalised anxiety disorder and all of Mr Preece’s other war-caused conditions is to be remitted to the Repatriation Commission to be assessed up to date.
(ii)Mr Preece is qualified to receive the Special Rate of Pension pursuant to section 24 of the Act with effect from the date he ceased work on 15 July 2002.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of SM Bullock and
Dr J C Campbell.Signed: .....................................................................................
AssociateDates of Hearing 29 July 2003 and 12 November 2003
Date of Decision 6 May 2004
Counsel for the Applicant Mr N Dawson of Counsel
Solicitor for the Applicant Ms A Aitken, R L Whyburn and Associates
Counsel for the Respondent Mr N Bunn
Solicitor for the Respondent Ms T McConnell, Department of Veterans Affairs
Schedule 1
list of exhibits
Exhibit Number
Description
Date
A1
Statement by Dennis John Preece
3 December 2002
A2
Report from Dr A Dinnen, Consultant Psychiatrist
6 February 2003
R1
Report from Dr R Chase, Occupational Physician
14 March 2003
R2
Report from Dr A White, Consultant Psychiatrist
20 January 2003
R3
Report from Dr A White, Consultant Psychiatrist
6 May 2003
R4
Report from Captain H A Josephs AM, RAN Rtd, Wright Way Research Service
16 July 2003
R5
Clinical Notes from Dr Chan, Occupational Physician
13 December 2002
R6
Canberra Hospital Records
13 December 2002
R7
Clinical Notes from Dr P A Freeman
13 December 2002
R8
Clinical Notes from Dr B White, Consultant Psychiatrist
13 December 2002
R9
Transcript of Hearing from Veterans’ Review Board
2 September 2002
R10
Medical Records from Australian Federal Police
18 December 2002
R11
Mr Preece’s Pay Team Records from Australian Federal Police
22 December 2002
0
6
0