Pye and Repatriation Commission
[2005] AATA 145
•17 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/536
VETERANS APPEALS DIVISION ) Re GORDON PYE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date17 February 2005
PlaceBrisbane
Decision Pursuant to S. 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that –
1. In relation to the decision under review, the correct diagnoses are Post Traumatic Stress Disorder, Generalised Anxiety Disorder and Alcohol Dependence.
2. The Tribunal affirms the decision under review with the varied diagnosis i.e. the claims made are not war-caused pursuant to section 9 of the Veteran’s Entitlements Act 1986.
...................[Sgd]........................
K S Levy
Member
CATCHWORDS
VETERANS – Benefits and Entitlements – Whether applicant’s conditions of Post Traumatic Stress Disorder and Alcohol Dependence or Alcohol Abuse are war caused – Whether applicant suffers from war caused Generalised Anxiety Disorder – Whether events experienced were ‘severe stressors’ or ‘severe psychosocial stressors’ - Applicant suffers from Post Traumatic Stress Disorder, Generalised Anxiety Disorder and Alcohol Dependence or Alcohol Abuse – Conditions not war caused – Decision under review affirmed.
Veterans’ Entitlements Act 1986 ss 5D, 6, 9, 13, 68, 70, 120, 120A, 196B, Schedule 2.
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 12 ALD 798
Benjamin v Repatriation Commission (2003) 70 ALD 622
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Hancock [2003] FCA 711
East v Repatriation Commission (1987) 74 ALR 518; (1987) 12 ALD 389
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Hill (2002) 69 ALD 581
Stoddart v Repatriation Commission [2003] FCA 334; (2003) 74 ALD 366
Lees v Repatriation Commission (2002) 125 FCR 331; (2002) 74 ALD 68
Re Slattery and Repatriation Commission (1988) 52 ALD 90
White v Repatriation Commission [2004] FCA 663
Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Wedekind [2000] FCA 649
Brew v Repatriation Commission [1999] FCA 1246
Stevenson and Repatriation Commission [2002] AATA 130
REASONS FOR DECISION
Dr K S Levy, Member Introduction
1. The applicant, Gordon William Pye, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for review of a decision of the Veterans’ Review Board dated 8 May 2003. That decision rejected a claim that the accepted condition of post traumatic stress disorder and a claimed condition of alcohol dependence or alcohol abuse were war-caused, under the Veterans’ Entitlements Act 1986 (the Act).
2. He has been accepted for, and currently receives, 60% of the general rate of pension from 19 November 2001 for the condition of gastro-oesophageal reflux disease which was accepted as service-related.
3. The current application is based on the contentions that the applicant’s claimed disabilities of Post Traumatic Stress Disorder (PTSD) and Alcohol Dependence/Alcohol Abuse satisfy the diagnostic criteria for these conditions; and that he experienced a severe stressor prior to the clinical onset of PTSD and Alcohol Abuse/Alcohol Dependence.
4. The applicant also claims he suffers from Generalised Anxiety Disorder and as per the Statement of Principles (SoP) for Generalised Anxiety Disorder, it is claimed he experienced a severe psychosocial stressor within 2 years immediately before the clinical onset of the anxiety disorder. In the alternative with regard to Generalised Anxiety Disorder, it was submitted that he had a clinically significant psychiatric condition (PTSD), which was war related, within two years of the clinical onset of this anxiety disorder.
5. In relation to Alcohol Dependence and Alcohol Abuse, it was claimed he suffered a psychiatric disorder (PTSD), war related, and/or Generalised Anxiety Disorder, war related, at the time of clinical onset of Alcohol Dependence or Alcohol Abuse. In the alternative, it was submitted that he experienced a severe stressor, war related, within 2 years immediately before the clinical onset of Alcohol Dependence or Alcohol Abuse.
6. The applicant was represented by Mr Anthony Harding of Counsel and Mr S. Mackie of Gilshenan Luton Lawyers. The respondent was represented by its advocate, Mr J. Kelly.
7. The following documents were tendered into evidence –
Exhibit 1 “T” Documents filed under s 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Statements of the applicant filed 27 August 2003
Exhibit 3 Statement of Mr Thomas Maxwell Pye dated 13 August 2003 and filed 16 January 2004.
Exhibit 4 Statement of Les Peters dated 15 July 2003 and filed 22 September 2004; and Statement of Michelle Tomasich cosigned by Lisa Pye (Folio 91 TDocs).
Report by Dr Hargreaves (Folio 62) and Report by Dr Bob Anderson (Folio 99).
Exhibit 5 Report by Dr W J Kingswell, Consultant Psychiatrist, dated 6 February 2004.
Exhibit 6 Report by Commodore P M Mulcare (Writeway Research Service) dated 12 June 2004.
8. Oral evidence was also admitted from the applicant, his brother Thomas Pye, Les Peters, and the applicant’s psychiatrist Dr Jon Hargreaves. The respondent led evidence from Dr Kingswell, Commodore Mulcare and Commodore Fitzgerald.
9. All of the oral evidence and all of the documentary exhibits have been carefully considered in determining this matter.
Issues for Determination
10. The issues for determination in this matter, taking account of the oral and written claims set out, are whether the Applicant’s conditions of PTSD, Generalised Anxiety Disorder, and Alcohol Abuse or Alcohol Dependence are related to operational service and, therefore, war-caused by virtue of section 9 or section 70 of the Act. This involves determining also whether the events experienced satisfy the relevant definitions of ‘severe stressor’ and ‘severe psychosocial stressor’.
Background
11. The applicant is currently 57 years of age. His date of birth is 6 June 1947.
12. He served in the Royal Australian Navy (RAN) from his date of enlistment on 27 June 1964. He was discharged on 8 April 1968. He also served with the Australian Army from 8 January 1975 until 6 April 1991. The applicant had operational service and eligible defence service relevantly as follows -
§ Operational Service (HMAS Yarra)
o 31 March 1965 to 7 May 1965
o 27 May 1965 to 27 July 1965
o 14 September 1970 to 8 April 1971
o 29 July 1965 to 1 September 1965
§ Eligible Defence Service
o 8 January 1975 to 6 April 1991
13. The applicant’s claims for increased rate of pension centre on certain events associated with his service in the RAN and/or the Australian Army. These are –
Operational Service
§ HMAS Yarra
o Incident 1 – When on duty at night, he saw a diver on the edge of the lighted part of the ship, and having been ordered off the boat, believed the boat to be potentially mined, therefore provoking feelings of substantial distress in him for fear of death or serious injury.
o Incident 2 – The “Filipino Ship Incident”, where a darkened ship failed to respond to requests for identification by HMAS Yarra.
o Incident 3 – He was required to search pirate ships that were dressed up as junks.
o Incident 4 – Naval Gunfire support at Tawau. While on the upper river at Tawau, the ship fired illumination, and he thus sensed the closeness of the enemy and that they were “sitting ducks”.
o Incident 5 – Chasing a submarine.
Non-Operational Service
o Incident 6 – In Hong Kong, a bomb blew up close behind him during riots.
o Incident 7 – While in the CMF, he witnessed a serious vehicle accident which involved death and serious injury.
14. Between his Naval and Army service, he worked as a cook at a number of hotels. Since being discharged from the Army, the applicant has worked as a part-time cook in a catering business.
Legislative Framework
15. The relevant legislative provisions of the Act which must be considered in order to determine the applicant’s eligibility for disability pensions are outlined below. Essentially, for proof that an injury or disease has been war-caused, section 9 of the Act must be satisfied. It provides:
“9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…..
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
16. The reference to “operational service” in section 9 is defined in section 6C, and by further reference to section 5D and Schedule 2 of the Act, areas of overseas deployments of the defence forces which are recognised as “operational service” can be determined. There was no dispute about the applicant’s service or that the ships upon which he served satisfied the requirements of operational service.
17. If a person’s service is shown to be recognised as “operational service”, his application must then prove eligibility for a disability pension under section 13. The applicant must demonstrate that the injury or disease claimed is “war-caused” (section 13(1)(b)). The obligation to pay pension to a veteran, subject to meeting the relevant statutory requirements, is placed on the Commonwealth by virtue of section 13(1)(d) of the Act.
18. In assessing whether an injury or disease meets the required standard of proof, the governing provision of the Act is section 120. This provides:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) Where a claim under Part IV:
(a) in respect of the incapacity from injury or disease of a member of a Peacekeeping Force or of the death of such a member relates to the peacekeeping service rendered by the member; or
(b) in respect of the incapacity from injury or disease of a member of the Forces, or of the death of such a member, relates to the hazardous service rendered by the member;
the Commission shall determine that the injury was a defence-caused injury, that the disease was a defence-caused disease or that the death of the member was defence-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 1: For member of a Peacekeeping Force, peacekeeping service, member of the Forces and hazardous service see subsection 5Q(1A).
Note 2: This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
19. Where a claim is lodged after 1 June 1994, section 120A applies. This section requires that the reasonableness of an hypothesis be assessed in terms of Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA). Section 120A provides as follows:
“120A Reasonableness of hypothesis to be assessed by Reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that also relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1),(2) and (3) are relevant to these claims.
Note 2: For Peacekeeping service, a member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(a) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease or, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
20. It is clear that this section applies where the Repatriation Medical Authority has issued SoPs under section 196B(2) or (11) of the Act. In the present case, SoPs have been issued in relation to the following conditions which are relevant to the evidence –
§ Instrument No 3 of 1999 and Instrument No 54 of 1999 – Post Traumatic Stress Disorder
§ Instrument No 76 of 1998 – Alcohol Dependence and Alcohol Abuse
§ Instrument No 1 of 2000 – Anxiety Disorder
21. The standard of proof in relation to claims for operational service is that of a reasonable hypothesis (section 120(1) and (3)). The test to be applied here has been set out by the High Court as:
“The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus the disproving beyond reasonable doubt, the hypothesis.” (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571)
22. The standard of proof relevant to all other decisions such as incidents during eligible defence service and to the assessment of pension, is that of “reasonable satisfaction” (section 120(4)). This standard of “reasonable satisfaction” has been held to equate to the civil standard of proof, or proof on the balance of probabilities (Repatriation Commission v Smith (1987) 15 FCR 327; Benjamin v Repatriation Commission (2003) 70 ALD 622; Fogarty v Repatriation Commission [2003] FCAFC 136; Repatriation Commission v Hancock [2003] FCA 711.
Factual Evidence
· Evidence of the Applicant
23. In relation to Incident 1, the applicant stated in his examination in chief that he was told by a mate that he saw a face mask. Subsequently, the duty officer had ordered a Depth Scare charge to be thrown. He further stated that he was kept on the quarter deck to provide assistance in the area from where divers launched. He stated that divers did further searches of the bottom of the ship and it was reported that there was nothing on the bottom of the ship itself.
24. He also had previously provided evidence that a body had been found. However, under cross examination, he stated that he never saw a body and was told by another person that one was washed up.
25. In relation to Incident 2, he indicated that he was at action stations and therefore, on “lookout”. He indicated that he was “scared”. Under cross examination, he stated that he had been on action stations previously but that on this occasion, no flares went up initially and that the ship circled around electronically. The illumination flare was then fired on the orders of the skipper. This illuminated and revealed the Filipino ship.
26. In relation to Incident 3, the applicant stated that there was one occasion when he was required to hold a rifle while junks were searched. His role was to watch the junk. He was armed with a .303 rifle. He further indicated that he was given this task because he had “marksman” qualifications on his record. He stated this was from the annual shoot on the range the previous year. He provided further detail of his marksmanship and stated that he got 73% or 75% average and that this was “better than average”. He concluded therefore, he was a “marksman”. Under cross examination, he stated that he only did this duty once, and that at no time was the rifle aimed or cocked. He agreed with the Department’s advocate that “nothing happened”.
27. In relation to Incident 4, he was concerned that the enemy was close and that the Yarra could be attacked by small arms fire. He also thought that HMAS Yarra was further up the river than where it was marked on the map by WriteWay Research Service. That is, he thought he was closer to the timber mill and believed he was more vulnerable and therefore a “sitting duck”.
28. In relation to Incident 5, the applicant stated in cross examination that he believed HMAS Yarra was chasing a “Russian submarine”. He understood from being in the Wheel House that orders were provided from British ships. He said he didn’t know at the time he was on an exercise and that he was not told this by anybody in authority.
29. In relation to Incident 6, he told Dr Kingswell that while walking in Hong Kong with another sailor, a bomb went off in a police station behind him and that he was scared and went to a nearby bar.
30. In relation to Incident 7, his account of a horrific road accident involving an Army truck and a civilian vehicle indicates that he witnessed and assisted the civilian victims of the accident, one of whom was dead and one of whom was almost decapitated.
· Evidence of Mr Les Peters
31. Mr Peters provided a statement (Exhibit 4) and gave brief evidence. He was not cross examined.
· Evidence of Commodore Mulcare
32. On behalf of WriteWay Research Service, Commodore Mulcare provided a report dated 12 June 2004 (Exhibit 6).
33. In relation to Incident 1, Commodore Mulcare’s report and his oral evidence indicate that there were bubbles in the water indicating some evidence that a diver may have been present. However, NBCD State 1 was adopted for a short time and four Depth Charges were dropped. There was a subsequent search of the bottom of the ship which was declared clear approximately 20 minutes later. As that occurred at night, divers searched again early the next morning and reported that there was a body of a diver on the seabed. A subsequent search could not find any trace of a body. Therefore, no body was ever found according to the official record. The ship’s log shows that the incident commenced at 2055hrs and was over at 2147hrs.
34. In relation to Incident 2, Commodore Mulcare provided evidence that the ship concerned was in a darkened state and that they were not expecting to meet a Filipino ship in that area. There was some suspicion it may have been an Indonesian ship. After the Yarra was in a darkened state and illuminated with rocket flares and search light, the ship was quickly identified as a Filipino ship. The ship’s log shows that the Yarra was accused of being in Phillipines territorial water but this was denied. It seems, then, that friendly greetings were exchanged and the ships parted. That incident appears to have had the ship at action stations for approximately 30 minutes. It was also noted that the ship had been at action stations on numerous previous occasions, including on an exercise earlier that day. The report also comments that an ordinary seaman such as the veteran, may have been employed as a lookout on the gun direction platform whilst the ship was at action stations.
35. In relation to Incident 3, Commodore Mulcare’s report shows that the Yarra searched 11 vessels (either fishing boats or barter traders). A permanent boarding party was maintained, and the veteran was not included in that group. In relation to the claim made by Mr Pye that he was armed with a .303 rifle on one occasion, there was evidence that Commodore Fitzgerald who was at that time, the Boarding Officer, could not recall an ordinary seaman being employed in that way and did not believe it to be the case. He also reported “there was no requirement for .303 rifle coverage before a vessel was alongside, and it was an awkward, indeed inappropriate weapon for use once a vessel was alongside”. The other evidence was that there was no incident in which the veteran could have been engaged.
36. In relation to Incident 4, Commodore Mulcare’s report indicates there were firing runs at night on occasions but there was no record of the ship being threatened by return fire on any occasion. It also states “the only other firings….were practice firings on the second and ninth of July 1965”.
37. In relation to Incident 5, Commodore Mulcare’s evidence shows that there is no mention in the official report of the Yarra that has a confirmed unidentified submarine contact in 1965 or that she remained in contact with such a vessel or that the ship’s anti-submarine mortars were loaded with live mortars while in contact with an unidentified submarine. However, the ship did take part in a number of anti-submarine exercises in 1965. As part of exercise WINDY WEATHER, two British ships acted as opposition and were attacked by ships and aircraft including the Yarra. During such an exercise, crew working in the Wheel House would have heard the ship’s orders whilst this exercise was underway but would have had no substantial knowledge of the exercise or engagement.
· Evidence of Commodore Fitzgerald
38. Commodore Fitzgerald’s evidence was consistent with that which he provided to Commodore Mulcare and which is included in Exhibit 6. Under cross examination, he was asked whether there could have been any alterations to the procedures developed about the use of ordinary seamen. Commodore Fitzgerald said he could not recall any amendment to the procedures which were written by the Gunnery Officer. This was in response to a claim by the veteran that he was used twice on such activities and then discontinued. He also confirmed his evidence about the use of an ordinary seaman with a .303 rifle.
Expert Medical Opinion Evidence
· Evidence of Dr Kingswell
39. Dr Kingswell’s report dated 9 February 2004 (Exhibit 5) was based on his interview with Mr Pye which lasted two and a quarter hours on 2 February 2004. Dr Kingswell also had available statements by members of the applicant’s family and friends which are also available to the Tribunal in this matter. Other medical and psychological reports were also available to him.
40. From the report of Mr Pye, Dr Kingswell concluded Mr Pye had not been an anxious child or had any psychopathology which could be attributed to his present conditions. Dr Kingswell noted the events which are the basis of the current claims by Mr Pye. As part of this history, Mr Pye told Dr Kingswell that he was experiencing considerable anxiety before he was discharged from the Navy. This was manifested by a startle response, being “panicky” and shortness of breath. He also stated that he had disturbing dreams whilst in the Navy. Mr Pye stated that he drank and smoked heavily in the Navy and would drink every day when he was ashore.
41. Between his service in the Navy and the Army, he worked in a hotel and did split shifts as a cook. He drank between his morning and afternoon shift and when he finished in the evening.
42. He then joined the Army in 1975 and worked as a cook for 16 ½ years and rose to the rank of Warrant Officer Class 2. He was discharged from the Army in April 1991.
43. Dr Kingswell’s report indicates that Mr Pye’s current health reveals a loss of weight, morning tremors and blackouts. Mr Pye also indicated his anxiety could last for months and then remit for months and was exacerbated by increased workload. He told Dr Kingswell he was not depressed. However, he did have recollections from time to time of certain experiences he had whilst in the Navy.
44. He was treated for a psychiatric disorder in the early 1980s whilst in the Army. In particular, he had shaking and pains in the chest and vomiting. He stated that he had experienced suicidal ideas but had not seriously considered suicide. His service life seems to have experienced considerable difficulties with Alcohol Abuse and disciplinary offences. It would seem that Mr Pye was absent without leave for a period of time in the Navy, after which he served a period of military detention and was discharged. In the year of discharge, he also was convicted of unlawful use of a motor vehicle in the civilians’ courts which seems to have occurred while he was absent without leave. His civilian life has had similar problems with alcohol and he has also been convicted of driving under the influence in 1971.
45. Dr Kingswell concluded that there was no trauma in his developmental history which might account for his present conditions. At the time of interviewing Mr Pye, he thought he was anxious but with no perceptual disturbance, although his insight was poor about the effects of his alcohol use. Dr Kingswell thought Mr Pye had “at least a 20 year history of an anxiety disorder characterised by panic attacks and protracted periods (several months) of an anxious mood with irritability, sleep disturbance and an inability to cope with the demands of the workplace”. He also noted that Mr Pye at times has satisfied the criteria for alcohol dependence and was experiencing a relapse at the time of his interview.
46. He presented for treatment for his anxiety condition on 21 November 1980 but there was no evidence of whether appropriate treatment had been undertaken. He stated that it was not clear to him that Mr Pye got appropriate follow-up whilst in the Navy or the Army. However, he noted that he was not practicing in 1980 and was not sure what the appropriate treatment was at that time. Under cross examination, Dr Kingswell thought, based on the subjective account provided to him by the veteran, that the problems with excess alcohol consumption and performance issues were present prior to him leaving the Navy and therefore he thought the date of onset of his conditions could have been at some time prior to his discharge from the Navy.
47. He went on, however, to comment that excess alcohol consumption can cause confusion in the diagnosis and therefore a psychiatrist could have considerable difficulty in accurately making a diagnosis, that is, a condition could have its cause in alcohol abuse rather than anxiety.
48. Under cross examination, Dr Kingswell stated that it was difficult for him to make a judgment of the standard of clinical management forty years ago. From the clinical history available to him, he thought it was not adequate by today’s standards. However, he emphasised that he wasn’t saying that it wouldn’t have been recorded – he merely commented that it wasn’t available to him. From the record available, he thought two episodes of counselling would not seem to have been adequate and that pharmacological options were also available then.
49. Dr Kingswell concluded that Mr Pye’s health had deteriorated since the death of his wife in late 2000 and that he currently satisfies the criteria for Alcohol Dependence. He did not proffer a view as to whether he thought the experiences were significant and said that that was a matter for the Tribunal. However, he noted there was no evidence of childhood adversity that would predispose him to any psychiatric vulnerability.
· Evidence of Dr Hargreaves
50. Dr Hargreaves is a practicing psychiatrist and has been registered since 1994. In his view, Mr Pye could more correctly be diagnosed as having Generalised Anxiety Disorder rather than PTSD as he didn’t believe that there was a specific identifiable cause for the anxiety, which is a precondition for PTSD.
51. Like Dr Kingswell, he did not believe, from the personal history taken, that there was any factor which predisposed Mr Pye to vulnerability. He said that in relation to his conditions of Alcohol Dependence and Generalised Anxiety Disorder, that it is not possible to determine which one comes first. Sometimes the anxiety precedes Alcohol Abuse whereas with some other people, the alcohol problem is the cause of anxiety.
52. Dr Hargreaves thought that it would have been useful in 1988 if there had been 8 to 10 sessions of psychological therapy with Mr Pye, both to reduce the symptoms and to help him re-engage in social life. He also noted that where anxiety conditions occur, treatment is more likely to work when a person is younger. Also, he noted that Alcohol Dependence would have needed to have been addressed if his conditions were to have been enhanced.
53. He noted, however, the motor vehicle accident observed in the CMF and reported by the veteran may have been significant, as.he didn’t seem to make much mention of his Naval service. It was also noted in cross examination that his faintness and vomiting were not connected with his anxiety.
54. It is noted his report indicates that Mr Pye told him that he started using alcohol “moderately” at the age of 14. However, Mr Pye in his own evidence denied making this statement.
Contentions and Submissions of the Parties
55. In relation to the applicant, Mr Harding of Counsel highlighted the evidence that had been presented to the Tribunal and the fact that the applicant was at the time, only 18 years of age and had been a sailor for a very short period of time. He highlighted particularly the state of readiness of the ship as being State 1 Zulu (the highest state of readiness), albeit for relatively short periods of time. He argued that the incidents described in the evidence were identifiable occurrences. He also highlighted the subjective perception of the applicant, given his age and experience, as being stressful. He also pointed out that the medical evidence indicated that clinical onset of Anxiety Disorder, which was required to occur within 2 years, occurred at least sometime after service on the Yarra.
56. Mr Harding also submitted that the final stage of the test set out in Repatriation Commission vDeledio (1998) 83 FCR 82 requires that the Tribunal must be satisfied beyond reasonable doubt of any fact which disproves the hypothesis. He referred to the credibility of some of the evidence of Commodore Fitzgerald where he could not recall a Malaysian policeman being on board the ship, despite other evidence indicating that there was a Malaysian policeman on board. He therefore alluded to the reliability of the evidence of whether the applicant may have been employed with a .303 rifle as disputed by Commodore Fitzgerald.
57. In relation to Alcohol Dependence, it was argued that the applicant satisfied the requirements of the SoP in that the incidents were severe stressors. A line of authorities were argued that given the applicant’s age, rank and experience, it could be accepted that he was affected as claimed. Likewise, detailed submissions were made in relation to the onset of the condition of Alcohol Dependence as well as the ability of the applicant to get appropriate clinical management whilst employed by the defence forces. The evidence of Dr Kingswell and Dr Hargreaves were again relied upon. In addition, Counsel provided the Tribunal with a number of authorities upon which he relied for his submissions.
58. Mr Kelly, on behalf of the Repatriation Commission, focussed specifically on the incidents and whether they satisfied the requirements as being “severe stressors” for a claim of Alcohol Dependence or Alcohol Abuse or whether there were “severe psychosocial stressors” for a claim of Generalised Anxiety Disorder. His submissions also focussed on clinical onset and whether any condition from which he suffered was appropriately treated.
59. He emphasised the detail of evidence on whether, given the outcomes of the various incidents, taking account of a subjective and objective assessment of these incidents, Mr Pye could be considered to satisfy the definitions above. He did acknowledge the motor vehicle accident witnessed by the veteran as being an issue of relevance, although it was experienced during his service in the CMF. He analysed many of the veteran’s service medical records and referred also to the evidence of the two psychiatrists, Doctors Kingswell and Hargreaves. He also highlighted that during Mr Pye’s service, he rose to the rank of Warrant Officer Class 2 and did not seem to be impaired by the psychiatric conditions for which he now claims an increase in pension.
Consideration of the Issues
60. The Tribunal has reached a decision in this application for review taking account of all the oral evidence and the documentary exhibits, the legislation and the relevant case law. The incidents submitted by the applicant have been assessed according to whether they qualified as ‘operational service’ or ‘eligible defence service’ respectively.
Evidence of Service
61. The periods of “operational service” claimed have not been disputed and are therefore accepted as satisfying section 6C, nor is there any dispute under sections 68(1) and 70(7) that the applicant has “eligible defence service”. A person who has rendered “operational service” as required under the Act is deemed to have rendered “eligible war service” for that period for the purposes of section 7.
Diagnoses
62. The Tribunal accepts the medical evidence of Dr Hargreaves and of Dr Kingswell that the veteran suffers from Alcohol Dependence. Dr Hargreaves also diagnosed Generalised Anxiety Disorder when he wrote his report in 2001. Since that time, the veteran has been accepted as having PTSD and the Tribunal is satisfied there is evidence for that diagnosis. Dr Kingswell who reported in June 2004, noted that there had been a deterioration in Mr Pye’s health since September 2000 when his wife died. The diagnosis of PTSD is now more appropriate. It was submitted that there is evidence to justify a diagnosis of Generalised Anxiety Disorder and Post Traumatic Stress Disorder, although DSMIV states “a diagnosis of Generalised Anxiety Disorder should not be adopted where the anxiety is confined to another Axis I Disorder”. It may be argued that this exists within (or as a subset of) the diagnosis of PTSD. However, DSMIV also states with respect to Generalised Anxiety Disorder, that “although over half of those presenting for treatment report onset in childhood or adolescence, onset occurring after 20 years of age is not uncommon. The course is chronic but fluctuating and often worsens during times of stress”. (DSMIV Fourth edition, p.434).
63. In the circumstances, based on the evidence of the times when the particular conditions appeared to be in existence, the Tribunal accepts that a diagnosis of Generalised Anxiety Disorder coexists with a diagnosis of PTSD. The Tribunal accepts that the diagnosis of Alcohol Dependence also was present at the time of the hearing. Whether they relate to operational service will be examined below.
Preliminary Considerations
64. Before making an assessment based on the principles in Repatriation Commission vDeledio (1998) 83 FCR 82, the Tribunal must first be satisfied to its reasonable satisfaction, that is, on the balance of probabilities, as to the kind of disease or injury which has been suffered by the veteran. This was amplified by Selway J in Repatriation Commission v Hancock [2003] FCA 711, where his Honour indicated two pre-conditions must be satisfied. Related to this case, these pre-conditions are –
(i) that Mr Pye was a veteran; and
(ii) in order to determine whether a SoP applies, the kind of injury or disease which is the basis of the veteran’s claim must be identified (section 120A(2) and (4) of the Act).
65. In this case, there is undisputed evidence of the applicant’s operational service. He is therefore “a veteran”. Equally, there is cogent expert evidence which resulted in accepting diagnoses of PTSD, Generalised Anxiety Disorder and Alcohol Dependence. He therefore has a kind of disease for which a SoP has been determined.
Assessment – PTSD – Operational Service
66. As this application is made after 1 June 1994, section 120A applies. That is, the claims must be assessed against the factors listed in any relevant SoP issued and section 120A(3) of the Act. The process of that assessment which is required, was set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The steps required, so far as they are relevant, are shown at page 97 as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11)…….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors, which the authority has determined to be the minimum, which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Step 1 of Deledio – Is there material before the Tribunal which points to an hypothesis connecting his condition with circumstances of his service?
67. The ordinary meaning of “Hypothesis” in the Concise Oxford Dictionary (New Edition) defines it as a “proposition made as a basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption”. This was adopted in East v Repatriation Commission (1987) 74 ALR 518. A similar definition was outlined in Repatriation Commission v Stares (1996) 41 ALD 212 at 217 where it was referred to as “ a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact”. On the basis of the claims made by the veteran, a connection is apparent between his conditions and the claims or circumstances described.
Step 2 of Deledio – Is there an SoP in force?
68. As outlined in the ‘Legislative Framework’ above, a SoP for PTSD exists which has been issued by the RMA – Instruments 3 of 1999 and 54 of 1999.
Step 3 of Deledio – Is the Hypothesis reasonable?
69. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 1777 CLR 564, at 571 said:
“The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis (Emphasis added).”
70. In Repatriation Commission v Hill [2002] FCFC 192 (18 June 2002) the Full Federal Court [at paras. 61, 67] considered the approach taken by the Tribunal in determining whether a reasonable hypothesis existed. It considered whether the material before it fitted the template in the SoP for PTSD, that is, whether the material before it pointed to the elements of "post-traumatic stress disorder" as defined in cl 4 of the PTSD SoP. However, it was not in dispute that the applicant actually suffered PTSD. The Full Court concluded that, in these circumstances, such an inquiry was incorrect, and stated that:
“The correct issue was, assuming that [the applicant suffered] from PTSD as defined in cl 4 of the PTSD SoP, did the material raise or point to his experiencing a stressor, as defined, during his operational service?”
71. Given the Tribunal’s finding that Mr Pye has suffered from PTSD and Generalised Anxiety Disorder, together with co-morbid alcohol dependence from time to time, the Tribunal has adopted the approach in Repatriation Commission v Hill (2002) 69 ALD 581 to determine whether a reasonable hypothesis exists. That is, whether the material raises or points to a connection between the incidents/stressors relied on by Mr Pye and the factors prescribed by the SoPs.
72. The following material before the Tribunal relates the circumstances of Mr Pye’s operational service to his psychiatric condition:
a. the issue of an enemy diver and the possibility of the ship being mined;
b. the possibility of danger when encountering other ships at night and which were perceived to be close by;
c. there was no dispute as to the incidents occurring, despite some differences of assessment between the applicant and the report of WriteWay Research Service;
d. the expert opinions of Dr Anderson, Dr Hargreaves and Dr Kingswell in relation to PTSD, an anxiety condition and Alcohol Abuse and Alcohol Dependence.
73. Accordingly, based on the evaluation of all the material before the Tribunal, there is a hypothesis pointed to by the facts, that is reasonable, as it involves more than a mere possibility, at least in the mind of a sailor in the circumstances of Mr Pye.
74. Step 4 of Deledio
The principal question at this stage is whether the evidence admitted before the Tribunal discharges the legal standard of proof required by the Act.
75. In answering that question in relation to the hypothesis that links PTSD to operational service, one of the main issues for the Tribunal to decide is whether the applicant experienced a severe stressor. Of critical importance to that issue is whether that occurred on operational service and when the condition claimed before the Tribunal is related to that service.
76. The Tribunal has considered whether the incidents described by the applicant satisfy the four legal principles set out in Stoddart v Repatriation Commission [2003] FCA 334 . These are –
a. Principle 1: What event has the applicant experienced or been confronted with that may amount to a threat of death or serious injury to his physical integrity?
b. Principle 2: Whether the event or events actually involved the threat of death or serious injury leading to PTSD or events which were “reasonably” perceived as involving the threat of death or serious injury leading to PTSD?
c. Whether the nature of the events experienced represents an objective and assessable state of affairs?
d. Whether the events said to constitute the threat, judged objectively from the viewpoint of a reasonable person, are capable of conveying (that is, are subjectively experienced) the risk of serious death or serious injury or to physical integrity?
77. In evaluating the fourth step in Deledio, this involves consideration of the facts contained in the evidence to determine whether the reasonable hypothesis can be accepted under section 120(1), beyond a reasonable doubt in terms of Byrnes v Repatriation Commission (see paragraph 69) In assessing this aspect, two further terms need to be amplified: “clinical onset” and “severe stressor”.
78. In relation to the term “clinical onset” this has been considered by the Full Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 at [16], which stated that the determination of clinical onset is:
“….intended to establish sufficient proximity between the experiences during operational service and the manifestation of the disease to point to a causal link to sustain the hypothesis.”
79. In relation to PTSD, the person must have been in circumstances which involved “experiencing a severe stressor” as required by paragraph 5 of SoP No 3 of 1999 as amended by Instrument No 54 of 1999. This requires paragraph 2(b)(A) to be satisfied, which provides inter alia:
2 (b) For the purposes of this Statement of Principles, “post traumatic
stress disorder” means a psychiatric condition meeting the
following description (derived from DSM-IV):
(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;
80. The term “experiencing a severe stressor” and other parts of the relevant SoP have been described in Re Slattery and Repatriation Commission (1998) 52 ALD 90 at 106 as:
“The word ‘witnesses’ suggested that the person was present at the event involving real or present (i.e. actual) or threatened death. The word ‘experienced’ suggests that the person observed or encountered such an event and the word “confronted” that he or she was faced with the event”.
81. The Tribunal concludes that based on all of the evidence, incidents 1 to 5 undoubtedly involved a degree of anxiousness or even fear for relatively short periods, but from the viewpoint of an objective assessable state of affairs, together with an assessment based on subjective experience by the applicant (see Stoddart), they did not involve exposure to a “severe stressor” as required by the SoP. The approach set out in the decision of Slattery (supra) is also adopted in reaching the conclusions here.
Assessment – PTSD – Eligible Defence Service
82. In relation to the incidents involved in the applicant’s non-operational or eligible defence service, these must be satisfied in accordance with the standard of proof imposed by section 120(4) i.e. to the Tribunal’s “reasonable satisfaction”, or, on the balance of probabilities.
83. In assessing incidents 6 and 7 against this standard, they are assessed in accordance with the diagnostic criteria for PTSD in DSM-IV (which are identical to those set out in SoPs for PTSD). I also take account of the evidence of the veteran, psychiatrists and official records as reported by WriteWay Research Service and the applicant’s service medical records. In relation to incident 6, the Tribunal is not satisfied in accordance with the standard of proof imposed by section 120(4), taking account of the subjective issues relevant to Mr Pye. However, in relation to incident 7, the Tribunal is so satisfied. It was undisputed that the veteran ‘witnessed’ a serious road accident which involved an actual ‘experience’ of or being confronted with, death and serious injury at the scene of the road accident. The standard of proof in section 120(4) was satisfied in relation to that incident. The timing of “clinical onset” of PTSD has not clearly been identified, although there is no time limit required for onset of this condition following the experience of a “severe stressor”. There has been evidence of difficulty for the veteran in effective integration with social and occupational functioning for at least 15-20 years and this tends to confirm clinical onset of PTSD at some time following the occurrence of incident 7. Consequently, the Tribunal has decided that incident 7 is accepted as being linked to the veteran’s PTSD, although not related to operational service.
Assessment - Generalised Anxiety Disorder – Operational Service
84. SoP Instrument No 1 of 2000, is concerned with “anxiety disorder” which is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified (see paragraph 2(b)). The SoP also specifies the following factors which must as a minimum exist, and at least one of which must be related to any relevant service. Definitions are also included in the SoP. These factors and definitions relevantly provide:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
……
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
…..
(v) experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder; or
…..
(vii) having a clinically significant psychiatric condition within the two years immediately before the clinical worsening of anxiety disorder; or
…..
(c) inability to obtain appropriate clinical management for anxiety disorder.
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means 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;
85. Central to the assessment under SoP No 1 of 2000 is whether the incidents claimed by the veteran amount to “experiencing a severe psychosocial stressor” within two years immediately before the clinical onset of Generalised Anxiety Disorder. A “severe psychosocial stressor” is defined in paragraph 8 of the SoP 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..”
86. In assessing the relevant claims of the applicant, The Tribunal also considered White v Repatriation Commission[2004] FCA 663, where reference was made to the benchmarks which have been defined in the SoPs as being the standards of severity of threat. It would seem that if these examples in the SoPs are not used as the guide to the standard to be applied, then the SoP would be ineffectual as a means of assessing claims under the Veterans’ Entitlements Act.
87. Evaluating the applicant’s evidence was also undertaken while being mindful of resolving uncertainty around his beliefs about the reality of the danger in the circumstances. The veteran’s perception, must be assessed on the basis of whether a person with the same level of knowledge and in the circumstances of the particular applicant at the time, would reasonably lead to that person perceiving a threat of death or serious injury. Using that test and the standards or benchmarks shown in the examples, the Tribunal is not satisfied the incidents claimed by Mr Pye in his Navy service would lead to the perceptions he claims.
88. In White v Repatriation Commission[2004] FCA 663 Spender J held that a severe psychosocial stressor has both a subjective and objective element. The application of the principles required to arrive at a reasoned decision consistent with the definitions and the decision in White, was included in Re Hillier and Repatriation Commission [2004] AATA 897. At [65], Deputy President Jarvis set out the considerations to be applied as follows:
“(a) There must be an occurrence, and this connotes an objective event.
(b) The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c) The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d) Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e) Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
89. The decision in Hillier also underscored at [67] that the objective requirements should be evaluated not by the reasonable person test but should be measured against an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”. The wide variability and experience of servicemen and veterans was noted as affecting the objective assessment of this standard.
90. Considering now the material relevant to the stressors alleged in this case and the authorities of White and Re Hillier (supra), the stressors must firstly be seen to be “an event”. An occurrence can be regarded as an objective event which has been held to be an “incident or mishap” which can be differentiated from the ordinary course of life (Repatriation Commission v Law (1980) 31 ALR 140 at 149). I consider the word “event” and the word “occurrence” to be effectively synonymous in the present context.
91. Applying this meaning to the five events outlined above while on operational service, and which have been accepted as satisfying Step 3 of Deledio, the Tribunal does not consider any of these five incidents to be “severe stressors” utilising the standard or benchmark required. The evidence of the ship’s role being to provide Naval Gunfire Support at Tawau and a darkened Filipino ship would undoubtedly have been stressful for a young sailor who seemed to have had a predisposition to be anxious. However, they were relatively brief incidents and with no operational contact. On one of those incidents, it was an “exercise” engaged in with allied forces.
92. Turning now to the subjective aspect of this assessment, the Tribunal does not accept that the applicant would have experienced the degree of fear for the events claimed which would satisfy the standard in the definition “experiencing a severe psychosocial stressor”. Some of the five incidents were based on information he heard from others and the others involved observation of events without any real trauma occurring. Although the veteran undoubtedly experienced some anxiety or fear, nothing happened which would be regarded as a severe psychosocial stressor, even though he seemed to have had a predisposition to be anxious.
93. The Tribunal has also had regard to the degree of dysfunctionality in the veteran’s ability to cope on an ongoing basis as a result of his service in the RAN. For example, he was able to undertake further study for promotion at an acceptable level and was in fact promoted to one of the most senior non commissioned ranks.
94. For the above reasons, the Tribunal is satisfied beyond reasonable doubt, that while the applicant currently suffers from a condition of Generalised Anxiety Disorder, there is no sufficient ground for making a determination that the disease is war-caused.
Assessment – Generalised Anxiety Disorder – Eligible Defence Service
95. For similar reasons as discussed above for PTSD, incident 6 does not meet the standard of proof under section 120(4) of the Act. Incident 7 may have exacerbated his anxiety condition and is sufficiently connected in chronology to satisfy the standard under section 120(4). The timing of clinical onset is not altogether clear, although this was a period in which he served in the CMF and followed by a period of service in the Australian Regular Army. As for PTSD, it is accepted that Mr Pye has had the onset of Generalised Anxiety Disorder during his period of service in the CMF, as a result of exposure to the road accident. He therefore had a psychiatric disorder pre-existing, which may have abated at various times.
Claim for Alcohol Abuse
96. The relevant parts of the SoP Instrument No 76 of 1998 (Alcohol Abuse) are
“Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles, “alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour. The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal
symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
(e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.
Other definitions
8. For the purposes of this Statement of Principles:
‘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 other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
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;”
97. In relation to Alcohol Abuse, the Tribunal was satisfied that the requirements for a diagnosis of alcohol dependence in accordance with the SoP, were satisfied. Dr Hargreaves (2001), Dr Anderson (2002) and Dr Kingswell (2004) all diagnosed Alcohol Dependence despite noting that there were periods of remission. It was also noted there had been deterioration since 2001.
98. In response to the other questions required, it also found that an SoP was in place and that there was an hypothesis raised that contained one or more of the factors listed in the SoP. Steps 1 and 2 of Deledio are therefore satisfied. In relation to the third step, it is accepted that the five incidents above in relation to service on HMAS Yarra raise an hypothesis which is reasonable and is not contrary to or fanciful in relation to known scientific fact. Therefore, the third step is also satisfied. In relation to the fourth step in Deledio, for similar reasons to those outlined in the assessment of Step 4 for PTSD above, the Tribunal also is not satisfied beyond a reasonable doubt that the veteran’s condition in relation to Alcohol Abuse was war-caused. The degree of fear involved in the incidents concerned do not reveal exposure to a “severe stressor” as required by the SoP. The arguments adopted in Slattery’s case are also relevant in this regard.
99. The evidence of Alcohol Abuse or Alcohol Dependence is unequivocal in a number of respects. Despite the evidence of the veteran and the submissions of the link between the incidents claimed and the degree of alcohol consumption, there is evidence of anxious tendencies in Mr Pye for a very long time. These may be related to alcohol abuse, but the expert evidence is not conclusive on that point. However, despite the periods of war service being in 1965 and 1971, there is no evidence of his referral to psychological assessment and treatment until 1988. At that time, the record also suggests there was stress relating to a home purchase in 1987 as well as stress at work and in relation to career issues.
100. On referral for psychological treatment, his Officer Commanding was required to provide a report. He refers to interpersonal issues where the veteran might not have interacted well with his peer group. There were other issues in relation to the pressure of work in his role as a Cook and running a kitchen for more than one Mess at a time. These factors may have caused some tendency to drink more heavily. However, his Officer Commanding on 5 Oct 1988 said that Mr Pye did “…not drink notable amounts of alcohol at Unit functions”. He also stated that the veteran tended to be tense and frustrated when given tasks at short notice. He suggested Mr Pye “needs to learn to control his emotions and workstyle if he is to be successful in both his training and at higher rank levels”.
101. The cause of his alcohol abuse or alcohol dependence was also commented on by Dr Hargreaves in relation to his generalised anxiety disorder. He said “each influences the prognosis of the other in a negative direction. While the anxiety state may be contributing to the alcohol dependence syndrome, there is insufficient evidence to state that this is the only cause. His alcohol consumption could well have been self stimulating and gratifying. ….. working in a hotel for a number of years may also have exacerbated this by way of ready access to alcohol. The Army culture . . . may also be a contributing factor.”
102. While the veteran has undoubtedly consumed excess alcohol for a long period of time, it was noted also by Dr Hargreaves that “his steady work history and long term relationship stability suggests a relatively resilient personality”. It is also noted that the alcohol consumption was not an impairment to a degree where his career was adversely affected. He attained the rank of Warrant Officer Class 2 prior to his retirement from the Army.
103. In the circumstances, the Tribunal concludes that the claim cannot succeed because one (or more) facts necessary to support the reasonable hypothesis is disproved beyond reasonable doubt. As the earlier finding that PTSD was not war caused, Factor 5(a) is not satisfied. As the incidents described do not satisfy the definition of “experiencing a severe stressor”, Factor 5(b) also is not satisfied.
104. A similar conclusion is reached by the Tribunal in relation to incident 6 in Mr Pye’s eligible defence service. However, in relation to incident 7, there is not sufficient evidence to conclude that his alcohol dependence is not related to his PTSD or Generalised Anxiety Disorder which has been held above to be related to his exposure to the severe stressor of the road accident while he was on duty with the CMF. The Alcohol Dependence may therefore be an aggravation of PTSD or Generalised Anxiety Disorder (pre-existing condition) when serving during his period of eligible defence service. On that basis, I am satisfied that on the balance of probabilities, that link cannot be disproved and therefore, the veteran is entitled to this aspect of the decision in his favour owing to the beneficial nature of the legislation.
Was the veteran unable to obtain appropriate clinical management?
105. It was submitted by Counsel for the applicant that he was further impaired because of an inability to obtain appropriate clinical management for his conditions (see Factor 5 of each of the SoPs referred to above). This related to his service in the Navy and in the Army.
106. As referred to above, it is not accepted that the veteran had conditions which are attributable to his war service. However, it is accepted that he has PTSD, Generalised Anxiety Disorder and Alcohol Dependence. Evidence was led from Dr Hargreaves and Dr Kingswell that while they were not in practice in the 1960s and 1970s when these conditions were claimed to originate, they provided evidence that as they understood it, the appropriate treatment at that time would have been taking a good clinical history and providing counselling and psychoeducation. In addition, it was suggested that pharmacological treatment of Tetracycline would also have been appropriate. It was indicated that he saw a psychologist twice. Dr Kingswell thought that if the problem was acute, that may have been sufficient. However, if an adequate history was taken, he suggested that it would have revealed symptoms since the 1960s.
107. Suggestion was also made that it would have been important for the veteran not to reveal some of his symptoms as he wished to ensure that he remained competitive from a career viewpoint. To try to ascertain what the Defence Force could have legitimately discovered and provided treatment for makes this issue complex.
108. In the service medical history which was made available to the Tribunal it is shown that in 1968 (at age 21), the veteran’s medical status was normal. There was no report of any abnormal nervous or mental condition declared. However, this appears to be the veteran’s discharge medical from the RAN. Whether there were any particular circumstances relating to that, was not traversed by Counsel for the applicant or the respondent, nor is it available from any documents admitted into evidence.
109. The applicant’s Army service commenced in 1970 with an enlistment medical for the CMF. That record shows that he had never had a nervous or mental illness, In 1974 on his enlistment medical to join the Australian Regular Army, he declared he had no depression, mental illness or nervous breakdown. In March 1977, it was shown for the first time that he had diarrhoea and nervous stomach ailments. He also sought medical attention in October and November 1980 when he apparently was very anxious. He was seen by a specialist physician, Colonel Smithhurst, who prescribed medication of Serapax, Stemetil and Gaviscon sachets.
110. The veteran then had another nine (9) periodical medical boards between 1974 and 1988 where almost without exception, he had passed the PT tests and was graded medically as “FE” (Fit Everywhere). He described on each of those occasions, that his nervous system was normal as was his emotional stability. One exception to that was in October 1985 when his medical record graded him as “BE” (Base Everywhere) and indicated for his PT tests, he should not be subjected to running. However, I note in March 1986 (6 months later), he was again rated “FE” and with his emotional stability and nervous system being stated by the veteran as normal. On 6 April 1988, his medical record showed he had abdominal pain and reflux. It also noted, “smokes – 20/day; alcohol – nil” (my emphasis). On 4 May 1988, there was a medical condition of oesophageal reflux and hiatus hernia. In December 1988, he again undertook a periodical medical board and his emotional stability and nervous condition were stated to be normal, although it was noted at that time there were anxiety elements with his symptoms. That medical assessment also shows he was classed as “FE” and had passed his PT test with an “A pass”.
111. However, 12 months later in December 1989, eighteen months before his discharge, the applicant for the first time, showed that while his nervous system was regarded as normal, his emotional stability was regarded as “abnormal”. At that stage, his medical classification was downgraded from “FE” to “BE”. This is the first major change to his status of nervous conditions, after fourteen years in the Australian Regular Army. His medical record shows that in October 1990, that he had a medical attendance where he reported feeling under increasing stress because of build up of catering commitments. In December 1990, he again undertook a medical board. His emotional stability and nervous system were again regarded as normal, although his medical classification was still “BE” and his medical record noted that he should not do PT or drill. It also noted then, that he suffered from stress and his medical history questionnaire stated that he had nervous trouble and had been “under treatment for three years” at the end of 1990.
112. The veteran’s reporting medical history indicates therefore, that from his time in the Navy and from his earliest Army service, there was never a report of mental illness or any nervous system problems. He was also almost invariably, classified as “FE” – the highest medical classification. Therefore, there does not seem to be evidence of any significant clinical anxiety problems albeit, he undoubtedly had some anxiety tendencies from early in his service. In addition, as referred to earlier, the Officer Commanding his Unit in 1988 suggested that he did not drink notable amounts of alcohol at Unit functions but that he had interpersonal problems and needed to learn to control his emotions and work styles.
113. In relation to the treatment provided, it is important to take account of the comments made by Doctor Kingswell and Dr Hargreaves about what may have been appropriate treatment while he was in the defence force. The medical record available shows that Mr Pye was medically referred to the Psychology Unit on 4 October 1988. Those records indicate he had symptoms of Dyspepsia, chest pain etc., mostly related to anxiety. His record also showed at that time, “symptoms helped by Tricyclic antidepressants but have recurred” (my emphasis). Comments by the Psychologist showed “also noted to be responsive to rational therapy and relaxation techniques - no further treatment necessary at that time” (my emphasis). Therefore, there is no evidence of a lack of appropriate clinical management because of a failure to make an appropriate diagnosis (Repatriation Commission v Wedekind [2000] FCA 649; Brew v Repatriation Commission [1999] FCA 1246.)
114. It would appear then, that apart from reporting physical symptoms, he reported psychological problems - but only three years or so before he was discharged. Some of the cause of the need for referral to Psychology Unit was that there was stress about a home purchase in addition to normal work and career pressures.
115. Consequently, the suggested appropriate treatment by Drs Kingswell and Hargreaves which would have been appropriate for Mr Pye, appear to have been provided, both in terms of psychoeducation and psychotherapy, as well as pharmacological treatments (tetracyclines). It is clear also, that as a senior non commissioned officer (as a Sergeant or Warrant Officer), he would certainly have understood his entitlements and been able to access those entitlements at least in 1988.
116. The record also indicates that he had been “under treatment for three years” at that time, although there were no other records tendered to the Tribunal to specify what that treatment was. It is understood that psychological records are kept confidentially and not with the members medical records. Therefore, on the basis of the material presented, evidence of treatment of physiological symptoms associated with his anxious condition, together with psychological treatment responses, there is evidence in existence that the veteran appeared to have got appropriate treatment consistent with what Drs Kingswell and Hargreaves suggested (Stevenson and Repatriation Commission [2002] AATA 130).
117. The Tribunal therefore finds that the aspect of the claims pertaining to inability to obtain appropriate clinical management is disproved beyond reasonable doubt and that the are not related to war service or eligible defence service.
Conclusion
118. Pursuant to S. 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that –
1. In relation to the decision under review, the correct diagnoses are Post Traumatic Stress Disorder, Generalised Anxiety Disorder and Alcohol Dependence.
2. The Tribunal affirms the decision under review with the varied diagnosis i.e. the claims made are not war-caused pursuant to section 9 of the Veteran’s Entitlements Act 1986.
I certify that the 118 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: … Camille Banks..
Associate
Date/s of Hearing 24 November and 16 December 2004
Date of Decision 17 February 2005
Counsel for the Applicant Mr Anthony Harding
Solicitor for the Applicant Gilshenan & Luton
The Respondent was represented by its advocate Mr Jeff Kelly
0
20
0