Re Benjamin and Repatriation Commission
[2004] AATA 738
•13 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 738
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/61
VETERANS' APPEALS DIVISION ) Re
David Hedley Jeffrey Benjamin
Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Dr M Thorpe, MemberDate13 July 2004
PlaceSydney
Decision The Tribunal:
(1) sets aside the decision of the Veterans’ Review Board dated 21 October 1998;
(2) substitutes a new decision that the Applicant suffers from war-caused General Anxiety Disorder and is entitled to payment of a pension with effect from 19 June 1997; and
(3) remits the matter to the Respondent for assessment of the rate of pension payable.
..............................................
RP Handley
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – Repatriation Commission – entitlement to disability pension at special rate – claim for post traumatic stress disorder – whether psychiatric problems constitute a war-caused condition – standard of proof – whether the Applicant suffers a war-caused disease other than Post Traumatic Stress Syndrome – examination of the two incidents identified by the Applicants as stressors – examination of the hypothesis raised by the Applicant – examination of the Applicant’s drinking history – held that the Applicant is suffering from Generalised Anxiety Disorder which is connected to his operational service – held that the Applicant is entitled to a pension with effect from 19 June 1997 – held that the matter be remitted to the Respondent to calculate the rate of pension payable.
Veterans Entitlement Act 1986 ss 6, 9(1), 13(1), 14, 21A, 22, 24, 120(1) (3) (4), 120A
Statement of Principle No 1 of 2000
Statement of Principle No 48 of 1994 as amended by Instrument No 275 of 1995
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Budworth [2001] FCA 1421
Repatriation Commission v Deledio [1998] FCA 391
Repatriation Commission v Stoddard [2003] FCAFC 300
Stoddart v Repatriation Commission (2003) 197 ALR 283
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
13 July 2004 Mr RP Handley, Deputy President
Dr M Thorpe, Member1. This matter was remitted to the Tribunal by the Federal Court to be dealt with in accordance with law. At issue before the Federal Court was the Tribunal’s interpretation of s 120 of the Veterans’ Entitlement Act 1986 (“the Act”) in relation to a Statement of Principles (“SoP”) made under Part XIA of the Act and whether the Tribunal made errors of law in not deciding that certain psychiatric problems of the Applicant constituted a war-caused condition.
2. On the first day of the remittal hearing on 13 August 2003, the Tribunal was constituted by Mr RP Handley, Deputy President and Dr J Campbell, Member. At the commencement of the hearing, it was agreed between the Tribunal and the parties that the matter be adjourned for the parties to consider whether to seek leave of the Full Federal Court that its orders be amended to allow the Tribunal to consider all relevant psychiatric diagnoses, including post traumatic stress disorder (“PTSD”), even though there may be some overlap with other psychiatric conditions. The parties having later decided that such a course was not open to them, the hearing was resumed on 5 April 2004 with the Tribunal constituted by Mr RP Handley, Deputy President and Dr M Thorpe, Member.
3. At the hearings, the Applicant was represented by Craig Colbourne, of Counsel, and the Respondent was represented by Rhonda Henderson, of Counsel. The evidence before the Tribunal comprised the Federal Court Appeal Book (“the A Documents”) together with evidence tendered by the parties at the hearing. Oral evidence was given at the hearing by Mr Benjamin and concurrently by the psychiatrists Associate Professor Carolyn Quadrio and Dr Karen Reinhardt for the Applicant, and Dr Robert Lewin for the Respondent.
Background
4. The Applicant, Mr Benjamin, was born on 13 June 1940 and is aged 63. He served in the Royal Australian Navy from 21 November 1957 until he was discharged on 20 November 1969 (A p355). He rendered “operational service” in Vietnam on 14 occasions between May 1965 and October 1965 and between December 1967 and August 1969. This service was as a member of the crew of the HMAS Duchess and the MV Jeparit (A p356).
5. On 19 September 1997, Mr Benjamin lodged a claim for PTSD and alcohol dependence (A p5). On 26 March 1998, a delegate of the Respondent refused Mr Benjamin’s claim on the basis that there was no history of Mr Benjamin experiencing a “stressor” as identified by the Repatriation Medical Authority Statement of Principles concerning Post Traumatic Stress Disorder, being Instrument No 15 of 1994 (“SoP No 15 of 1994”) and alcohol dependence (A p5).
6. On 20 April 1998, Mr Benjamin lodged an application for a review of this decision and, on 21 October 1998, the Veterans’ Review Board (“VRB”) affirmed the decision. On 17 December 1998, Mr Benjamin lodged an application for a review of that decision with the Tribunal.
7. The matter was heard before Senior Member JA Kiosoglous of the Tribunal on 22, 23 and 24 May 2000. On 9 August 2000, Mr Kiosoglous handed down his decision as follows:
Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that:
(a) psychoactive substance abuse is accepted as a war-caused condition;
(b) post-traumatic stress disorder is rejected as a war caused condition;
(c) the applicant is not entitled to special rate; and
(d)the matter is remitted to the respondent to determine the applicant’s general rate of pension as and from 19 June 1997.
8. On 5 September 2000, Mr Benjamin lodged an appeal with the Federal Court (A p392). The questions of law raised by the appeal were stated as follows:
(i)having found that the Applicant did not suffer from post traumatic stress disorder (“PTSD”), as defined in the applicable Statement of Principles (“SoP”), did the Tribunal err by failing to determine whether he nevertheless had a psychiatric condition, and if so, whether it was pensionable?
(ii)Did the Tribunal err by making its determination, as to whether the Applicant had PTSD, on the balance of probabilities?
9. On 30 May 2001, a single Judge of the Federal Court, Whitlam J, ordered that the appeal be dismissed (A p395). On 30 May 2001, Mr Benjamin lodged an appeal against the decision of Whitlam J (A p408). On 13 November 2001, the appeal was heard by the Full Federal Court. On 21 December 2001, Moore, Emmett and Allsop JJ held that the orders of Whitlam J be set aside and the decision remitted to the Tribunal for determination, according to law, of the question of whether the Applicant suffers from a war-caused disease other than PTSD. On 21 June 2002, the High Court refused special leave to appeal and stated their agreement with the decision of the Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 (S13/2002 (21 June 2002)).
Applicable Legislation
10. A war-caused injury or disease is defined in s 9(1) of the Veterans’ Entitlement Act 1986 (“the Act”). The definition includes an injury suffered or a disease contracted by the veteran resulting from an occurrence that happened while the veteran was rendering operational service as defined in s 6. Section 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
11. Section 21A provides for the Respondent to “determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions”, which is currently in its fifth edition (“GARP”). Section 22 provides that pensions by way of compensation are paid to veterans who have attained the age of 65 at a percentage of the maximum General Rate of pension payable which constitutes the same percentage as the degree of incapacity determined by the Respondent in accordance with s 21A. However, a veteran may be entitled to payment of pension at Special Rate if certain criteria set out in s 24 are fulfilled.
12. The standard of proof to be applied in relation to operational service in determining whether an injury or disease was war-caused is that provided for in subsections 120(1) and (3). Pursuant to these provisions, if the injury or disease relates to operational service, the Respondent shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person’s service.
13. Subsection 120(4) provides that except in making a determination to which subsections (1) or (2) apply (subsection (2) is not relevant in this matter), the Respondent shall decide any other matter arising under the Act or the regulations “to its reasonable satisfaction”. Because the Applicant’s claim was lodged after 1 June 1994, s 120A of the Act applies. This requires that where the Repatriation Medical Authority has determined a Statement of Principles (“SoP”) in respect of a particular injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.
Discussion of the Evidence
14. At the previous Tribunal proceedings in May 2000, Mr Benjamin gave evidence that he began drinking after he joined the Navy but considered himself a moderate drinker until his service on the MV Jeparit. Whilst at sea on naval vessels, access to alcohol was at the Captain’s discretion and limited to two cans of beer a day. On the Jeparit, being a merchant ship, there were no such restrictions, “You could start drinking any time of the day” (A p79), and there was no limitation on the amount of alcohol available.
15. Mr Benjamin described being “very confused and very, very scared” as a result of an incident in Kham Ranh Bay when they were unloading tanks and there was an alert because it was thought that enemy scuba divers were trying to attach limpet mines to the Jeparit (A p81). Mr Benjamin also recalled other incidents: being in Vung Tau Harbour when the Tet Offensive was in progress and hearing rifle fire and the noise of the bombardment of the mountain-side; hearing scare charges exploding closeby; and seeing the effects of bombing when they were unloading tanks (T p82). Unlike Australian warships, the Jeparit had no escort and was not armed.
16. Following the previous hearing, the Tribunal found that external stimuli, in particular two incidents – the issuing of the alert in Kham Ranh Bay and the rifle fire and bombardment during the Tet Offensive – caused Mr Benjamin “psychological stress, resulting in the applicant feeling subjective symptoms of increased stress” (paragraph 56). The Tribunal found that Mr Benjamin was drinking very heavily towards the end of the Jeparit voyages and concluded that “there was a stressful event prior to the clinical onset of alcohol dependence” (paragraph 63): “psychoactive substance abuse is accepted as a war-caused condition”. The Tribunal’s decision in respect of psychoactive substance above was not challenged in the Federal Court and the Respondent now accepts this as being a war-caused condition.
17. In the current proceedings, Mr Benjamin gave evidence of his current daily routine. After getting up at about 7.30am, showering and having breakfast, he goes to the local butcher’s shop where he buys a newspaper and chats with his friend the butcher, John Taylor, for 10 to 15 minutes. When Mr Benjamin gets home, he makes coffee and goes to his shed where he reads the paper. He might clean up the yard, clean his two bird cages and potter in the garden, but mostly he just stays in his shed reading. He has a large shed in the backyard where he has a television, microwave and fridge. He feels comfortable there. He has been spending time in his shed ever since he erected it 20 years ago. Even when he was working, he used to come home and sit in his shed. His wife, Beryl, brings him his lunch and dinner in the shed. She understands that he likes to be on his own and they have a good relationship. He watches the evening news there and perhaps more television, or he reads, before going to bed at 9.30pm to 10.00pm. He reads a lot – “books, newspapers, anything to get my mind off things”. On some days, he might drink two or at most three stubbies of light beer which is the most he now drinks at home. On Friday night, he goes to the pub with John Taylor for approximately one and a quarter hours. At the pub, he chats with John Taylor and a few others whom he is used to and drinks about four schooners of “old” beer. Mr Benjamin no longer goes to the pub on Saturday nights - not since Christmas: “I just can’t be bothered”.
18. Mr Benjamin has been taking medication for some years. He takes Epilim, a mood stabiliser, Efexor and Avanza, antidepressants, Temazepan to help him sleep and medication for controlling his blood pressure and for arthritis. Mr Benjamin recently had knee replacement surgery on one leg and is now awaiting similar surgery on the other leg.
19. About three years ago, one of the St John of God Hospital staff suggested that he get tested for sleep apnoea because of his snoring and arranged for him to attend a clinic at Hornsby. The doctor there diagnosed sleep apnoea and Mr Benjamin was given a machine to use. He persevered with this for about six months but found he would often wake to find he had pulled the mask off his face and its use caused him to have a dry throat and a blocked nose. He never managed to sleep through the night with the mask on and does not think he got any benefit from it.
20. Mr Benjamin still has his truck driver’s licence from when he worked as a truck driver. However, he only now drives his car around town or when he goes to the St John of God Hospital at North Richmond every two months or so. The trip to the hospital takes about one and a quarter hours. He goes there to see Dr Reinhardt because there is no psychiatrist in Lithgow.
21. Mr Benjamin said apart from going to the pub on Friday nights, he rarely goes out except for family gatherings. He does not like going out: he does not like mixing with people and the atmosphere and noise of crowds. He decided to cut down on his drinking after the staff at the St John of God Hospital convinced him that he was ruining his life. So he threw out all his home made beer and beer making equipment and now only ever drinks a few stubbies of light beer at home – about six to 10 stubbies a week.
22. Mr Benjamin said he last looked for work about eight years ago. Since he receives a service pension, he does not look for work and has not been offered work. He does not think he is capable of working. He is often very tired during the day and dozes off. Also his memory has deteriorated over the past 15 years and is poor.
23. Mr Benjamin said even though he goes to bed by about 10.00pm and takes a sleeping pill, he normally wakes every one and a half to two hours through the night. He has short periods of sleep and then wakes, often because of dreams. Then at about 5.00am, he goes into a deep sleep and wakes at 7.00am. Mr Benjamin has several recurrent dreams. In one, his hands have been chopped off, he is being attacked, he is running away and cannot defend himself. He thinks this dream is related to the Jeparit because it was unarmed. In another, he is drowning and wakes just before he sinks to the bottom of a hole and blacks out. Sometimes he wakes up sitting on the side of the bed. He is often sweaty. He sleeps separately from his wife because he tosses and turns and is noisy during the night, moaning and saying things in his sleep.
24. Mr Benjamin said he is currently a patient at the St John of God Hospital. He gets “very up tight” over Tribunal or court proceedings. He has been in hospital for two and a half weeks and will probably be there for another week. In his statement of 31 March 2004, Mr Benjamin said:
I worry about everything; the kids, the grandchildren, the sort of person I’ve turned into, not having seen my kids grow up, my time in the Navy. There were good times in the Navy but a lot of time I think about being on the Jeparit.
25. Mr Benjamin said he gets tearful two or three times a week – mainly because of thinking about his time on the Jeparit which gets him into a low mood: “crying releases the pressure out of my head”. He feels cranky or annoyed most days but has learned to control this most of the time. He also jumps or get panicky if he hears a sound or a voice he does not expect.
26. Mr Benjamin said he enjoys the company of his children and grandchildren. He does not go out shopping with his wife “because I feel very uptight and anxious in crowds or enclosed areas”. He does not cook with his wife because “she won’t have me under her feet in the kitchen”. He has lost interest in gardening, fishing, and lawn bowls – “I just can’t be bothered any more”.
Concurrent Medical Evidence of Associate Professor Carolyn Quadrio, Dr Karen Reinhardt and Dr Robert Lewin
27. All three psychiatrists were present while Mr Benjamin gave evidence. Dr Reinhardt said she has been Mr Benjamin’s treating psychiatrist since 1997. She diagnosed PTSD because of Mr Benjamin’s perception of the incidents that occurred while he was serving on the MV Jeparit. In a statement dated 3 March 2004 (A p8), Dr Reinhardt said:
In this atmosphere of threat, the occurrence of any threatening stimulus eg sudden loud noise, would be automatically interpreted as extremely dangerous and perceived as an event which “involved threatened death or serious injury”. Moreover, Mr Benjamin clearly describes feelings of intense fear and helplessness at this time.
28. Dr Reinhardt said if, contrary to her opinion, it is not accepted that Mr Benjamin experienced a severe stressor, then:
Mr Benjamin’s symptoms are consistent with a diagnosis of generalised anxiety disorder with a more recent onset of comorbid Major Depression.
The anxiety symptoms clearly date from Mr Benjamin’s war service and until recently were complicated by alcohol dependence which is frequently a strategy for self-medication. However, Mr Benjamin suffered from an anxiety disorder (GAD or Post Traumatic Stress Disorder) before he ceased drinking to excess and continues to suffer from these symptoms in spite of moderating his alcohol use.
In evidence, Dr Reinhardt said that Mr Benjamin described feeling anxious, frightened, panicky and irritable and that alcohol made him feel better, within two years of service on Jeparit. He felt fearful at the time of the incidents, for example when scare charges exploded, but while on Jeparit and in Vietnamese waters, he felt frightened generally because Jeparit was unprotected. He drank heavily from his time on the Jeparit and exhibited symptoms of Generalised Anxiety Disorder within two years of the happening of the stressor. It is very likely that he was suffering from Generalised Anxiety Disorder at that time.
29. Dr Reinhardt noted that over the period she has been treating Mr Benjamin, he has become more and more withdrawn and is now very restricted in what he does. He has spent long periods in hospital – up to seven weeks, and is on a “heavy” level of medication. Dr Reinhardt said in her opinion Mr Benjamin is unemployable as a result of his psychiatric condition – because of his irritability, lack of motivation and lack of concentration.
30. Professor Quadrio interviewed Mr Benjamin on 19 November 2002 and prepared reports dated 18 December 2002 (A2) and 18 April 2003 (A3). She said that in her opinion Mr Benjamin manifests the symptoms of PTSD which is her clinical diagnosis. If it is found that Mr Benjamin did not experience a severe stressor, then she said the clinical phenomena accord with Generalised Anxiety Disorder. It is a question of what is the appropriate label for his condition. She noted that Mr Benjamin suffers from a significant level of anxiety and that he used alcohol as self-medication for that condition. His alcohol use and subsequent alcohol dependence masked the symptoms of his Generalised Anxiety Disorder.
31. Professor Quadrio said Mr Benjamin found certain incidents experienced on MV Jeparit extremely distressing, although he enjoyed other parts of his naval service. The most frightening incidents were the mine alert in Vung Tau Harbour, the Tet Offensive and seeing the desolation at Kham Ranh Bay. In her opinion, these were severe psychosocial stresses which were significant antecedents to his psychiatric condition and, therefore, causally related. In her report of 18 December 2002 (A2), Professor Quadrio said:
Certainly I would say that Mr Benjamin was shocked and frightened by the various events he has reported and that – as a consequence of these experiences – he has developed the syndrome of intrusive preoccupations and flashbacks and sleeplessness which is typical of the PTSD syndrome.
Within two years of his service on Jeparit, Mr Benjamin was drinking very heavily to drown out his memories. Professor Quadrio noted that Mr Benjamin’s heavy drinking wrecked his first marriage.
32. Professor Quadrio said the evidence indicates chronic anxiety and depression. The anxiety is almost phobic at times. Because Mr Benjamin is no longer drinking heavily, his current level of depression is not due to substance abuse. She said Mr Benjamin’s depression has had a significant adverse effect on his ability to work. His prospects of employment are very low. In her opinion, he would not be capable of working.
33. Professor Quadrio said some of Mr Benjamin’s symptoms could also be caused by sleep apnoea. However, Mr Benjamin has abandoned use of the sleep apnoea machine. This suggests that sleep apnoea is not the fundamental cause of Mr Benjamin’s symptoms because people with significant sleep apnoea usually persevere with use of the sleep apnoea machine. Nevertheless, Mr Benjamin should be encouraged to persevere with use of the machine to see if it makes a difference.
34. Dr Reinhardt said that the fact of Mr Benjamin going into a deep sleep between 5.00am and 7.00am daily suggests that he does not suffer from sleep apnoea. While some of his symptoms could be attributed to sleep apnoea, many cannot.
35. Dr Robert Lewin first examined Mr Benjamin on 15 June 1999 (A p332). On 7 August 2003, he reviewed Professor Quadrio’s reports (R2) and, on 21 August 2003, prepared a further report (R3) having re-examined Mr Benjamin on 14 August 2003. In his most recent report, Dr Lewin concluded:
Mr Benjamin currently has an alcohol related problem which is in remission. He has chronic low grade depressive symptoms consistent with the diagnosis of Dysthmia. This appears to be a relatively long term problem. Mr Benjamin dated these symptoms to a period of 15 years, perhaps 20 years. He recorded that he could not remember symptoms prior to 20 years ago.
Based upon the history reported to me, one could not diagnose Post Traumatic Stress Disorder in this case.
36. Dr Lewin said Mr Benjamin’s clinical situation was different in August 2003 to when he first examined Mr Benjamin in June 1999, due to the change in Mr Benjamin’s drinking behaviour. Mr Benjamin complained of brooding, irritability, intermittent tiredness, some loss of confidence, some withdrawal and difficulties with concentration – a pattern of low grade depressive symptoms consistent with Dysthmia. Mr Benjamin also reported sleep apnoea, a condition that Dr Lewin said could explain some of the symptomology, for example tiredness and irritability. This requires further investigation before the effect of Mr Benjamin’s psychiatric condition can be assessed properly.
37. Although Dr Lewin diagnosed Dysthmia, he acknowledged that Generalised Anxiety Disorder would also be a reasonable diagnosis given the overlap in symptoms of Dysthmic Disorder. He said that Mr Benjamin’s chronic anxiety/depression has been in evidence for at least 10 years and probably longer. In his 1999 report (A p336), Dr Lewin recorded that Mr Benjamin described a history of prolonged abuse of alcohol, particularly in the last few years before that assessment. Dr Lewin said he did not have enough factual information to be satisfied as to causation.
38. Dr Lewin said Mr Benjamin’s psychiatric condition would be a significant impediment to his employment. However, other factors such as age, location, lack of motivation and lack of currency of job skills could also have an effect.
Application of the Law and Findings
39. The issue for the Tribunal to determine is whether Mr Benjamin suffers from a war-caused psychiatric condition. If Mr Benjamin does suffer from such a condition, the Applicant requested that the matter be remitted to the Respondent to assess the rate of pension payable.
40. With regard to “entitlement”, as the Full Federal Court stated in Benjamin (supra) at paragraph 55:
The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran …The diagnosis of that disease … falls for determination according to the standard of proof laid down in s 120(4).
41. The second question is whether there is a SoP in force in respect of the disease. Again, the standard of proof is that required by s 120(4), that of reasonable satisfaction.
42.The Full Court continued at paragraph 56:
if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3) as that provision is in turn qualified by s120A(3).
44. Thus, the third question is whether, having considered all the material before it, the Tribunal considers that the material points to an hypothesis connecting the disease with the circumstances of the Veteran’s operational service. Proof of facts raised by the Applicant is not in issue at this stage.
45. Then the fourth question is whether the hypothesis raised is a reasonable one. The hypothesis will only be reasonable if it is “consistent with the template to be found in the SoP”: Repatriation Commission v Deledio [1998] FCA 391. There must be material before the Tribunal which points to each of the required individual elements in the SoP: Connorsv Repatriation Commission [2000] FCA 783. As Wilcox J pointed out in Fuss v Repatriation Commission [2001] FCA 1529 at paragraph 49:
the factors as specified in any relevant Statement of Principles must be pointed to by the facts before the Commission (or Tribunal), even though not proved upon the balance of probabilities.
The standard of proof is that of reasonable satisfaction: Benjamin (supra) at paragraph 56.
46. Finally, the fifth question is whether the hypothesis is disproved beyond reasonable doubt. It is at this stage that the Tribunal must make any relevant findings of fact.
47. Addressing the first of these questions in Mr Benjamin’s case, the evidence of the three psychiatrists given concurrently leads the Tribunal to be reasonably satisfied that Mr Benjamin’s psychiatric problems can be characterised as the condition Generalised Anxiety Disorder. All three psychiatrists were in relative agreement as to this. While Mr Benjamin may also suffer from sleep apnoea, in the Tribunal’s opinion this does not affect its conclusion that he suffers from Generalised Anxiety Disorder because it is the Generalised Anxiety Disorder which is the fundamental cause of his symptoms. The likely effects of sleep apnoea are relatively of far less significance. The Tribunal notes that any alcohol dependence appears to be in remission.
48. Secondly, there is a SoP in force in respect of this condition – Instrument No 48 of 1994 as amended by Instrument No 275 of 1995, concerning Generalised Anxiety Disorder. These Instruments were revoked by Instrument No 1 of 2000 which determined a new SoP concerning Anxiety Disorder.
49. The third question is whether the material before the Tribunal points to an hypothesis connecting Mr Benjamin’s condition with the circumstances of his operational service. Mr Benjamin has identified a number of incidents during his operational service on the MV Jeparit which he claims to have been stressful. As stated above, there was an incident in Kham Ranh Bay when they were unloading tanks and there was an alert because it was thought that enemy scuba divers were trying to attach limpet mines to the Jeparit. Mr Benjamin also recalls being in Vung Tau Harbour when the Tet Offensive was in progress and hearing rifle fire and the noise of the bombardment of the mountainside; and seeing the effects of the bombing when they were unloading tanks. Unlike Australian warships, the Jeparit had no escort and was unarmed.
50. Following the previous hearing, the Tribunal found that external stimuli, in particular two incidents – the issuing of the alert in Kham Ranh Bay and the rifle fire and bombardment during the Tet Offensive – caused Mr Benjamin “psychological stress, resulting in the applicant feeling subjective symptoms of increased stress” (paragraph 56). The Tribunal found that Mr Benjamin was drinking very heavily towards the end of the Jeparit voyages and concluded that “there was a stressful event prior to the clinical onset of alcohol dependence” (paragraph 63): “psychoactive substance abuse is accepted as a war-caused condition”. The Tribunal’s decision in respect of psychoactive substance above was not challenged in the Federal Court and the Respondent now accepts this as being a war-caused condition.
51. The current Tribunal agrees with the assessment made following the earlier hearing. The incidents referred to on the Jeparit point to Mr Benjamin suffering psychological stress and the Tribunal is reasonably satisfied that the material before it points to a hypothesis connecting Mr Benjamin’s Generalised Anxiety Disorder with the circumstances of his operational service.
52. The fourth question is whether the hypothesis raised is a reasonable one. Does all the material before the Tribunal point to each of the required individual elements found in the relevant SoP?
53. The current SoP for Anxiety Disorder, previously known as Generalised Anxiety Disorder is Instrument No 1 of 2000. Clause 8 contains a number of definitions, including those for Generalised Anxiety Disorder and Anxiety Disorder. Clause 5 sets out 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 the person’s relevant service. The Applicant points relevantly to paragraphs (a)(ii):
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i) … ; or
(ii)experiencing a severe psychological stressor within two years immediately before the clinical onset of anxiety disorder; …
54. The term “severe psychological stressor” is defined in clause 8:
“severe psychological 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;
55. The Tribunal notes that the clinical onset of a condition occurs when all the symptoms identified in the SoP definition are present. The Tribunal also notes the discussion of the meaning of “experiencing a severe stressor” in Woodward v Repatriation Commission [2003] FCAFC 160 and Stoddart v Repatriation Commission [2003] FCAFC 300. The Full Court in both Woodward (supra) and Stoddart (supra) endorsed Mansfield J’s exposition at first instance in Stoddart v Repatriation Commission (2003) 197 ALR 283. In the words of the Full Court in Mansfield (supra) at paragraphs 142 to 144:
the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury (etc), if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, “experiencing” should be construed as having at least this partially subjective connotation.
56. The Tribunal considers that the material points to the two incidents identified by the former Tribunal in this matter set out in paragraph 16 above – that is the issuing of the alert in Kham Ranh Bay and the rifle fire and bombardment during the Tet Offensive – being identifiable occurrences that evoked feelings of substantial distress in Mr Benjamin. He dealt with this distress by drinking heavily.
57. The relevant SoP for Generalised Anxiety Disorder in effect on the date of the delegate’s decision on 26 March 1998 was Instrument No 48 of 1994, as amended by SoP No 275 of 1995. The relevant factor connecting the Generalised Anxiety Disorder with the circumstances of Mr Benjamin’s service stated in clause 1 of SoP No 48 is paragraph (b) “experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder”. Clause 4 contains definitions of Generalised Anxiety Disorder and Stressful Event. A “stressful event” “means an occurrence which evokes feelings of anxiety or stress”. In the Tribunal’s opinion, the material before it points to the two incidents experienced by Mr Benjamin being stressful events.
58. Turning to whether the material points to Mr Benjamin’s diagnosed General Anxiety Disorder meeting the definition in clause 8 of SoP No 1 of 2000, the Tribunal considers that:
A - Mr Benjamin has suffered excessive anxiety and worry on more days than not since his service on Jeparit.
B - He finds it difficult to control that worry.
C - The anxiety and worry are associated with restlessness (1), difficulty concentrating (3), irritability (4), and difficulty sleeping (6).
D- The focus of the anxiety and worry is not confined to features of any other Axis I disorder.
E- The anxiety causes clinically significant distress or impairment in social functioning.
F- The anxiety and worry are not due to other effects or conditions.
59. The Tribunal notes that the material points to Mr Benjamin’s diagnosed General Anxiety Disorder also meeting the definition of General Anxiety Disorder in clause 4 of SoP No 48 of 1994 as amended. As to the date of the clinical onset, the material points to Mr Benjamin drinking heavily to deal with his distress – to calm his nerves and help him cope – from his time on the Jeparit, and to the clinical onset occurring at that time.
60. The Tribunal therefore concludes that the hypothesis raised in Mr Benjamin’s case is a reasonable one. The final question is whether the hypothesis is disproved beyond reasonable doubt. The Tribunal finds that while on board the Jeparit, Mr Benjamin had ready access to alcohol and could drink at any time of day. He and the other men would regularly drink in the morning, at lunch, in the afternoon and evening. Mr Benjamin’s evidence is that the more trips he made to Vietnam on Jeparit, the heavier his drinking became. The Tribunal accepts that he became very scared as a result of the Kham Ranh Bay and Tet Offensive incidents.
61. The Tribunal finds that Mr Benjamin continued to drink heavily until about May 2001, when he reduced his consumption to a lower level. Mr Benjamin’s evidence of his daily activities – in particular, the time spent in his shed, indicates significant social withdrawal. He has been under the care of Dr Reinhardt since 1997, has spent long periods in the St John of God Hospital, and has been taking a range of medication for some years. Mr Benjamin experiences impaired sleep, waking frequently and suffering recurrent nightmares. He continues to think of the incidents on the Jeparit and to be tearful. He is prone to be cranky and irritable, avoids crowds and enclosed spaces, and only associates with his immediate family and a small number of friends.
62. The Tribunal concludes there is no evidence before it to disprove the hypothesis beyond reasonable doubt. The Tribunal therefore determines that the Applicant suffers from Generalised Anxiety Disorder which is war-caused and is entitled to a pension with effect from 19 June 1997. The Tribunal remits the assessment of the rate of pension payable to the Respondent.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President, and Dr M Thorpe, Member.
Signed: .....................................................................................
AssociateDate of Hearing 13 August 2003, 5 - 6 April 2004
Date of Decision 13 July 2004
Counsel for the Applicant Mr C Colbourne
Representative for the Applicant Ms J Buss, Legal Aid Commission
Counsel for the Respondent Ms R Henderson
Representative for the Respondent Ms E Warner, Australian Government
Solicitor’s Office
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