Rowling and Repatriation Commission
[2003] AATA 696
•23 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 696
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1003
VETERANS' APPEALS DIVISION
Re: BRIAN LAURENCE ROWLING
Applicant
And: REPATRIATION COMMISION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 23 July 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – claim for post traumatic stress disorder – alcohol abuse – fibromyalgia and hypertension – applicant in receipt of pension of 100 per cent of general rate – whether special rate of pension payable
Veterans' Entitlements Act 1986 ss.24(1)(c), (2), 120(1), (3), 120A
Statement of Principles
Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
Instrument Nº 58 of 1998 concerning depressive disorderInstrument Nº 27of 1999 concerning lumbar spondylosis
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Yeates and Repatriation Commission (AAT 11383, 13 November 1996)
Langley v Repatriation Commission (1993) 43 FCR 194
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Hales and Repatriation Commission (1986) 11 ALN 281
Fox v Repatriation Commission (1997) 45 ALD 317
Re Brennan and Repatriation Commission (1996) 42 ALD 191
REASONS FOR DECISION
23 July 2003 Miss E.A. Shanahan, Member
1. This is an application for review of a decision of the Veterans’ Review Board (VRB) dated 19 July 2001 wherein the VRB, having consented to the withdrawal of claims for bilateral presbyopia, conjunctival scarring right eye, hypertension, and had amended the diagnosis of post traumatic stress disorder (PTSD) to one of depressive disorder, had subsequently refused a claim concerning alcohol abuse, fibromyalgia and depressive disorder. On 14 November 2002, the applicant sought review by the Administrative Appeals Tribunal.
2. The applicant is in receipt of a pension at 100 per cent of the general rate for his accepted disabilities of drug dependence, chronic obstructive bronchitis, bilateral sensorineural hearing loss, gastrooesophageal reflux disease and lumbar spondylosis. The applicant is also in receipt of medical treatment for a large variety of diseases not considered service‑related.
3. The applicant was represented by Mr A. Larkin, of counsel, instructed by Geoffrey Tobin and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents). The respondent tendered the following documents:
· Clinical notes pages 1—39 and Report of Dr F. Laska,
rheumatologist Exhibit R1
· Report by Dr B. Dooley, orthopaedic surgeon,
dated 8 May 2002 Exhibit R2
· Report by Dr L. Walton, consultant psychiatrist,
dated 10 July 2002 – pages 1—7 Exhibit R3
· Report by Mr P. Mulcare, WriteWay Research Services
dated 27 September 2002 Exhibit R4
· Report by Dr M. Benjamin dated 30 October 1997 Exhibit R5
· Transcript of VRB hearing dated 19 July 2001 Exhibit R6
· Medical reports and clinical notes by Dr R. Moffitt,
treating medical practitioner – pages 1—18 Exhibit R7
4. The Tribunal received a report from Mr I. Charles, the applicant’s case manager, dated 5 December 2002, and while this was not tendered the Tribunal has chosen to include it as exhibit A1. The applicant and his wife attended the hearing and gave evidence, as did Dr J. Cooper, psychiatrist.
BACKGROUND TO THE APPLICATION
5. The applicant joined the Royal Australian Navy (navy) at age 17 and remained in the navy from 25 November 1967 until 9 September 1970, at which date he was discharged as being unsuitable for service. For a period of 1 week, from 18 November 1968 until 25 November 1968, he served in the waters of Vietnam and this constitutes operational service.
6. On 10 October 1999, the respondent accepted that the applicant's drug dependence, chronic obstructive bronchitis, bilateral sensorineural hearing loss, gastrooesophageal reflux disease and lumbar spondylosis were war‑caused, and pension was assessed at 100 per cent of the general rate. On 19 July 2001, the respondent rejected the applicant’s claim for a depressive disorder, alcohol abuse and fibromyalgia. This latter decision was appealed to the VRB who affirmed the decision under review. The VRB revisited the applicant’s accepted disability of lumbar spondylosis, which had been attributed by the primary decision‑maker to an intervertebral disc prolapse, accepted on the basis of cigarette smoking. The VRB found that, on the basis of the evidence before it, the applicant did not meet the relevant Statement of Principles (SoP) Instrument Nº 27 of 1999, factors 5(h) or 5(j).
7. The applicant contended that his experiences while working in the gun bay in HMAS Duchess on 20 November 1968, while in Vung Tau Harbour, had been a terrifying experience, causing him great anxiety and that on the same day he had fallen some six feet from a ladder injuring his spine. These events had led to him developing chronic depression, alcohol abuse or dependence, and fibromyalgia.
8. The applicant sought review of the VRB decision by the Administrative Appeals Tribunal on 9 August 2001 in relation to the rejected disabilities of alcohol abuse, chronic depression and fibromyalgia. It was submitted that the applicant’s lumbar spondylosis (accepted disability) was the source of chronic pain, leading to a depressive disorder and subsequent alcohol dependence or abuse. As the applicant was already in receipt of a 100 per cent general rate of pension, it was submitted that he was prevented from employment by war‑caused disability alone and was therefore entitled to pension at the special rate due to total and permanent incapacity.
9. The parties accepted the diagnoses of chronic depressive disorder and alcohol abuse/dependence. The issue was whether these conditions were war‑related or war‑caused and attributable to his Vietnam service.
EVIDENCE BEFORE THE TRIBUNAL
10. The applicant outlined the events occurring in HMAS Duchess, which was an escort ship for HMAS Sydney, while stationed in the Vung Tau Harbour. On the day in question (he could not remember the exact date), he said he had been continually positioned in the gun bay loading magazines for the gun tote and that the gun bay had been sited below deck. He claimed he had been present in the gun bay all day and not rotated through the normal four‑hour shifts. To his recollection, the ship had been in the Vung Tau Harbour for a period of 24 hours. He described the gun bay as being a circular compartment, 15 feet in diameter. He claimed he had slipped on the rail of the stairs and fell some 6 feet onto steel decking, hitting his tail bone.. Following this injury, he developed pain in the region and this remained constant for some hours. Despite the pain he continued with his shift and did not seek any medical attention. He believed that it would settle with the passage of time. The pain did fluctuate over a period of weeks but never disappeared. The applicant agreed with Mr Larkin that he had at no time reported his back injury to any medic or medical officer, nor to the medical officer at the time of his medical discharge examination.
11. The applicant had found the gun bay extremely claustrophobic. He reported that he could hear sounds from the outside but did not know what was happening and heard sea charges being exploded. He was very conscious of the fact that he was in enemy territory.
12. The applicant had commenced smoking cigarettes prior to service but smoked only a few cigarettes per day. He described himself as a light smoker. This had greatly increased following his service and since approximately 1991 he had smoked 50 to 60 cigarettes per day. Similarly, he described himself as a light drinker prior to service and that he would drink his usual rations, go to pubs with his friends but would not drink to excess. Following his service, his alcohol intake increased as he found it beneficial in his pain management. He would drink a slab of beer per day, whisky and rum.
13. The applicant agreed with Mr Larkin that, between the 1970s and the 1980s, he had a large number of jobs but that in 1980 he had started his own cleaning business. He had built this business up into three branches and sold them in 1988. At that time he had a house worth $200,000, a boat, a car, a truck and numerous possessions. Up until 1986, the applicant's pain had been manageable but after this date it had become unbearable. He first sought medical attention for back pain in 1986. He described the pain as in his back, in both legs and in his right elbow. His general practitioner, Dr H. Liszukiewicz had referred him to Dr A. Stockman, rheumatologist, and later to Dr Laska for treatment of his pain.
14. Mr Rudge asked the applicant to localise the site of his pain. The applicant stated this was at the level of L5/S1 and not in his coccyx. Following the fall, the applicant said that he had severe pain for two to three weeks but during that time continued to work on deck performing general ship maintenance. Despite the pain, he had been able to perform adequately. During the first two to three weeks following the fall, he had noted pain referred to his leg.
15. Mr Rudge put it to the applicant that he had in fact sold his business in 1990 on the advice of his general practitioner because he had developed back pain in January 1990. The applicant said he thought these events had been earlier but agreed with the content of Dr Liszukiewicz's letter dated 27 September 1990. The applicant agreed that Dr Laska had advised him of the diagnosis of fibromyalgia and that at the time he had had flitting pains in his calves, knees, thighs and buttocks.
16. In answer to questions put by the Tribunal, the applicant agreed that he had stopped smoking for a period of five months, commencing on 7 February 1991, as he was to undergo palato plasty for snoring. He had resumed smoking after this short break. The applicant also told the Tribunal that he had jumped ship in Vung Tau Harbour but did not enlarge upon this statement.
17. The applicant’s former wife said that she had met the applicant in 1998, moved with him to live in Avalon in 1999 and they had married in the year 2000. They separated in May 2002. Prior to the marriage, she had been aware that the applicant drank to excess but she felt she might be able to help to reduce his alcohol intake. (The Tribunal notes that before the VRB the applicant’s estranged wife stated she also had a drinking problem.) The applicant’s wife also described her estranged husband's daily routine, which involved getting up, cleaning the large shed he lives in and then spending the remainder of the day drinking. Friends would come to visit, sit around and drink. The only change she had been able to effect was to get him to switch to light beer. Although he had switched to light beer, he now drinks larger volumes. The applicant’s estranged wife believed that her husband drank to stop the pain. She noted he slept poorly and, more recently, that he had occasionally lost control of his bowels. Despite being on Valium, she described the applicant’s moods as bad and that he thinks the world is against him. Since 1998, his drinking pattern had worsened.
18. The Tribunal asked the applicant’s former wife to estimate how much the applicant spent per week on cigarettes and alcohol, as the Tribunal had roughly estimated this to be of the order of $320 per week. She was of the opinion that it was at least this sum and probably more.
19. Mr Rudge did not cross‑examine the witness but did advise that the applicant would be eligible for rehabilitation and/or detoxification treatment.
20. Dr Cooper had seen the applicant on one occasion, on 16 March 2001 and provided a report dated 6 May 2001 (T20, p.171). Dr Cooper diagnosed a major chronic depressive disorder secondary to chronic pain. In his opinion this satisfied factor 5(e) of Instrument Nº 58 of 1998 concerning depressive disorder. Based on the history he had obtained from the applicant, Dr Cooper felt it most likely that the chronic depressive disorder had commenced in the late 1980s but there had possibly been episodes of depression prior to this. Mr Larkin took Dr Cooper to the report of Dr B. Kenny, psychiatrist, (T8, pp.90‑97) wherein Dr Kenny had found the applicant to be disabled with a range of problems attributable primarily to constitutional factors rather than his war service. Dr Cooper was of the opinion that Dr Kenny's conclusion was a narrow interpretation. Dr Cooper agreed essentially with the report of Dr Walton but did not believe the applicant met the requirements of factor 5(a) of Instrument Nº 76 of 1998 as, in his opinion, the applicant's alcohol abuse/dependence pre‑dated the onset of the chronic depressive disorder. Dr Cooper postulated that factor 5(c), of the aforementioned Instrument, might be applicable. Factor 5(c) relates to suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse. Dr Cooper concluded that at the time he saw the applicant he felt he needed hospital in‑patient treatment for detoxification, particularly in light of the applicant’s attempted suicide in the year 2000.
21. Mr Rudge pursued the application of factor 5(c) of Instrument Nº 76 of 1998 and asked, was there a history of worsening of the alcohol abuse? Dr Cooper was of the opinion that there had been a gradual longstanding deterioration.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
22. The Tribunal had before it the clinical notes of Dr Laska. These covered the period from June 1988 to December 1999. On the first consultation on 16 June 1988, Dr Laska had diagnosed fibromyalgia of unknown origin with no precipitating incident. With regard to the applicant’s back, he felt there were musculo‑ligamentous problems but he did not obtain a history of any back injury. At this first consultation diastolic hypertension was detected. In March 1991, Dr Laska noted that the applicant’s right elbow pain and paraesthesia resulted from a motor vehicle accident in 1970, when the applicant was sideswiped while driving with his elbow out of the window. The applicant's widespread muscle aches and pains varied from day to day. At this visit Dr Laska recorded that the applicant had ceased working and was on unemployment benefits, was smoking 75 cigarettes per day but had stopped for the past 6 weeks. He was drinking 6 stubbies of beer per day but had ceased 2 weeks previously. The applicant continued to take Tryptanol, Zantac, Panadeine, Naprosyn and Indural. It is not clear if the Tryptanol was prescribed for the chronic pain syndrome or for some degree of depression or anxiety. Dr Laska advised the applicant to undertake gymnasium work as this should improve his fibromyalgia. On 18 September 1991, Dr Laska described the applicant’s fibromyalgia and back muscle pain as stable. On 2 April 1997, the applicant reported that his back pain was worsening but that his pain in the legs, feet, ankles and arms was unchanged. Blood pressure recordings were normal. In 1999, Dr Laska referred the applicant to the St Vincent's Hospital Pain Management Clinic and on 31 May 2000 provided a certificate regarding a National Mutual Insurance policy, stating the applicant’s diagnosis was diastolic hypertension and fibromyalgia.
23. Dr Laska's notes contained letters and reports from several other practitioners. A letter from Dr Stockman dated 7 February 1998 advised that, in his opinion, the applicant was suffering from lumbar spondylosis, not fibromyalgia. A report from a psychologist, Ms R. McIndoe, dated 24 September 1993 was included in the notes, although the letter was addressed to the Commonwealth Rehabilitation Service with a copy to Dr Laska. Ms McIndoe diagnosed anxiety, which she related to the applicant’s belief that his fibromyalgia was, in fact, multiple sclerosis. The only reference she made to any event in the navy was to the applicant’s dental phobia, acquired after damage done during a dental procedure on a navy ship.
24. Mr Dooley reported on 8 May 2002. He diagnosed lumbar spondylosis, which was probably attributable to war service, but stated that this could not be proved as there had been no X-ray, reported injury or any treatment at the time of the fall on board the Duchess. He did not agree with the diagnosis of fibromyalgia (Exhibit R2).
25. Dr Walton provided a report on 10 July 2002, having made a diagnosis of chronic depressive disorder and alcoholism. He noted that the applicant had first sought treatment for depression in 1991 and for alcohol abuse in 1998. He concluded that the excessive alcohol intake, which he determined to be alcohol dependence, had led to the depression and that the applicant did not meet the time requirements of factor 5(b) of Instrument Nº 58 of 1998 concerning depressive disorder.
26. Mr Mulcare conducted an historical research and reported on 27 September 2002. Mr Mulcare outlined the aims of common sea training, which were essentially on‑the‑job training for the basics of navy life at sea. The HMAS Duchess had sailed from Singapore on 18 November 1968 and rendezvoused with HMAS Sydney on the night of 18 November 1968. At 1600 hours on 19 November 1968 both ships went to action stations reverting to defence watches. The ships entered the Vung Tau Harbour early on 20 November 1968 and anchored at 0700 hours. At 1118 hours the Duchess weighed anchor to precede the Sydney out of the harbour. The Duchess remained under action stations while at anchor. The ship would have resumed normal watches at 1600 hours or earlier on 20 November 1968. Mr Mulcare detailed the defensive measures that would have been conducted while the Duchess was at anchor in Vung Tau Harbour. These would have included the use of scare charges thrown from the ship or patrolling boats. These scare charge explosions would create a loud thud, the intensity of which varied with distance, water depth, etc. The sound produced is louder in compartments below the waterline. The gun bay in the Duchess was above the waterline. Mr Mulcare reported that no personnel in the Duchess went ashore during the brief stay in Vung Tau, nor did the veteran jump ship.
27. The WriteWay report (Exhibit R4) contained notes from Commodore P. McKay, who was the Duchess' executive officer in 1968. He stated there was no action within 1½ miles of the Duchess. Scare charges had been used during this operation. The ship's company was always warned by the ship's broadcast system that a scare charge was about to be dropped.
28. An extract from HMAS Duchess report of proceedings for the month of November 1968 was provided and details the month's events. No adverse events are reported with the exception of threatening typhoons, which the ship was able to avoid.
29. The documentation from the Department of Navy was annexed to the WriteWay report concerning the applicant’s discharge from the navy and an apparent Ministerial representation initiated by the applicant’s sister. This document included a statement by the applicant outlining his reasons for requesting a discharge. The major considerations were his intense dislike for discipline and authority and his personal dissatisfaction in his employment. He had admitted to drinking to excess and attributed this to his dissatisfaction with his employment.
30. Prior to the applicant’s discharge from the navy, he was interviewed by the senior naval psychologist at the request of the Captain of HMAS Diamantina. In his report, he concluded that the applicant was …basically an insecure and unstable young man and it is now evident that the risk taken in recruiting him was not justified. No reference was made to the fall or to the episode in the gun bay on or about 20 November 1968.
31. A precis of the applicant’s offences and punishments in 1969 and 1970 were listed. These offences included improperly leaving ship, unauthorised use of a naval vehicle, abusive language and removing public property from naval dockyards which could be construed as theft.
32. Dr Benjamin had seen the applicant on 30 October 1997 (Exhibit R5). He found no evidence of PTSD and no evidence of depression, having taken a detailed history. He did report that at the age of 14 the applicant had been arrested for breaking and entering and had elected to work on a farm in Tasmania rather than be confined to a boy's home. Dr Benjamin diagnosed basic longstanding personality problems and alcohol addiction (Exhibit R5), none of which were related to service.
33. The Tribunal had the benefit of reading the VRB transcript of the hearing of 19 July 2001. This did not add greatly to the evidence already before the Tribunal, although the applicant had claimed he first sought treatment for his back pain in 1988. It was contended that the fact that Tryptanol was prescribed in 1990 suggested onset of depression at that time and it was contended that the alcohol dependence commenced in approximately 1995.
34. The clinical notes of Dr Moffitt, the applicant’s most recent general practitioner, appear to relate entirely to the applicant’s application for pension. They do contain a report of a CT spine performed on 23 February 2000, showing a shallow L5/S1 disc protrusion and a moderate L4/5 disc protrusion without nerve root compromise. The notes contain reports from Dr Laska, which have been previously dealt with and a report by Mr A. Heinz, general surgeon, regarding the diagnosis of oesophagitis which on gastroscopy was described as severe but on biopsy was termed mild oesophagitis. Somac was prescribed.
35. Dr Kenny saw the applicant on 11 February 2000 (T8) and obtained a detailed history of the applicant’s upbringing, naval service and post‑service progress. He noted the charge of breaking and entering at age 14 and that the applicant had smoked and drunk alcohol prior to his Vietnam service. The applicant had stated he was in Vietnam waters for a period of 7 days during which time he was locked up in the gun bay. He noted that the applicant had married at the age of 20 and that this marriage had lasted for 20 years. Dr Kenny was of the opinion that the applicant had an underlying personality disorder and that the stressors related to him (days in the gun bay) were insufficient to give rise to either depression or alcohol abuse. He concluded that the Vietnam service contribution to smoking and drinking had been minimal.
36. In the majority of interviews with the various psychiatrists, the applicant had stated he had never been fired upon while in the navy.
THE LEGISLATION
37. Section 24(1)(c) of the Veterans' Entitlements Act 1986 (the Act), insofar as relevantly raised here, provides:
24(1) This section applies to a veteran if:
…
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
As the applicant had rendered operational service, subsections 120(1) and (3) of the Act are applicable. The relevant subsections state as follows:
120(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.
…
(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.
As the application was made after 1 July 1994, s.120A of the Act also applies. This requires the Tribunal to take into account the relevant SoPs for the claimed disabilities.
38. The applicant has operational service of one week's duration in Vietnam. The standard of proof attracted by operational service is that of a reasonable hypothesis and the Tribunal is required to follow the steps outlined in Repatriation Commission v Deledio (1998) 83 FCR 82. The series of steps are 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by 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.
SUBMISSIONS
39. The applicant submitted that, as a result of his war‑accepted disability of lumbar spondylosis with ensuing chronic back pain, he had developed a chronic depressive disorder leading to alcohol dependence. Counsel for the applicant conceded that the fibromyalgia was not war‑caused.
40. As the applicant had suffered chronic pain since 1990, it was contended that factor 5(c) of Instrument Nº 58 of 1998 was satisfied on the basis of Dr Walton's estimate that depression was first evident in 1991. Alternatively, factor 5(j) relating to clinical worsening of a depressive disorder may be applicable as suggested by Dr Walton.
41. The applicant acknowledged that the alcohol dependence as being war‑caused was problematic, as the applicant’s excessive intake dated back to the time of service and increased in the 1980s. It was postulated that factor 5(c) of Instrument Nº 76 of 1998, which states … suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse, may be attracted.
42. The respondent submitted the evidence indicated that the alcohol dependence/abuse preceded the onset of chronic depression. With respect to factor 5(c) and the worsening of alcohol dependence or abuse, the respondent relied on s.9(1)(e) of the Act and factor 6 of Instrument Nº 76 of 1998. The evidence pointed to the applicant’s excessive smoking and drinking having commenced after service in Vietnam. While the excessive alcohol intake was of long duration, there were fluctuations in the intake and the applicant stated he ceased drinking for a period of five months, at some time between 1988 and 1990. The respondent submitted that aggravation or worsening of alcohol dependence or abuse required real and permanent aggravation and not fluctuation (Re Yeates and Repatriation Commission (AAT 11383, 13 November 1996).
43. With respect to the applicant’s chronic depressive disorder, the respondent submitted that, from 1988 to the year 2000, the applicant’s chronic pain was attributed to non‑service related fibromyalgia. In 1988, the applicant complained only of ankle pain (Exhibit R1, p.10) and, in 1991, of migratory joint and muscle pain (Exhibit R1, p.12). Based on these reports, the respondent contended that factor 5(d) of Instrument Nº 58 of 1998 was not satisfied as no major illness or injury occurred within 2 years of the onset of the depressive disorder.
APPLICATION OF THE LEGISLATION TO THE FACTS BEFORE THE TRIBUNAL
44. The parties agreed that the applicant suffers from alcohol dependence and a chronic depressive disorder. He has the accepted disability of lumbar spondylosis.
45. The applicant has raised the hypothesis that the accepted disability of lumbar spondylosis has resulted in chronic back pain and related chronic depressive disorder, which in turn has led to alcohol dependence/abuse. The material before the Tribunal points to such a hypothesis being reasonable.
46. The parties agreed that the relevant SoPs are Instrument Nº 58 of 1998 concerning depressive disorder; Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse and Instrument Nº 27 of 1999 concerning lumbar spondylosis.
47. The applicant’s hypothesis consists of more than one element based on the building block of his accepted disability of lumbar spondylosis. It was submitted that lumbar spondylosis, diagnosed in 1991, caused chronic pain of such severity that the applicant became chronically depressed. In turn, the depression caused his alcohol dependence/abuse.
48. The Tribunal is required to consider each element of the hypothesis separately in accordance with McKenna v Repatriation Commission (1999) 86 FCR 144 where, at 151, the Full Court of the Federal Court said:
…A complex hypothesis (that is, one comprising more than one element or part) can be no stronger than each of its elements or parts.
49. The Tribunal was advised by both parties that it was not required to consider whether or not the alleged fall, on or about 20 November 1968, was the basis of the applicant’s accepted disability of lumbar spondylosis given the respondent's acceptance of that claim. The Tribunal was referred to the decision in Langley v Repatriation Commission (1993) 43 FCR 194 at 213, per Spender J, regarding the overruling of an earlier determination. The decision in Langley also provides authority that the Tribunal may reconsider the facts relied upon in the earlier decision. Section 31 empowers the Tribunal to review or vary a pension when not argued by either party.
50. The VRB (decision dated 17 July 2001) revisited the applicant’s accepted disability of lumbar spondylosis in terms of Instrument Nº 27 of 1999 concerning lumbar spondylosis, and decided the applicant did not meet the template requirement of this SoP with respect to factors 5(h) or 5(j). Factor 5(h) states, …suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis, and a trauma to the lumbar spine is further defined as a
…discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred…:
The applicant’s evidence was that after the fall on 20 November 1968 he continued to work as normal, sought no medical treatment and did not report the injury to his superiors.
51. Factor 5(j) of the relevant SoP states that at a minimum the person's relevant service must show suffering of
…a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;
The evidence before the Tribunal was that the intervertebral disc prolapse was diagnosed on 23 February 2000, some nine years after the diagnosis of the lumbar spondylosis. Hence, factor 5(j) was not satisfied.
52. The respondent's primary decision‑maker accepted the applicant’s claim for lumbar spondylosis, effective 10 October 1999, on the basis of intervertebral disc prolapse and cigarette smoking. Neither this prolapse, documented nine years after the diagnosis of lumbar spondylosis, nor cigarette smoking comply with the SoP requirements. Cigarette smoking is not mentioned in SoP Instrument Nº 27 of 1999.
53. As the building block of the hypothesis fails, so to does the submitted hypothesis. The applicant retains his 100 per cent of general rate pension, but this Tribunal cannot accept on the evidentiary basis nor can it find any precedent which would allow it to perpetuate, what amounts to, an administrative error, to support the reasonability of the hypothesis submitted. The applicant’s diagnosed fibromyalgia of the 1970s and 1980s has been acknowledged to be unrelated to service.
54. The Tribunal has considered the other elements of the hypothesis separately and in combination, that is the chronic depressive disorder and alcohol dependence.
55. The evidence before the Tribunal indicates that the applicant’s alcohol abuse and subsequent dependence preceded the development of the chronic depressive disorder.
56. Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse delineates the necessary factors which may relate to an individual's relevant service as:
…
(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)…
57. The applicant’s evidence was to the effect that he self‑medicated with alcohol to control the symptoms of his fibromyalgia. His alcohol abuse was well established before the diagnosis of lumbar spondylosis with accompanying back pain, in 1991.
58. There is no doubt that the applicant suffers from a chronic depressive disorder. In his original claim his psychiatric disorder was described as PTSD. As no psychiatrist found evidence of PTSD, the claimed condition was amended to chronic depressive disorder.
59. Instrument Nº 58 of 1998 concerning depressive disorder lists 10 factors, one of which must, as a minimum, be present to raise a reasonable hypothesis. The applicant has relied on factors 5(e) and 5(j). Factors 5(e) states:
…
(e)suffering from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder; or
And factor 5(j) states:
…
(j)suffering from chronic pain of at least six months duration at the time of the clinical worsening of depressive disorder; or
60. While the applicant had chronic pain prior to the onset of his depressive disorder this pain was, on the medical evidence, due to fibromyalgia, a non‑war‑caused condition. Similarly, factor 5(j) is negated from the medical evidence, although Dr Walton raised this as a possibility.
61. The applicant originally claimed PTSD arising from a severe psychosocial stressor during his operational service in Vung Tau Harbour. The applicant’s evidence had been that he was confined to the gun bay of the Duchess for almost 7 days and had worked extended shifts of many hours' duration. The WriteWay report and the Duchess' diary record that the ship was in harbour for 4 hours and 18 minutes, that the gun bay was above sea level and that there was no action within 1.5 miles of the Duchess (Exhibit R4). The ship's diary described 20 November 1968 as an uneventful day.
62. The Tribunal perceived the applicant to be an unreliable witness. This may be due to his psychiatric disorder, alcohol dependence and the passage of time. The applicant was discharged from the navy as unsuitable. The pre‑discharge examination by a psychologist, while finding the applicant unsuitable for service, did not note any psychosocial stressors or traumatic events having been reported by the applicant.
63. The Tribunal is satisfied beyond reasonable doubt that the applicant’s chronic depressive disorder and alcohol dependence are not war‑caused within the meaning of s.9 of the Act. The applicant’s inability to work relates to these two conditions.
64. Section 24(1)(c) of the Act requires that the war‑caused injury or disease or both alone prevented the veteran continuing in employment. Similarly, s.24(1)(b) requires that the incapacity alone must be responsible for the veteran being unable to work and in the case of the special rate, the inability to work must be for periods of more than 8 hours per week. The length of time that an applicant for special rate has been out of the workforce can also militate against successful compliance with the alone test (Re Hales and Repatriation Commission (1986) 11 ALN 281). The applicant’s accepted disabilities are not a substantial cause of his inability to work (s.24(2)(b)) (Fox v Repatriation Commission (1997) 45 ALD 317). The applicant has not worked for 13 years, following his successful application for a disability support pension in 1991. He has rejected the advised detoxification programmes. No evidence was presented that the applicant had actively sought employment at any time since 1991, particularly not at the time of the claim (Re Brennan and Repatriation Commission (1996) 42 ALD 191).
65. The decision under review will be affirmed. The applicant’s rate of pension remains at 100 per cent of the general rate. He does not qualify for special rate of pension.
I certify that the sixty‑five [65] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 5 May 2003
Date of Decision: 23 July 2003
Counsel for the applicant: Mr A. Larkin
Solicitor for the applicant: Messrs Geoffrey TobinSolicitor for respondent: Mr K. Rudge, Advocacy Section,
Department of Veterans’ Affairs
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