Rumel and Repatriation Commission

Case [2001] AATA 714

DECISION AND REASONS FOR DECISION [2001] AATA 714

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/889

VETERANS' APPEALS  DIVISION       )          
           Re      DUSAN JOSEF RUMEL  
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member            

Date15 August 2001

PlaceSydney

Decision      The Tribunal determines that the decision under review be set aside and in substitution determines that: (a)    the following diseases are war-caused: bilateral sensorineural hearing loss with tinnitus; solar skin damage; generalised anxiety disorder; alcohol dependence; hypertension; ischaemic heart disease; irritable bowel syndrome; and (b)   the Applicant is entitled to the payment of a disability pension at the Special Rate, with the date of effect being 29 February 1996.            

[sgd] Dr J D Campbell
  Member
CATCHWORDS
Veterans' Entitlements - pre-existing psychiatric disease - clinical worsening as a consequence of operational service - alcohol dependence - hypertension - ischaemic heart disease - special rate pension

Veterans' Entitlement Act 1986 – ss 5D, 9, 24, 120, 196B

Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Binding [1999] FCA 974
Arnott v Repatriation Commission  [2001] FCA 262
Repatriation Commission v Cooke (1998) 90 FCR 307

Statement of Principle Instrument No 48 of 1994 as amended by Instrument No 275 of 1995
Statement of Principle Instrument No 5 of 1994

REASONS FOR DECISION

DR J D Campbell, Member   

  1. In this matter Mr Rumel ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 13 May 1997, which refused the Applicant's claim for post-traumatic stress disorder, hypertension, tinea, irritable bowel syndrome, chronic airflow limitation and psychoactive substance abuse or dependence, and that these were war-caused diseases/injuries.  This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 14 April 1999.

  2. A hearing was held before the Tribunal on 7, 8 and 9 March 2001 at which the Applicant was represented by Mr Colborne of counsel.  The Respondent was represented by Ms Henderson of counsel.  The Applicant, Dr Pohlen, Dr Lewin, Dr Burns, Dr Harding Burns and Commodore Mulcare, presented oral evidence before the Tribunal.

  1. The following material was placed into evidence before the Tribunal:
    Exhibit No                  Description       Date        
    T1-T30 pp1-186 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
    A1      Medical  report Dr Harding Burns 13 December 1999 
    A2      Medical report Dr Choon Lee       31 August 2000       
    A3      Medical report Dr Bastian   22 December 1999 
    A4      Medical report Dr Bastian   31 March 2000        
    A5      Medical report Dr Thomas  18 February 2000   
    A6      Medical report Dr Pohlen   24 February 1997   
    A7      Medical report Dr Pohlen   6 June 1997 
    A8      Medical report Dr Pohlen   21 March 2000        
    A9      Extract from book The Vung Tau Ferry and Escort Ships by Nott and Payne, 1998  
    A10     Complaint and summons apprehended domestic violence order      26 February 1998   
    A11     Applicant's Statement of Facts and Contentions          1 March 2000           
    A12     Reference re Applicant from Br Fingal, Marist Brothers High School 1 September 1961             
    R1      Medical…

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Details
AGLC
Rumel and Repatriation Commission [2001] AATA 714
Case
[2001] AATA 714
Decision Date

CaseChat Overview and Summary

The case of Rumel versus the Repatriation Commission was brought before the Federal Court of Australia. The Applicant, Mr. Rumel, sought a disability pension and medical treatment for various disabilities he claimed to have developed during his service in the Navy. The primary dispute was whether Mr. Rumel's psychiatric condition and other health issues were service-related and, if so, whether they warranted a special rate pension under the Veterans' Entitlement Act 1986. The court was tasked with determining whether the Applicant's pre-existing psychiatric condition had worsened due to his service and if his other conditions were connected to his military service.

The legal issues before the court included the interpretation of the Veterans' Entitlement Act 1986, particularly sections 5D, 9, 24, 120, and 196B, and whether these sections applied to Mr. Rumel's circumstances. Specifically, the court had to decide if Mr. Rumel's pre-existing psychiatric condition could be considered to have worsened due to his operational service and whether his other conditions, such as alcohol dependence and hypertension, were connected to his service. The court also had to examine the evidence provided by Mr. Rumel and the medical reports from various doctors to ascertain the veracity of his claims.

In its reasoning, the court examined the evidence provided by Mr. Rumel and the medical reports from various doctors. It noted that Mr. Rumel had a history of a generalised anxiety disorder prior to his enlistment, which persisted during and after his service. The court also found that Mr. Rumel suffered from other conditions, including alcohol dependence and hypertension. The court concluded that while Mr. Rumel's psychiatric condition did not worsen due to his service, his other conditions were connected to his service. Based on this, the court ruled in favor of Mr. Rumel and determined that he was eligible for a special rate pension.

The court's final orders were that Mr. Rumel was entitled to a special rate pension under the Veterans' Entitlement Act 1986. The decision was based on the findings that Mr. Rumel's alcohol dependence and hypertension were connected to his military service, and thus, he was eligible for the pension.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 and in particular sections 5D, 9, 24, 120, 196B.background The Applicant served in the Navy from 14 January 1962 until 13 January 1971 with a period of operational service, while serving on HMAS Yarra from 22 December 1967 until 1 January 1968 (T3). The Applicant lodged a claim with the Respondent on 29 May 1996 seeking a disability pension and medical treatment for the following disabilities (T4): In an alcohol questionnaire completed by the Applicant on 15 May 1996, the Applicant stated that he commenced drinking in January 1962, because of peer pressure and stressful service and that he would consume six to eight cans of beer, with six nips of spirits, two or three times every week. In 1967-68 the Applicant stated that he increased his consumption to 12-16 cans of beer per day and eight to ten nips of spirits per day. The Applicant stated that "I was always on edge whilst in Vietnam after seeing killed mates and wounded ready to be taken back home". The Applicant stated that he continued to drink daily at this time, consuming some 12 stubbies of beer and four to six nips of spirits every day (T5). In a smoking questionnaire completed on 15 May 1996, the Applicant indicated that he first started smoking on a regular basis on 25 February 1961, smoking some ten cigarettes a day. He also stated that he commenced smoking because of peer pressure and that he increased his smoking consumption to 30 to 40 cigarettes per day, in November 1967, associated with stressful service, with the increase occurring after the ship left Sydney for Vietnam (T6). In a medical report to the Respondent dated 29 August 1996, Dr Oldfield, a Consultant Cardiologist, concluded that the Applicant's chest discomfort sounded more like anxiety induced discomfort, but as he has numerous risk factors for myocardial ischaemia, further tests were to be arranged (T9). As a result of a further review Dr Oldfield, in a medical report dated 10 March 1997, concluded that the Applicant was suffering from hypertension (T7). On 12 September 1996, Dr Pohlen, a Consultant Psychiatrist, after two long consultations with the Applicant, concluded that he was suffering from a chronic generalised anxiety disorder, co-morbid recurrent major depressive disorder without full episode recovery, and co-morbid alcohol dependence, which indeed may suggest an overriding diagnosis of post-traumatic stress disorder. Dr Pohlen also considered that the Applicant was unable to undertake any form of remunerative occupation at that time (T10). On 14 October 1996 Dr Pohlen confirmed his diagnosis of the Applicant's psychiatric disorder as post-traumatic stress disorder (T10, p37). On 7 February 1997, Dr Pohlen, in a report to the Respondent, noted the Applicant's early childhood history of witnessing life threatening, traumatising family violence in Slovakia, and that he left such behind when he joined the Navy. Dr Pohlen noted the entry to and circumstances arising during his period in Vung Tau on HMAS Yarra as being the trigger to the aggravation of a pre-existing post-traumatic stress disorder (T15).

Evidence

Evidence Before The Court

On 14 April 1999, the VRB affirmed the decision of the Respondent dated 13 May 1997, with the disease of chronic airways limitation not being pursued by the Applicant.applicant's evidence The Applicant told the Tribunal that he was born in Slovakia in 1942, migrated to Australia in 1950 and left school in September 1961, during his leaving certificate year, before joining the Navy in January 1962. He served in the supply branch, which involved the administrative and logistic support of ships with naval stores and left in January 1971. The Applicant indicated that he had three marriages, the first being in 1968, which lasted three and half years, a second from 1977 to 1984 and a third from 1990 to 1994. The Applicant stated that he had three children, one prior to enlistment and two sons from the second marriage. The Applicant informed the Tribunal of the many jobs he had had after leaving the Navy (24), most of which centred around warehousing. He stated that he worked with Malleys Limited between 1973 and 1979, leaving because the job became too stressful as the job content had changed, with him being made more accountable for financial management, and he found it difficult to keep within budgets. For two years 1984/85 he was self-employed, driving a truck which he bought with money loaned from his mother. From 1992 onwards he worked as a sales consultant, where he found it difficult to live on the commission. He was requested to leave and has been unemployed since 1995. He registered with the CES at that time and thereafter applied for similar positions, listing his last place of work as the basis for a reference. He was not successful in such work applications. The Applicant stated that at that time he requested to see Dr Pohlen who advised the CES that he was permanently unemployable. He was placed on three months sick leave and received a sole parent pension. The Applicant indicated that at that time he wanted to work and that he felt embarrassed and shamed by not working. The Applicant alluded to a problem childhood, which continued right up to joining the Navy. The Applicant indicated that after joining the Navy in January 1962, he underwent naval recruit training on HMAS Cerberus, prior to being posted to HMAS Harman until March 1965. The Applicant stated that he then went to the United States as part of the commissioning crew of HMAS Hobart and returned to Australia in August 1966. After extended leave, he attended and successfully completed a petty officer's course at HMAS Cerberus in January 1966, after which he sought to undertake a diving course, but was unable to do so because of ear problems. He joined HMAS Yarra as leading stores assistant (store no 1) in February 1967 and in May 1967 sailed on HMAS Yarra for the Far Eastern tour. The Applicant told of the difficulties he experienced when HMAS Yarra sailed into Vung Tau harbour in late December 1967, as escort for HMAS Sydney. He was located in no 1 store, adjacent to the water below the focsle, with the ship in a closed up state, when he heard what he thought were hand-grenades exploding. He raced up the stairs to the upper deck and saw a sailor with a rifle. He stated that when he was half way up the ladder he started to shake and sweat. He fell backwards down the ladder and started to hyperventilate. He placed his head between his legs and wept. He raced back to his store and locked himself in. He felt he was going to die, as he was going to be shot. He was reliving what he had experienced earlier in his life. After three to four hours he went out from his store, showered, had something to eat and then went to bed. He found himself having terrible dreams that night and locked himself in the "head" for a few hours. His dreams were about an old man having a gun and shooting at him. He felt embarrassed and ashamed about the situation as well as emotionally exhausted.

Decision

Reasons for decision

DR J

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Ratio Decidendi

Legal Principle Established

Established by: DR J

Counsel contended that the Applicant had a pre-service generalised anxiety disorder; that during the immediate months prior to the Vung Tau incident, indicated by the Applicant in his own evidence, there had been two episodes in which symptoms of anxiety were present; that the Applicant's description to the Tribunal of his disease symptoms during the Vung Tau harbour episode on 27 December 1967 were at variance with earlier descriptions, but if accepted, were no more than symptoms of an existing generalised anxiety disorder; that the Applicant's Singapore episode and subsequent Navy service over the next two years were consistent with a conclusion that there had been no clinical worsening of the pre-existing generalised anxiety disorder, as there was no particular evidence permitting such a diagnosis to be made. In this regard, the Respondent contended, that both the reports and oral evidence of Dr Pohlen should be reviewed and read in light of the varied sources of information relied upon by Dr Pohlen in completing his reports, the variability of the Applicant's evidence over time, and Dr Pohlen's apparent desire to alter diagnosis to ensure that the Applicant's case is consistent with a relevant SoP.consideration and findings In addressing particular preliminary issues, the Tribunal first notes and accepts the Applicant's history of his childhood and adolescence years and his desire to leave behind such circumstances, when he joined the Navy. The Tribunal also accepts that these particular circumstances did have an effect upon the Applicant's maturation as an individual, prior to his Navy enlistment. As a consequence of the evidentiary material before the Tribunal and the opinions of many doctors in this matter, in particular the opinions of Drs Lewin and Pohlen, the Tribunal does find that on the balance of probabilities the Applicant suffered from a generalised anxiety disorder prior to his Navy enlistment, during his Navy service and thereafter to this time (Repatriation Commission v Cooke (1998) 90 FCR 307 considered and applied). Further, in light of the totality of evidence before the Tribunal and mindful of both the Applicant's evidence that "he only tells people what he adjudges necessary to tell them", the Tribunal also finds that on the balance of probabilities the Applicant suffers from the following diseases: In addressing issues of inconsistencies in the Applicant's application the Tribunal notes and accepts the explanation given by the Applicant in relation to the provision of inaccurate details by Mr Daniels. In addressing issues where clearly events described by the Applicant were placed in a wrong historical context (incidences involving HMAS Hobart and HMAS Perth, referred to earlier in this decision), the Tribunal accepts that the Applicant acknowledged that he was in error and accordingly draws no adverse inference from such erroneous assertions. Similarly, the Tribunal does not draw any adverse inference from the increasingly detailed description of the events experienced by the Applicant on HMAS Yarra, in Vung Tau harbour, on 27 December 1967. In so stating, the Tribunal has considered this event and the description thereof, within the totality of the Applicant's evidence and the psychiatric opinions expressed in this matter, and concludes that in the context of his psychiatric disorder and other diseases stated (particularly alcohol dependence), it is likely that variability in detail of evidence will occur over time.generalised anxiety disorder