Rumel and Repatriation Commission
[2001] AATA 714
•15 August 2001
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
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.
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.
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 report Dr Lewin 1 November 1999
R2 Medical report Cowlinshaw 15 December 1999
R3 Medical report Dr M. Burns 5 January 2000
R4 Report Professor Grey 18 October 1999
R5 Report Ms Carter 29 August 2000
R6 Report Commodore Mulcare 10 February 2001
R7 Respondent's Statement of Facts and Contentions 4 May 2000
R8 Outpatient records for Applicant 22 May 1970
R9 Clinical notes Dr Nanda
R10 Service records of the Applicant received from Department of Defence 28 February 2001
issues
The relevant issues in this matter are:
(a) whether the Applicant has a war-caused psychiatric disease;
(b) whether the Applicant has a war-caused substance dependence disease, namely alcohol;
(c) whether the Applicant has the war-caused diseases of irritable bowel syndrome, hypertension and ischaemic heart disease; and
(d) what the appropriate assessment of the Applicant's war-caused diseases/injuries is; and
(e) whether the Applicant is entitled to payment of a disability pension at the Special Rate.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 and in particular sections 5D, 9, 24, 120, 196B.
backgroundThe 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):
Bilateral hearing loss and tinnitus (1968);
Post-traumatic stress disorder (1979);
Dermatitis and tinea (1968);
Chronic obstructed airways (1982);
Heart condition or disease (1982);
Solar keratosis (1986); and
Insomnia with pathological substance abuse (1970).
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).
On 13 May 1997, the Respondent accepted the Applicant's claim for bilateral sensorineural hearing loss and solar skin damage, with a disability pension granted at 30 per cent of the General Rate, with effect from 29 February 1996. The Respondent refused the Applicant's claim in respect of post-traumatic stress disorder, tinea, hypertension, irritable bowel syndrome, chronic airflow limitation and psychoactive substance abuse or dependence (T11).
The Applicant lodged a request for a review of the Respondent's decision with the VRB on 3 March 1998. An assessment by Dr Harden, Commonwealth Medical Officer, on 23 January 1997, revealed no overt psychiatric illness. Dr Harden considered that the Applicant's psychiatric condition should be regarded as temporary because it had not been fully treated or stabilised and that he should be reviewed in 12 months to permit permanent impairment assessment for a disability support pension (T17, pp95 and 103). Further, the Applicant detailed the jobs he had held between 1962 and 1997 (T17, p80) and that an apprehended violence order was taken out by his mother, dated 18 May 1998 (T17, p77). A further report from Dr Pohlen detailed the Applicant's increasing anxiety associated with frustrations in proceeding with his entitlements claim and associated increase in alcohol/cannabis consumption. Further, Dr Pohlen reverted to the Applicant's earlier diagnosis of generalised anxiety disorder, on the grounds of the Applicant's operational experiences not being considered to constitute a sufficient stressor for the diagnosis of post-traumatic stress disorder (T17, p71). Further Ms McConaghy, Clinical Psychologist, following an assessment of the Applicant, concluded in her report dated 16 November 1998 that the Applicant suffers from considerable emotional distress and behavioural disability as a result of his war-caused psychiatric disorders (T17, p59). Similarly, Dr Thomas, Consultant Gastroenterologist, following an assessment of the Applicant reported on 19 October 1998 that the Applicant suffered from minor diverticular disease and bowel irritability (T17, p86).
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 evidenceThe 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.
The Applicant stated that the next day the ship, at a state of readiness (action stations) left Vung Tau. Again his fear came back and on two or three occasions he sat in the passageway hyperventilating, unable to control himself.
The Applicant told the Tribunal that he had always had fear and that on joining the Navy there was extreme relief in getting away. He stated that up to the time of the Vung Tau incident he had been able to control it up to a point, but after the incident he had a fear of death, of being shot at, of experiencing hot flushes and diarrhoea constantly. The Applicant stated that up to this incident his Navy experience had been good.
The Applicant stated that he always had difficulty in relating to people; that he had been very controlled as a child; that demands were placed on him by his parents to help around the house, in relation to schooling and looking after his brother and sister. Prior to joining HMAS Yarra the Applicant stated that he was very selective in inter-personal relationships, not allowing people to get close to him. He had experienced episodes of being picked upon and felt he was deemed an odd fellow by others, which he found, gave him a certain freedom.
Following the Vung Tau incident the Applicant described a change, where he wanted to get out, having found the experience extremely difficult; that he avoided confrontation and did not seem to care what happened; that he needed relief and wanted to blot himself out; that he went ashore and as result of his drinking and smoking of cannabis he was thrown into jail and charged. Later in his Navy career the Applicant stated that he was charged for not obeying an order.
In late 1968 the Applicant stated that he married his first wife, whom he had met a few weeks prior to sailing on HMAS Yarra in 1967. They moved to a flat in Nowra, which his wife found unacceptable and relocated to Sydney. The Applicant would travel to Sydney on weekends and in early to middle 1969 he physically abused her when she told him she had made arrangements to go out. He found himself anxious, was told by his first wife on several occasions to calm down his aggressiveness and found it difficult to tolerate incompetence. He would verbally abuse his wife when she had not done what she said she would and further he found he was unable to sit still. On one occasion, when visiting his mother, his brother asked if he could borrow his car. The car broke down around midnight some 20 kilometres away and on arriving at the scene the Applicant physically abused his brother by punching him to the ground. He was unable to control his actions. His first marriage ended because his wife could no longer tolerate him and his outbursts.
During his second marriage, his wife, during her first pregnancy, left him in Brisbane and moved back to Sydney in 1979. She was unable to tolerate the Applicant's outbursts, his drinking habits and the uncertainties. Some two to three years later his wife admitted herself to Milton Hospital and would not acknowledge him for a period of a week. The marriage ended because she was unable to tolerate the situation and did not want to raise children under such circumstances.
The Applicant stated that there were similar problems within his third marriage and in 1994 he decided to leave Queensland and move back to live with his mother in the Hunter Valley. Initially the arrangements proved satisfactory, but gradually deteriorated and in 1998 after an apprehended violence order was taken out because of his drinking, he moved out. The Applicant told the Tribunal that he has limited contact with his two sons and that he has not spoken with the younger son for eighteen months. The Applicant's sons did not want to stay in his house, as he was short-fused and was unable to handle their style of life.
In discussing the issue of alcohol, the Applicant indicated that he had his first drink when he joined the Navy and this was associated with social drinking once a fortnight. As his financial situation improved, he socialised and drank more, but within socially acceptable limits. He stated that after the Vung Tau incident in late 1997, he started drinking with the intention of getting drunk, as though he needed to, as well as enjoying it. He continues in a like manner and depending on his financial situation consumes a slab of beer, bourbon and scotch every four to five days. While there may have been occasions on board ship when no beer rations were issued, there have been no occasions since leaving the Navy when he has not consumed alcohol on a daily basis.
The Applicant informed the Tribunal that once he was accepted in the Navy he started smoking. In the beginning he was smoking three to four cigarettes a day, then up to 10 a day, and then a carton a week up to the Far East trip. After the Far East tour he was smoking 40-50 a day and this continued to 1990 when he gave up smoking because of breathing difficulties..
In relation to his irritable bowel syndrome, the Applicant stated that he had bouts of diarrhoea when eating market food during his South East Asian tour, and the bouts of diarrhoea continued on board ship when eating Asian food. The Applicant found that when he was stressed he would need to seek a toilet with a degree of urgency.
In addressing the issue of insomnia, the Applicant stated that this commenced after his Vietnam experience and involved him imagining his father firing a gun at them. He had a fear of darkness as a child, would wake up sweating and experienced ongoing enuresis as a child. In Navy service, the Applicant said it was an on/off issue, and that it could be triggered off by a thought prior to sleep and once asleep, would wake him up at night. The frequency of such events he is now unable to remember, but he does remember that the frequency increased to three times a week after the Far East tour. He takes mogodon and valium to help relieve the problem, having started with the latter in the late 1970's and the former in 1994.
The Applicant stated that he smoked cannabis after his Vietnam experience and still does, together with a half a bottle of bourbon. Further, since seeing Dr Pohlen he now understands his problem, that he should not be ashamed and that he is partially in control of his difficulties. In 1996 he was invited to take a trip around Australia by motorcycle by the Vietnam Veterans' in aid of legacy, an invitation which he accepted. During this trip he spoke to Mr Daniels who suggested he seek a referral to Dr Pohlen.
In response to questions in cross-examination, the Applicant indicated that it was Mr Daniels who had completed the claim form which he had signed on 15 May 1996 (T4). Although he did read it, the Applicant acknowledged that he did not see any dead or wounded mates as stated at T5, p26 nor did he tell Mr Daniels of mines around the ship nominated at T4, p20. The Applicant stated that he had his first consultation with Dr Pohlen on 13 September 1996, following a referral from Dr Nanda, who he had seen in 1994 and thereafter, to obtain scripts for mogodon, valium and an injury to his back or foot. The diagnosis of post-traumatic stress disorder on the claim form was nominated by Mr Daniels and the year of 1979 was selected as the year in which the disability became apparent because he had problems with breathing and difficulties with sleeping and nightmares.
The Applicant stated that on his first visit to Dr Pohlen he explained to him that he was having difficulties sleeping, associated with scare charges, fear of death, old man shooting at him; that he had sent his son back to Brisbane after he had been living with him for 12 months; that he had detected certain problems in September 1995 and was having difficulties securing a job; that he was receiving a supporting parents pension.
The Applicant also indicated that he had not received any treatment for diarrhoea during his service, nor from Dr Nanda. Further, that he had made no special requests for postings during his naval service, nor had he told Dr Pohlen that he had. The Applicant also stated that the first time he saw sentries with rifles was at Vung Tau and certainly not on HMAS Hobart when returning from the United States. The Applicant was unable to recollect his action station function, nor does he remember much about Operation Awkward. He does remember that HMAS Yarra was involved in many exercises between Sydney and Jervis Bay between May and September 1997 and that during one exercise he froze with fear on landing, unable to move in the grass, but was able to get up and walk back to be taken back to the ship. On another occasion, during an exercise at sea, and where the ship had moved to "close up stations", the Applicant found himself in a passage way as a member of a fire control crew, experiencing a level of hyperventilation because of recurring thoughts of his father. The Applicant also stated that he was unaware that divers were sent down to inspect the hull of a ship until two years ago and that he did not know, let alone see, that scare charges would be thrown, nor did he expect to see sentries.
The Applicant indicated that he had travelled around Australia on a motorbike on two occasions, once with the Vietnam Veterans' for a period of six weeks in 1996 and again with a friend for a period of eight weeks in 1998. He has ridden with the Ulysses motorcycle club for two years. The Applicant indicated that he had had no time off work for sickness or disability at his last place of work.
The Applicant indicated to the Tribunal that he experienced no problems when firing a weapon at a training range, indeed he found it quite elating. After coming back from his Far East Voyage in 1968, he would use cannabis two or three times a week. In further describing the incident in which his drunken father fired at and missed his mother, who was holding him, the Applicant indicated that he was five years old at the time. After the family came to Australia, his mother worked as a hairdresser to support the family, and his father was an aggressive, belligerent individual, who was unable to control his temper. The Applicant described his family childhood situation as one in which he received mental and physical abuse from his father, no physical or emotional support from his mother, while at the same time was expected to care for his brother and sister, a matter which he did not resent. As a consequence he often regurgitated his food, felt emotionally abused, and on many occasions packed his bags with the intention of running away. He was not a restful sleeper and was generally apprehensive in his childhood and adolescent years. The Applicant indicated that his father did not work and when he saw him in 1972 he punched him in the mouth.
The Applicant also indicated that the reason why he wanted to undertake a diving course, was that he was contemplating on taking a past time activity. The attempt to undertake such a course was frustrated when the Applicant, during a preliminary phase, suffered ear problems and claustrophobia. The Applicant was unable to recollect whether any of his shipmates at the time held diver qualifications, nor was he aware of divers' inspections of a ships hull. The Applicant considered that the Military Police episode in Singapore was an aberration; that indeed he did try to keep his nose clean; that he achieved further promotion after the Yarra incident to petty officer on merit; and that apart from one episode on HMAS Stalwart where he failed to stand rounds and for which he received a loss of pay and forfeiture of some leave, he maintained a sense of duty and a clean record.
The Applicant also confirmed that the shipmate who he mentioned was killed on another ship, was killed after the Applicant returned to Australia and after his experience in Vietnam. Similarly, he saw a person with a piece of shrapnel after he returned to Australia.
Finally, the Applicant stated that he only tells people what he adjudges necessary to tell them. In relation to alcohol usage, he does admit to telling Dr Bastian that he had a moderate use of alcohol; he admits to the alcohol quantities as told to Dr Pohlen, and that he erased excessive use of alcohol in some reports because of his mother and family. In relation to his childhood, he indicated that he would help where he could, but essentially was not happy. He avoided confrontation, but did play A grade football while at school.
medical evidencedr pohlen:
Dr Pohlen, Consultant Psychiatrist, is the Applicant's treating psychiatrist and has seen the Applicant on numerous occasions. Details of some earlier medical reports by Dr Pohlen are contained within the background paragraphs of this decision. In his report of 24 February 1997 to GIO, in relation to the Applicant's desire to secure term life insurance, Dr Pohlen defined the Applicant's condition in the following terms (Exhibit A6):
"The evidence that has been made available to me indicates that Mr Rumel has fallen victim to a severely to very severely [sic] disabling war-aggravated chronic post-traumatic stress disorder with wide-ranging co-morbid emotional and behavioural sequelae including, inter alia, the features of a co-morbid chronic generalised anxiety disorder together with those of a co-morbid recurrent major depressive disorder without full inter-episode recovery as well as a range of additional co-morbid sequelae including presently remitted alcohol dependence. He was declared totally and permanently unable to resume any form of remunerative occupation for which he might have been suited by reason of his previous education, training and experience on 3rd February 1997 by Mr Stephen Thompson as Delegate of the Repatriation Commission"
In a medical report dated 6 June 1997 (Exhibit A7), Dr Pohlen again detailed the Applicant's social and clinical history and confirms the diagnosis nominated in his report of 24 February 1997. In a further report dated 21 March 2000, Dr Pohlen described the Applicant's response to the events the Applicant experienced in Vung Tau harbour on 27 December 1967 (Exhibit A8):
"Against a clearly distorted recall for the correct temporal sequence of significant external events he volunteered that, "We sailed into Vietnam waters…I…remember being directed to close up for drill action stations…in the main passageway…with the red safety lights…I remember being confused with fear…Memories… (and)…emotions came flooding back… I found myself gasping for air… and fearing for my safety…My mates were patrolling the upper deck with live ammunition… You could hear the muzzled thump of live ["grenades"] being thrown over the side periodically…I was terrified…My memories of being…shot at and…killed came flooding back…I have not been the same since".
In the same report of 21 March 2000, Dr Pohlen concludes (Exhibit A8):
"On the balance of probabilities Mr Rumel's principal over-riding psychiatric diagnosis appears to be one of childhood initiation of a post traumatic stress disorder with its maintenance into adolescence and with its relative remission during his early period of Navy service prior to its reactivation with an episode of hyperventilation aboard ship in Vietnam (DSM-IV 309.81). His marital, social and work history indicates that he has sustained a chronic residual post-traumatic stress-disordered state since leaving the Navy."
In oral evidence before the Tribunal, Dr Pohlen confirmed that the Applicant's diagnosis was post-traumatic stress disorder. He believed that the Applicant experiences flashbacks, reliving his experiences of childhood, adolescence, his period of service in the Navy (which, involved repetitious pistol fire), and a repressed memory, activated by the stimuli of the particular event. Dr Pohlen considered the Applicant's account of various events to be truthful, but recognised that they will vary as exampled by the addition of particular activities undertaken in response to a particular circumstance, because of his childhood experiences.
dr lewin:
Dr Lewin, Consultant Psychiatrist, in a report dated 1 November 1999 made the following summary diagnosis and opinion( Exhibit R1):
"Mr Dusan Joseph Rumel is a 55 year old divorced man who currently lives at St Claire. He served in the Royal Australian navy over a nine-year period, beginning in January 1962. He left the Navy with the rank of Petty Officer.
Mr Rumel reports that he was distressed and upset in the aftermath of a brief period of service in Vietnamese waters in late 1967 and early 1968. He was not involved in combat at any stage, nor was there any specific incident on board which could have reasonably been expected to give rise to serious emotional consequences. Mr Rumel recalls that the vessel was on a state of alert whilst in Vung Tao [sic] Harbour and that scare charges were used in the routine manner. He remembers being fearful whilst on a fire drill exercise.
He also reported a number of other incidents occurring at various times during his naval service, which were times outside the specified period of operational service.
Mr Rumel has a chronic Generalised Anxiety Disorder. An Anxiety Disorder is clearly evident in Mr Rumel's history since his childhood and adolescent years. It is likely that this condition had its origin in his history of profound adversity in childhood. I also observed that he is using alcohol inappropriately. It is likely that Mr Rumel has become dependent on alcohol. It is abundantly clear that he has abused this drug over a very long period of time in an attempt to cope with anxiety symptoms. His continuing use of Benzodiazepine sedatives is also inappropriate and it is likely that he is also dependent upon these prescribed anxiolytic medications.
Underlying these difficulties is a history of personality disturbance. It is clear that Mr Rumel is a troubled man.
On the basis of the history, one would conclude that Mr Rumel had a clearly established Anxiety Disorder before he joined the Navy. He described acute distress in response to a number incidents, but there is no history to suggest any sustained worsening of his condition. It is likely that his Anxiety Disorder has followed the usual clinical course, characterised by a waxing and waning in the intensity of his symptoms.
In my opinion, the substance abuse problems arise in the context of the Anxiety Disorder.
I did not find evidence of any specific psychiatric condition caused by Military Service during the defined period or worsened by that short period of Military Service. On the other hand it is abundantly clear that Mr Rumel has significant emotional problems which have an impact upon his current well being. In my opinion, that Anxiety Disorder and the substance use disorder, which I diagnosed, do not satisfy the relevant Statements of Principle. On that basis I did not attempt an assessment of impairment under the GARP System."In oral evidence before the Tribunal, Dr Lewin confirmed his written opinion, namely that the Applicant had an anxiety disorder and that this was clearly evident since his childhood years. Further, his problem drinking and his behaviour were evidence of an underlying history of personalty disturbance, arising in the context of the anxiety disorder.
Dr Lewin stated that generalised anxiety disorder was a relapsing condition, commencing in the teenage years. In the Applicant's case, Dr Lewin noted that the Applicant had a miserable home life which continued in part during his first few years in the Navy. During this period, the Applicant changed from being non-aggressive to aggressive, moved from alcohol use to alcohol abuse, experienced an increase in insomnia, and from no diarrhoea began to experience episodic diarrhoea. Dr Lewin stated that the Applicant demonstrated some transient increase in symptomatology, but that there was no history to suggest any sustained worsening of the condition.
dr harding burns:
Dr Harding Burns, Consultant Physician specialising in matters of substance abuse, in a report dated 13 December 1999, detailed the clinical history of the Applicant and formulated the following opinion (Exhibit A1):
"Mr Rumel's alcohol consumption fulfils criteria for alcohol dependence. His drinking history starts with his naval service at the age of 18 and up until the age of 24. Although he may occasionally have been drinking, his drinking would have been social, and not categorised as alcohol abuse or dependence. However, by 1967-1968, aged 24 to 25, he was drinking excessively, there was at least one episode of drunkenness where he was confined in goal overnight, and about which he has little recollection, and he was drinking for relief of stress, he was finding it difficult to contain his drinking and he was being confronted about his drinking by his mother.
In civilian life he continued to drink at a harmful level, eg in Queensland between 40 and 50 standard drinks over a four to five day period. His bowl habit was irregular and he suffered upper abdominal discomfort, "indigestion". These are characteristic gut disturbances due to harmful drinking. Mr Rumel continues to drink at a harmful level in spite of advice to restrict his drinking. He feels relieved when he drinks. He has not been able to achieve any significant abstinence. I date the onset of alcohol dependence from his Vietnam service in 1967. By the time he left the navy and moved to Queensland in 1973, his alcohol dependence had continued, as up to the present time.
I appreciate Dr Pohlen's assessment of posttraumatic stress disorder and general anxiety disorder (1998). Mr Rumel described the stressful experiences while in Vietnam waters and his painful recollections of his early childhood and the death of a particular friend on service. In civilian life he has had an unremitting history of aggression, irritability, frustration and depression. He has temporary relief of symptoms after he drinks, or uses cannabis. He regularly uses benzodiazepines for relief of insomnia. Although Mr Rumel may perceive that he has temporary relief of his symptoms when he drinks (relief drinking) or uses cannabis/benzodiazepines, this sequence represents alcohol withdrawal as part of alcohol dependence, and harmful alcohol consumption, which also contributes to "irritable bowel syndrome" and poorly controlled hypertension.
Mr Rumel had an unhappy childhood, his schooling was interrupted by his girlfriend's pregnancy and he saw his early years in the navy as "better than family". In his early naval life he drank with his friends in a social way. However by 1967-1968 when he was serving in the war zone and experiencing what he describes as service related stress, he was drinking in a harmful manner and the symptoms of dependence were emerging, and have persisted to the present day. Because of his family background and the development of persistent anxiety and stress while he was in the navy, and peer pressure, Mr Rumel was vulnerable to the progression from hazardous to harmful drinking, and the development of alcohol dependence.
It is a reasonable hypothesis to consider Mr Rumel's present diagnosis of alcohol dependence as at least in part related to his navy service."In oral evidence before the Tribunal, Dr Harding Burns confirmed that the Applicant did suffer from alcohol dependence and that this was associated with his psychiatric disorder. Dr Harding Burns described the Applicant's evolution of drinking habits from social drinking (early service) to abusive drinking and alcohol dependence by his mid to late twenties, with control of intake available while serving at HMAS Albatros in 1968. Dr Harding Burns noted that the Applicant's bowel symptomatology was associated with heavy alcohol consumption and that he would rely upon the opinion of Dr Thomas as to the condition of irritable bowel syndrome. . Dr Harding Burns considered the Applicant's binge incident in Singapore, and his use of cannabis at that time, was a response to the Applicant's anxiety symptomatology.
Dr mark thomas:
In a medical report dated 18 February 2000, Dr Thomas, Consultant Gastroenterologist, considered that the Applicant did satisfy the criteria for mild irritable bowel syndrome and in further comment stated (Exhibit A5):
"4:My medical understanding of the situation with this gentleman is that he developed irritable bowel syndrome after his service experience. I am surprised that it was so short and also surprised that he had no symptoms over the years before that event. Perhaps these questions could be gone into in more detail at the review. Certainly this gentleman has had a number of stresses in his life starting when he was a child, with his father shooting at him. I suspect that psychiatric advice would need to be sought as to whether this was a significant stress or whether going to "action stations" was a significant stress.
I think that if the Repat accepted his post traumatic stress as due to his service, we would have to assume that this was a factor in the unmasking of his irritable bowel syndrome.
In summary, I have no problem with the diagnosis of irritable bowel but it's relationship to his war service is very much dependent upon his traumatic stress syndrome being related to his war service. In other words I am sure his psychiatric state has influenced his irritable bowel syndrome."
dr james cowlishaw
Dr Cowlishaw, Consultant Gastroenterologist, in his report dated 15 December 1999, concluded that the Applicant's symptoms, taken in conjunction with the investigation performed by Dr Thomas are compatible with the diagnosis of irritable bowel syndrome. Dr Cowlishaw made the further comments (Exhibit R2):
"4. In my opinion the applicant does satisfy the criteria for the diagnosis of Irritable Bowel Syndrome defined in paragraph 2 of the Statement of Principles concerning Irritable Bowel Syndrome, Instrument number 103 of 1966.
With regard to paragraph 5, the applicant potentially satisfies the criteria [b], [c] and, [d] connecting his Irritable Bowel to his period of service in Vietnamese waters.
5. The relationship between Mr Rumel's Irritable Bowel Syndrome and his operational service rests on his apparent lack of gastrointestinal symptoms prior to his period of service in the Far East, and, more particularly, in Vietnamese waters, distress which was experienced during this time, and exacerbation of his current symptoms during periods of stress or anxiety."dr bastian
In a medical report dated 22 December 1999, Dr Bastian, a senior staff Cardiologist at John Hunter Hospital, noted that the Applicant's hypertension was moderately controlled and that the Applicant was complaining of central chest discomfort (Exhibit A3). As a result of investigation, Dr Bastian concluded, in a further report dated 31 March 2000 (Exhibit A4), that the Applicant's exercise test was consistent with a very significant myocardial ischaemia. Respiratory function tests were considered to be normal.
dr lee
Dr Lee, Consultant Cardiologist, in a report dated 31 August 2000, noted the Applicant's history of hypertension and, following a coronary angiography, concluded that the Applicant has three vessel coronary artery disease requiring by-pass surgery (Impairment Rating 15 under Table 1.7, with an exercise tolerance rated at 38 under Table 1.2) (Exhibit A2).
dr burns
In a medical report dated 20 January 2000, Dr Burns, Consultant Physician in occupational medicine, concluded that the Applicant had a lifestyle assessment of five for both accepted and non-accepted disabilities. Further, Dr Burns stated (Exhibit R3):
"I believe that Mr Rumel would be currently incapable of working for even eight hours per week. The substantial cause of his inability to work would be his chronic anxiety state and psychoactive substance abuse. I do not believe that his accepted disabilities would have any significant role to play in his inability to work."
In oral evidence, Dr Burns stated that he was not surprised at Dr Lee's findings and opinion in relation to the Applicant's ischaemic heart disease. In noting that the Applicant had told him that he changed jobs every 18 months to two years, Dr Burns stated that:
(a) he did not believe the Applicant's controlled hypertension would interfere with his work capacity; the Applicant would not be able to work in labouring capacity on account of his ischaemic heart disease, but may be able to undertake sedentary storeman administrative functions;
(b) the Applicant's irritable bowel syndrome would not limit his ability to go out and engage in functional activities and work;
(c) the Applicant's significant psychological problem, which included alcohol dependence, did affect his capacity to work;
(d) the Applicant has an impairment rating of 38 for his ischaemic heart disease.
historical reports;In a report dated 18 October 1999, Professor Grey confirmed from his study of historical records that (Exhibit R4):
(a) the friendly fire incident on HMAS Hobart occurred on the night of 16/17 June 1968, some six months after the Applicant's period of operational service in Vietnamese waters;
(b) HMAS Perth was brought under enemy fire on four occasions during its first deployment in Vietnamese waters, with an enemy round penetrating the 01 deck on 18 October 1967; and
(c) detailed the use of scare charges, use of armed sentries, divers, and details of standard procedures adopted under Operation Awkward by HMAS Yarra in her role as an escort in Vung Tau harbour on 27 December 1967.
submissions
applicant:
Counsel for the Applicant submitted that the key issue in this matter is whether the Applicant's generalised anxiety disorder, his alcohol dependence and smoking habit are causally related to his operational service. In essence, Counsel contended that the Applicant's narration of events were both particular and at other times understated in his reporting, and that where errors had been made, (for example, with the timing of the Hobart incident), the Applicant had acknowledged his error. As such, it was Counsel's submission that the Applicant suffered from a generalised anxiety disorder prior to service, that this disease was dormant during his early years of service, but resurfaced during his preparation for Far East Service 1967. It was further submitted that his generalised anxiety disorder was clinically worsened as a result of the experiences accrued during his period of service in Vung Tau harbour on 27 December 1967, as evidenced by his subsequent behaviour and symptomatology in Singapore, his increased drinking and during his first marriage and thereafter.
As a further consequence Counsel for the Applicant submitted that alcohol dependence, hypertension, irritable bowel syndrome and ischaemic heart disease are war-caused diseases, in that the Applicant satisfies a causation factor (s) within the relevant SoP for the particular disease nominated. Counsel for the Applicant contend that the Applicant is entitled to payment of pension at a Special Rate, with the date of effect being 29 February 1996.
respondent:
Counsel for the Respondent submitted that this matter is very much concerned with the aggravation of a pre-existing disease, namely generalised anxiety disorder. Counsel for the Respondent further submitted that for the Applicant to be successful, he must demonstrate that there has been a permanent change in the clinical status of the disease, that is, a clinical worsening, and not just a situation where there has been a temporary increase in clinical symptomatology which has not lead to a permanent and adverse change in the disease status.
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 findingsIn 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:
alcohol dependence (Drs Pohlen, Lewin, Harding Burns);
ischaemic heart disease (Drs Lee, Bastian);
irritable bowel syndrome (Drs Thomas, Cowlishaw); and
hypertension (Drs Bastian, Lee).
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
The Tribunal has already found that the Applicant suffered from the disease of generalised anxiety disorder prior to enlistment and that this disease has continued to exist throughout the Applicant's service and post service life. The Applicant contended that his pre-existing generalised anxiety disorder was clinically worsened as a result of experiencing a stressor while serving on HMAS Yarra, on 27 December 1967, in Vung Tau harbour. In stating such a hypothesis, the Applicant pointed to material contained in his own evidence of his reactions to the events that he experienced in Vung Tau harbour during the eight hours HMAS Yarra was in the harbour. Further, the Applicant pointed to his period of aberrant behaviour in Singapore a few days later, an increasing intake of alcohol thereafter, difficulties experienced in his domestic and work situation over the ensuing years associated with his aggressive and demanding behaviour, and increasing difficulties with sleep.
The Tribunal, having assessed all the material before it, concludes that such material does point to the hypothesis postulated by the Applicant. Further, the Tribunal notes that the appropriate Statement of Principles (SoP) to be considered in this matter is Instrument No 48 of 1994 as amended by Instrument No 275 of 1995, concerning generalised anxiety disorder (Repatriation Commission v Keeley (2000) 98 FCR 108 considered and applied).
In considering whether the Applicant's disease of generalised anxiety disorder is connected with a period of operational service, and accepting that the hypothesis has been established from the material before the Tribunal, the Tribunal must next consider whether the hypothesis formulated is a reasonable hypothesis. A reasonable hypothesis is found to exist where the hypothesis raised contains one or more of the factors within the relevant SoP, and is thereby considered to be consistent with the "template" contained in the SoP (Repatriation Commission v Deledio (1998) 83 FCR 82, considered and applied).
In this matter the relevant SoP is Instrument No 48 of 1994 as amended by Instrument No 275 of 1995. The relevant factor in consideration is factor 1(c), which states:
"experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder."
Paragraph 4(c) defines:
"A "stressful event" means an occurrence which evokes feelings of anxiety or stress."
The material in this matter details very clearly the Applicant's response to circumstances that occurred on HMAS Yarra during the period of eight hours in Vung Tau harbour on 27 December 1967. Such circumstances included the dropping of scare charges, posting of armed sentries and an increased readiness alert of the crew. The Applicant's response to these circumstances, as outlined by the Applicant, included racing from his no 1 store at waterline, on hearing the explosive charges, upstairs, seeing an armed sentry, shaking and sweating; falling back down the stairs and starting to hyperventilate; placing his head between his legs and weeping; racing back to his store and locking himself in, feeling he was going to be shot at and killed; reliving earlier life experiences; remaining there for three to four hours; showering, eating and going to bed; experiencing terrible dreams; getting up and locking himself in the "head" ; feeling embarrassed and ashamed.
It is clearly evident to the Tribunal that such material does point to the Applicant experiencing a stressful event, that is the occurrence of an event and a response by the Applicant of anxiety and stress.
The next issue is whether the material before the Tribunal points to a clinical worsening of the Applicant's generalised anxiety disorder, as a consequence of experiencing a stressful event. In noting the Applicant's symptomatology immediately post experiencing the stressful event, (which has been described in paragraph 68 of this decision), it is evident to the Tribunal that the material before it points to an increase in symptomatology at this time. Further, it is evident that the Applicant's increase in symptomatology persisted after HMAS Yarra left Vung Tau harbour on 27 December 1967, as demonstrated by the return of fear and attacks of hyperventilation two or three times on the following day.
In further analysis of the material, the Tribunal notes that while the Applicant had experienced two prior anxiety episodes (that is prior to Vung Tau), he was able to cope with them up to a point. After the Vung Tau episode however, he experienced a constant fear of death, of being shot at, experienced hot flushes and intermittent attacks of diarrhoea. Further, the material points to the Applicant needing relief from the situation and wanting to block the experience out, as evidenced by his alcohol and cannabis binge that occurred some five days after the event in Singapore, and which resulted in his jailing overnight. Further, the material does point to the Applicant's insomnia, with the recurrence of dreams of his father firing a gun at him increasing in frequency, to two to three times a week after the Vung Tau episode. Similarly, the material points to the Applicant significantly increasing his alcohol consumption with the intention of getting drunk, because he needed to. The material also points to an increase in his smoking habit post the Vung Tau episode.
The Tribunal further notes, that the material post the Vung Tau episode presents evidence of an increasingly aggressive and particular individual, as demonstrated by a deteriorating relationship with his first wife and a continuance of significant interpersonal difficulties, within his varying domestic and working environments over time.
The Tribunal also notes from the opinions of the two psychiatrists, that there is agreement between them, that the Applicant suffered increasing clinical symptomatology as a result of the Vung Tau harbour episode. Further, Dr Pohlen considered that the Applicant's story indicates an increase in clinical symptomatology which was not transient, and which represented a worsening of the Applicant's pre-existing generalised anxiety disorder.
In analysing the material before it, the Tribunal is satisfied that the material points to an increase in the Applicant's symptomatology, as a result of experiencing a stressful event in Vung Tau harbour on 27 December 1967. Further, the Tribunal observes that the material points to the increase in symptomatology as continuing, and that the Applicant's pre-existing generalised disorder was clinically worsened as a result of this episode.
In adopting the analysis in this matter as it has done, the Tribunal considers the standard of proof for the clinical worsening of a defined disease as beyond reasonable doubt as such depends on consideration of material constituting the hypothesis fitting the template of a relevant SoP: Cooke (supra) considered and applied), with the diagnosis of the particular disease (generalised anxiety disorder) being on the balance of probabilities (ss 120(4)). Further, the Tribunal is satisfied that the material points to a suggested relationship between the generalised anxiety disorder and the particular service of the Applicant, as being a relationship set out in paragraph 9(1)(e) of the Act, as nominated in paragraph 3(b) of SoP Instrument No 48 of 1994.
As a consequence, the Tribunal concludes that all the necessary elements of the "template" are satisfied, that is Instrument No 48 of 1994 as amended by Instrument No 275 of 1995, paragraphs 1(c) 2, 3(a), 3(b), 4 and the definition of stressful event. The Tribunal therefore finds that a reasonable hypothesis exists. Further, the Tribunal concludes, if indeed a contention exists that the diagnosis of clinical worsening is a diagnosis that should be made on the balance of probabilities, that such a diagnosis of clinical worsening of the Applicant's generalised anxiety disorder is made in this matter on the balance of probabilities, with the Tribunal relying upon the evidence of the Applicant and the clinical opinion of the treating psychiatrist, Dr Pohlen, supported in part by the evidence of Dr Harding Burns.
In addressing the issue of whether one or more of the facts necessary to the creation of the hypothesis have been disproved beyond reasonable doubt, or whether the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt, the Tribunal notes the particular arguments of the Respondent as regards this matter. In particular, the Tribunal acknowledges the Respondent's contention that the Applicant's evidence has been less than reliable, as a consequence of both error in the making of assertions at the time of his claim and a continuing growth and refinement of his evidence and also that of Dr Pohlen, to suit the requirements of the particular SoP. Secondly the Respondent, in relying upon the opinion of Dr Lewin, contended that there has not been an aggravation of the pre-existing disease, as the Applicant's increase in symptomatology post the Vung Tau incident on 27 December 1967 was only temporary and, as such, was an episodic presentation of the underlying pre-existing condition.
The Tribunal, while noting the Respondent's arguments and having addressed both during the consideration part of this decision, concludes that the evidence adduced by the Respondent is of insufficient weight to convince the Tribunal that one or more of the many facts which constitute the hypothesis has been disproved beyond reasonable doubt, or that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt.
The Tribunal therefore concludes that the Applicant's generalised anxiety disorder is a war caused disease.
psychoactive substance abuse or dependence
In addressing this issue the Tribunal acknowledges the Applicant's postulated hypothesis that the Applicant's current alcohol dependence arose as a consequence of:
a) experiencing a stressful event prior to the clinical onset of alcohol dependence, with a continuance of that dependence post service; and/or
b) having a psychiatric condition prior to the clinical onset of alcohol dependence.
As such, the Tribunal concludes that the material does point to facts which constitute the hypothesis. In so concluding, the Tribunal has given consideration to the evidence of the Applicant and the opinions of Drs Pohlen, Lewin and Harding Burns.
Further, the Tribunal, finds that both hypotheses are reasonable hypotheses, in that factors 1(a) and 1(b) of SoP Instrument No 5 of 1994 are satisfied, and that the definition of stressful event contained within paragraph 4 of the same SoP is met.
The Tribunal, in finding that one or more of the facts which constitute the hypothesis have not been disproved beyond reasonable doubt, or that the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt, determines that alcohol dependence is a war caused disease.
hypertension
The Tribunal acknowledges the hypothesis postulated by the Applicant – namely that the Applicant was suffering psychoactive substance abuse involving daily consumption of alcohol before, and continuing at least until, the accurate determination of hypertension, the latter being made in March 1997.
In addressing the material on this matter and on this issue, the Tribunal is satisfied that the material points to the facts which formulate the hypothesis. Further, having considered the report of Dr Oldfield, Cardiologist, of 10 March 1997 (T7), the Tribunal concludes that the hypothesis is a reasonable hypothesis, in that factor 1(b) of SoP Instrument No 83 of 1995 concerning hypertension is satisfied.
The Tribunal, in concluding that one or more of the facts which are necessary to support the hypothesis have not been disproved beyond reasonable doubt, or that the truth of a fact inconsistent with the hypothesis has not been proved beyond reasonable doubt, determines that the Applicant's hypertension is a war-caused disease.
ischaemic heart disease
The Tribunal, in noting that the Applicant postulates that his ischaemic heart disease arose as a consequence of his hypertension and/or alternatively from his smoking, which continued at a rate of 40-50 cigarettes a day until 1990,when he ceased, concludes that there is material in this matter which points to the facts outlined in the hypothesis.
The Tribunal, having considered the evidence of the Applicant, in particular in relation to his significant increase in his smoking habit after the Vung Tau episode, and the medical opinions of Drs Bastian, Lee and Oldfield, concludes that the Applicant does meet the requirements of the "template" nominated in factors 5(a) and 5(c) of SoP Instrument No 140 of 1996 concerning ischaemic heart disease. The postulated hypotheses are thus both considered to be reasonable hypotheses.
The Tribunal, in finding that one or more of the facts, which constitute the hypothesis have not been disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis has been proved beyond reasonable doubt, concludes that ischaemic heart disease is a war-caused disease.
irritable bowel syndrome
The Tribunal, in noting that the Applicant postulates that he suffered a specified psychiatric disorder, namely generalised anxiety disorder, within a six month period prior to the onset of irritable bowel syndrome, concludes that there is material in this matter, which points to the facts outlined in the hypothesis.
The Tribunal, having considered the evidence of the Applicant and the opinions of Drs Thomas and Cowlishaw, concludes that the Applicant does meet the requirements of factor 5(b) nominated in SoP Instrument 103 of 1996 concerning irritable bowel syndrome.
The Tribunal, in finding that one or more of the facts, which constitute the hypothesis has not been disproved beyond reasonable doubt or that the truth of a fact inconsistent with the hypothesis has not been proved beyond reasonable doubt, determines that the irritable bowel syndrome is a war-caused disease.
In summary, the Tribunal finds that the Applicant has the following war-caused diseases:
bilateral sensorineural hearing loss;
solar skin damage;
generalised anxiety disorder;
substance dependence (alcohol);
hypertension;
ischaemic heart disease; and
irritable bowel syndrome.
assessment
In assessing each of the Applicant's war-caused disabilities, the Tribunal, relying upon the opinions of Drs Burns, Lee and Pohlen, makes the following findings:
Disability Table Impairment
Bilateral sensorineural hearing loss 7.1 11
Tinnitus – bilateral 7.1.11 5
Solar skin damage 11.1, 20.1 2
Generalised anxiety disorder with alcohol dependence 4.1-4.8 42
Hypertension 2.1.1 2
Irritable bowel syndrome 6.1.8 Nil
Ischaemic heart disease (cardio respiratory functional impairment) Multi vessel disease 1.5 1.7 38 15The total combined impairment is 72.
The Tribunal, having noted the evidence of the Applicant and the opinions of Drs Pohlen and Burns, finds the following in relation to lifestyle assessment:
Personal relationships 5 – severely affected relationship
Mobility 2 – mild effects on mobility
Recreational and community activities 5 – able to engage in motor bike activities for lengthy time periods – otherwise reduction in recreational activities
Domestic activities 5 – able to carry out small range of domestic tasks
Employment activities Unable to work
As a result of the Tribunal findings, the Applicant has a combined impairment of 72 for his war-caused diseases and a life tyle rating of 4. The Tribunal further finds that the Applicant has a 100 per cent incapacity from his war-caused diseases.
In considering whether the Applicant qualifies for a disability pension at the Special Rate, the Tribunal finds:
(a) the Applicant satisfies s.24(1)(a), in that his degree of incapacity from war-caused diseases is 100 percent;
(b) the Applicant is totally and permanently incapacitated, in that due to his war caused diseases alone the Applicant is incapable of undertaking remunerative work for more than eight hours per week. In so finding, the Tribunal relies upon the evidence of the Applicant, and the opinions of Drs Burns and Pohlen; and
c) the Applicant, by reason of incapacity from his war caused diseases alone, is prevented from continuing to undertake remunerative work that he used to undertake and that he is suffering a loss of salary and wages on his own account because of this. In coming to such a finding, the Tribunal relied upon the evidence of the Applicant and the opinions of Dr Burns and Dr Pohlen, with the latter two opinions defining the reasons as to why the Applicant is unable to undertake remunerative work.As a consequence of the Tribunal's findings, the Tribunal further determines that the Applicant is entitled to the payment of a disability pension at the Special Rate, with the date of effect being 29 February 1996.
determinationThe 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;
alcohol dependence;
hypertension
ischaemic heart disease; and
irritable bowel syndrome;
(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.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D Campbell, Member
Signed: R Quinn .....................................................................................
AssociateDate/s of Hearing 7, 8, 9 March 2001
Date of Decision 15 August 2001
Counsel for the Applicant Mr G Colburn
Counsel for the Respondent Ms Henderson
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5
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