SANDRA PARKES and REPATRIATION COMMISSION
[2013] AATA 226
[2013] AATA 226
Division VETERANS' APPEALS DIVISION File Number
2012/3528
Re
SANDRA PARKES
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 16 April 2013 Place Brisbane The Tribunal affirms the decision under review.
....................[Sgd]....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Widow’s pension – Operational service with Royal Australian Navy – Death from alcoholic cirrhosis – Statements of Principles – Clinical onset – Heavy alcohol consumption unrelated to eligible service – Reasonable hypothesis of relationship to eligible service not raised – Death not war-caused – Decision under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 119, 120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles: Instrument No. 107 of 2007 as amended by Instrument No. 81 of 2011
Statement of Principles: Instrument No. 1 of 2009
Statement of Principles: Instrument No. 101 of 2007 as amended by Instruments No. 42 of 2010 and 15 of 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Brian Parkes (the veteran) served in the Royal Australian Navy (RAN). He died on 27 September 2010 at the age of 75 years. The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (the Act). On 8 November 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 8 December 2010 and by the Veterans’ Review Board (the Board) on 13 July 2012.
SERVICE
The veteran’s full-time RAN service was from 3 June 1953 until 28 July 1959 and from 9 November 1959 until 8 November 1966. He rendered eligible war service in the form of operational service in accordance with ss 7 and 6C of the Act, respectively, at various times between July 1955 and May 1963 on HMAS Tobruk (the Tobruk), HMAS Queenborough (the Queenborough) and HMAS Voyager (the Voyager) as part of the Far East Strategic Reserve (FESR). He also rendered operational service in South Vietnam on HMAS Yarra (the Yarra) from 24 March 1966 until 24 April 1966, from 25 April 1966 until 9 May 1966 and from 26 May 1966 until 9 June 1966.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act, which reads:
(1) Subject to this section … for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
(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.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120(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.
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority. Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the decision-maker’s reasonable satisfaction.[1] The veteran’s death certificate nominates the cause of death to be “1. Intra-abdominal sepsis 2. Alcoholic cirrhosis”.[2] It is not in dispute and I am reasonably satisfied that that the veteran died from cirrhosis of the liver due to alcohol dependence and that the kind of death in this matter was alcoholic cirrhosis. Confirmation of this was provided by reports from the surgical registrar at the Greenslopes Hospital, Dr Tom O’Rourke on 4 November 2005,[3] gastroenterologist and liver disease specialist, Dr Leisa Barrett on 12 May 2007,[4] his general practitioner, Dr Christopher O’Brien on 28 October 2010[5] and the Compensation Medical Adviser, Dr A Casperson on 8 December 2010.[6]
[1] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
[2] See Exhibit 1, T-documents, p. 45.
[3] See Exhibit 1, T-documents, p. 36.
[4] See Exhibit 1, T-documents, p. 172.
[5] See Exhibit 1, T-documents, p. 54.
[6] See Exhibit 1, T-documents, p. 177.
The issue for the Tribunal is whether the veteran’s alcoholic cirrhosis arose out of, or was attributable to any eligible war service rendered by him.
CONTENTIONS
Mr E James McDermott
Mr McDermott, for the applicant, submitted that the veteran consumed at least 110 kilograms of alcohol before the clinical onset of alcohol cirrhosis because of his operational service on the Yarra.
He submitted that the veteran suffered from an anxiety state as a result of his experience as a crew member of the Voyager when it sank after a collision with HMAS Melbourne in February 1964. He conceded that this occurred during a period not recognised as eligible war service under the Act. Mr McDermott noted that the veteran had reported in November 1965 that he suffered “attacks of nervousness” and submitted that this should be treated as the clinical onset of an anxiety state at that time.
Mr McDermott submitted that, because of subsequent operational service on the Yarra, the veteran substantially increased his level of alcohol consumption as a self-medication solution to his anxiety; that this led him to become alcohol dependent during and after his RAN service; and that this dependence was responsible for the development of his alcohol cirrhosis from which he died. Mr McDermott submitted that it was the RAN’s requirement that the veteran undertake operational service on the Yarra, rather than any particular aspect of the veteran’s service on the Yarra, which was responsible for the veteran’s increased alcohol consumption. He noted that, as a Petty Officer in charge of the boiler room, the veteran’s role on the Yarra was one which carried a high level of responsibility. He submitted that the Tribunal should determine that the veteran’s death was war-caused such that the applicant would be entitled to the widow’s pension with effect from the day after the veteran’s death.
In making his submissions, Mr McDermott referred to common law decisions and also to cases based on the Act but which were decided prior to the commencement of the requirement that matters of causation be considered through the mechanism of the Statements of Principles.[7]
[7] See para 5 (above).
Mr Jeff Kelly
For the respondent, Mr Kelly conceded that the veteran’s experiences with the sinking of the Voyager were extremely traumatic to him and he noted that, in 1994, he had been diagnosed as suffering from posttraumatic stress disorder, anxiety disorder, depressive disorder and alcohol abuse or dependence with a causal association with those experiences. However, he submitted that the veteran had been a heavy consumer of alcohol prior to the Voyager incident and that there was no evidence of a subsequent increase in that level of consumption. Mr Kelly also submitted that there was no evidence of any factor during the veteran’s service on the Yarra which would raise a reasonable hypothesis of a relationship to service of any such increase in alcohol consumption. He submitted that the decision under review should be affirmed.
Mr Kelly submitted that the common law authorities and those based on the Act but which pre-dated the operation of Statements of Principles were not relevant to the applicant’s claim.
EVIDENCE
The veteran
The veteran completed a statement on 14 April 1995. Therein, he referred to incidents when ships’ boilers exploded. He also referred to his service on the Yarra:[8]
In march [sic] 1966 I was sent to HMAS Yarra, that was the straw that broke my spirit. We were deployed to escort the Melbourne to Vietnam. I didn’t get much sleep at night and usually came off watch and sat until daylight on the quarterdeck with other Voyager survivors who were on board. Whilst refuelling in the Bight on our return from Vietnam, Melbourne came very close to Yarra, which I observed and I gave up.
[8] See Exhibit 1, T-documents, p. Z1.
Service records
The veteran was a member of the crew of the Voyager when it sank after a collision with the Melbourne in February 1964. He completed a statement in the same month.[9] It provides detail of the terrifying circumstances in which the veteran found himself when thrown into the ocean, rescued and returned to Australia.
[9] See Exhibit 1, T-documents, pp. R-U.
In evidence was a “Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy”, dated 1 November 1965.[10] It was signed by the veteran and contains the following question/response.
Do you suffer from any disabilities at present? If so, record details.
Attacks of nervousness since Voyager incident.
[10] See Exhibit 1, T-documents, pp. Y-Z.
In another such document, dated 10 October 1966 and signed by the veteran, the same question received the following response:[11]
Temporary tension. (nervous) after collision of HMAS Voyager. Feb 1964.
[11] See Exhibit 1, T-documents, pp. W-X.
Alcohol consumption documentation
The veteran completed an alcohol consumption questionnaire on 13 February 2006.[12] Therein, he wrote that he commenced drinking alcohol in “1953 on joining RAN” and that he would consume 40 to 50 drinks per day when he was on shore leave and three per day while on board ship. He described the connection of that consumption to his RAN service as being due to “peer pressure”. He wrote that he was unable to recall the dates of any changes in the levels of his consumption but confirmed that he was “regularly involved in binge drinking” when ashore but was limited to “issued quantities” on board ship.
[12] See Exhibit 1, T-documents, pp. 27-29.
A medical report, dated 7 February 2006, also made reference to the veteran’s alcohol consumption from approximately 1953 at the level of 20 to 60 grams per day.[13]
[13] See Exhibit 1, T-documents, pp. 9-10.
The Applicant
The applicant’s evidence was that she and the veteran met and married in 1967. She described the veteran as “a drinker” at that time. His pattern of alcohol usage settled when their first child was born in 1969, but his drinking became a problem from the time he began working at a Sydney club. They moved to Queensland in the early 1970s and he continued his alcohol consumption and began to show signs of depression which, she believed, he self-treated with alcohol. The veteran worked for some years with a government body and his practice was to consume alcohol after each day’s work and on week-ends. He continued to suffer from depression. The applicant recalled that the veteran attempted to control his alcohol intake and would cease from time to time for two to three months but would then return to his previous usage levels. The applicant referred to the veteran’s “demons” from his Navy days, the Voyager incident and his drinking problems which started when he joined the Navy.
Elvy Lowe
Ms Lowe is the veteran’s sister. She recalled the years after he joined the Navy and his increasing references to alcohol consumption with his Navy mates, especially when on leave with them. She noted that he consumed alcohol more heavily after the Voyager incident and she also became aware that he appeared very nervous at that time. She believed that he consumed alcohol “to take away the bad dreams and feeling of depression”.[14]
[14] See Exhibit 1, T-documents, p. 48.
Dr Christopher O’Brien
Dr O’Brien was the veteran’s general practitioner. In a report, dated 28 October 2010, he noted that the veteran had been a heavy alcohol drinker from the 1950’s and had suffered from alcoholic cirrhosis for the previous 15 years.[15]
[15] See Exhibit 1, T-documents, p. 54.
Professor Beverley Raphael
Dr Raphael is a psychiatrist. She completed a report, dated 11 February 1994, in which she detailed the veteran’s involvement in the sinking of the Voyager.[16] She diagnosed the veteran as suffering, as a result of that incident, posttraumatic stress disorder, anxiety disorder, depressive disorder and alcohol abuse. She recorded the veteran as having increased his alcohol consumption after the Voyager disaster and described the veteran as being “preoccupied” with that incident.
[16] See Exhibit 2.
Dr Raphael noted that, when serving on the Yarra, the veteran spent a lot of his time on the quarterdeck rather than below decks. She recounted an episode when the Yarra “came close to collision” with the Melbourne during a refuelling procedure in the Great Australian Bight. Dr Raphael noted that this occurred after the Yarra had berthed in Fremantle prior to undertaking its duties as an escort vessel for the Melbourne en route to Vietnam. She noted that the veteran described himself as being “reduced to a nervous state” at the time as “it replicated some of his ‘Voyager’ experience” for him.
Dr Raphael wrote:
The phenomena and current symptomatology which is now present reinforce that this occurred as a consequence of the ‘Voyager’ disaster as the traumatic incident, and was further exaggerated by any reminders which reflected similar situations or circumstances and added to the levels of heightened arousal, distress and preoccupation that he suffered.
PROCEDURE FOR CONSIDERATION
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[17]
(i) 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.
(ii) If the material does raise such hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) ...
(iii) 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.
(iv) The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused ... 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.
I have noted the authorities referred to by Mr McDermott. However, I accept as correct the submission by Mr Kelly that the common law authorities and those based on the Act but which pre-dated the operation of Statements of Principles were not directly relevant to the applicant’s claim because consideration must be given to the impact of Statements of Principles.
[17] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82-83.
Step 1:- Hypotheses
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. As I understand it, two hypotheses were relied upon by Mr McDermott.
The first was that, as a result of his Voyager experience, the veteran suffered from an anxiety disorder from 1965 for which he self-medicated with alcohol, then increased his consumption of alcohol because of his service on the Yarra and became alcohol dependent such that he consumed at least 110 kilograms of alcohol over the 10 year period before the clinical onset of his alcoholic cirrhosis which caused his death.
The second was that the anxiety state which was present in 1965 was made worse by the veteran’s service on the Yarra which then led to an increase in his alcohol consumption, to alcohol dependence and to consumption of at least 110 kilograms of alcohol over the 10 year period before the clinical onset of his alcoholic cirrhosis which caused his death.
I accept that those contentions raise hypotheses of connection of the veteran’s death to service. In addition, I have considered an hypothesis that the veteran’s alcohol dependence, which led to alcoholic cirrhosis, was related, either causally or through worsening, to his service on the Yarra quite apart from a pre-existing anxiety disorder and that this led to consumption of at least 110 kilograms of alcohol over the 10 year period before the clinical onset of alcoholic cirrhosis which caused his death.
No submissions were made and no hypotheses raised in relation to the veteran’s FESR service.
Step 2:- Statements of Principles
The hypotheses noted above require a consideration of the Statements of Principles for cirrhosis of the liver, alcohol dependence and anxiety disorder.
Cirrhosis of the liver
The Statement of Principles for cirrhosis of the liver is Instrument No. 107 of 2007 as amended by Instrument No. 81 of 2011. Therein, the relevant factor and associated definition reads:
(a) for males, consuming at least 110 kilograms of alcohol within any 10 year period before the clinical onset of cirrhosis of the liver;
…
"alcohol" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
It is common ground that the veteran consumed the required level of alcohol over a 10 year period before the clinical onset of his cirrhosis of the liver. The issue is whether that consumption was related to his eligible service.
Alcohol dependence
The Statement of Principles for alcohol dependence is Instrument No. 1 of 2009 which sets out the following relevant factors and associated definitions:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
…
(g) having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
(h) experiencing a category 1A stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
(i) experiencing a category 1B stressor within the five years before the clinical worsening of alcohol dependence or alcohol abuse; or
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
Anxiety disorder
The Statement of Principles for anxiety disorder is Instrument No. 101 of 2007 as amended.[18] The relevant factors and associated definitions therein read:
[18] The amending Instruments No. 42 of 2010 and 15 of 2011 are not material in this matter.
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v) experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder;
…
(c) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
(i) experiencing a category 1A stressor within the five years before the clinical worsening of anxiety disorder; or
(ii) experiencing a category 1B stressor within the five years before the clinical worsening of anxiety disorder; or
…
(iv) experiencing a category 2 stressor within the one year before the clinical worsening of anxiety disorder;
…
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful work loads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;
"a clinically significant psychiatric condition" means any Axis 1 disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
With each of those Statements of Principles, the relevant factors identified must be related to the relevant service rendered by the person.
Step 3:- Reasonableness of the Hypotheses
The third step requires consideration of whether any of the hypotheses raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[19] This requirement will be met if an hypothesis fits or is consistent with the template provided by any of the factors and the associated definitions in the Statements of Principles.
[19] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
Clinical Onset
Each of the factors in the Statements of Principles requires consideration of the concept of clinical onset in the context of the particular condition: i.e. alcoholic cirrhosis, alcohol dependence or anxiety disorder. In Kaluza v Repatriation Commission (Kaluza),[20] Jacobson J summarised, at [92]-[93], the effect of the decision of the Full Federal Court in Leesv Repatriation Commission[21] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.
[20] [2010] FCA 1244.
[21] (2002) 125 FCR 331.
Each of the two hypotheses advanced by Mr McDermott relies upon the veteran suffering from an anxiety state with its clinical onset in 1965. As evidence thereof, Mr McDermott referred to the report of nervousness made by the veteran in November 1965 as well as the changed accommodation arrangements (sleeping on the open quarterdeck) of the veteran on the Yarra. However, there is no medical evidence which supports Mr McDermott’s contention that the veteran suffered from an anxiety state in 1965. Dr Raphael identified the veteran’s anxiety disorder as being related to the Voyager incident but provided no guidance on the clinical onset of the condition. As I read the reference to “nervousness” in the statement dated 1 November 1965 and, indeed, that of “temporary tension (nerves)” on 10 October 1966, these are statements made by the veteran and do not amount to medical opinion. The Statement of Principles for anxiety disorder which I am obliged to apply, sets out, at para 3(b) thereof, the meaning of “anxiety disorder” in the following way:
For the purposes of this Statement of Principles, "anxiety disorder" means generalised anxiety disorder; anxiety disorder due to a general medical condition; or anxiety disorder not otherwise specified; and
"generalised anxiety disorder" means a psychiatric disorder (derived from DSM-IV-TR) with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1) restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
The references to “nervousness” and to “temporary tension (nerves)” by the veteran do not point to the necessary requirements of that definition. Also, as noted above, there is no medical evidence of the kind described in Kaluza (above) which points to the clinical onset of anxiety disorder at any time during the veteran’s service. Depending as they do on the presence of that condition prior to the veteran’s service on the Yarra, neither of those hypotheses is reasonable.
The medical and other evidence points to heavy alcohol consumption during the period when the veteran served on the Yarra but not to the clinical onset of alcohol dependence, until Dr Raphael’s report in 1994.
The only medical evidence of the clinical onset of alcoholic cirrhosis is in the report of Dr O’Brien which noted the veteran had at that time suffered from the condition for some 15 years, thereby pointing to a clinical onset in approximately 1995.
The first hypothesis
This hypothesis is that the veteran suffered from an anxiety disorder as a result of his Voyager experience, for which he self-medicated with alcohol, which increased his alcohol consumption, which led to alcohol dependency and ultimately resulted in the clinical onset of alcoholic cirrhosis which caused his death. This requires a consideration of factor (a) in the alcohol dependence Statement of Principles.
That factor requires, at the time of the clinical onset of alcohol dependence, a clinically significant psychiatric condition. This is defined in the Statement of Principles as being sufficient to warrant ongoing management which may involve regular visits to a psychiatrist, clinical psychologist or general practitioner. Even if the veteran had an anxiety disorder when he served on the Yarra, there is no material before me which points to a severity of a nature to meet that definition at any time during the veteran’s service or, indeed, before Dr Raphael reported in 1994. This was almost 30 years after the veteran completed his RAN service and, as noted below, no reasonable hypothesis of a relationship of the veteran’s anxiety disorder to his service is raised in this matter.
In relation to the first hypothesis, the material before me does not point to the template in the Statement of Principles for alcohol dependence which, in turn, led to alcoholic cirrhosis. Accordingly, the first hypothesis is not reasonable.
The second hypothesis
This hypothesis is that an anxiety state which was present in 1965 was made worse by the veteran’s service on the Yarra which then led to an increase in his alcohol consumption, to alcohol dependence and then to alcoholic cirrhosis. The worsening of an anxiety state requires, initially, a consideration of factors (c)(i), (ii) and (iv) of the Statement of Principles for anxiety disorder. These require that the veteran experienced a category 1A stressor, a category 1B stressor or a category 2 stressor within particular time-frames before the clinical worsening of anxiety disorder.
Of potential relevance are two matters in the material before me. The first relates to Mr McDermott’s contention that the veteran, whilst serving on the Yarra, would remain on the quarterdeck with those who had served on the Voyager, rather than occupy the mess below decks. The second is the reference by the veteran to the proximity of the Yarra to the Melbourne during a re-fuelling operation in the Great Australian Bight. However, neither of those circumstances point to any of the elements of any of the forms of stressor listed in the Statement of Principles. In particular, with the second matter, there is no material which points to the nature of the incident or the level of the veteran’s response. Also, significantly, the veteran, in his statement of 14 April 1995,[22] described the incident as occurring after returning from South Vietnam and Dr Raphael, in her report, describes it as being after the Yarra berthed in Fremantle where it was unable to refuel. That evidence points to the refuelling operation occurring outside of a period of operational service. Further, there is no material which points to the clinical worsening of anxiety disorder within the required time-frames of the Statement of Principles.
[22] See para 14 (above).
In relation to the second hypothesis, the material before me does not point to the template in the Statement of Principles for anxiety disorder which, in the advanced hypothesis, was a precondition to the development of alcohol dependence and, in turn, alcoholic cirrhosis. Accordingly, the second hypothesis is not reasonable.
The third hypothesis
This hypothesis is that the veteran’s alcohol dependence, which led to his alcoholic cirrhosis, was related directly to the veteran’s service on the Yarra. The relevant factors in the Statement of Principles are the experiencing of a category 1A or 1B stressor, as defined above, either for the causation of alcohol dependence or the worsening of that condition, within five years of the stressor. Again, there is no medical evidence which points to the clinical onset of alcohol dependence within five years of the veteran’s Yarra service.
There is material which points to the veteran being a heavy consumer of alcohol from the start of his RAN service. This is the effect of his responses in the alcohol questionnaire completed by him in 1996. Mr McDermott submitted that no regard should be had to that document because the veteran would have had no clear recollection of what his consumption levels had been so many years before. While I accept that contention in relation to any changing consumption levels at different times in the veteran’s life, the questionnaire clearly identifies heavy consumption from the start of his RAN service and that is consistent with the evidence given by his sister who, like Dr Raphael, described an increase in alcohol consumption after the sinking of the Voyager. The applicant identified the veteran as being a “drinker” when she met him in 1967 and to alcohol becoming a problem in 1969. However, there is no material which assists, in the manner set out in Kaluza (above), in pointing to the clinical onset of the veteran’s alcohol dependence before Dr Raphael’s report in 1994.
Neither is there material which points to the veteran experiencing either a category 1A or category 1B stressor during his service on the Yarra. I have noted, above, the veteran’s reference to the proximity of the Yarra to the Melbourne during refuelling in the Great Australian Bight and the lack of evidence about the nature of that incident, in addition to the evidence pointing to the nature of the Yarra’s service status at that time.
In relation to the third hypothesis, the material before me does not point to the template in the Statement of Principles for alcohol dependence which, in the additional hypothesis I have identified, is a precondition to the development of alcoholic cirrhosis. Accordingly, the third hypothesis is not reasonable.
All hypotheses
While it is not in dispute that the veteran consumed the required level of alcohol before the clinical onset of his alcoholic cirrhosis, the hypotheses that his consumption was related to his eligible service are not reasonable.
Step 4:- Is Death War-caused?
As no reasonable hypothesis of a relevant relationship is raised between alcoholic cirrhosis and the veteran’s eligible service, it follows that his death from that condition is not war caused. Consequently, it is not necessary for consideration to be given to the fourth of the Deledio steps.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 56 (fifty six) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 16 April 2013
Date of hearing 4 April 2013 Applicant In person Advocate for the Applicant Mr James McDermott, J.P. Advocate for the Respondent Mr Jeff Kelly
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