Sappelli and Repatriation Commission
[2006] AATA 264
•21 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 264
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/248-249
VETERANS' APPEALS DIVISION ) Re CORNELIS SAPPELLI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, Member
Dr D Weerasooriya, MemberDate 21 March 2006
PlacePerth
Decision The Tribuna The Tribunal sets aside the decisions of the Veterans’ Review Board dated 30 June 2004 and, in substitution therefor, decides that:
· the applicant suffers from generalised anxiety disorder and alcohol dependence or alcohol abuse, and each of those diseases is a war-caused disease, within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”), with effect from 22 July 2003;
· the applicant suffers from gastro-oesophageal reflux disease and hypertension, and each of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act, with effect from 9 September 2002;
· the applicant suffers from gout but that disease is not a war-caused disease, within the meaning of s 9 of the VE Act.
The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.
..........Sgd (S D Hotop)................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1957 to 1977 – applicant rendered operational service in Far East Strategic Reserve and in Vietnam – applicant suffers from anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, hypertension and gout – reasonable hypothesis raised by material before Tribunal connecting all conditions (except gout) with circumstances of applicant’s operational service – all conditions (except gout) are war-caused diseases – decisions under review set aside
Veterans’ Entitlements Act 1986 (Cth) s 9, s 120 and s 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
21 March 2006 Deputy President S D Hotop Brigadier A G Warner, Member
Dr D Weerasooriya, Member
Introduction
1. The applicant, who was born on 11 October 1939, served in the Royal Australian Navy (“RAN”) from 26 October 1957 to 2 December 1977.
2. The applicant is presently in receipt of a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”), at the rate of 40% of the “general rate”, in respect of the following disabilities which have been accepted by the respondent as service-related:
·tinea;
·chronic solar skin damage;
·bilateral sensorineural hearing loss;
·ischaemic heart disease; and
·colorectal adenoma.
3. The applicant has also sought to have the following disabilities accepted as war-caused diseases:
·anxiety disorder;
·alcohol dependence;
·gastro-oesophageal reflux disease;
·hypertension; and
·gout.
The respondent and the Veterans’ Review Board (“VRB”), however, have decided that each of those disabilities is not a war-caused disease.
The Issues and the Tribunal’s Determination
4. The issues to be determined by the Tribunal are:
· whether the applicant suffers from anxiety disorder, alcohol dependence, gastro-oesophageal reflux disease, hypertension and/or gout; and, if so,
· whether each of those conditions is a war-caused disease, within the meaning of s 9 of the VE Act.
5. For the reasons which follow the Tribunal has determined that the applicant suffers from each of the abovementioned conditions, and that, with the exception of gout, each of those conditions is a “war-caused disease” within the meaning of s 9 of the VE Act. The Tribunal has also determined that the applicant’s gout is not a war-caused disease.
The Applicant’s Relevant Ran Service History
6. The following facts are found by the Tribunal on the basis of the documents (T1- T31, pp 1-193) - in particular, the applicant’s service records (T5, pp 23-70) – lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
The applicant’s operational service and eligible defence service
7. The applicant, during his RAN service, had the following eligible periods of service for the purposes of the VE Act:
·Operational service (Far East Strategic Reserve)
HMAS Vampire
23 June 1960 to 29 June 1960
4 July 1960 to 8 July 1960
15 July 1960 to 22 July 1960
29 July 1960 to 31 July 1960
1 August 1960 to 16 August 1960
10 September 1960 to 10 October 1960
14 October 1960 to 5 November 1960
HMAS Yarra
10 May 1963 to 19 May 1963
HMAS Parramatta
24 February 1965 to 7 April 1965
21 April 1965 to 6 May 1965
15 June 1965 to 3 August 1965
12 August 1965 to 1 September 1965
- Deemed allotted for operational service in Vietnamese waters
HMAS Parramatta
25 May 1965 to 14 June 1965
HMAS Yarra
22 December 1967 to 1 January 1968
- Defence service
7 December 1972 to 2 December 1977.
The applicant’s service medical history
8. In a pre-enlistment medical questionnaire, dated 1 October 1957, the applicant indicated that he was not presently suffering from any disease or disability, and that he had never suffered from any of the illnesses specified in the questionnaire form (including “Neurasthenia or Nervous Breakdown” and “Ulcer of Stomach or Indigestion”) or “any other illness or disease”. (T5, p 31)
9. On 19 April 1963 the applicant was involved in a “brawl” at Subic Bay in which he was kicked in the head and sustained lacerations above and below his right eye. Subsequent X-rays showed a hairline fracture of the right infraorbital ridge, but no displacement. He subsequently complained of visual problems with his right eye and in October 1963 he was found to have a detached retina in the right eye and he received surgical treatment in hospital for that condition in December 1963. He nevertheless continued to experience discomfort in his right eye (and, subsequently, also in his left eye) and he complained of restlessness and inability to sleep and was prescribed pethidine and sedative medication. He received further treatment in hospital and he was eventually “discharged to light duties” on 14 April 1964. (T5, pp 35-39)
10. The applicant had a re-engagement medical examination on 15 April 1966 and it was recorded that (inter alia):
·his blood pressure was 130/80;
·his “emotional stability” was “normal”;
·there was “some loss of visual acuity” and loss of part of the right lower and outer quadrant of his visual field. (T5, pp 40-41)
11. On 1 October 1969 the applicant presented with “blurring of vision of right eye following a blow with a shuttlecock”. On examination he was found to be “anxious” and to have a “vitreous haemorrhage” and a small tear of the retina in his right eye. After treatment he was discharged to light duties and it was reported that he had suffered no permanent sequelae of his eye injury. (T5, p 43)
12. In October 1972 the applicant was referred to a neurologist following a complaint that he was experiencing paraesthesia. It was noted that he had experienced paraesthesia in the right side of his face, his right arm and both legs since July 1972 “shortly after two injuries to the head”. On examination no neurological abnormality was found and the results of an EEG and a brain scan were normal. On 1 November 1972 Dr Brodziak, Consultant Medical Specialist, reported that this was “a functional affair” and that, if any help was needed in the future, “a psychiatric opinion could possibly help”. (T5, pp 44-46)
13. A barium meal X-ray report, dated 17 September 1976, regarding the applicant’s stomach states:
“A small sliding hiatus hernia was intermittently present, but no gastro-oesophageal reflux could be elicited.”
The applicant’s stomach and duodenum were reported to be “otherwise normal”. (T28, p170)
14. The applicant had a discharge medical examination in August 1977 and it was recorded that (inter alia):
- his blood pressure was 125/85;
- his “emotional stability” was “normal”.
It was recommended that he be assessed as “Category 1”. (T5, pp 47-48)
The applicant’s RAN rating history
15. The applicant’s rating history during his RAN service is as follows:
- Recruit Seaman 26 October 1957 – 25 April 1958
- Ordinary Seaman 26 April 1958 – 10 September 1959
- Able Seaman 11 September 1959 – 4 May 1961
- Acting Leading Seaman 5 May 1961 – 4 May 1962
- Leading Seaman 5 May 1962 – 1 April 1965
- Acting Petty Officer 2 April 1965 – 1 April 1966
- Petty Officer 2 April 1966 – 12 September 1968
- Chief Petty Officer 13 September 1968 – 10 June 1976
- Warrant Officer 11 June 1976.
He held the rank of Warrant Officer at the date of his discharge on 2 December 1977. (T5, pp 24, 65; Exhibit R1, Att 1)
The Applicant’s Evidence
16. The applicant’s evidence focused primarily on his period of operational service on board HMAS Parramatta in Vietnamese waters from 25 May 1965 to 14 June 1965. He provided a written statement, dated 26 July 2001, as follows:
“During my service on HMAS Parramatta in May 1965 we escorted HMAS Sydney into Vietnam. I found this experience very stressful. We [were] in Vung Tau for 2 ½ days at action stations the entire time and were told that enemy divers were active in the area. We were constantly on the lookout for drifting tidal mines which the enemy were known to use against our shipping.
Although outwardly we all put on a show of bravado, I think everyone was inwardly very frightened at this situation. I found difficulty in sleeping during the allocated periods and subsequent visits to the war zone in various ships produced the same angst. Later traumatic events not necessarily associated with my service sometimes trigger recollections of those periods at action stations. These can often cause memories of noises and smells associated with those periods.”
(T7, pp 82-83)
17. In his oral evidence the applicant referred to a particular event which he claimed had occurred during his service on board HMAS Parramatta in Vietnamese waters. He said that when HMAS Sydney and HMAS Parramatta were at anchor in Vung Tau Harbour boat patrols would be conducted around both ships looking for enemy divers. He said that on one occasion the Leading Seaman who was to act as coxswain of a patrol boat on the midnight to 4.00 am watch “got the jitters” and wanted to be replaced. He said that the First Lieutenant then asked him if he would mind acting as coxswain of the patrol boat on that watch. He then acted as coxswain on that patrol from about 12.30 am to about 4.00 am. He said that he had not had any such previous experience and did not know what to expect. He also said that he had never previously used scare charges (which were commonly dropped overboard on such patrols). He said that there was “great tension” in the boat and his feelings were “of apprehension and... a certain amount of being afraid”. (Transcript, pp 9-11)
18. The applicant said that following the completion of the abovementioned deployment of HMAS Parramatta be returned to Sydney (where he and his wife were living) in 1965. He said his wife had commented at that time about changes that had occurred in his personality, such as “mood swings and intolerance”. He acknowledged that he had struck his wife on one occasion, and added that that was very much out of character for him. He said that shortly after he had returned from Vietnam he and his wife had discussed their relationship and they attended counselling sessions with a social worker.
19. The applicant said that he was next (in 1966) posted to HMAS Leeuwin in Western Australia and his wife accompanied him on that posting. He said that a few of his “mess mates” at HMAS Leeuwin commented on his attitude and general behaviour. In this connection he cited a letter from Alan Meyer AM, dated 17 March 2004, which states as follows:
“I, Alan George Meyer have known Con Sappelli widely referred to as (Dutchy) for a period of 46 years. We first met after I joined the Royal Australian Navy in early 1958.
Our naval careers had a relatively parallel path from our initial training at HMAS Cerberus to our first sea posting together in HMAS Warrego. Over the next 20 years we served in numerous other ships and establishments, HMAS Leeuwin, Brisbane and Cerberus to name a few.
Dutchy was a happy enthusiastic colleague who enjoyed sport and his service life.
It was during our service in HMAS Leeuwin in 1966 that I noticed some distinct changes in his personality since we last served together, he had changed from happy go lucky to a irritable, argumentative, solemn and moody person, which was often mentioned by his shipmates. Even though I’m not in any way medically qualified, I consider that the changes in his nature may well have been as a result of his operational service during the preceding years. It was clearly obvious, that since our last meeting he had taken up smoking and his drinking habits had escalated to a high level.
His wife Joy, had also remarked to me that she found noticeable changes in him since his return from Vietnam, he ceased to communicate and had become withdrawn, he also tended to be introverted and somewhat a loner with marked mood swings.
Our next posting together was in 1969-70, once again in HMAS Leeuwin, he was unaccompanied during this period. From the conversations that we had I recall that he stated that due to the changes in his personality and his apparent dependence on alcohol Joy refused to move to WA with him and remained in Sydney. Not long after being posted to HMAS Stuart in 1970 Joy took her own life, possibly the reasons which may have attributed to this tragic event was the marked changes in him over the subsequent years since Vietnam.
Dutchy and I went on to serve in HMAS Brisbane and again in Cerberus until his retirement in 1977, we still manage to communicate with each other from time to time.” (sic)
(T28, p 74)
20. The applicant had previously signed a written statement, dated 19 April 2002, whose contents are as follows:
“As a result of my service on RAN Ships during the Far East Strategic Reserve, Malayan Emergency (FESR) & Vietnam conflicts I have suffered from anxiety and stress disorder.
I have recollection of my wife commenting after my return from Vietnam in both 1965 & 1968 that she reckoned that my personality had changed and that I had become irritable, withdrawn, impatient and bad tempered with an argumentative behaviour and that she had noticed that I was drinking to the extent of it being excessive and smoking more. I assumed at the time that the cause might have been due to a temporary condition and the long absences from home as the possible cause.
It wasn’t until after my return from the FESR & Vietnam in 1968 when she again made comment that I had become unbearable and my drinking was causing unharmonious domestic problems. She stated that I lacked interest at the time and to date I suffer from disturbed sleep and at that time was virtually chain-smoking and she said that we had lost the ability to communicate.
I strongly feel that the condition was compounded with an incident in the latter half of the same year, which resulted in my being actively involved in the recovery of two British airmen from the waters off Sumatra and transporting them back to Singapore. This task was both stressful and distressing to see those pale faces of such young men being sewn in to canvas. I found on return that my wife’s comments had started to sink in and that in fact I had changed with a tendency to apathy.
On completion of my sea duties in July 1969 I was posted to HMAS Leeuwin in WA where my wife stated that because of my changed personality and excessive drinking she was not accompanying me as a result she remained in the family home in Sydney.
I am of the firm opinion that the numerous stressful situations I encountered during my operational service have caused considerable problems with my social and work life. I tend to be a loner, argumentative and suffer from severe mood swings.” (sic)
(T12, p105)
21. In his oral evidence the applicant confirmed that his wife had refused to accompany him on his second posting to HMAS Leeuwin in 1969. He described himself at that time as “a loner, isolated, moody, angry”. He also confirmed that his wife committed suicide in 1970. He said that he remarried in December 1971 and that he has 2 children from his second marriage.
22. The applicant had previously completed an alcohol questionnaire, dated 4 December 2002, in which he stated that:
·he first began to consume alcohol on a regular basis during operational service in July 1960;
·he did so because of “fear, stress and anxiety”;
·at that time he drank alcohol every day;
·at that time he drank beer during operational service and “scotch” during shore leave;
·on each occasion he consumed, on average, 1 bottle of beer per day during operational service, and half a 26oz bottle of scotch per day plus 6 middies of beer daily;
·periods in which his alcohol consumption changed significantly were as follows:
-1973 – 1 bottle of scotch per week plus 24 cans of beer per week;
-1980 – 6 cans of beer daily plus 2 nips of scotch per night;
· he has not ceased drinking alcohol.
In response to the question, “Was there a particular stressful incident that occurred during your service that you feel may have contributed to your alcohol consumption?”, the applicant wrote:
“Just being on operational service and at one time opening up with a 50 cal gun on a small Asian vessel resulting in recovery of debris and bodies”.
(T16, pp 123-124)
23. The applicant had also previously completed a cigarette smoking questionnaire, dated 3 December 2002, in which he stated that:
· he first started smoking on a regular basis during operational service in July 1960;
· at that time he regularly smoked approximately 20 cigarettes per day;
· he started to smoke on a regular basis because of “fear, anxiety and stress”, having been told that smoking “calmed the nerves”;
· since he first started smoking on a regular basis, the following major changes in his smoking habit occurred:
-February 1965 – 30 cigarettes per day;
-January 1972 – 40 cigarettes per day;
· he stopped smoking permanently in August 1983. (T16, pp 125-126)
24. In his oral evidence the applicant agreed that he first started drinking alcohol in 1958 early in his RAN service when he began to accept his beer ration but that his alcohol consumption greatly increased whenever he went ashore. He also agreed that his alcohol consumption, both during his RAN service and since his discharge from service, had remained at much the same level.
25. The applicant said that he started to experience symptoms of gastro-oesophageal reflux disease in the 1970s before his discharge from the RAN in 1977. He said that he was first diagnosed with hypertension in the early 1980s. Finally, the applicant said that towards the end of his RAN service he experienced severe toe pain and he was told by a Warrant Officer medic that it was gout. He said that uric acid tests had confirmed that he still has gout but that it now causes him only occasional pain.
The Evidence of the Medical Witnesses
Dr J Fellows-Smith
26. Dr J Fellows-Smith, Psychiatrist, confirmed that he had prepared 3 reports regarding the applicant. Dr Fellows-Smith’s first report, dated 10 September 2001, states as follows:
“I saw the abovenamed on the 3 September 2001 and again today accompanied by his wife Ann for the purpose of this report. He is a sixty-one year old senior marine officer who is currently working as a training officer for the Department of Transport. He is married for the second time with three grown up children. He presents with stress symptoms directly related to his wartime service with the Far Eastern Strategic Reserve serving as able seaman on HMAS Vampire 1960 during the Indonesian Conflict and as a chief petty officer on the Yarra, Parramatta and Stewart (sic) in Vietnam 1963-1971. With regard to the diagnosis of Generalised Anxiety Disorder as described in DSMIV 300.02:
Category A:Mr Sappelli describes feeling excessive anxiety and worry occurring for more days than not.
Category B: He finds it difficult to control the worry.
Category C:The anxiety and worry are associated with restlessness and feeling keyed up and on edge, being easily fatigued, difficulty concentrating, irritability, muscle tension and sleep disturbance.
Category D:Mr Sappelli describes traumatic events during the Indonesian Conflict that include the recovery of two airmen in the waters of Sumatra. He describes packing the bodies with ice for the journey back to Singapore. He has re-experienced these traumas while working in sea search and rescue for the Harbours and Lights Department. During the Vietnam conflict he describes being for two and a half days at action stations in Vung Tau Harbour whilst scare charges were detonated outside of the ship. Although the experiences that he describes are stressful they do not fulfil the criteria for Post Traumatic Stress Disorder 309.81.
Category E:The anxiety, worry and physical symptoms cause clinically significant distress and impairment in social, occupational and interpersonal areas of functioning.
Category F:The disturbance is not due to the direct physiological effects of a substance or a general medical condition.
[The report then refers to a diagnosis of Claustrophobia and continues:]
Mr Sappelli met his first wife before the war and she noticed a marked change in his personality on his return. He had become more withdrawn, more irritable and was drinking more heavily. He continues to consume approximately seventy units of alcohol per week. He has noticed a marked tolerance to the effects of alcohol and a rebound of anxiety should he remain abstinent for twenty four hours. He describes a restriction to his lifestyle due to his condition. In 1970 his wife committed suicide by overdose. He describes an isolatory nature causing disharmony within his marriage and a restriction to his social life. His main hobby is stamp collecting. He avoids going out into crowds or shopping centres.
Mr Sappelli was born in Rotterdam, Holland with normal birth and development. He describes his childhood as being difficult due to the outbreak of war shortly after he was born. Despite these difficulties he mixed well at school and participated in sports. He migrated to Australia aged sixteen. There is no family history of psychiatric disorder or past psychiatric history. Associated medical conditions include tinnitus, deafness and skin rashes. Mr Sappelli was diagnosed as having angina and hypertension two years ago and currently takes adalat and metoprolol prescribed by cardiologist Dr Tofler.
On mental state examination Mr Sappelli was a pleasant and coherent historian. He became mildly distressed while describing his traumatic experiences. He presented with some mild depressive symptoms that include anhedonia and loss of motivation. His effect was restricted. There was no evidence of any psychotic phenomena. Cognitively he was unimpaired. His insight into his condition was good. Haematological investigation was unremarkable.
OPINION
Mr Sappelli presents with Generalised Anxiety Disorder, Claustrophobia and secondary Alcohol Dependence Syndrome directly due to his wartime service in the Far Eastern Strategic Reserve and in Vietnam…”
(T9, pp 93-95)
27. On 22 June 2004 Dr Fellows-Smith provided a further report to the Department of Veterans’ Affairs as follows:
“Further to my report dated 10 September 2001 and your decision dated 4 November 2003 in which his Generalised Anxiety Disorder, Claustrophobia and secondary Alcohol Dependence Syndrome were rejected as not being service related based on a lack of supportive evidence of onset within 2 years as per the Statement of Principles. Mr Sappelli has represented today accompanied with a letter from his shipmate Alan Meyer AM that corroborates Mr Sappelli’s subjective account of the onset of changes to his personality that was noticeable during service in HMAS Leeuwin in 1966. Mr Meyer states that Mr Sappelli has changed from happy go lucky to an irritable argumentative solemn and moody person which was often mentioned by his shipmates. He also states that since his last meeting during their first sea posting together on HMAS Warrego Mr Sappelli had taken up smoking and his drinking habits had escalated to a high level.
Although I am unable to obtain a history from his wife Joy who took her life in 1970 for reasons probably related to changes in Mr Sappelli following operational service, Mr Meyer states that his wife Joy had also remarked to him that she had found noticeable changes in her husband since his return from Vietnam. She is reported to have stated that Mr Sappelli had ceased communicating and had become withdrawn. She stated that her husband had tended to become introverted and somewhat of a loner with marked mood swings.
I note that Mr Sappelli experiences considerable remorse in relation to the loss of his first wife. He has continued to drink heavily and currently consumes 110 units of alcohol per week in a dependant pattern.
OPINION
Although the diagnosis of Generalised Anxiety Disorder has been accepted as the most likely diagnosis, the severity of the psychosocial stressor may have been understated in my report of 10 September 2001. Mr Sappelli has further indicated that the bodies of the airmen that were recovered had been in tropical waters for 2-3 days and were at the early stage of decomposition. Although Mr Sappelli went on to work in sea search and rescue and was to retrieve 4 further bodies during his time at the harbour and lights department he chose to leave the job in 1990 and switch to marine environmental protection as he could no longer cope with the stress of his employment. With regard to re-experiencing phenomena Mr Sappelli stated that putrid smells bring back memories of retrieving these bodies. He gets distressing dreams of these events and wakes up 2-3 times per night despite his heavy alcohol consumption.
Mr Sappelli therefore fulfils some of the criteria for Post Traumatic Stress Disorder however he stated that his avoidance of situations may have been independent of his operational service as his fear of flying was not tested until he was flown home in the late 60s. He subsequently chose to go by train if possible. Otherwise he avoids public transport. Mr Sappelli stated that the most marked change to his personality was a tendency to switch off his emotions. This became marked in the late 80s when a work colleague was drowned when he became trapped under a reef at Rottnest. Mr Sappelli was retraumatised when he recovered his body. It was then that he decided to cease Marine Search and Rescue and seek help for his anxiety state.
On reassessment therefore the accumulation of stressful events appears to have caused an exacerbation of his anxiety disorder however difficulties within the marriage appear to have been significant and possibly related to a history of head injury that Mr Sappelli gave occurring in 1963. The issue that you state as being major eye problems occurring in 1964 related to an incident occurring in the Philippines when intoxicated with alcohol Mr Sappelli got into a bar room brawl and suffered a detached retina causing impaired visual acuity on the right. He states he also suffered a fractured skull. It is likely therefore that a combination of Post Traumatic Symptomatology, severe psychosocial stressors and alcohol related problems may have combined to produce marked changes in Mr Sappelli’s relationship with his wife. His wife’s tragic suicide in 1970 therefore may have been related to these changes and this is supported by Mr Sappelli having significant guilt related to this issue.
…”
(T28, pp 171-172)
28. Dr Fellows-Smith provided a third report to the Department of Veterans’ Affairs, dated 13 April 2005, after considering a report of Dr A Mander dated 5 January 2005 (see paragraph 30 below). Dr Fellows-Smith’s report states as follows:
“…I read the report of psychiatrist Dr Mander dated 5 January 2005 in which he makes a diagnosis of Anxiety Disorder secondary to alcohol abuse and not related to service. Prior to my report dated 22 June 2004 Mr Sappelli was assessed on the 2 June 2004 and his alcohol consumption was assessed as being 110 units of alcohol per week in a dependant pattern. He was instructed to withdraw from alcohol to exclude the possibility that his anxiety disorder was related to alcohol abuse. On ceasing drinking Mr Sappelli complained of headache, tremor of the extremities and an increase in sleep disturbance. His arousal symptoms subsided however he described being combative particularly if woken abruptly and re-experiencing images of bodies in the water. From this I concluded that his anxiety symptoms were directly related to traumatic events which I have outlined in my previous report. Further inquiry identifies the time of onset of his anxiety symptoms as being on his return from active service in Vietnam in 1965. He stated that his late wife was distressed at the changes to his personality. After his return from the second tour in 1968 she refused to accompany him when he was posted to Leeuwin in Western Australia in 1969 suggesting that the breakdown in the marriage was within two years of his operational service. From this I concluded that the anxiety symptoms were the primary cause of his impairment and his use of alcohol was symptomatic of efforts to avoid distressing dreams of his traumatic events.
In Dr Mander’s report he identifies issues from Mr Sappelli’s early family life in particular hardship during the Second World War. It is likely that childhood factors including his family environment and other early life stressors have shaped Mr Sappelli’s personality. It has been noticed that Mr Sappelli is not forthcoming at interview making him a difficult historian. He often denies any problems only to elaborate on his problems when prompted. It is likely therefore that he has understated the severity of his problems particularly to Dr Mander who he identified as being in a position of authority. For example on page 2 paragraph 5 line 3 Dr Mander states he admitted that sometimes he cannot shut his thoughts off, he feels depressed and down in the dumps. However on page 3 paragraph 1 Mr Sappelli denies that traumatic incidents had any connection to his psychiatric symptoms. On further prompting Mr Sappelli stated that the incidents including the suicide of his wife and the retrieval of his friend’s body were greatly distressing to him as was the sight of girlfriends, wife and children of the drowned sailors whose bodies he had to recover in his role as marine officer for the Department of Marine and Harbours”.
(Exhibit A1)
29. In his oral evidence Dr Fellows-Smith referred to his clinical notes and said that “the most significant trauma” that the applicant complained of was being in a motor whaler off HMAS Parramatta in Vung Tau Harbour in 1965. He elaborated as follows:
“…what I was trying to come to explain to you is why I feel that that was the most distressing event for him, although one would consider the other traumatic events, in particular seeing the bodies of airmen who were decomposed and having to manage them with ice in boxes and the- the event where there was confrontation with the Indonesian insurgents, I believe they were Indonesian insurgents where a fishing vessel was – prisoners were taken from fishing vessels and brought ashore at night time and that a 50-calibre rifle – machine gun was used apparently at that time. Those events you would think to be particularly traumatic from a point of view of post-traumatic stress disorder where there was visual cues for somebody to recall, and the particular nature of PTSD with the recurring dreams, for example, and seeing visual events like that. But it’s interesting that Mr Sappelli tends to downplay those- those more severe psychosocial stressor events and he states that when he was in the small vessel, the motor whaler, that he felt that was the most traumatic event. Now, that’s actually not what you’d rationally assume, but you have to then take into account his traumatic childhood and that Mr Sappelli was born in Rotterdam in about 1939 and all of his childhood involved occupation by the Germans in Holland, and during that time there was bombing going on, and in some ways you could consider that he was a victim of that confrontation. And I think it was only at that event in the motorised cutter when he actually felt that he was in some way endangered himself in Vietnam, and the interesting thing about the Second World War and the fact that he – that they were the occupied country was that he had very strong views about going into Vietnam and the Vietnamese being occupied by Allied forces, and so he in some ways had great difficulties – great difficulties with his conscience about being in Vietnam and then finding himself in the vessel, feeling like a sitting duck, had resonance to actually witnessing confrontation with the Indonesian fishermen with the 50 cal machine-gun and there was an issue of identification, I believe – that as being the basis of why he had a particular difficulty with that experience.” (Transcript, pp 95-96)
As regards the time of onset of the applicant’s Generalised Anxiety Disorder (“GAD”), Dr Fellows-Smith’s evidence was as follows:
“Right now, from your reports I gather that he had something that you would diagnose today as an anxiety disorder by at the latest sometime in 1967?--- Well, that’s right we have established that the main issue that he is preoccupied with and troubled by is that period when he was in the motor whaler in Vung Tau harbour. But of course availability of alcohol on board was restricted and therefore the drinking and behaviour would have occurred after that, when he returned to shore leave. But also his anxiety would have reported to and noticeable to his wife when he returned from leave as well and so I think it’s a reasonable hypothesis to assume that that was the time of onset, between the two tours and after the second tour – that’s when he started to develop his anxiety disorder.” (Transcript, p 104)
Later, in response to questions from the Tribunal, Dr Fellows-Smith gave the following evidence:
“On the question of clinical onset of the generalised anxiety disorder, now in your first report of 10 September 2001, you go through the DSM-IV criteria, categories A, B, C, D, E and F?--- Yes.
These being the criteria or the features of generalised anxiety disorder, are you able to say that all of those criteria, all of those features were in place within two years after the whaler incident in 1965 or that maybe the process had commenced, say within two years, but wasn’t completed until some time later?--- Well I think that this – the two year requirement is the stumbling block for GAD for all veterans and particularly the- this type of trauma which Naval servicemen have. And, of course, again without examining him then it’s very difficult to answer that “yes, they all were present then”. But then in practice, in the clinical situation what we have is a man who escalates his drinking behaviour specifically to relieve anxiety symptoms, arousal symptoms, sleep disturbance, ruminations, preoccupations, it certainly altered his behaviour which was apparent to others, he became more withdrawn. And all of that consistent with what we know in my experience of GAD and secondary alcohol problems. So on that basis I would say yes, the onset of his problems were within two years of that traumatic event.
Onset meaning, that all of these criteria were in place at that point in time?--- Well, in order to make that diagnosis they have to be in place, yes.
Okay. No, I just wondered what you understood by the word “onset”, whether it was when they were all in place or that the process had commenced but perhaps had not been completed at that stage so---?—No, I think they all – were in place. Yes.”
(Transcript, p117).
Dr A Mander
30. Dr A Mander, Consultant Psychiatrist, confirmed that he had prepared a report regarding the applicant for the Department of Veterans’ Affairs. That report, dated 5 January 2005, states as follows:
“Thank you for asking me to review this Veteran who served in the Royal Australian Navy for over 20 years, beginning in 1957. I confirm that I have received and read your letter of 16 November 2004 containing a number of specific questions and the large number of documents relating to the Veteran’s service which includes, amongst other things, the psychiatric report of Dr James Fellows-Smith. I confirm that I have seen and interviewed the Veteran on two occasions, 1st and 8th December 2004 and his wife attended on the second occasion to give a collateral history.
PART 1: PSYCHIATRIC HISTORY
Active Service
He served in the Far East Strategic Reserve during the confrontation between Malaya and Borneo and also in Vietnam transporting 1RAR in late 1965. He described a number of incidents that he found stressful including being called out to pick up survivors from a crash of a Shackleton, which meant retrieving bodies that had been in the water for two days and putting them on ice. He stated that this ‘didn’t smell too nice’. He found his experience at Vung Tau more frightening during the 2.5 days when they were moored there and he was a Leading Seaman in charge of a small party in a small boat patrolling around the harbour looking for divers and throwing depth charges. He described himself and the other sailors as ‘jumping at shadows’ and being armed with machine guns. He said that it ‘makes you think’, we were ‘like sitting ducks’. At this time he was on HMAS Parramatta which was escorting HMAS Sydney.
Psychiatric Status prior to Service
No difficulties reported.
Psychiatric Status during Service
He told me that while he was working he was ‘okay’ and enjoyed his work. He said that this gave him lots of distractions. Indeed during his service he coped with the major event of his first wife committing suicide (see later).
He has had an increasing alcohol problem for many years. He was certainly drinking excessively by 1982 and according to him, goes ‘rarely a day without drinking’.
Psychiatric Status after Service
His excessive drinking probably peaked in the early part of 2001 when it was estimated by Dr Fellows-Smith at being 110 units per week. This has moderated according to the Veteran in recent times.
He describes having mood swings, being isolatory, sleeping poorly and getting ‘nasty’ verbally. He described himself as being ‘normal one minute then withdrawn and quiet’. He described periods of ‘road rage’ and said that in general he can’t tolerate people doing ‘stupid’ things. He said that when he gets impatient his wife ‘cops the brunt of that’.
He described his energy as being ‘okay’, admitted to a tendency to ‘mull things over’ perhaps ‘more so than I should’. He admitted that sometimes he cannot shut his thoughts off, feels depressed and ‘down in the dumps’. He denied feeling suicidal.
Past Medical History
He has had no psychiatric treatment.
He described having a ‘heart attack’ in late 2004 which required admission to ICU and stenting.
Past Personal History
He was born in Holland during the war, a time during which the country was occupied. Hence there was little food and he remembers the family having to eat the cat in order to survive. The family migrated to Australia when he was 15 and this included his two brothers and two sisters. He joined the RAN within three years of arriving in Australia because he had ‘always wanted to go to sea.’
Following his naval service he was Manager of the fishing harbour at Fremantle until the end of the America’s Cup. He was then seconded to Sea Search & Rescue in 1990, later becoming a Marine Environmental Protection Officer and a Training Officer in the Boating Accident Investigation Division.
He had difficulties at work in the final five or six years with a change in the manager in charge of his area whom he said didn’t recognise his expertise. Mr Sappelli told me that he was recognised Australia wide as an expert and involved in the investigation of international incidents. He described other potentially stressful incidents including the rescue, when he was with the Sea Search & Rescue team, of five bodies all from a young family and he said that this ‘puts you off for a few days’, but you ‘grab a bottle of brandy and talk to your mates’.
He also described how a work mate was killed at Rottnest and he was involved in having to pick up the body and he said ‘I came out of my tree when Police wanted to take him out of the body bag so I could re-identify him’. He denies that these incidents had any connection to his psychiatric symptoms.
He told me that these days he is social only with a couple of friends ‘that come round for drinks’. He goes to bed early at about 9pm. He reads, collects stamps and ‘fiddles around’ in the garage and garden. However, he said that his concentration was limited to approximately 1.5 hours. His wife also confirms that he was happy when at work and since retiring tends to watch TV, play with his computer, play golf and walk the dog.
Family History
He has been married twice. His first wife committed suicide in 1970 and he said ‘I blame myself for it’. He was stationed in Fremantle at the time and on board ship when he got a phone call from his next door neighbour. He described an extremely difficult time with his daughter having to be bought up by his parents and his father-in-law blaming him for his daughter’s death. He said that he ‘picked up after a year’. He remarried and has two children now aged 26 and 29 by his second wife.
He has two brothers and two sisters.
PART 2: CLINICAL EXAMINATION
Mental State Examination
He is a somewhat taciturn individual given to very short and often one word answers. Nevertheless he contributed willingly to the interview situation. There was no evidence of excess anxiety or depression, reality testing was intact and he was fully orientated in time, place and person.
Physical Examination
On observation only he was a fit looking man who wears glasses and has no obvious physical abnormalities.
PART 3: SUPPLEMENTARY CLINICAL INFORMATION
The relevant T-documents are summarised below:
[The report then summarises the relevant documents, including Dr Fellows-Smith’s reports of 10 September 2001 and 22 June 2004, and continues:]
His wife attended the second interview and discussed her husband’s difficulties. She described a change from a more gregarious and outgoing man to someone who was now avoidant of this. She said that he ‘intimidated’ her. She couldn’t date the onset of these changes but said that they had been gradual over the years. She told me that he often wouldn’t respond to her or would give her only one word answers. He tended to blame her when things went wrong. She was tearful at times when describing these interactions, although she said, with reference to her marriage that she had been ‘happy with my lot’.
PART 4: ASSESSMENT OF DISABILITY
…
PART 5: FINAL ASSESSMENT AND SUMMARY
Opinion
Mr Sappelli has symptoms consistent with an anxiety state and these include poor concentration, worry, poor sleep, irritability and aggressiveness. For most of his life his symptoms have not affected him adversely in the work situation and they arise in the setting of a life time’s history of heavy drinking which goes back to his Navy days. It is likely therefore that they are a secondary manifestation of his alcohol abuse. His level of drinking would suggest that he is probably dependent on alcohol, although I could not establish clearly any definite withdrawal symptoms or other sequelae, although as he says, it is not often that he goes without alcohol, obviously minimising the risk that he would suffer withdrawal.
Not only has he coped with a very demanding career over the years, he has coped well with a series of stressful incidents that requires a significant degree of psychological robustness to deal with competently.
These include the suicide of his wife, being involved in the retrieval of his friend’s body and indeed on more than one occasion having to retrieve other bodies as a result of his job. He doesn’t consider these were overly stressful supporting the observation that he coped adequately with them. It is not possible to accurately date the onset of his symptoms but it is fair to point out that they could not have been of great severity for most of his career and it wasn’t until changes started to occur at work with difficulties with his new manager that he became more aware of symptoms and ultimately retired. I would therefore see this event in combination with his life time of heavy drinking and his increasing age as factors leading to his increasing difficulties.
Specific questions
1. Can a separate diagnosis of claustrophobia be sustained in the presence of an anxiety disorder?
It is theoretically possible to have a diagnosis which includes more than one anxiety disorder, however in majority of cases phobias are part and parcel of the principal anxiety condition. To sustain a diagnosis of claustrophobia, the phobia has to significantly impair an individual’s level of functioning.
2. Do the findings from time to time during his service that his emotional stability was normal have any bearing on the time of clinical onset of any psychiatric conditions from which he suffers?
Any significant level of psychiatric symptomatology would become obvious. In an organisation such as the RAN, they could be observed at a number of levels including his relationship with his peers, superiors and subordinates, his ability to undertake his job effectively, his ability to function at his full capability etc. In addition, a major event such as the suicide of his wife would be expected to precipitate a full blown and very obvious psychiatric problem if the individual was seeking to hide a pre-existing anxiety state. The fact that these problems were not noticed and that he was continually cleared medically to continue in his role, makes it unlikely that he was suffering any severe level of psychiatric symptomatology and trying to disguise this.
…
Conclusion
Anxiety disorder secondary to alcohol abuse and not related to service.”
(Exhibit R2)
31. In his oral evidence Dr Mander expressed the opinion that the time of onset of the applicant’s alcohol dependence condition was the early-to-mid 1970s and that the onset of his anxiety disorder was either concurrent with that or shortly afterwards. He added, however, that although the applicant’s “heavy drinking” was established in the 1960s, he did not become dependent on alcohol until later.
Additional Evidence
32. The respondent also tendered in evidence a Writeway Research Service report of Captain John Macdonald, RAN (Rtd), dated 25 March 2005 (Exhibit R1). That report will be referred to in more detail later in these reasons.
The Relevant Legislation
The VE Act
33. Section 5D(1) of the VE Act contains the following relevant definition:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
…”
Section 9 relevantly provides:
“(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
The standard of proof on which it is to be determined whether a “disease” is a “war-caused disease” is prescribed by s 120 of the VE Act which relevantly provides:
“(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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(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.
…”
The Statements of Principles
34. The Repatriation Medical Authority (established by s 196A(1) of the VE Act) has determined, under s 196B(2) of the VE Act, the following relevant Statements of Principles (“SoPs”) which are presently in force:
· Statement of Principles concerning Anxiety Disorder (Instrument No 1 of 2000);
· Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998);
· Statement of Principles concerning Gastro-Oesophageal Reflux Disease (Instrument No 11 of 2005);
· Statement of Principles concerning Hypertension (Instrument No 35 of 2003, as amended by Instrument No 3 of 2004);
· Statement of Principles concerning Gout (Instrument No 11 of 2000, as amended by Instrument No 43 of 2003).
35. Those SoPs relevantly state:
Anxiety Disorder
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only
(i)…
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder; or
…
8. For the purposes of this Statement of Principles:
…
‘anxiety disorder not otherwise specified’ means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
‘clinically significant’ means sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or General Practitioner;
…
‘generalised anxiety disorder’ means a psychiatric disorder 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;
…
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
…”
Alcohol Dependence or Alcohol Abuse
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
8. For the purposes of this Statement of Principles:
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘experiencing a severe stressor’ means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i)threat of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
…
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV:
…”
Gastro-Oesophageal Reflux Disease
“…
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of a person’s relevant service is:
(a)…
(b)…
(c)smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastro-oesophageal reflux disease; or
(d)consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; or
…
8. For the purposes of this Statement of Principles:
…
‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of ten grams of alcohol per standard alcoholic drink;
...
‘cigarettes per day, or the equivalent thereof in other tobacco products’ means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco or one gram of cigar, pipe or other smoking tobacco by weight;
…”
Hypertension
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
(a)…
(b)consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or
…
(n) suffering from a clinically significant anxiety disorder for the six
months immediately before the clinical onset of hypertension; or
...
8. For the purposes of this Statement of Principles:
…
‘alcohol’ is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
…
‘clinically significant anxiety disorder’ means any anxiety disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
…
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
…”
Gout
“…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gout or death from gout with the circumstances of a person’s relevant service are:
…
(f) drinking at least 150kg of alcohol (contained in alcoholic drinks) within the ten years immediately before the clinical onset of gout; or
…
8. For the purposes of this Statement of Principles:
‘alcohol (contained within alcoholic drinks)’ is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
…”
Analysis and Findings
36. The respondent concedes that the applicant is suffering from anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, hypertension and gout. On the basis of the medical evidence before the Tribunal – in particular, the reports of Dr Fellows-Smith and Dr Mander in respect of anxiety disorder and alcohol dependence or alcohol abuse, and the medical diagnoses made by the applicant’s treating general practitioner, Dr G Murphy, which were included in his Claim for Disability Pension dated 2 December 2002 (T15, pp 111-113), in respect of gastro-oesophageal reflux disease, hypertension and gout – that concession was rightly made. As regards the applicant’s anxiety disorder, the Tribunal, on the basis of the reports of Dr Fellows-Smith, finds that the appropriate diagnosis is generalised anxiety disorder.
37. Accordingly, the Tribunal finds that the applicant is suffering from generalised anxiety disorder, alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, hypertension and gout. The Tribunal also finds that each of those conditions is a “disease” (as defined in s 5D(1) of the VE Act).
38. The more problematic matter is whether each of those diseases from which the applicant is suffering is a “war- caused disease”, within the meaning of s 9 of the VE Act. That matter is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.” Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after considering the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the…disease…with the circumstances of” the applicant’s operational service. If a relevant SoP determined under s 196B(2) of the VE Act is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
39. The Tribunal will now proceed to determine whether each of the abovementioned diseases suffered by the applicant is a “war-caused disease”, within the meaning of s 9 of the VE Act. In so proceeding, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
The raised hypothesis
40. The material before the Tribunal raises the hypothesis (in general terms) that the incident (referred to in paragraph 17 above) involving the applicant’s acting as the coxswain of a small boat patrolling around HMAS Sydney and HMAS Parramatta looking for enemy divers and tidal mines during the midnight- 4.00am watch in Vung Tau Harbour, Vietnam in May/June 1965 (“the patrol boat incident”) caused him to experience stress and fear and resulted in his contracting anxiety disorder by 1966 and his subsequently contracting alcohol dependence or alcohol abuse, gastro-oesophageal reflux disease, hypertension and gout, and that he has thereafter continued to suffer from those diseases.
The SoPs
41. As previously mentioned, there is in force a SoP determined under s 196B(2) of the VE Act in respect of each of those diseases.
Is the raised hypothesis a reasonable hypothesis?
42. The Tribunal will address this question in relation to each disease separately and the relevant SoP in respect of each disease.
Anxiety Disorder
43. There is material before the Tribunal which points to the applicant’s having experienced feelings of substantial distress in the patrol boat incident, namely, the applicant’s own evidence, the evidence of Dr Fellows-Smith, and the report of Dr Mander dated 5 January 2005 (under the heading “Active Service”).
44. There is, furthermore, material before the Tribunal which points to the applicant’s contracting anxiety disorder (within the meaning of the relevant SoP) within 2 years after the patrol boat incident, namely, the applicant’s own evidence, the evidence of Dr Fellows-Smith and his reports of 22 June 2004 and 13 April 2005, and the letter from Alan Meyer dated 17 March 2004.
45. Accordingly, there is material before the Tribunal which points to the applicant’s having experienced in the course of his operational service “a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”, within the meaning of paragraph 5(a)(ii) of the relevant SoP.
46. The Tribunal is satisfied, therefore, that the material before it raises a hypothesis which is consistent with paragraph 5 of the relevant SoP and which connects the applicant’s anxiety disorder with the circumstances of his operational service.
47. The Tribunal is of the opinion, therefore, that the raised hypothesis connecting the applicant’s anxiety disorder with the circumstances of his operational service is a reasonable hypothesis.
Alcohol Dependence or Alcohol Abuse
48. There is material before the Tribunal – namely, the evidence and reports of Dr Fellows-Smith – which points to the applicant’s suffering from a “psychiatric disorder” (within the meaning of paragraph 5(a) of the relevant SoP) – namely, generalised anxiety disorder – which he contracted as a result of his operational service and from which he was suffering at the time he contracted alcohol dependence or alcohol abuse.
49. Accordingly, the Tribunal is satisfied that the material before it raises a hypothesis which is consistent with paragraph 5 of the relevant SoP and which connects the applicant’s alcohol dependence or alcohol abuse with the circumstances of his operational service.
50. The Tribunal is of the opinion, therefore, that the raised hypothesis connecting the applicant’s alcohol dependence or alcohol abuse with the circumstances of his operational service is a reasonable hypothesis.
Gastro-Oesophageal Reflux Disease
51. There is material before the Tribunal – namely, the applicant’s evidence (including the alcohol questionnaire completed by him on 4 December 2002) and the evidence and reports of Dr Fellows-Smith – which points to the applicant’s having commenced to consume alcohol on a regular basis in July 1960 during operational service and having thereafter consumed alcohol on a daily basis at the rate of 25 grams per day on board ship and 175 grams per day on shore leave until 1973 when his alcohol consumption increased to 78 grams per day until 1980 when it further increased to 99 grams per day. There is also material before the Tribunal which points to the applicant’s having contracted alcohol dependence or alcohol abuse by the early-to-mid 1970s (see the evidence of Dr Mander), and which points to his alcohol dependence or alcohol abuse being connected with his operational service (see the reports and evidence of Dr Fellows-Smith).
52. The material before the Tribunal, however, does not clearly indicate the time of clinical onset of the applicant’s gastro-oesophageal reflux disease. According to the applicant’s evidence he started to experience symptoms of that disease in the 1970s prior to his discharge from the RAN in 1977. His present treating general practitioner, Dr Murphy, described (in the Claim for Disability Pension form) the applicant’s suffering from that disease as “long term” and, in a letter dated 14 July 2003 (T19, p128), he stated that he had clinical notes made by the applicant’s former general practitioner(s) dating back to 1993 which indicated that the applicant was on medication for that disease at that time. Accordingly, the material before the Tribunal points to the clinical onset of the applicant’s gastro-oesophageal reflux disease occurring between the 1970s and 1993.
53. There is material before the Tribunal, therefore, which points to the applicant’s having commenced a regular pattern of alcohol consumption in the course of his operational service in 1960 which thereafter continued and that, by reason of his operational service, he contracted alcohol dependence or alcohol abuse by the early-to-mid 1970s, and that he was consuming an average of at least 300 grams of alcohol per week for at least the twelve months “before the clinical onset of [his] gastro-oesophageal reflux disease”, within the meaning of paragraph 5(d) of the relevant SoP.
54. Accordingly, the Tribunal is satisfied that the material before it raises a hypothesis which is consistent with paragraph 5 of the relevant SoP and which connects the applicant’s gastro-oesophageal reflux disease with the circumstances of his operational service.
55. The Tribunal is of the opinion, therefore, that the raised hypothesis connecting the applicant’s gastro-oesophageal reflux disease with the circumstances of his operational service is a reasonable hypothesis.
Hypertension
56. According to the applicant’s evidence, he was first diagnosed with hypertension in the early 1980s. Dr Murphy described (in the Claim for Disability Pension form) the applicant’s suffering from hypertension as “long term”. The material before the Tribunal regarding the applicant’s consumption of alcohol, his contracting alcohol dependence or alcohol abuse and its connection with his operational service, was referred to in paragraph 51 above.
57. Accordingly, the Tribunal is satisfied that the material before it raises a hypothesis which is consistent with paragraph 5(b) of the relevant SoP and which connects the applicant’s hypertension with the circumstances of his operational service.
58. The Tribunal is also satisfied that the material before it points to the applicant’s “suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension”, within the meaning of paragraph 5(n) of the relevant SoP, and that that anxiety disorder is connected with the circumstances of the applicant’s operational service (see paragraphs 43-47 above).
59. The Tribunal is of the opinion, therefore, that the raised hypothesis connecting the applicant’s hypertension with the circumstances of his operational service is a reasonable hypothesis.
Gout
60. According to the applicant’s evidence, he was first diagnosed with gout towards the end of his RAN service – that is, in or about 1976-1977. As previously mentioned, there is material before the Tribunal which points to the applicant’s having contracted alcohol dependence or alcohol abuse by the early- to- mid 1970s and his consuming 78 grams of alcohol per day at that time, and which points to his alcohol dependence or alcohol abuse being connected with his operational service. Thus, the material before the Tribunal points to the applicant’s having drunk approximately 114 kilograms of alcohol between the beginning of 1973 (having contracted alcohol dependence or alcohol abuse at or about that time) and the end of 1976 (having contracted gout at or about that time).
61. Although there is material before the Tribunal which points to the applicant’s having drunk “at least 150kg of alcohol... within the ten years immediately before the clinical onset of gout” (see paragraph 5(f) of the relevant SoP), that material does not point to the whole of that consumption of alcohol being connected with the circumstances of the applicant’s operational service. Accordingly, the Tribunal is not satisfied that the material before it raises a hypothesis which is consistent with the relevant SoP.
62. The Tribunal is of the opinion, therefore, that the raised hypothesis connecting the applicant’s gout with the circumstances of his operational service is not a reasonable hypothesis.
Findings
63. Finally, the Tribunal must consider, in accordance with s 120(1) of the VE Act, whether, in respect of each of the abovementioned diseases suffered by the applicant, it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease is a “war-caused disease”, within the meaning of s 9 of the VE Act. If the Tribunal is not so satisfied, it must, in accordance with s 120(1) of the VE Act, determine that the relevant disease is a war-caused disease.
Anxiety Disorder
64. The Tribunal’s consideration of the question whether the applicant’s anxiety disorder is a war-caused disease necessarily focuses on 3 matters, namely:
· the alleged patrol boat incident;
· the nature of the feelings allegedly evoked in the applicant by that incident; and
· the time of clinical onset of the applicant’s anxiety disorder.
65. The patrol boat incident, as alleged by the applicant, was the subject of a Writeway Research Service report, dated 25 March 2005, prepared by Captain John Macdonald, RAN (Rtd) at the request of the Department of Veterans’ Affairs (Exhibit R1). That report confirms that, in the period from 25 May 1965 to 14 June 1965:
· HMAS Parramatta was at anchor off Vung Tau only from 7.15 am on 8 June 1965 to 9.25 am on 11 June 1965 and that it remained at Defence Stations throughout that time;
· boat patrols were only operated during hours of darkness on that visit.
Captain Macdonald also reported that he contacted Commander K V Clements MBE, RAN (Rtd) who was the Operations Room Officer on HMAS Parramatta in the period 1964-1966, and that Commander Clements informed him that, although he recalled that there were “a few incidents involving the operation of the boats during the night patrols that required his attention” (probably involving engine defects or other machinery problems), he did not remember “any specific incident requiring the urgent replacement of a boat’s coxswain due to illness or other problems”. Captain Macdonald also commented as follows:
·the applicant’s general description of the purpose and conduct of boat patrolling operations while in the Vung Tau anchorage accorded with the practice at the time and was generally sound historically;
·the middle watch (midnight – 4.00am) of such a patrol would probably have been “the most arduous and demanding in that potentially tense environment”;
·it is unlikely that the applicant, as a newly-promoted Petty Officer, would have been rostered as a patrol boat’s coxswain during the 3 nights of patrols, but he “may have been called up as a temporary, stand-in coxswain for one watch (four hour shift) if one of the Leading Seaman coxswains was “unable to continue with the job for any reason”;
·it is unlikely, having regard to the applicant’s prior RAN service on board ships, that he would not have had any experience of scare charges prior to the arrival of HMAS Parramatta in Vung Tau.
66. The Tribunal notes that, although Captain Macdonald regards aspects of the patrol boat incident, as alleged by the applicant, as unlikely to have occurred, he does not discount the possibility that that incident occurred as alleged. Having regard, in particular, to the applicant’s evidence regarding the patrol boat incident and to Captain Macdonald’s report, the Tribunal is not satisfied that that incident (as described by the applicant) did not occur.
67. The applicant, in giving evidence to the Tribunal about the feelings he experienced during the patrol boat incident, was not particularly forthcoming, stating merely that his feelings were “of apprehension and... a certain amount of being afraid”. He was, however, more forthcoming in describing his feelings to the psychiatrists, Dr Mander and Dr Fellows-Smith (especially the latter). Dr Mander’s report of 5 January 2005 (Exhibit R2) relevantly states:
“He found his experience at Vung Tau more frightening during the 2.5 days when they were moored there and he was a Leading Seaman in charge of a small party in a small boat patrolling around the harbour looking for divers and throwing out depth charges. He described himself and the other sailors as ‘jumping at shadows’ and being armed with machine guns. He said that it ‘makes you think’, we were ‘like sitting ducks’. At this time he was on HMAS Parramatta which was escorting HMAS Sydney.”
Dr Fellows-Smith, especially in his oral evidence (see paragraph 29 above), confirmed that the applicant regarded the patrol boat incident as the most traumatic and distressing event which he experienced during his RAN service and he explained, by reference to the applicant’s childhood experience in Holland during the Second World War, why he regarded that incident as more traumatic and distressing than other (apparently more traumatic and distressing) incidents which he experienced during his RAN service. Having regard to the applicant’s evidence, and the evidence and reports of Dr Fellows-Smith and Dr Mander, the Tribunal is satisfied that the feelings which the applicant allegedly experienced in the patrol boat incident were “feelings of substantial distress”, within the meaning of the definition of the phrase “severe psychosocial stressor” in paragraph 8 of the relevant SoP.
68. As regards the time of clinical onset of the applicant’s anxiety disorder, there is disagreement between Dr Fellows-Smith and Dr Mander. Dr Fellows-Smith opined, on the basis of the history given to him by the applicant and the letter from Alan Meyer dated 17 March 2004, that they symptoms of the applicant’s anxiety disorder manifested themselves upon his return from operational service on board HMAS Parramatta in Vietnam and that the clinical onset of his anxiety disorder occurred at that time and certainly within 2 years of the patrol boat incident. Dr Mander, however, opined that the applicant’s anxiety disorder was secondary to his alcohol abuse and that the onset of both conditions occurred in the early-to-mid 1970s. The Tribunal regards each of those opinions as tenable and entitled to great weight. Having regard to the standard of proof prescribed by s 120(1) of the VE Act, however, it is not necessary for the Tribunal to choose between these competing opinions. Suffice it to say that, notwithstanding the persuasive opinion of Dr Mander, the Tribunal is not satisfied beyond reasonable doubt that Dr Fellows-Smith’s opinion, that the time of clinical onset of the applicant’s anxiety disorder was in the period from late 1965 to 1966, is incorrect.
Finding
69. In analysing the feelings allegedly evoked in the applicant by the patrol boat incident, the Tribunal had regard to the individual circumstances of the applicant and the particular conditions prevailing during that incident. The applicant was an experienced sailor with more than 7 years’ service and held the rank of Acting Petty Officer. During the patrol there were no unusual activities, no bodies were sighted, and no contact was made with the enemy. The Tribunal heard no evidence of adverse reactions or unusual behaviour by the applicant immediately following the patrol. The applicant, despite this allegedly traumatic and distressing incident, remained in the RAN throughout the Australian commitment to South Vietnam and until December 1977, and he made a second visit to Vung Tau on board HMAS Yarra in December 1967-January 1968. Having regard to these considerations the Tribunal has reservations regarding whether the patrol boat incident in fact evoked “feelings of substantial distress” in the applicant and thereby constituted a “severe psychosocial stressor” within the meaning of paragraph 5(a) of the relevant SoP.
70. Having regard to the whole of the material before it, however, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s generalised anxiety disorder is a war-caused disease. In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s generalised anxiety disorder is a war-caused disease, within the meaning of s 9 of the VE Act.
Alcohol Dependence or Alcohol Abuse
71. The Tribunal’s consideration of the question whether the applicant’s alcohol dependence or alcohol abuse is a war-caused disease necessarily centres on the respective times of clinical onset of that disease and of his anxiety disorder (see paragraph 5(a) of the relevant SoP).
72. The Tribunal has just referred to the difference of opinion between Dr Fellows-Smith and Dr Mander in relation to that matter. Again, it is sufficient for the Tribunal to say that it is not satisfied beyond reasonable doubt that Dr Fellows-Smith’s opinion, that the applicant was suffering from anxiety disorder (being a “psychiatric disorder” within the meaning of paragraph 5(a) of the relevant SoP) at the time of the clinical onset of his alcohol dependence or alcohol abuse, is incorrect.
Finding
73. Having regard to the whole of the material before it, and to the abovementioned finding that the applicant’s generalised anxiety disorder is a war-caused disease, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s alcohol dependence or alcohol abuse is a war-caused disease. In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s alcohol dependence or alcohol abuse is a war-caused disease, within the meaning of s 9 of the VE Act.
Gastro-Oesophageal Reflux Disease
74. The Tribunal has, in paragraph 55 above, expressed the opinion that the material before it raises a reasonable hypothesis connecting the applicant’s gastro-oesophageal reflux disease with the circumstances of his operational service, and it has referred to the relevant material in paragraphs 51-53 above. The Tribunal is satisfied that none of the facts necessary to support that reasonable hypothesis has been disproved beyond reasonable doubt, and that that hypothesis has not otherwise been disproved beyond reasonable doubt.
Finding
75. Having regard to the whole of the material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s gastro-oesophageal reflux disease is a war-caused disease. In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s gastro-oesophageal reflux disease is a war-caused disease, within the meaning of s 9 of the VE Act.
Hypertension
76. The Tribunal, in paragraph 59 above, has expressed the view that the material before it raises a reasonable hypothesis connecting the applicant’s hypertension with the circumstances of his operational service, and it has referred to the relevant material in paragraphs 56-58 above. The Tribunal is satisfied that none of the facts necessary to support that reasonable hypothesis has been disproved beyond reasonable doubt, and that that hypothesis has not otherwise been disproved beyond reasonable doubt.
Finding
77. Having regard to the whole of the material before it, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s hypertension is a war-caused disease. In accordance with s 120(1) of the VE Act, therefore, the Tribunal finds that the applicant’s hypertension is a war-caused disease, within the meaning of s 9 of the VE Act.
Gout
78. The Tribunal, having considered the whole of the material before it, has, in paragraphs 61-62 above, expressed the opinion that that material does not raise a reasonable hypothesis connecting the applicant’s gout with the circumstances of his operational service. Accordingly, the Tribunal, in accordance with s 120(3) of the VE Act, is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s gout is a war-caused disease.
Finding
79. The Tribunal therefore finds, applying s 120(1) of the VE Act, that the applicant’s gout is not a war-caused disease, within the meaning of s 9 of the VE Act.
Conclusion
80. It was common ground that, in accordance with s 177 of the VE Act:
·in the event that the applicant’s generalised anxiety disorder and/or alcohol dependence or alcohol abuse were determined to be war-caused, the date of effect would be 22 July 2003; and
·in the event that the applicant’s gastro-oesophageal reflux disease and/or hypertension were determined to be war-caused, the date of effect would be 9 September 2002.
Decision
81. For the above reasons the Tribunal sets aside the decisions of the VRB dated 30 June 2004 and, in substitution therefor, decides that:
·the applicant suffers from generalised anxiety disorder and alcohol dependence or alcohol abuse, and each of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act, with effect from 22 July 2003;
·the applicant suffers from gastro-oesophageal reflux disease and hypertension, and each of those diseases is a war-caused disease, within the meaning of s 9 of the VE Act, with effect from 9 September 2002;
·the applicant suffers from gout but that disease is not a war-caused disease, within the meaning of s 9 of the VE Act.
The matter is remitted to the respondent for assessment of the rate of disability pension payable to the applicant on the basis of this decision.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop, Brigadier A G Warner, Member and Dr D Weerasooriya, Member
Signed: ........ Sgd (S da Motta)......................
AssociateDates of Hearing 14 November 2005, 10 February 2006
Date of Decision 21 March 2006
Representative of the Applicant Mr G YoungRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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