Skene and Repatriation Commission
[2004] AATA 782
•23 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 782
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/383
VETERANS' AFFAIRS DIVISION ) Re NIGEL VICTOR SKENE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date23 July 2004
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a) To vary the Veterans’ Review Board decision under review by amending the diagnosis of the condition claimed to be Alcohol Abuse, and to otherwise affirm that decision;
(b) To reject the amended condition of Alcohol Abuse as being war or defence-caused.
..............(sgd R D F Lloyd)..................
Member
CATCHWORDS
VETERANS' AFFAIRS - Veterans' Entitlements - ex RAN with operational (Vietnam waters) and defence service - anxiety disorder rejected by Repat and VRB as war or defence caused - diagnosis changed by Tribunal to alcohol abuse - material points to hypotheses correcting condition with eligible service - hypotheses for operational service not reasonable as stressors not valid - defence service contention has valid stressor but occurred after clinical onset - VRB decision varied/affirmed - amended condition of alcohol abuse not war or defence caused.
Veterans’ Entitlements Act 1986 (Cth) ss 120(1), 120(3), 120(4), 120A
Statement of Principle Concerning Alcohol Dependence or Alcohol Abuse (Instrument Nos 76 and 77 of 1998)
Re: Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission [2002] 36 AAR 484
Lees v Repatriation Commission [2002] FCAFC 398
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Gosewinckle [1999] FCA 1273
Stoddart v Repatriation Commission [2003] FCA 334
Robertson and Repatriation Commission AAT V96/178 of 2 March 1998
Boyes and Repatriation Commission AAT W2002/369 of 13 January 2004
Rowe and Repatriation Commission AAT W2003/58 of 25 June 2004
Eckermann and Repatriation Commission AAT W2000/418 of 25 October 2002
REASONS FOR DECISION
23 July 2004 Brigadier RDF Lloyd, Member 1.This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Mr Victor Nigel Skene (“the applicant”) for a review of the decision by the Veterans’ Review Board (“the VRB”) dated 21 August 2003. This VRB decision affirmed an earlier determination by the Repatriation Commission (“the respondent”) of 10 October 2001 in so far as it refused acceptance of the applicant’s condition, diagnosed then as Anxiety Disorder, as being war or defence caused.
2.The applicant did not attend the hearing, there having been an apparent misunderstanding of the Tribunal hearing date between Mr Skene, his previous advocate and his new advocate – Mr T Robbins. After the due time of commencement of the hearing, on advice from the Tribunal, Mr Skene was contacted by telephone (out of Perth) by Mr Robbins – resulting in the applicant agreeing to be represented by his advocate for the hearing, with Mr Skene himself giving evidence by conference telephone. The respondent’s representative – Mr Ponnuthurai raised no objection to these arrangements and the Tribunal is satisfied that neither party was disadvantaged.
3.The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act, 1975 (“the T documents”). In addition, the following additional documents were taken into evidence at the request of the respondent:
(a) Exhibit R1 : Report by Dr A J Mander (Consultant Psychiatrist) Re Nigel Skene dated 5 February 2004:
·This medical opinion was originally sought at the request of Mr Skene’s previous advocate (Mr Hammal), but who requested the respondent’s representative obtain it. Mr Ponnuthurai advises that he agreed to do so. Further explanation of the background and basis for this additional report is contained in some detail in the transcript of the Tribunal hearing (“the Transcript”) at pages 24 and 26.
·The applicant’s current advocate had seen and been provided with a copy of Dr Mander’s report prior to the hearing. He raised no objection to the report being taken in as evidence and as a respondent exhibit. The Tribunal also satisfied itself concerning the acceptability of the procedure that had taken place in terms of fairness to the applicant himself.
(b) Exhibit R2: Writeway Research Service Report Re Claims Made By Nigel Skene, prepared by Commodore A H R Brecht, dated 21 April 2004.
(c) Exhibit R3: Transcript of Proceedings – Veterans’ Review Board Re N. V. Skene, dated 21 August 2003.
No additional documentary evidence was provided by the applicant’s advocate.
4. The applicant gave oral evidence by conference telephone and did so with conviction and apparent honesty. His recollection of relevant events and detail is not 100% but is as accurate as one would expect dating back to periods between 26 and 38 years ago. No further witnesses were called by the applicant’s advocate. The respondent’s representative called two witnesses as follows:
·Dr A J Mander – Consultant Psychiatrist (Exhibit R1 refers)
·Commodore A H R Brecht RAN (Ret) for Writeway Service (Exhibit R2 refers).
Both respondent witnesses gave evidence by conference telephone, were examined by Mr Ponnuthurai, cross-examined on behalf of the applicant by Mr Robbins, and also questioned by the Tribunal.
Applicant’s Eligible Service and Related Matters of Law
5. Mr Skene served in the Royal Australian Navy (“the RAN”) from 1965 to 1988. His eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is however limited to the following periods:
(a) Operational Service:
(i) Deemed Allotted for Operational Service:
·22 April to 18 May 1966 ) – HMAS Sydney
·25 May to 11 June 1966 ) (Vietnam Waters)
·10 February to 18 February 1969 – HMAS Derwent (Vietnam Waters)
(ii)Allotted for Operational Service:
·14 September 1970 to 8 April 1971 – HMAS Perth (Including ‘Gunline’ Vietnam)
(b)Eligible Defence Service:
·7 December 1972 to 28 July 1988 (date of discharge from the RAN).
6. In regard to the applicant’s operational service periods, the matter before the Tribunal is to be determined in accordance with ss 120(1) and 120(3) of the Act. Under these provisions the Tribunal is required to decide whether, on the material before it, there is raised a reasonable hypothesis to connect the claimed condition with his service. If so it must determine, based on the evidence before it and the facts as found, that the condition is war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
7. For the applicant’s eligible defence service, as defined in the Act, the matter is to be determined in accordance with s 120(4) of the Act. Under this provision the Tribunal is required to decide the matter to its reasonable satisfaction, i.e. on the balance of probabilities.
8. Additionally, as the claim was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statements of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”).
9. The Tribunal’s manner of considering this matter and the process of its decision making follows as much as possible, but with some deviations, the process as set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
Diagnosis of Claimed Conditions
10. As the start point in the review process, the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the applicant’s claimed condition(s). The standard of proof required by the Act in this regard is that of ‘reasonable satisfaction’, i.e. the Tribunal must be satisfied on the balance of probabilities concerning the diagnosis and description of the condition(s) involved.
11. From an early stage in the proceedings it became clear that the question of the appropriate description and diagnosis of Mr Skene’s condition/symptoms, for which he is claiming a Service connection under the Act, was in contest. For that reason, and because it is of particular importance in this instance, I will deal with the diagnosis aspect in more detail than normal and if appropriate make a preliminary finding in this regard.
12. In his initial 10 April 2001 claim to the respondent the applicant’s description of his claimed condition was: “Stress/Anxiety” (T5 page 035), with an attached statement written by him (T5 commencing at page 041). However, in the same process, it would appear, a DVA document titled: “Diagnostic Report – Anxiety Disorder or Depressive Disorder” was completed (T7 page 048). On that document, dated 23 April 2001, in answer to a specific question, a diagnosis of: “Generalized anxiety disorder [ICD Code] 300.02” is written and the document is signed by Dr Fellows-Smith. Subsequently a report/opinion was sought by DVA of Dr Fellows-Smith (a Psychiatrist) concerning Mr Skene’s claim. In that report, dated 30 April 2001, Dr Fellows-Smith confirms his earlier diagnosis as being: “Generalized Anxiety Disorder – DSM IV 300.02” and sets out his reasons, together with a summary of the purported relevant historical detail concerning events etc in Vietnam Waters and on operational service, apparently described to him by Mr Skene. Comments by Mrs Skene are also included (T8 pages 049 and 050). In concluding his report Dr Fellows-Smith opines “Mr Skene presents with Generalized Anxiety Disorder [GAD] and alcohol related problems directly due to his wartime service in Vietnam”. Consequently, the respondent took the view, as indicated in a file note by a Departmental Medical Officer (“DMO”) dated 28 May 2001, that the claimed condition had been suitably diagnosed (for the purposes of a claim) by an appropriate specialist using DSM IV (T9 page 051).
13. A Delegate of the respondent, in her “Reasons for Decision” of 10 October 2001 – apparently based the diagnosis/description of the claimed condition (and appropriately so) on the DMO’s comment as set out in paragraph 12 above. At the commencement of her Reasons (T2 page 005) the Delegate states “… Your Claim: On 10 April 2001 the claim for ‘Stress/Anxiety’ was received at the Department of Veterans’ Affairs. The medical name for the claimed condition is: Anxiety Disorder …”. It is this description/diagnosis the Delegate then uses in her consideration of Mr Skene’s claim – which was refused on the evidence, for the reasons particularized by the Delegate (at T2 page 007).
14. After a further review, at the request of the applicant, by a Senior Delegate of the respondent, the claim was again refused. The matter was then referred to the VRB, and without any change being made to the description of the condition claimed. The Tribunal notes that the VRB, in its Decision and Reasons, does not discuss the correctness/appropriateness of the diagnosis/description of the applicant’s claimed condition. The Board records that the applicant’s (then) advocate “… contended that despite the opinion … [from] Dr Fellows-Smith that the veteran suffers anxiety disorder – not post traumatic stress disorder, [we still maintain that] the veteran meets the diagnostic criteria for post traumatic stress disorder. He [the advocate] invited the Board to adjourn the hearing to obtain another psychiatric opinion, but did not wish to seek an adjournment on the veteran’s behalf” (T22 page 096). In this respect the applicant’s advocate at the VRB hearing, in relation to Post Traumatic Stress Disorder (“PTSD”), is referring to Dr Fellows-Smith’s report at T8 page 049 and specifically to the doctor’s comment: “… Although the experiences that he [Mr Skene] describes are stressful they do not fulfil the criteria for Post Traumatic Stress Disorder 309.81”.
15. The wording of the VRB Decision and Reasons infers that it was satisfied that the claimed condition involved was in fact “Generalized Anxiety Disorder”, based on the Fellows-Smith opinion evidence and the respondent’s use of the term “Anxiety Disorder” to describe it in the Delegate’s decision. The VRB decision was of course made prior to the opinion evidence by Dr Mander being available and hence the Board’s apparent degree of satisfaction as to the diagnosis was not unreasonable. It simply was however not really discussed in its Reasons.
16. Dr Mander, after examining Mr Skene and a considerable amount of additional documentary evidence that was not at the time available to Dr Fellows-Smith, concludes a somewhat different diagnosis. His report (Exhibit R1) is both detailed and substantive. He explains in it why his diagnosis differs from that of his colleague and justifies this difference. His oral evidence by conference telephone at the Tribunal hearing further confirmed his report and clarified certain aspects raised by the Tribunal. In the process of preparing his report Dr Mander also interviewed Mrs Skene, whose comments were incorporated in it and clearly taken into account. The main points Dr Mander makes in the context of determining the appropriate diagnosis of the applicant’s condition(s) are as follows:
(a)Regarding PTSD. Dr Mander notes in his report that, despite Dr Fellows-Smith’s negative finding concerning the applicant having PTSD, and even post the VRB hearing/decision, Mr Skene still maintained the belief that the proper diagnosis of his claimed condition was in fact PTSD. His application for review to the Tribunal of 6 October 2003, written on his behalf by his (then) advocate, also makes this assertion (T1 page 003). Dr Mander’s report makes it clear that, because of this, he carefully and specifically assessed Mr Skene using the accepted SI-PTSD (“Structured Interview for PTSD – Davidson et al 1989”) system. The result, and in Dr Mander’s case based on a great deal more evidence, is the same as that of Dr Fellows-Smith. That is, that the applicant’s claimed condition does not meet the diagnostic criteria for PTSD. A copy of the completed SI-PTSD for Mr Skene is attached to Exhibit R1.
(b)Regarding an Anxiety Disorder. Dr Mander sets out in considerable detail in his report his opinions and findings – backed by the evidence he obtained from the applicant and his wife, as well as that which was made available to him in additional documented form by the respondent. He confirmed these opinions and findings, as well as expanding on some aspects, in his oral evidence at the hearing. In his report (Exhibit R1), Dr Mander states:
·“Dr Fellows-Smith prefers the diagnosis of generalised anxiety disorder, but I could find no evidence to clearly identify such symptoms were present before the veteran’s heavy drinking began. In addition, he does not have the chronic worry and difficulty controlling this [worry] which is a classic symptom of generalised anxiety disorder. I would therefore consider that the principal diagnosis is one of alcohol abuse. The veteran may well have been alcohol dependent in the past, but I could find no evidence of that currently …”.
·“… His [Mr Skene’s] current estimate that he drinks four light beers and a bottle of wine per day equates to a weekly intake of two to three times the safe drinking levels. However given his fairly minor symptomatology and lack of any effect of alcohol on his ability to perform his work (and indeed he was promoted a number of times [up to the rank of] Warrant Officer), he would appear to have had this under control while in the RAN. Alcohol problems do not appear to have occurred in response to any specific event, nor within two years of an event [stressor], and his drinking has moderated in recent years, although [it] remains at a problematic level.”
·“Conclusion: Alcohol abuse, possible past alcohol dependence, not service related. There are some secondary anxiety symptoms which are a consequence of the veteran’s alcohol intake.”
(c) From Dr Mander’s oral evidence the main aspects regarding diagnosis of Mr Skene’s claimed condition were as follows, and were in response to questions raised at the Tribunal hearing (Transcript pages 15 to 18):
·“… The other issue about the criteria for anxiety disorder is that you cannot make that diagnosis if there is a physiological substance that may have caused anxiety symptoms, and the most common one of those, of course, is alcohol … . I was mindful that although he had some fairly minor anxiety symptoms, he didn’t satisfy the criteria for the generalised anxiety disorder, and I then looked more closely at his description of his alcohol intake.”
·[In response to a question as to whether Dr Mander, in taking the history, considered that the ‘severe stressor test’ had been met]
“… In terms of time of onset of his alcohol [abuse] and a severe stressor, no. And I put it that way because his description of the incident on the [HMAS] Ibis, which he identified as being the key issue, in my view could have satisfied the criteria for [a] severe stressor. But he identified the onset of his alcohol problems as very much earlier – as occurring during his time in Vietnam. I couldn’t establish the occurrence of a severe stressor at that time. In fact, he was very much focussed on incidents after Vietnam, not during Vietnam” (emphasis added).
·[In response to a question as to whether Dr Mander had found, from taking the history and his conclusions, that the alcohol problem had become worse after the incident on HMAS Ibis]
“… The opposite in fact. The history both from the veteran and his wife indicated that his alcohol consumption had been worse in his earlier days …”.
·[In response to a question concerning signs of Mr Skene’s alcohol/anxiety problems while in the RAN]
“… I was actually struck by two things. One was that despite his statements – well, in fact I should say … more his wife’s statements about his alcohol intake, he really didn’t seem – in the Navy days – to have any adverse sequelae to that [alcohol abuse]. And any anxiety symptoms were really very mild. They weren’t sufficient to consider he had any psychiatric disorder. So at that mild level, I wouldn’t expect that to have been picked up [by the Navy], because the symptoms don’t appear to have been there.”
·
[In response to a question concerning the possible effects of a ‘disabling alcohol intake or psychiatric condition’ on promotion prospects]
”… Yes [I would have expected an adverse effect, but] … in fact I was struck by his successful career and that seemed to me to be consistent with the view that I had formed that he didn’t … have a psychiatric disorder in the early days …”.
·[And in relation to whether there was in those days within the Navy an ‘alcohol culture’ – that people tended repeatedly to drink to excess in certain circumstances]
“… There certainly was in those days, yes”.
The Tribunal notes, with respect to the latter two responses, that Dr Mander is also using his experience and knowledge of having previously served as a member of the ‘lower deck’ in the Navy – this aspect having been declared at the Tribunal hearing by the respondent’s representative (Transcript page 16 refers).
17. In considering the question of diagnosis of the claimed condition the Tribunal has outlined the evidence, as was earlier forecast, in more detail than perhaps is normal – for the reasons already stated. In doing so some of the evidence goes beyond that specifically related to the diagnosis question. This is inevitable, but is of relevance in any case in the Tribunal’s overall consideration of the matter before it.
18. As a consequence of the evidence outlined in paragraphs 12 to 16 of these Reasons, the Tribunal finds the following:
(a)There is no medical evidence before the Tribunal giving a contrary opinion to that of the two specialist psychiatrists – in which they both state that Mr Skene’s condition does not meet the diagnostic criteria for PTSD. Consequently the Tribunal is relevantly satisfied (i.e. on the balance of probabilities) that the applicant does not suffer from that condition, as it is prescribed in DSM IV (and the relevant SoP).
(b)The difference in opinion between the two psychiatrists in their reports concerning diagnosis and description of Mr Skene’s claimed condition(s), on the face of it, is not great. However, the difference is significant and is of particular importance in the Tribunal’s consideration of the matter before it. Based on the evidence provided and for reasons stated earlier, the Tribunal appropriately gives added weight to the opinion of Dr Mander, in preference to that of Dr Fellows-Smith. That fact, together with its own assessment of the overall evidence available to it in this regard, results in the Tribunal being relevantly satisfied (i.e. on the balance of probabilities) that Mr Skene’s claimed condition is more correctly diagnosed as follows:
Alcohol Abuse (with secondary anxiety symptoms)
As a consequence of that finding the Tribunal’s further consideration of the claim is now based on determining whether there is a relevant causal relationship, in terms of the Act, with Mr Skene’s eligible service – of a condition of this diagnosis/description only.
Applicant’s Contention – Hypothesis Raised?
19. The applicant’s contention, as put by him and by his advocate at the hearing, is that his claimed condition (even as amended by the Tribunal) is the result of stresses and anxiety he experienced both in his operational service and his defence service. He provides in his statements, in the evidence provided to the examining psychiatrists, and in his oral evidence – details of a number of events which he considers contributed in a material degree or caused his alcohol abuse (with some anxiety symptoms). These involved events during his operational service in Vietnam Waters and later one event in his eligible defence service on board HMAS Ibis. All of these being used by the applicant as “relevant stressors”.
20. Despite the change in claimed condition diagnosis determined by the Tribunal, and without making further findings of fact (as is required by Deledio), I am satisfied that the material before the Tribunal, in relation to the applicant’s contention, adequately points to a hypothesis connecting the condition suffered by Mr Skene with his operational service. The Tribunal also considers, based on the material, that subject to findings of fact, there may also be a relevant connection between his eligible defence service and the condition involved.
The Evidence
21. A significant amount of the applicant’s evidence has already been set out in the earlier portion of these Reasons as part of the discussion on the diagnosis of the applicant’s condition. This is not repeated here. The Tribunal, in particular, also takes into account the relevant contents etc of the following (as summarised):
(a)Of importance are the applicant’s Service medical documents as provided in the T documents. In them it notes that from enlistment to discharge there is no mention of alcohol problems or associated disciplinary action; his emotional stability is reported as normal; and on discharge the examining RAN doctor reported that Mr Skene did not suffer any psychiatric condition. Prior to that he was assessed (in 1967) for ‘submarine suitability’ and was declared “Fit for Diving” (T3 page 026).
(b)The Tribunal also takes particular account of the various written statements by the applicant in the T documents, including T5 which sets out the relevant events he has earmarked during his operational service in HMA Ships Sydney, Derwent and Perth during 1966 to 1971. Also the statements by the applicant’s wife – Mrs Elaine Skene at T19 pages 081 and 082, as well as that of Mr N Jones who served with Mr Skene in the RAN (T19 pages 083 to 085), are of significance.
(c)It takes specific account of the reports by Dr Fellows-Smith in the T documents and that of Dr Mander (Exhibit R1) – as already mentioned in relation to paragraphs 10 to 18 of these Reasons.
(d)The applicant’s evidence/comments and those of Mrs Skene in the VRB hearing of 21 August 2003, contained in the transcript of that hearing (Exhibit R3) are of consequence.
(e)It notes the documentary evidence, including photocopies of photographs concerning the handling of some Viet Cong personnel who were surrendering and taken on board HMAS Perth – witnessed by Mr Skene (T19 and elsewhere).
(f)It took due account of Mr Skene’s written descriptions of the “HMAS Ibis Incident” when he was the ship’s Coxswain, involving a stormy weather period when attempting to gain entrance to Sydney Harbour. This was during his eligible defence service. The Tribunal also notes the contents of statements by others in this regard.
(g)The DVA Alcohol Questionnaire, completed by Mr Skene at T4 pages 030 and 031 (received by DVA on 22 September 2000), and the answers given by him in that documentation are noted. He says that his drinking of alcohol – beer and rum – started in 1966. In answer to the question “… if ‘binge’ type drinking, describe how often and the average amount of alcohol consumed on those occasions”, the applicant’s only answer was “Daily”. Further, describing his drinking during his operational or deemed operational service time he states: “ … any shore leave given, the guys would get together and take solace in binge drinking (in those days it wasn’t called binge drinking). Always being away from family, comfort had to be sought somehow. Whilst in Vietnam [waters] I found it very stressful as all we did was to blow up people and buildings, we were always on watch or sleeping and always tired. Our sleeping hours were not what you would call good sleep. When we did get shore leave we really did get stuck into the booze and it was heavy drinking from when our leave started until leave time expired, or your money ran out or you just dropped”. Mr Skene completed, in that same document, his changes in drinking habit being shown in part as: “1970 – 10 beers and ½ bottle of rum (daily); and in 1988 – 6 beers 3 rums (post discharge from RAN)”. His current intake, as stated by him to Dr Mander (Exhibit R1 page 5), as at February 2004, is – as has been referred to earlier in these Reasons – 4 light beers and 1 bottle of wine daily.
(h)The Tribunal particularly takes account of Mr Skene’s oral evidence concerning a range of aspects, but in particular those concerning his contended “stressful events” – and with him putting special emphasis on the “Ibis Incident”. This evidence taken at the hearing by conference telephone is contained verbatim in the official “Transcript of Proceedings by AUSCRIPT” obtained by the Tribunal post hearing and containing 83 pages (“the Transcript”).
22. The respondent’s contentions and submissions are contained in its “Statement of Facts and Contentions” dated 31 May 2004, a copy of which was in the hands of the previous and current advocate for the applicant prior to the Tribunal hearing. These were expanded on, in some respects, by Mr Ponnuthurai’s examination during the hearing of Dr Mander, his cross-examination of the applicant and his examination of Commodore Brecht concerning the Writeway Report (Exhibit R2). Again an amount of relevant material relied on by the respondent has already been set out in the earlier part of these Reasons as part of the discussion of the applicant’s diagnosis, stemming from the reports of the two psychiatrists involved. That will not be repeated here. In addition however, the Tribunal takes particular account of the following as summarised:
(a)The respondent underlines in its Statement of Facts and Contentions the importance of the Tribunal first satisfying itself as to the diagnosis of Mr Skene’s condition and doing so on the balance of probabilities – citing Repatriation Commission v Cooke (1998) 52 ALD1. The respondent, in the main, with support from other evidence that became available and is properly before the Tribunal, relies on Dr Mander’s report and contends that the appropriate diagnosis is alcohol abuse, with some secondary anxiety symptoms. It is maintained that the issue (which is common ground) is whether or not Mr Skene “experienced a severe stressor” at the relevant time in his service and, in relation to the time of clinical onset of his alcohol abuse.
(b)The respondent states that the applicant’s purported stressors during his periods of operational service do not equate to severe stress as defined in the relevant SoP. And in regard to Mr Skene’s period of eligible defence service in HMAS Ibis his version of the June 1978 incident does not, in the respondent’s view, reflect what happened – as is described by the ship’s captain to Commodore Brecht and recorded by him in his report (Exhibit R2).
(c)The respondent draws the Tribunal’s attention to the relevant parts of the VRB Transcript (Exhibit R3) including the apparent attitude and the form of reply to some questions asked by the Board of both the applicant and Mrs Skene, eg. on the subject of his suitability for submarines – the applicant’s version versus that of the documented record (T4 page 31). In the same context he and his wife’s statements concerning him having some post-Vietnam anxiety symptoms needing medical consultation, and in which she said “… he was unable to have normal sexual relations” and that “… a doctor had said it was all in his mind” – a neurologist she believed. In fact the Tribunal notes that the documented evidence makes it clear that at that time the applicant was referred to a urologist because he was suffering in March 1991 from a STD, with specific symptoms, which required treatment for him and also his wife. However, of importance, the clinical notes say nothing to support an emotional component (T22 page 097 and Service medical records refer).
(d)The overall contents of the Writeway Report (Exhibit R2) are especially noted, in addition to the particularising comments in the Report regarding the stressor events put forward by Mr Skene in his claim and associated statements. All of which was augmented by the oral evidence given by Commodore Brecht as a result of questions asked of him by both parties and the Tribunal.
23. The amount of documentary as well as oral evidence (the latter now transcribed) is very considerable for a matter such as this. A lot of it is conflicting evidence, and in some ways clarification of it is not straight forward compared with that involved in resolving the question of the diagnosis.
Statements of Principle and their Requirements
24. The diagnosis determination having been made by the Tribunal, it is now concerned only with SoPs which deal with the amended condition described as Alcohol Abuse. The “with secondary anxiety symptoms” aspect, included in the description of the applicant’s condition, is regarded as part of the abuse condition itself and is not seen by the Tribunal as a separate entity to be considered here. If the Alcohol Abuse condition were to be determined to be relevantly related to Mr Skene’s eligible service, then the assessment of incapacity subsequently to be made by the respondent would then have to take into account these related anxiety symptoms.
25. There are SoPs in force, determined by the RMA, dealing with the condition of Alcohol Abuse. They are as follows:
(a)For Operational Service : SoP Instrument No 76 of 1998
(b)For Eligible Defence Service: SoP Instrument No 77 of 1998.
Both SoPs were current at the time of the respondent’s October 2001 decision and remain so at the time of this Tribunal decision.
26. The relevant criterion in each SoP Instrument that relates to the contention(s) of the applicant which raise hypotheses of a connection with his eligible service is factor 5(b):
(a)For SoP Instrument No 76 of 1998 (Operational Service) this states:
“5(b) experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or “
(b) For SoP Instrument No 77 of 1998 (Eligible Defence Service) this states:
“5(b) experiencing a severe stressor within one year immediately before the clinical onset of alcohol dependence or alcohol abuse; or”
Hence the only difference between the two SoPs in this criterion is the time lapse between the stressor and the clinical onset of the condition, i.e. two years for operational service and one year only for defence service.
27. The term “experiencing a severe stressor” is defined in both SoPs and the wording is identical at paragraph 8 – as follows:
“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 with 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;”
28. As an aside, the Tribunal notes that the above definition of “experiencing a severe stressor” is identical to that in the SoPs for the condition of PTSD. And further, for an Anxiety Disorder, the equivalent is that of “experiencing a severe psychosocial stressor.” The definition of that is somewhat different, but in essence it still requires similar reactions from the individual in the context of similar (in the case of a serviceman) events. Hence in the Tribunal’s opinion, the applicant in this case would be facing the same or very similar tests whether his claimed condition was diagnosed as PTSD, Anxiety Disorder or, as has been determined – Alcohol Abuse.
Clinical Onset of Claimed Condition – Alcohol Abuse
29. This question, not unusually, is a key aspect in this matter. Circumstances lead the Tribunal to again deviate somewhat from the process set out in Deledio, to the extent that findings of fact are made in relation to the clinical onset of Mr Skene’s alcohol abuse condition at this point in the Tribunal’s consideration. This may enable the process of the review from here on to be appropriately shortened and the logic of its reasoning better able to be followed. In doing so the Tribunal referred to a number of relevant Federal Court and AAT decisions, including the following:
·Lees v Repatriation Commissions [2002] FCAFC 398
·Repatriation Commissions v Gosewinckel [1999] FCA 1273
·Robertson and Repatriation Commission [2002] – AAT V96/178 of 2 March 1998
·Boyes and Repatriation Commission [2004] – AAT W2002/369 of 13 January 2004
30. All available evidence points strongly to Mr Skene’s alcohol problems, leading to abuse (as defined), having its onset in the applicant’s earlier days in the Navy. He appears to have joined in the Navy’s “culture of drinking”, a term previously referred to and its meaning fully acknowledged as fact by the Tribunal. He clearly did so from the beginning, but the evidence including his own is that the abuse was at a “binge” level from the late 1960s/early 70s. This is common ground, however based on its close examination of the documented evidence, the Tribunal is relevantly satisfied that the onset was more likely to have been in a band of slightly less width and makes a finding of 1969/70 as being the formal “clinical onset” date. There is no clinical examination or medical diagnosis that was made at that time that pointed to this, however the Tribunal’s finding in this regard is the same approximate period opined by Dr Fellows-Smith and more particularly Dr Mander – both of whom nevertheless are of course making their assessments 30 years or more after the event. It is clear however from the evidence, to the satisfaction of the Tribunal, that Mr Skene did not become, nor is he, alcohol dependent – strange as that may seem in the circumstances.
31. As a consequence of the Tribunal’s findings regarding the diagnosis and clinical onset of Mr Skene’s alcohol abuse condition, it is considered somewhat remarkable that this situation could have occurred and been allowed to continue in HMA Ships in which Mr Skene was a member, apparently undetected. His records are ‘clean’ with no associated disciplinary or warning action shown – no official comment whatsoever. Yet it happened, and from Mr Skene’s evidence he was by no means on his own in this regard. One’s concern is further raised when faced with the fact that it was occurring during the period 1966 to 1971 in ships which were, for designated periods, on (or were deemed to be on) operational service in the Vietnam war. Furthermore, in the total period of his service that – despite his severe alcohol problems – Mr Skene was promoted four times and to the eventual highest (non-commissioned) rank of Warrant Officer, seems even more remarkable. Were it not for the strength of the evidence before the Tribunal it would not be seen as possible that a sailor, let alone a senior one, would be allowed on that basis to continue to serve. It can only be concluded that Mr Skene was efficient at his work, and highly successful in concealing his alcohol problem from his superiors in the RAN, at least for the final 18 years of his service. Dr Mander’s opinion evidence in that sense clearly supports the likelihood of this overall probability and the conclusions reached – in the terms outlined.
Is the Raised Hypothesis Reasonable?
32. The ‘Stressors’ During Operational Service
(a)While the Tribunal accepts that at times Mr Skene may have felt the normal apprehensions one has in ‘war time’, and some periods of anxiety also during the total of three visits he made to Vung Tau harbour in HMAS Sydney and Derwent – that being the main logistic area for not only the Australian Force in Vietnam, but also the US Forces in the southern zones of South Vietnam. It was also the main recreational area for Australian personnel (as well as other Free World Forces there). The authorative evidence in this case, as it has been for many cases before it, is that the risk for HMAS Sydney and Derwent and their crews in their short periods in Vung Tau harbour itself and from close surrounds was “low”. The Tribunal is relevantly satisfied from the evidence in Mr Skene’s case, that the stressful events/circumstances described as having been experience by him on those visits, do not reach the subjective – let alone the main objective levels of seriousness envisaged in the SoP criterion for a “severe stressor” – either individually or collectively.
(b)Similarly, when Mr Skene was in HMAS Perth, it did operational runs on the ‘gunline’ off the coast of Vietnam principally providing gunfire support to those engaged on the land. The Tribunal is again relevantly satisfied from the evidence in this regard, concerning the “stressors” in the raised hypotheses, that it does not meet the tests in terms of the SoP. The hypotheses include the incident involving the surrender/handling of Viet Cong personnel on the deck of HMAS Perth at sea, off the coast of South Vietnam. The Tribunal, in earlier decisions (eg. Eckermann and Repatriation Commission W2002/418 of 25 October 2002) has concluded that there was no inappropriate handling or abuse of prisoners by the members of HMAS Perth, or others, at the time. Any raised perception to the contrary is ill-founded, the Tribunal has found, and any such allegations of undue concern by those present raising in them fear, horror or shame (etc) about what occurred or was observed in this incident could not be acceptably substantiated or justified. I find no evidence in Mr Skene’s case, based on both objective and subjective judgement, to support any change to the already established and published Tribunal conclusion in this regard.
(c)On the basis of the evidence and of the findings concerning Mr Skene’s claim as outlined above, the Tribunal is relevantly satisfied that, although the time lapse criterion within the SoP (factor 5(b)) appears satisfactory, the evidence to support these hypotheses lacks the severity of stressor that is required by that SoP. Consequently, the raised hypotheses relating to the applicant’s operational service are not, in terms of the Act, consistent with the required template of the SoP and as a result the claim for Alcohol Abuse as being a war-caused condition must fail (Deledio).
33.Connection with Defence Service
(a)Again the only plausible contention and possible relationship of Mr Skene’s claimed condition as amended – Alcohol Abuse – with his eligible defence service is with a relevant event/severe stressor. The only allegedly severely stressful experience evidenced by the applicant is his personal involvement with and the events occurring in the HMAS Ibis incident in June 1978 (“the Ibis incident”). The material before the Tribunal is conflicting in this regard. The evidence of the applicant in significant areas conflicts with the Navy sourced evidence provided in Exhibit R2 and its author’s oral evidence at the hearing (Transcript refers).
(b)The Tribunal having carefully examined all the available evidence relating to the Ibis incident – as it concerned the applicant – the main aspects and conclusions reached are summarised as follows:
·There is no doubt an incident took place – in the sense of HMAS Ibis being involved in attempting to enter through the heads of Sydney harbour in an unusually bad storm and very heavy seas. Her steering gear malfunctioned and there were consequent difficulties and dangers she experienced in eventually entering harbour that night. The date is confirmed as 2 June 1978 and also confirmed is that Mr Skene, then a Petty Officer was the ship’s Coxswain.
·Mr Skene claims to have been stressed by the Ibis incident and in his own words he states, in part:
“I nearly lost my life and the life of an Able Seaman. HMAS Ibis was a small wooden vessel. We are entering Sydney harbour in very rough weather when the ship lost its steering and was being washed up against the rocks … the only alternative to save the vessel was for me and another (sic) Able Seaman to get to the after steering compartment via the bridge wings and climb down a vertical ladder. This we did with fear of my life and the Able Seaman’s. On one occasion the Able Seaman was nearly lost over the side”.
And to the VRB in part he states (Exhibit R3 page 18):
“… we’re climbing down the ladder and the ship was swaying over that far that we were actually loose-like … So anyway, we finally managed to get down on the deck aft and a big wave came and we both [he and the Able Seaman] nearly got washed over the side … I managed to grab hold of this AB’s wrists and I had a leg wrapped around … part of a stanchion and I hung on to this guy … he was looking into my eyes, like, don’t let me go, don’t let go of me … that was a really traumatic experience … I was upset from [all] that for a long time and I sort of forgot about it … until a few years ago [I watched the rescue of Tony Bullimore] … bloody brought it all back to me …”.
·There is no evidence, other than the applicant’s, concerning the apparent saving of the Able Seaman (AB) on the Ibis by Mr Skene. It is not officially recorded nor does the captain of the Ibis at the time have any knowledge of it. Furthermore that source (Exhibit R2) provides only little support for some of the other detail of the applicant’s specific evidence in regard to the incident and the part he played in it.
(c)Notwithstanding this contrary evidence, Mr Skene’s description of his involvement and the event with the AB nearly being lost in particular are not specifically contradicted by any authorative evidence. He relays that event with apparent honesty and it is in the Tribunal’s opinion quite plausible. It could not be said to be fanciful in the circumstances in which he and the ship were at the time. Dr Mander’s comment in his evidence on the subject is also relevant and supportive.
(d)Based on its consideration of all the evidence before it and recognising the weight of that provided in Exhibit R2, the Tribunal is nevertheless satisfied on the balance of probabilities that the Ibis incident (or at least a specific part of it) – in terms of the criterion of “experiencing a severe stressor” – fits the template of the SoP.
(e)Notwithstanding this conclusion, there is the added criterion in the relevant factor of the SoP (5(b)) that the severe stressor must be experienced “within one year immediately before the clinical onset of alcohol … abuse”. The onset of Mr Skene’s alcohol abuse condition, whilst the subsequent level of it may have varied from time to time, has been determined as 1969/70. The condition is still current, albeit more controlled according to the evidence. Therefore in no way can his claimed alcohol condition be said to have had its onset after the Ibis incident, and consequently that criterion of the relevant factor of the SoP is not met. Hence the contention does not fit the SoP’s template and must fail.
(f)The Tribunal then chose to consider the possible alternative of using factor 5(d) of the same SoP, albeit it was not actively canvassed at the hearing. The Ibis incident having satisfied the Tribunal as being a “severe stressor” in terms of the SoP and because Mr Skene’s alcohol condition was active at that time (and is ongoing), I examined the evidence concerning alcohol levels relating to his defence service period to ascertain whether there has been an increase in the alcohol abuse condition after and as a consequence of the Ibis incident.
(g)There is no evidence to that effect, that the Tribunal is aware of, put forward by the applicant or his advocate – either in documentary or oral form. Dr Mander’s evidence does not support such a proposition, nor does that of Dr Fellows-Smith. In the latter’s 30 April 2001 report neither the Ibis, nor the incident involving it, gets a mention. Neither does Dr Fellows-Smith’s subsequent report include a mention of the Ibis nor does he speak of an increase in alcohol consumption at that time. While Dr Mander opines that the Ibis incident appears to have been a ‘severe stressor’, his description of the applicant’s alcohol abuse history does not provide any indication that there was a significant and/or prolonged increase in the abuse after, or as a result of that incident. During the hearing Dr Mander was asked whether there was any indication that Mr Skene’s alcohol problem had become worse after the Ibis incident. Dr Mander replied as follows (Transcript page 15):
“… The opposite in fact. The history both from the veteran and his wife indicated that his alcohol consumption had been worse … during his [earlier] Navy days, and to some extent had moderated in recent years, even though in my view, his alcohol intake is still above what we consider to be a safe level…”.
(h)As a result, a contention of a relevant connection via factor 5(d) does not fit the template of the SoP either.
Tribunal’s Main Findings
34. The Tribunal’s main findings and final conclusions based on the evidence available and for the reasons given, are summarised as follows:
(a)It is concluded that a more appropriate diagnosis/description of the applicant’s condition for this claim is “Alcohol Abuse” (with secondary anxiety symptoms) and not Anxiety Disorder. The anxiety symptoms referred to, based on medical opinion, should be regarded as part of the condition of Alcohol Abuse and are not a separately diagnosable condition.
(b)The Tribunal finds as fact that the clinical onset (as this is defined by the SoPs) of the claimed condition (as amended) is 1969/70.
(c)The hypotheses raised by the applicant connecting his Alcohol Abuse condition with his operational service are found not to be “reasonable”. They do not fit the template of the relevant SoP because the “stressors” claimed to be relevant do not themselves, individually or collectively, satisfy the standard prescribed in that SoP.
(d)The contention of the applicant concerning a causal connection of his alcohol condition with his eligible defence service is based (as was his claim when it was diagnosed as anxiety disorder) on the “Ibis incident”. The Tribunal finds that part of this incident does meet the requirement prescribed for a “severe stressor” in the SoP. However, as the clinical onset of the Alcohol Abuse condition was well before that incident, that contention does not fit the overall SoP template in that regard.
(e)An aggravation of his alcohol condition due to the “Ibis incident” was examined by the Tribunal. However, whilst the stressor remains valid, there is no evidence supporting a contention that this condition worsened as a result of it. Consequently, the Tribunal finds that this also fails to meet the SoP template.
35. From its findings as outlined and reasons summarised, the Tribunal:
(a)is reasonably satisfied, in terms of the Act, that the applicant’s condition is “Alcohol Abuse”;
(b)is satisfied beyond reasonable doubt, in terms of the Act, that Mr Skene’s condition of Alcohol Abuse is not war-caused; and
(c)is reasonably satisfied, in terms of the Act, that Mr Skene’s condition of Alcohol Abuse is not caused, or contributed to in a material degree, or aggravated by, his eligible defence service.
Decision
36. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a)To vary the VRB decision under review by amending the diagnosis of the condition claimed to be Alcohol Abuse, and to otherwise affirm that decision;
(b)To reject the amended condition of Alcohol Abuse as being war or defence-caused.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd, Member
Signed: ..............(sgd V Wong).............................
AssociateDate/s of Hearing 18 June 2004
Date of Decision 23 July 2004
Counsel for the Applicant Mr T Robbins
Counsel for the Respondent Mr C Ponnuthurai
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