Starr and Repatriation Commission
[2004] AATA 1291
•3 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1291
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/535
VETERANS' APPEALS DIVISION
Re: ALLAN JOHN STARR
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 3 December 2004
Place: Melbourne
Decision:The Tribunal varies the decision of the Repatriation Commission dated 15 August 2001 to the extent that it finds that:
1.by consent, the condition of chronic gastritis is a war‑caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act) with effect from 10 October 2000;
2.the applicant’s alcohol abuse and drug abuse are war‑caused within the meaning of the Act;
3.the matter is remitted to the respondent for assessment of rate of pension; and
5.in all other respects, the decision of the Repatriation Commission is affirmed.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – psychiatric disorder – nature of the psychiatric disorder – time of onset – severe psychosocial stressors – alcohol and drug abuse – whether war‑caused disability
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A
Statements of Principles
Instrument № 76 of 1998 concerning alcohol abuse
Instrument № 78 of 1998 concerning drug dependence or drug abuse
Instrument № 3 of 1999 as amended by Instrument № 54 of 1999
concerning post traumatic stress disorder
Instrument № 1 of 2000 concerning generalised anxiety disorder
Instrument № 75 of 2001 concerning chronic gastritis
Banovich v Repatriation Commission (1986) 69 ALR 395
Benjamin v Repatriation Commission (2001) 70 ALD 622
Byrne v Repatriation Commission (2001) 33 AAR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Hornery and Repatriation Commission (1998) 52 ALD 317
Repatriation Commission v Hendy (2002) 76 ALD 47
Sheehy v Repatriation Commission (1996) 66 FCR 569
Starcevich v Repatriation Commission (1987) 18 FCR 221
Van Ewjk v Repatriation Commission [2004] FCA 19
Re Eastern and Repatriation Commission (1987) 12 ALD 778
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Woodward and Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
3 December 2004 Miss E.A. Shanahan, Member
1. This is an application by Allan John Starr (the applicant) for review of a decision by the Repatriation Commission (the respondent) dated 15 August 2001. The respondent accepted the applicant’s claim for sensorineural hearing loss, bilateral tinnitus and gastroesophageal reflux disease and assessed the applicant’s pension rate at 40 per cent of the general rate; but refused the applicant’s claim that his alcohol abuse, post traumatic stress disorder, cannabis abuse and chronic gastritis were war‑caused. On 16 April 2002 the Veterans’ Review Board (VRB) affirmed the respondent's rejection of the claim that alcohol abuse, post traumatic stress disorder (PTSD), cannabis abuse and chronic gastritis were war‑caused as the conditions did not meet the relevant Statements of Principles (SoPs), nor was the VRB satisfied on the evidence that the applicant suffered from PTSD.
2. The applicant was represented by Mr C. Thomson of counsel, instructed by Peter J. Liefman, solicitor. The respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T31) (the T‑documents), which were assigned the marking Exhibit R1. In addition, the respondent tendered the following documents:
Report by Dr R. Ratneyake, psychiatrist, dated 5 August 2003 Exhibit R2
Report by Dr Ratnayake dated 13 October 2003 Exhibit R3
Report by Commodore P. Mulcare, WriteWay Research
Service, dated 26 May 2003 Exhibit R4
The applicant’s clinical notes from the
You Yangs Medical Clinic Exhibit R5
The applicant’s Medical Service Documents Exhibit R6
The applicant’s Records of Service Exhibit R7
The applicant’s Psychological Record (pages 1 to 8) Exhibit R8
VRB transcript dated 16 April 2001 Exhibit R9
The applicant tendered the following documents:
Report by Dr A. Merrett, gastroenterologist,
dated 12 February 2004 Exhibit A1
Report by Dr C. Newlands, psychiatrist, dated 20 April 2004 Exhibit A2
Supplementary statement by Mr R. Arndt dated 1 March 2004 Exhibit A3
3. The applicant, Dr Merrett, Mr W. Bastow, Dr Newlands and Mr Arndt gave evidence at the hearing. Mr Bastow and Mr Arndt had served in Vietnam with the applicant. The respondent called Dr Ratnayake and Commodore Mulcare, an historical research officer with WriteWay.
BACKGROUND TO THE APPLICATION
4. The applicant was born on 18 June 1951. He joined the Royal Australian Navy (the navy) at the age of 15½ years and served from 4 January 1967 to 1 April 1980. The applicant rendered operational service in Vietnam from 16 March 1971 to 11 October 1971. The Tribunal notes that the Department of Defence naval records state that the applicant served in Vietnam, in what amounts to a special area under the Veterans’ Entitlements Act 1986 (the Act). He was posted to HMAS Brisbane, his tour of duty commencing on 20 October 1969 and ending on 18 October 1971 (T4). During his naval service, the applicant obtained extensive training and experience as a weapons mechanic and later as an electronic weapons technician. His service has been described as exemplary and he received a Naval Board Commendation in 1972, one of 24 personnel on his ship to be so honoured. Since his discharge from the navy, the applicant has worked full‑time as a defence systems technician, both in the private and public ship‑building sector and continues in this employment. The applicant claimed his alcohol intake escalated while in the navy. He commenced regular use of cannabis during his Vietnam service in an effort to cope with the stressful situations he was experiencing.
5. The applicant said that, following his discharge from the navy, he continued to drink alcohol to excess; he continued to use cannabis and became increasingly isolated with respect to interpersonal relationships. His marriage failed after 10 years and subsequent relationships were unsuccessful. In 2001 he was diagnosed as suffering from PTSD with alcohol and drug abuse, and commenced psychiatric treatment. In addition, he had suffered from dyspepsia during his naval service. This had been investigated and treated, but his symptoms relapsed. On 29 January 2001 a diagnosis of chronic gastritis due to helicobacter pylori was made.
6. The respondent's decision dated 15 August 2001, to reject the applicant’s claim for PTSD was based on its finding that the applicant had not experienced a severe stressor, as defined by the Repatriation Medical Authority in the relevant SoP and in the case of the applicant’s alcohol and drug abuse the reliance on a war‑caused psychiatric disorder was thus not met. The respondent considered the applicant’s chronic gastritis to have occurred after the applicant’s discharge from the navy.
7. While the VRB affirmed the respondent’s decision, it raised other matters. In particular, the VRB was not satisfied on the evidence before it that the applicant suffered from PTSD. It was satisfied that the applicant suffered from cannabis and alcohol abuse; but as these were contended to be due to the applicant’s PTSD the VRB determined the conditions were not war‑caused. The VRB did not find any factor connecting the applicant’s chronic gastritis to his war service and the applicant made no submission as to which factor in the relevant SoP he was relying upon (T2).
8. On 22 May 2002 the applicant applied to the Tribunal for review of the VRB decision. The effective date of the claim is 10 October 2000.
EVIDENCE BEFORE THE TRIBUNAL
Mr Starr
9. The applicant confirmed his statement dated 23 August 2001 (T19 p106), but said the term cook‑off that he had used was not correct and that the proper term was a hang‑fire. This will be referred to hereafter as the hang‑fire incident (although many witnesses in their evidence used different terminology). In the hang‑fire incident a cartridge case had failed to fire and the misfire drill was automatically instituted. This required that the gun be cleared within 10 minutes. The applicant had moved forward on the gun in order to clear the barrel. He placed his hand on the breech chamber intending to open the breech and remove the misfired cartridge, which would then be thrown into the sea. With his hand on the breech chamber, the gun fired. He stated that had he opened the breech chamber the cartridge would have exploded through the opening; and the explosion would have spread to where high explosive ammunition was stored. This would have resulted in injury or death to most of the gun crew. The applicant said that he felt shaky, scared and that disaster had been close at hand. He was worried "that the same thing could happen again".
10. The applicant described his deployment and duties while in Vietnam. It would appear that he was on the so‑called gun line, that is on active duty, for a period of 45 days, following which there was leave in places such as Hong Kong and the Philippines. Throughout the 45‑day deployment he was required to work four hour shifts during the day and six hour shifts during the night. Given the need to replenish the ammunition stores, this resulted in periods where the applicant worked an 18‑hour day. When on duty on the gun line he was involved in what was termed harassment and interdiction firing on the Vietnamese coastline and he said he was always under pressure from command about the status of the 5¼ inch guns. The applicant was unable to give an exact date for the stressor events he claimed to have experienced in his three 45‑day periods of active service off the waters of Vietnam.
11. The applicant described an episode when the ammunition lift pawl broke down and he was sent to repair it. He was selected for this duty because of his slight stature and an ability to access restricted spaces, as at the time he was 5' 2" tall and weighed 6 stone. He explained that one of the ammunition hoists had broken down, although the adjoining hoist was operational. The applicant described the size of the aperture into which he was placed, which was approximately 1 metre wide, 1 metre long and 1 metre deep. He had entered this area in order to repair the lift pawl and was immediately below the sprocket housing (trans pp13‑14). While he was repairing the defect the lift pawl chain unexpectedly moved, but subsequently stopped. However, the applicant had momentarily thought that, if the chain continued to move, he would be dead within a minute. This chain moved at a rate of 3.9 feet per second and he said that it had moved 3 to 4 inches before it stopped. He believed had it continued to move it would have ripped through his sternum and probably caused his death. He said he was scared, anxious and distressed as a result of this experience (trans p15).
12. The applicant said he had a general feeling of anxiety about his onboard duties, and in particular, the knowledge that there had been gun blow‑ups on the Brisbane in 1969 and that United States’ (US) carriers had suffered similar problems in the area. The applicant had previously worked on the gun which blew up in 1969 and was subsequently replaced with a gun from a US ship. The applicant was unable to recollect the exact date of this event.
13. The applicant described an event that occurred in June 1971 wherein his ship had been engaged in night shooting which involved the closure of the gun mount doors. Having fired the rounds he had subsequently "passed out" due to the release of gas in the turret (trans p17) and he did not recall anything until he was confronted by Chief Petty Officer Maxwell, who had attended because of the crew's failure to respond to "a call gunner attack". At the time the applicant was in the gun mount captain's position. Chief Maxwell had accused the applicant of being asleep on the job, but the applicant claimed he had "passed out" due to exposure to fumes in the gun turret. He had felt Groggy, nausea…[and] disorientated (trans p18). Despite the applicant and other crew members being threatened with disciplinary action for being asleep on the job, this did not occur. The applicant said this episode caused him a great deal of worry and further distress because of the possibility of a recurrence of the problem. He stated that the problem of fumes in the gun turrets was well documented, and modifications were undertaken from 1973 onwards. In addition, he believed that they were using at the time a powder called Nako, provided by the US, and this had produced more fumes of a toxic nature. Following the episode, the applicant said that he had insisted that night firing was undertaken with the doors open. This opinion was supported by a previous experience on the Brisbane in 1969 when a gun had exploded, and despite suffering injuries, the crew survived only because the doors were open. The applicant gave evidence regarding the provision of faulty ammunition by the US naval fleet. He related prior episodes that had affected the US fleet.
14. The applicant admitted to nightmares relating to being gassed "a couple of times" (trans p20) and to being averse to being in confined spaces. His major worries seem to relate to being exposed to gaseous substances and the long term effect this might have on him.
15. In his statement dated 23 August 2004 the applicant described the general feeling of awareness and anxiety relating to service in a war zone and the two specific incidents which he termed "near death experiences".
16. In answer to Mr Rudge's question as to the nature of his current employment, the applicant gave a detailed description of his involvement in the building of ships, in particular gun mounts, lifts, sprinkler systems and galley equipment. The lifts were used to shift ammunition. Prior to his current employment, he worked for a company called Platt, where he was involved in overhauling and modernising parts of guns. These were five‑inch guns. From 1980 to 1992 the applicant worked at the Garden Island Dockyard, overhauling gun mounts and missile launchers. During his employment at the Garden Island Dockyard, he had suffered an injury to his hand when an eight ton weight slammed forward and amputated two fingers. The applicant denied that this accident had a long term effect upon him, either physically or mentally and said that he was "used to the fingers being missing now" (trans p24).
17. The applicant also detailed his time in the navy and the promotions he had received on a regular basis. In 1974 he had applied for a transfer to the electronic weapons division and had undertaken a 10‑month course in electronics in the United States in 1973‑1974. He had obtained Honours in this course and was, in fact, top of his class.
18. Mr Rudge contended that the applicant’s service record in the 1970s did not suggest that he was suffering any adverse consequences arising from his Vietnam service. The applicant replied that the culture in the navy was such that you did not show any weakness or complain; and that he had kept to himself and drank to excess. The applicant agreed that he had suffered a major motor vehicle accident while on leave on 6 October 1975. He said the accident had been caused by his excessive drinking. The applicant had suffered bilateral lower limb fractures, a fractured scaphoid on the left with lacerations to the head and the right knee and a head injury. The head injury was so severe that he had no recollection of the accident itself. He required treatment of all his fractures and was hospitalised for several months. When discharged from hospital his medical category was downgraded and he did not return to sea until 1978. The applicant denied that the accident had any long term mental effect upon him, although he still had occasional aches and pains from the physical injuries he sustained.
19. The applicant agreed that in the early 1980s, after he left the navy, his social life was quite active in that he worked out in a gymnasium, was involved in recreational boating and attended car races and rugby matches. He had married in 1977 but had separated in 1987. He attributed his marriage breakdown to the development of depression, which came in waves over the years and to his excessive alcohol use.
20. The applicant agreed he had started drinking alcohol sporadically at the age of 16½. This had occurred mainly after football matches, when the older members of the team had encouraged the younger players to drink to excess. When transferred to HMAS Brisbane his drinking was predominantly while on leave. He described it as "we went out at nights playing hard and drinking hard" (trans p36). While in Vietnamese waters, his drinking had been restricted to one large or two small cans of beer per day. On occasions it would be possible to buy beer from non‑drinkers and despite Commodore Mulcare's report, the applicant insisted that from time to time there would be drinking on the gun lines.
21. Mr Rudge cross‑examined the applicant in some detail regarding the gun misfire and the episode of gas in the gun turret. He noted that these events had not been reported to any superior officer, according to Commodore Mulcare's inquiries. The applicant disagreed with this, stating that the gun officer Captain R. Derbridge had been aware of it and had initially threatened those involved with some form of punishment.
22. The applicant agreed with Mr Rudge that he had undergone investigations for gall bladder disease in 1976. However, he insisted that he had also undergone a barium meal in 1971 while he was on leave. He had been suffering from abdominal pain at the time.
23. In re‑examination the applicant expanded on his history of abdominal pain which had first occurred while they were on R and R (rest and relaxation) in Subic Bay in the Philippines. In addition to the abdominal pain, the applicant had suffered intermittently from diarrhoea and from his accepted reflux gastroesophagitis.
24. Mr Thomson questioned the applicant further regarding his drinking habits. The applicant stated that while he had drunk alcohol after rugby matches, while on the Vendetta he ceased drinking when he returned to Australian waters, as he was under age and did not recommence drinking until he joined the Brisbane.
25. The applicant told the Tribunal he had started using cannabis while on R and R in Subic Bay in the Philippines in 1971 and had continued to use it thereafter. He had found that it was a better substitute for calming him down than alcohol; that it made him feel mellow and relaxed; and that it did not produce hangovers as had his excessive alcohol intake. The applicant had ceased using cannabis in the last few years but occasionally had a craving to return to it. He had also reduced his alcohol intake since being treated by Dr Newlands, but continued to drink a bottle of wine a night and beer on the weekends.
26. The Tribunal asked several questions regarding the episode where the applicant was repairing the lift pawl in the sprocket housing. The applicant provided a picture of the sprocket housing, which was a space one metre in depth, with the sprocket hanging into this depth by half‑a‑metre. Thus, the space in which he worked was 1 metre x 1 metre x ½ metre.
Dr Merrett (by telephone)
27. Dr Merrett provided a report dated 12 February 2004 (Exhibit A1). In his report Dr Merrett stated that the applicant was diagnosed as suffering from chronic gastritis with severe infection of helicobacter pylori in 2001. He opined that, as helicobacter infection is common in third world countries, including those of South East Asia and the sub-continent, it was "…likely that the Helicobacter infection was contracted as a result of exposure in his tours of duty in Vietnam" (Exhibit A1).
28. Dr Merrett was questioned at some length by Mr Rudge regarding whether the investigations performed on the applicant in 1971 had been directed at his gall bladder or if he had had a barium meal performed at that time. Dr Merrett had relied on the history given by the applicant, but he was uncertain as to whether the barium meal had been performed in 1971. Dr Merrett opined that, as Australian ships were stocked with water and food from Vietnamese suppliers, it was quite possible that the applicant could have become infected with helicobacter at that time.
29. The Tribunal, based on the applicant’s evidence that in 1971 he had been asked to drink a chalk‑like material, and on its own knowledge of such investigations, asked Dr Merrett whether the liquid agent used for oral cholecystography in that period was chalk‑like or clear. Dr Merrett said that from his recollections the liquid agent used for oral cholecystography was a clear fluid.
Mr Bastow
30. Mr Bastow confirmed his statement dated 24 December 2001 (T23 p122‑124). Mr Bastow had been a Petty Officer Weapons Mechanic on HMAS Brisbane during its second deployment in Vietnam. On or about 6 June 1971 he had been the mount captain on mount 51 with the applicant as gun captain, and they started firing at approximately 2110 hours. Mr Bastow recalled being given orders to load and shoot, and his next recollection was of looking up into the face of Chief Maxwell who was shouting at him to wake up. Mr Bastow told the Tribunal that he climbed out of the gun mount into the fresh air and slowly regained his composure. He noted there was no one else outside the gun mount so he went to the port side of the gun, opened the door and found the applicant lying on his back in a semi‑conscious state. He had shaken the applicant until he responded and he noted that he was dazed and groggy and staring into space. Mr Bastow said he and the applicant were rubbing their eyes and coughing. Mr Bastow was, a short time later, ordered to see the gunnery officer, Captain Derbridge, when he was informed that he could be charged "…with being absent from your place of duty, in the face of the enemy". Mr Bastow informed the gunnery officer that the gun mount was filled with gunpowder fumes to which he and the crew had succumbed. Mr Bastow could not understand why Captain Derbridge could not recall the incident.
31. Night firing had occurred with the gun mount doors closed and at the time of this event the air blast operation and ventilation was not operating. Mr Bastow said that the air blast and ventilation in the gun mount were subsequently repaired and thereafter the gun was fired with the doors open.
32. Mr Bastow had been a member of the navy from June 1962 until June 1973, following which he was a member of the Police Force for 20 years. Mr Bastow agreed that there were no medical records relating to this episode of fumes in the turret, as they had not consulted the medical staff "as we didn't have time to see the doctor" and they were required to be back on duty the following morning. At the time of the episode he stated that they were using new gunpowder provided by the American Forces.
33. In cross‑examination Mr Bastow explained that Chief Maxwell had come to the gun mount because the crew had not responded to communications between the gunnery officer and themselves. In effect, the gun was no longer operational. Chief Maxwell was in charge of the maintenance of the two guns concerned and had accused the crew of sleeping on the job. Mr Bastow told the Tribunal Chief Maxwell had subsequently suffered a nervous breakdown and left the ship within a month. Despite having been accused of being absent from duty, in the face the enemy, no further action had been taken against the gun crew.
Dr Newlands (by telephone)
34. Dr Newlands is the applicant’s treating psychiatrist. She first saw him at his general practitioner's request in either late January or early February 2001. Dr Newlands provided three reports dated 21 February 2001 (T8), 18 May 2001 (T12) and 20 April 2004 (Exhibit A2). Having taken a detailed history from the applicant and having applied a Davidson questionnaire, Dr Newlands made a diagnosis of PTSD with alcohol and drug abuse. She appears to have based this diagnosis primarily on the Davidson questionnaire but with due consideration to the history she obtained from the applicant. However, she did opine that the stressors related by the applicant were such that they may not satisfy either the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) or the relevant SoPs. In which case, she would propose the different diagnosis of general anxiety disorder. Dr Newlands treated the applicant with antidepressants with overall improvements in his symptomalogy, although she noted that his condition fluctuated. She attributed his PTSD to his service in Vietnam.
35. Dr Newlands identified episodes wherein the applicant was exposed to severe stressors. The first episode was when the applicant was "inside a gun" and the gun cradle cut through a 440 volt electrical cable, resulting in "sparks everywhere". This had created major anxiety in the applicant. The second episode was when the applicant was clearing a pawl lift blockage and theoretically the electrical system was closed down. The third episode was when he was overcome by fumes while in the gun turret after using recently issued American gunpowder. She said that, on reflection, the applicant had described this gassing incident as the most frightening of all. The applicant had been aware that in 1969 there was a major gassing incident on the Brisbane, but he had not been onboard the Brisbane at that time.
36. Dr Newlands had noted the motor vehicle accident in 1975 and the fact that the applicant had no recall of the events of this accident. She accepted the applicant’s statement that this event had not caused any psychological trauma. Dr Newlands stated that she had noted that the applicant had no psychological symptoms while serving in the navy and that his symptoms appear to have started soon after his service in Vietnam. In cross‑examination she dated the onset of symptoms to correspond with the onset of increased drinking, rather than any psychiatric symptoms.
37. Dr Newlands noted that a psychologist had examined the applicant in 1974, when he sought transfer to the Electronic Weapons Maintenance Section and that this psychological consultation did not reveal any abnormality. However, she also noted that in 1974 the condition of PTSD had not been known or documented and therefore had not been considered by any psychologist in that era.
38. In her report dated 20 April 2004, Dr Newlands opined that the applicant
…is certainly suffering from psychiatric resultant upon his time in the Navy. These I believe are best viewed as being a Post Traumatic Stress Disorder, although some might say, that the stressor was not sufficient to cause that, and therefore a diagnosis of Generalised Anxiety Disorder might be more reasonable.
Dr Newlands delineated the most significant stressor as being the occasion on which the applicant lost consciousness as the result of gunpowder emissions in the gun turret. She also said that the applicant’s alcohol abuse and psychoactive substance abuse were attributable to his naval service.
39. Dr Newlands assessed the major effect of the psychiatric disorder on the applicant as being in the area of subjective distress, his inability to maintain relationships, his lack of social interaction with others and his reduced leisure activities. She noted that there was no avoidance in the workplace and that the applicant continued to work with guns and ammunition lifts. He had a good work record and was responding well to psychiatric treatment. In her evidence before the Tribunal, Dr Newlands dated the clinical onset of PTSD as being within a month or two of his completion of service in Vietnam and she had nominated that onset date as it correlated with the commencement of his heavy drinking.
40. In cross‑examination Dr Newlands agreed that the applicant had commenced drinking at the age of 16½ and had continued to drink alcohol prior to his Vietnam service, particularly while on leave. She also agreed that this could well be described as the culture of the navy, but, in her opinion, the ongoing nature and the greater severity of his alcohol abuse during and after his Vietnam service was related to continuing anxiety arising from his Vietnam experiences. Dr Newlands agreed that the applicant’s naval record indicated that he was performing very well at the time (trans p82). Dr Newlands had been unaware that the motor vehicle accident in October 1975 had resulted in a major disruption to his service and she had not taken a detailed history regarding the traumatic amputation of the applicant’s two fingers in the early 1990s. She agreed that this episode, in approximately 1992, may have contributed to the applicant’s psychiatric symptoms and may have been confused by the applicant with episodes in earlier operational service. The applicant's history showed no evidence of any avoidance of guns, gun turrets or ammunition lifts which might remind him of his naval service. In fact, he had spent the past 24 years working in defence systems. Dr Newlands explained this apparent lack of avoidance on the applicant’s differentiation of working on guns as opposed to firing guns. She said his attitude was a kind of detachment in that he could take the weapons aside and fix them.
41. On the question of the nature of the applicant’s dreams and their frequency, there was some contradiction between the evidence he had given to the Tribunal, of these occurring a couple of times, and Dr Newlands' data based on the Davidson questionnaire, which had recorded dreams once or more per week. Dr Newlands opined that if the dreams were less frequent than her notes suggested, this would not meet the requirements of DSM-IV.
42. Dr Newlands said she had gone through the diagnostic criteria for generalised anxiety disorder, but had not recorded a specific date when the applicant had developed excessive anxiety and worrying. She had assumed that he had commenced worrying excessively at the same time he commenced using cannabis and drinking alcohol to excess. She agreed that in 1974, when the applicant underwent psychological assessment by a naval psychologist, there was no evidence of any anxiety.
43. In re‑examination, Dr Newlands confirmed that the applicant was socially withdrawn, that he only talks with other ex‑navy personnel and, in her opinion, his excessive working and use of alcohol was basic avoidance behaviour. In her experience excessive working was often a defence against contemplating events. Also, the numbing of emotion, which the applicant displayed, was more likely to occur in PTSD than in generalised anxiety disorder. Dr Newlands noted that the applicant was responding to treatment with an anti‑depressant, Metabateme, and had moderated his alcohol intake, was sleeping much better and no longer complained of dreams to any extent.
44. The Tribunal asked Dr Newlands when the syndrome of PTSD was first accepted as a definite psychiatric disorder. She said that it was accepted in DSM-III which was published in about 1980. Therefore, a psychologist seeing a patient in 1974 would not have heard of the condition.
Mr Arndt (by telephone)
45. Mr Arndt served in the navy from 1961 to 1979, and thereafter continued in ordnance engineering. He had been the gun mount maintenance supervisor on HMAS Brisbane from 1970 to 1972. In his statement dated 26 March 2001 he described the guns mounted on the Brisbane and reported that on several occasions gun crews had to be revived, after passing out, in the gun house due to dense spent powder gases. He said, to alleviate the problem of gas build up in the gun house, the gun mount doors were left open during the day to improve ventilation, but at night these doors were closed.
46. Mr Arndt provided a further statement dated 1 March 2004 in response to the applicant’s request for his comments on the submission compiled by Commodore Mulcare. Mr Arndt detailed the strict regulations on the Brisbane which applied to prevent "cooking off, hang fire and hot gun" incidents. These are essentially as the applicant outlined in his evidence. Mr Arndt also confirmed that there had been problems with faulty cartridges and with powder fumes from the US ammunition supplies. In 1975 the US navy had modified gun mount ventilation and gas ejection systems to alleviate this problem. Mr Arndt was unable to comment on the availability of alcohol on HMAS Brisbane as he was a non‑drinker. Mr Arndt noted that Commodore Mulcare had not sought submissions from members of the gun crews. To his knowledge, none of those who had made submissions, except for Lieutenant Thomsett, were ever present in a gun house during an engagement. Lieutenant Thomsett attended a firing demonstration on one occasion. Mr Arndt had seen the effects of gunpowder fumes on gun crews; although it appears that he was not present at the event as described by the applicant. He noted that Mr Bastow was present during the incident and had confirmed that it occurred. Mr Arndt confirmed that ammunition lift pawls frequently broke down and required a person of small stature to repair the hoists. Mr Arndt had supervised the applicant in these repairs, and at the time such action was considered safe and relevant. However, he thought it would be extremely stressful should the hoist move during the repair.
47. In his evidence before the Tribunal, Mr Arndt confirmed that he had been present when the applicant had repaired the hoist chain and that there had been a small movement in the chain during this procedure. He said "…we made fairly light of it [the incident]" (trans p98). Mr Arndt was not certain that he had been present when the applicant had been overcome by gunpowder fumes. He had no personal knowledge of the hang‑fire incident, but did have technical knowledge of what could happen.
48. In cross‑examination, Mr Arndt again addressed the procedures to be undertaken when there was a misfire either in a cook off or a hang fire situation. In a hang fire situation the gun crew had 10 minutes in which to remove the unfired cartridge. However, there had been rumours that US navy personnel had been killed in the course of extracting powder within the 10‑minute period.
Commodore Mulcare
49. Commodore Mulcare, a 37-year navy veteran, provided two reports dated 30 July 2001 (T14) and 26 May 2003 (Exhibit R4). In his report dated 30 July 2001, Commodore Mulcare confirmed the applicant’s service on HMAS Brisbane from 16 March 1971 to 11 October 1971 and detailed the periods the Brisbane had spent on the gun line. He had investigated the two major stressful incidents reported by the applicant: namely being overcome by exposure to gunpowder fumes while in the gun turret; and the gun misfire event. Neither of these episodes, nor anything resembling these episodes, was contained within the Brisbane's Reports of Procedures. Commodore Mulcare also obtained a statement from Captain Derbridge, who was the Brisbane’s gunnery officer in 1971. Captain Derbridge had no knowledge of either of these events, but could not totally exclude the fact that the applicant had been exposed to gun fumes at some time during deployment. There had been an incident where three sailors had been overcome by gunpowder fumes on 16 June 1969. Also, on 15 July 1969 the Brisbane suffered an in‑bore premature explosion in a gun turret which rendered it totally unserviceable. A new gun mount was later fitted at Subic Bay.
50. Commodore Mulcare's second report, entitled Supplementary Research Report, dated 26 May 2003, was made after consultation with Rear Admiral Loosli, who had been the commanding officer of the Brisbane at the time under consideration; Captain E. Keane, executive officer of the Brisbane; Captain Derbridge, the gunnery officer; Captain W. Wheeler, the weapons electrical engineering officer; and Commander Thomsett, who had been the deputy weapons electrical engineering officer responsible for the gunnery system.
51. Based on these consultations, Commodore Mulcare had concluded that there was no record of the "hot gun" incident and had it occurred it should have been reported. However, a hot gun spontaneously firing on a safe bearing was not perceived to be as dangerous as a projectile cook off. Captain Wheeler could only recall one misfire during which the hot gun drill had to be implemented. None of the officers consulted recalled a firing being disrupted because personnel had passed out in a gun mount. Commodore Mulcare had been unable to contact Chief Maxwell. Captain Derbridge was fully acquainted with the regulations and instructions for determining a hot gun and in addition, he, as gunnery officer, should have been aware of all misfires. Captain Derbridge and Captain Wheeler were of the opinion, that while there had been defective US ammunition in Vietnam in earlier years, this was no longer a problem in 1971. Admiral Loosli had documented the availability of alcohol for personal consumption onboard the Brisbane. The ship's company were given the opportunity to purchase 1 to 2 bottles or cans of beer per day. For junior sailors, the cans and bottles were opened at the point of sale. The breaking of a lower hoist chain, or lift pawl, should have been recorded on the defect report forms which would then be forwarded to the navy office. Commodore Mulcare advised that there was little likelihood that these reports could be located now. He had been advised that any repair work would be performed with the hoist switched off, so that there was no danger of inadvertent motion. Work such as repairing the hoist was standard maintenance which was potentially dangerous, but the applicant had been trained for this type of maintenance work.
52. In evidence before the Tribunal, Commodore Mulcare confirmed his written reports and in cross‑examination did not provide any new information.
Dr Ratnayake
53. Dr Ratnayake saw the applicant on one occasion for one hour and provided two reports dated 5 August 2003 and 13 October 2003 (Exhibits R2 and R3). In her report dated 5 August 2003, Dr Ratnayake diagnosed chronic PTSD based entirely on the history given by the applicant and not supported by the mental state examination. The applicant had described three incidents which he had found traumatic. The first was the accidental firing of a "hot gun". The second was loss of consciousness when overwhelmed by gunpowder fumes. The third traumatic incident related to the repairing of a lift pawl or hoist, when the applicant noted that the chain had moved a short distance. He felt he was in danger of being struck in the chest.
54. Dr Ratnayake reported that the applicant started to drink alcohol in large amounts after he joined the navy and had been introduced to this habit in the course of what was described as "bastardisation ceremonies". While in Vietnam his alcohol intake increased and continued at high levels following his Vietnam service. On 6 October 1975, he was involved in a motor vehicle accident in which he suffered multiple fractures and was unconscious for an unknown period of time. Dr Ratnayake noted that the applicant had married in 1977 and separated in 1986. She also noted that there was a further relationship which lasted five years but had ended in 2001. The applicant explained his failed relationships as being due to his emotional withdrawal and his increased alcohol consumption. At the time of consultation the applicant stated that he would drink predominantly at the weekends, at which time he would consume two bottles of wine and several cans of beer each day. He was at the time using one bong of marijuana daily. He did describe alcoholic blackouts but had no drink driving offences. Dr Ratnayake noted that the applicant worked full‑time for Tenex Defence Systems, but complained of loss of energy and motivation, anxiety and stress related to his work. His concentration had not been affected and his memory was good.
55. Dr Ratnayake had recorded that the applicant had lost two fingers in a gun accident, had been involved in a motor vehicle accident in 1975 and had, most recently (four years ago), undergone cholecystectomy.
56. The applicant’s mental state examination by Dr Ratnayake was normal. She found the applicant neither depressed nor elevated, anxious or reactive. His self‑esteem was described as normal and he had no suicidal ideation. He denied nightmares, but stated that he did suffer from flashbacks. His flashbacks were triggered by gunfire and the noise of helicopters. There was no evidence of hyper‑vigilance. His insight and judgment was not impaired. She assessed his intelligence as average and general knowledge as good. There was no impairment of concentration and his short‑term memory was well retained. Dr Ratnayake concluded that the applicant suffered, on the basis of his history alone, from PTSD and that he fulfilled the criteria for mixed alcohol and cannabis abuse. However, she found that he did not satisfy the SoP requirements with regard to alcohol or cannabis abuse. Thus, they were not related to his naval service.
57. Subsequently, Dr Ratnayake was provided with the applicant’s navy psychological records which she interpreted as showing no evidence of a traumatic stress disorder in 1974. In addition, she was provided with a report by Associate Professor S. Posen dated July 1978, which declared the applicant to be in good health. Having read these reports, Dr Ratnayake concluded that the applicant did not have PTSD related to the incidents in 1971. She also concluded that the psychologist's report of 1974 negated a diagnosis of PTSD and attributed the applicant’s continuing work involvement in armament and defence systems as being contradictory to a diagnosis of PTSD.
58. In her evidence before the Tribunal, Dr Ratnayake stressed that she had reached the diagnosis of PTSD on the history given, but had been worried by the lack of signs in her examination. She had been unable to detect a restricted range of affect or signs of hyper‑arousal. She stated that she gave the applicant the benefit of the doubt in making a diagnosis, but had wondered whether, when he first presented to Dr Newlands, he was suffering from a depressive disorder rather than PTSD, as this had occurred shortly after his partner had left him. She now favoured the diagnosis of a depressive disorder, with its clinical onset in 2001. It was Dr Ratnayake's opinion that the applicant did not suffer from a generalised anxiety disorder and that there was no persistent anxiety with symptoms of headache and feelings of tension. Dr Ratnayake had not obtained any history of the industrial accident wherein the applicant had two fingers traumatically amputated. Mr Rudge related this episode to the Doctor and she agreed that this episode may well have given rise to symptoms of PTSD. While she had noted the motor vehicle accident of 1975, she also noted that the medical reports following the 1975 accident did not reveal any evidence of depression or PTSD at that time.
59. Mr Rudge went through the applicant’s known drinking history, particularly that he had started drinking at the age of 16½, albeit intermittently. Dr Ratnayake was of the opinion that his alcohol abuse had commenced prior to his service in Vietnam.
60. In cross‑examination Mr Thomson pointed out that in 1974 when the applicant had been examined by a naval psychologist, PTSD had not been described or accepted as a disease. Dr Ratnayake reiterated her opinion that the applicant’s continuation to work in the defence system, following the completion of his naval service, would have constantly reminded him of his war‑related duties. This indicated the lack of avoidance which is usually a feature of PTSD. Dr Ratnayake agreed that the treating psychiatrist, who had been seeing the applicant for some three years, would have been able to go into things in greater detail than she had in her one‑hour consultation.
Documentation
61. The You Yangs Medical clinical notes (Exhibit R5) relate primarily to the management of the applicant’s hypertension, but do record the referral to Dr Newlands for treatment of the applicant’s "anxiety and depressive conditions". The notes contain several letters from Dr Nerwlands regarding the applicant’s progress with treatment and contain the results of the gastroscopy and gastric biopsies which showed chronic gastritis and helicobacter pylori infection.
62. The applicant’s service medical records (Exhibit R6) were addressed in oral evidence, as was the record of service (Exhibit R7), and his naval psychological record (Exhibit R8).
63. The VRB transcript (Exhibit R9) reveals that the applicant relied on factor 5(a) of SoP 76 of 1998 concerning alcohol abuse, and factor 5(a) of SoP 78 of 1998 concerning drug abuse. That is, the drug and alcohol abuses resulted from a psychiatric disorder existing at the time of their onset. Factor 5(b) of these SoPs, relating to experiences of severe stressors, which might evoke intense fear, helplessness or horror, was not argued before the VRB.
THE RELEVANT LEGISLATION
64. The relevant legislation is contained in s 120(1) and (3), and s 120A of the Act, which state:
120(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.
…
120A (1)
This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
65. The parties agreed the following SoPs were relevant and to be relied upon: SoP 76 of 1998 concerning alcohol abuse, in particular, factors 5(a) and 5(b); SoP 78 of 1998 concerning drug abuse, in particular factors 5(a) and 5(b); SoPs 3 and 54 of 1998 concerning PTSD, in particular factor 5(a); SoP 1 of 2000 concerning generalised anxiety disorder, in particular factors 5(a)(ii); and SoP 75 of 2001 concerning chronic gastritis.
66. The Tribunal is required to take into consideration the steps outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
WRITTEN SUBMISSIONS
67. At the completion of the hearing the respondent conceded that the applicant’s chronic gastritis was war‑caused within the meaning of s 9 of the Act and agreed to have that condition remitted for assessment. This left the Tribunal to consider the claims relating to PTSD, or in the alternative, generalised anxiety disorder, alcohol abuse and drug abuse.
68. The applicant submitted that both psychiatrists had a preferred diagnosis of PTSD, although Dr Ratnayake related the causation of the condition to the breakdown of the applicant’s relationship immediately prior to 2001. If misdiagnosis of PTSD was accepted by the Tribunal, the applicant submitted that there was ample evidence to raise a hypothesis that four nominated incidents had constituted severe psychosocial stressors. These incidents had been described as: first, the near asphyxiation incident when subjected to gunpowder gases; secondly, the gun misfire incident; thirdly, the incident when working on the gun hoist in a confined space; and fourthly, the continued exposure to the reminder of these incidents throughout his six‑month period of service on the gun line.
69. The applicant submitted the relevant SoP in force was SoP 3 and 54 of 1999 and relied upon factor 5(a). The applicant further submitted that given the nature of the four described episodes the hypothesis was reasonable and not fanciful or contrary to proved or scientific facts.
70. The applicant submitted that the objective criteria of experiencing a severe stressor was substantiated by the evidence of Mr Bastow and Mr Arndt with respect to the near asphyxiation episode, and which, although not reported to the commanding officers, was not categorically denied by the officers consulted by Commodore Mulcare. Dr Newlands considered this incident of gassing to be the prime incident of concern to the applicant and she said it continues to cause the applicant anguish. It was submitted that the applicant’s response to the incident was as explained by the Full Court of the Federal Court in Woodward v Repatriation Commission (2003) 200 ALR 332, with respect to subjective responses.
71. Similarly, the hoist incident was observed and confirmed by Mr Arndt, although not officially reported. The "hot gun" incident was not reported, but also not categorically denied by the respondent's witnesses. The applicant contended that operating in the atmosphere of the gun line involved a constant subjective fear of death or injury from a repeat or similar mishap to those described (Woodward).
72. The respondent agreed that the applicant suffers from alcohol and drug abuse, and this is supported by the evidence of Dr Newlands and Dr Ratnayake. The applicant submitted that the hypothesis, that these two conditions resulted from experiencing severe stressors, fit within the template of SoP 76 of 1998 with respect to alcohol abuse (factor 5(b)) and SoP 78 of 1998 with respect to drug abuse (factor 5(b)). The applicant stressed that given Dr Newlands' ongoing knowledge and treatment of the applicant, her opinion was to be preferred over that of Dr Ratnayake.
73. The applicant had raised the alternative hypothesis based on a diagnosis of generalised anxiety disorder caused by experiencing severe psychosocial stressor within two years immediately before the clinical onset of the anxiety disorder.
74. The respondent does not accept the diagnosis of PTSD on the basis that such diagnoses are determined on the balance of probabilities (Repatriation Commission v Cooke (1998) 90 FCR 307). The respondent relies on Dr Ratnayake's evidence, that the applicant suffers from a depressive disorder, and alcohol and cannabis abuse with an onset in 2000 or 2001. The respondent also relies on Dr Newlands' initial report that the applicant appears to have some depressive symptoms of unknown genesis (Exhibit R5).
75. The respondent submitted that the applicant had exhibited no avoidance of stimuli, as he has continued to work as a weapons technician since leaving the navy in 1980 and his dreams, as reported by Dr Newlands, relate to fixing the guns on which he works. In addition, Dr Newlands reported that the major stressor was "keeping the gun firing…and the ramifications of faulty ammunition" (Exhibit A2). Mr Arndt was of the opinion that the applicant was fully trained and technically capable of repairing gun mounts (Exhibit A3). The applicant’s capability and performance was supported by the receipt of a naval commendation medal awarded to only 20 sailors on HMAS Brisbane. (The Tribunal notes it was 24 sailors according to the official history of the Brisbane.)
76. The respondent submitted that the incidents recorded at T12 page 58 are not the incidents outlined at T12 page 46. The Tribunal notes that T12 is the applicant’s reply to the Davidson questionnaire put to him by Dr Newland, but that T12 includes Dr Newlands' opinion based on the history she had taken from the applicant. The respondent also submitted that the flashbacks recorded by Dr Newlands related to the industrial accident in approximately 1992, and not to the applicant’s Vietnam service. The respondent contended that Dr Newlands had failed to assess the psychological impact of the applicant’s motor vehicle accident of 1975.
77. Based on the extensive medical treatment the applicant had received following the motor vehicle accident in 1975, the respondent submitted that any psychological condition present at that time would have been detected by the treating doctors.
78. The respondent submitted that, on the balance of probabilities, the applicant does not satisfy the diagnostic criteria for PTSD, but has a depressive disorder, alcohol abuse and cannabis abuse with only the alcohol abuse being present during his naval service. Relying on the Repatriation Commission v Cornelius [2002] FCA 750 with respect to clinical onset of a disease, the respondent argued that the evidence pointed to the year 2000 as being the year of onset; and thus onset was not within two years of any incident related to operational service. In his claim form the applicant had dated his anxiety symptoms from 1982. Dr Ratnayake had opined that the date of onset was 2001 or possibly the mid‑1980s, when his marriage broke down.
79. With respect to the applicant’s alcohol abuse, the respondent submitted that the applicant commenced drinking at the age 16½ and continued to do so as part of the navy culture. He used cannabis to relax and avoid the effects of an alcohol hangover.
80. The applicant, in response to the respondent's submission, asserted that the respondent had been selective in the medical reports on which it relied and highlighted Dr Ratnayake's contradictory evidence. The applicant relied on Dr Newland's evidence as the treating psychiatrist.
THE TRIBUNAL'S DELIBERATION ON THE EVIDENCE AND ITS
APPLICATION TO THE LEGISLATION
81. The applicant has been diagnosed as suffering from a psychiatric disorder (PTSD, generalised anxiety disorder or major depressive disorder), alcohol abuse and drug abuse.
82. Having examined all the material before it, the Tribunal is satisfied that the material points to a hypotheses connecting the applicant's diagnosed condition with his operational service.
83. The hypotheses raised are based on the applicant having experienced several severe psychosocial stressors while serving in Vietnam waters. These severe stressors have been termed:
· the near asphyxiation incident involving fumes within the gun station
· the gun misfire incident
· the gun hoist or lift pawl incident
· his continued exposure to reminders of these incidents while on the gun line.
84. The Tribunal will deal with the alcohol and drug abuse and then return to the more problematic psychiatric disorder.
85. The relevant SoPs are 76 of 1998 concerning alcohol abuse and dependence and 78 of 1998 concerning drug dependence and abuse.
86. SoP 76 of 1998 defines alcohol abuse and relies on the diagnostic criteria specified in DSM-IV. The Tribunal finds that the applicant' satisfies the diagnostic criteria under 2(b)A.(2) and (4). With respect to the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the circumstances of a person's relevant service, the applicant submitted:
(a)that he was suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse; or
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol abuse.
87. SoP 76 of 1998 defines experiencing a severe stressor as
… 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.
88. The Tribunal finds that the incident termed near asphyxiation gun station event meets factor 5(b) of SoP 76 of 1998 and the hypothesis raised is therefore reasonable.
89. The occurrence of the near asphyxiation incident is supported by the evidence of Mr Bastow (para 30 above) and Mr Arndt (para 45 above). Commodore Mulcare, as a result of his research, has not been able to exclude the occurrence of this incident. The applicant identified this incident as resulting in nightmares (trans p20), a continuing fear of exposure to gaseous substances and the long term effect that these might have upon him. Based on the facts before it, the Tribunal cannot be satisfied beyond reasonable doubt that the applicant's alcohol abuse is not a war‑caused injury (s 120(1) of the Act; the fourth‑step of Deledio). The evidence before the Tribunal indicates that, despite having taken alcohol sporadically before his operational service, the applicant's alcohol intake escalated and became constant while on operational service.
90. With respect to the applicant's cannabis abuse, the parties agreed that he suffers from drug abuse, the only point of contention being whether this abuse was related to his operational service. Having applied the same reasoning to the diagnosis of drug abuse as to that of alcohol abuse, and for the same reasons, the Tribunal is not satisfied beyond reasonable doubt that this condition is not war‑caused.
91. The applicant's alcohol and cannabis abuse continued after operational service and the alcohol abuse was a major factor in the motor vehicle accident involving the applicant in 1975. The subsequent events, namely the motor vehicle accident in 1975 and the traumatic amputation of the applicant's two fingers while in private employment in 1992, may well have aggravated both the alcohol and drug abuse.
92. SoP of 76 of 1998 concerning alcohol abuse and SoP 78 of 1998 concerning drug dependence or drug abuse, with reference to factor 5(b), define experiencing a severe stressor in terms of might evoke intense fear, helplessness or horror. The New Shorter Oxford English Dictionary (5th Edition) defines might as being a possibility. Thus, a less rigorous test applies than the test in SoP 3 of 1999 concerning PTSD or that related to generalised anxiety disorder. The incidents, described by the applicant, and in particular the near asphyxiation incident, satisfy the requirement that they "might evoke intense fear, helplessness or horror".
THE PSYCHIATRIC DISORDER
93. The applicant submitted that his psychiatric disorder, PTSD, or in the alternative, generalised anxiety disorder, as diagnosed by his treating psychiatrist, are war‑caused. On the material before it, the Tribunal finds that a hypothesis has been raised connecting these diagnoses with the applicant's service. The relevant SoPs are numbers 3 and 54 of 1999 concerning PTSD and number 1 of 2000 concerning generalised anxiety disorder. Steps 1 and 2 of Deledio are satisfied. Step 3 of Deledio requires the Tribunal to determine whether the raised hypothesis fits, or is consistent with the template provided by the relevant SoP.
94. The treating psychiatrist, Dr Newlands, when she first saw the applicant in 2001, diagnosed a depressive state, but she changed this to a diagnosis of PTSD after a more detailed history was obtained. She did qualify this diagnosis to the extent that she queried whether the reported severe stressors would meet the DSM‑IV criteria. If they did not, she favoured a diagnosis of generalised anxiety disorder. Whatever the diagnosis, Dr Newlands deduced that the clinical onset occurred within a month of the applicant's operational service. This was based on the evidence that, by that time, he had exhibited alcohol and drug abuse. The applicant's evidence before the Tribunal was that his "worrying" commenced in 1982 and what he described as "waves of depression" commenced after his marriage in 1977 and culminated in the breakdown of his marriage.
95. With respect to SoPs 3 and 54 of 1999, the Tribunal finds the hypothesis is consistent with the template provided by the SoPs. Dr Newlands' report dated 18 May 2001 addressed all the criteria of DSM‑IV for PTSD and found them to be satisfied. The Tribunal notes that the VRB had doubted that the applicant suffers from PTSD, although its decision was, ultimately, based on its finding that the claimed stressors did not meet the definitional requirements.
96. The applicant's evidence before the Tribunal did not tally with Dr Newlands' report of May 2001. For example, the applicant informed the Tribunal that his dreams/nightmares related primarily to his current work situation and the need to maintain standards in that arena, rather than to his experiences on operational service. When informed of these facts, Dr Newlands was of the opinion that the applicant did not meet the DSM‑IV criteria for PTSD and therefore, favoured a diagnosis of generalised anxiety disorder. Dr Newlands stated that she had considered criteria for generalised anxiety disorder, but had not provided a report detailing her findings on this diagnosis.
97. Dr Ratnayake provided reports for the respondent and gave evidence before the Tribunal. She had originally, somewhat reluctantly, diagnosed PTSD on the history given by the applicant, although held mental state examination did not correlate with that diagnosis. She had attributed the applicant's PTSD to the failure of a personal relationship in 1999. She did not find that the applicant's psychiatric disorder was related to his naval service. When informed of the applicant's evidence before the Tribunal, Dr Ratnayake rescinded her diagnosis of PTSD and substituted a diagnosis of chronic depressive disorder. She was quite adamant that the applicant showed no signs or symptoms of anxiety.
98. Neither psychiatrist has fully addressed the effect that the applicant's motor vehicle accident in 1975 might have had on his psychiatric status. Neither psychiatrist had been aware that this motor vehicle accident had altered his medical categorisation in the navy and precluded him from going to sea until 1978. Similarly, neither had considered the potential effect of the traumatic amputation of his fingers in 1992, while employed in the private sector.
99. The Tribunal has considered the claimed severe stressor incidents and notes that these are not exactly the same as those reported to the psychiatrists. The so‑called hang‑fire incident is determined not to be a severe stressor, as delineated by the SoP concerning PTSD, in that the applicant was fully trained to deal with and, in fact, was an expert in dealing with such incidents. This conclusion is supported by the evidence of Commodore Mulcare and Mr Arndt. Likewise, the pressure and anxiety experienced in his involvement on the gun line in three successive 45‑day deployments was the norm in this arena, and does not qualify as a severe stressor.
100. The gun hoist or lift pawl incident was a situation for which the applicant had been trained. He was aware that such repairs were only undertaken when the hoist was turned off. It would appear to have occurred only because there was some slack in the hoist sprocket.
101. The near asphyxiation incident, when the applicant was overcome by gun turret fumes, does satisfy the requirements of a severe stressor in that the applicant was confronted with an event that involved threatened death or serious injury and resulted in subjective responses equivalent to intense fear and helplessness.
102. Step 4 of Deledio requires the Tribunal to consider, under s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war‑caused injury.
103. It is not the Tribunal’s role to make a diagnosis, but to decide on a diagnosis based on the medical evidence before it, on the balance of probabilities (Benjamin. The Tribunal finds that the psychiatric evidence is conflicting, contradictory and deficient to the extent that neither psychiatrist has turned their minds to all the traumatic episodes the applicant has suffered during operational service and after service.
104. Dr Newlands has stated that the applicant's alcohol abuse and cannabis abuse commenced in Vietnam and she has extrapolated from this that his PTSD or generalised anxiety disorder was present from that time. Dr Ratnayake, having initially diagnosed PTSD, had related this to the applicant's de facto relationship breakdown in 1999. Dr Ratnayake changed her diagnosis to a depressive disorder of the same aetiology and stated that the applicant showed no evidence of a generalised anxiety disorder. Dr Newlands, initially having diagnosed PTSD, in her evidence before Tribunal changed her diagnosis to generalised anxiety disorder. Dr Newlands also stated that "my notes are not clear enough to say" (trans p94) what the applicant's industrial accident, when two of his fingers were amputated, might have had on his psychological status.
105. While the Tribunal is convinced that the applicant suffers from a psychiatric disorder, the nature of the disorder, its cause and the time of onset are unclear. On this basis the Tribunal finds that hypothesis raised with respect to PTSD or, in the alternative, generalised anxiety disorder, cannot be tested as required by step 4 of Deledio.
106. With respect to the diagnosis of PTSD, the applicant's lack of avoidance behaviour is perturbing. The applicant has an excellent work record as a weapons technician and obviously enjoys his work in the private sector, servicing naval guns, ammunition hoists and the like. He gave evidence that he only talks to other naval veterans. While avoidance of stimuli is a major consideration in SoP 3 of 1999 (factor 2(c)(i), (ii) and (iii)), this is not exclusive but is usually a major symptom in persons diagnosed with PTSD. It is obviously lacking in this applicant.
107. In light of the conflicting psychiatric evidence the Tribunal is not satisfied on the balance of probabilities that the applicant suffers from PTSD or generalised anxiety disorder and, therefore, the hypothesis relating to these two diagnoses is rejected. The Tribunal notes that in Re Easton (at 778) the Tribunal stated:
… that the fact that medical and scientific evidence did not always provide clear answers to questions did not necessarily mean that a court of tribunal could not reach a state of reasonable satisfaction in respect of such matters. In this instance the Tribunal has not been able to reach a state of reasonable satisfaction.
108. The Tribunal finds that the evidence before it supports the hypotheses based on factor 5(b) of SoP 76 of 1998 concerning alcohol abuse and dependence, and factor 5(b) of SoP 78 of 1998 concerning drug dependence or abuse. Both of these SoPs define "experiencing a severe stressor" as
…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.
109. The Shorter Oxford English Dictionary (5th Edition) defines might as being a possibility. Thus, a less rigorous test applies than that in SoP 3 of 1999 concerning PTSD and SoP 1 of 2000 concerning generalised anxiety disorder which relate to severe stressor to the evocation of feelings of substantial distress in the individual.
110. Further expert psychiatric examination and opinion may resolve the diagnosis of the applicant’s psychiatric status to enable a new application.
I certify that the one hundred and ten [110] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 2 July 2004
Date of Decision: 3 December 2004
Counsel for the applicant: Mr . Thomson
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: Peter J. Liefman
Advocate for respondent: Mr K. RudgeSolicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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