Turner and Repatriation Commission

[2004] AATA 290

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 290

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/722

VETERANS' APPEALS  DIVISION		)
Re		GRAEME TURNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date19 March 2004

PlaceBrisbane

Decision The decision under review is varied in part. 

.........………(Sgd).........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements - pension – post-traumatic stress disorder and alcohol abuse or dependence – whether condition aggravated – aggravation caused by inability to obtain appropriate clinical management – whether symptoms associated with PTSD created an inability to obtain appropriate clinical management – whether cultural factors create an inability to obtain appropriate clinical management – whether inability to obtain appropriate clinical management was related to service

Veterans Entitlements Act 1986

Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626

Repatriation Commission v Deledio (1998) FCR 82

Brew v Repatriation Commission (1999) 94 FCR 80

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

19 March 2004 Senior Member B J McCabe        

1.      This is an application for review of a decision of the Veterans’ Review Board dated 2 May 2002 which affirmed an earlier decision of the Repatriation Commission dated 5 October 2001, to refuse the applicant’s claim for pension for incapacity from post traumatic stress disorder (PTSD) and alcohol dependence or abuse.

2.      The Tribunal heard the matter on 3 March 2004. The applicant was represented by Mr Honchin.  The respondent was represented by Mr Stoner, a departmental advocate.

3. Before the Tribunal were documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975.  Also submitted as exhibits were:

·     A statement of the applicant dated 27 March 2003;

·     A report of Dr Rogers dated 20 May 2003;

·     A bundle of medical records from the time of the applicant’s service;

·     A report of Dr Mullholland dated 21 October 2003.

Facts before the Tribunal

4.      Mr Turner enlisted in the navy as a young man. He was serving aboard HMAS Melbourne on the night it collided with the USS Frank E Evans. He was on lifebuoy duty that evening: he was responsible for throwing flotation devices to sailors who fell overboard. His description of what happened as the ships collided was vivid and frightening. He said he watched as bodies were fished out of the water. He saw one American sailor in particular trying to escape the wreck of his ship by climbing through the scuttles. The man became trapped and sank before the applicant’s eyes.

5.      This particular aspect of the incident appears to have stayed with the applicant in the form of recurrent dreams that he says became more prevalent after he transferred to serve on patrol boats in 1972. During this period – which roughly coincides with his commencement of eligible defence service – he dreamed of sharks coming through the scuttles of the patrol boat.

6.      Soon after the collision, when the Melbourne docked in Singapore, the applicant said he began to drink heavily. That pattern appeared to continue more or less uninterrupted throughout the remainder of his service. He and a friend went AWOL (absent without official leave) when the Melbourne returned to Australia. Mr Turner said the pair spent about eight days in a hotel in Kings Cross, drinking heavily. They returned to their ship when the money ran out. They had nowhere else to go, but the applicant said he made it clear he did not want to return to the navy. The applicant was never charged over his absence. He was given a transfer instead.

7.      The applicant subsequently served on HMAS Queensborough. He said he coped by blocking out the experience aboard the Melbourne. He was not entirely successful: he said he began to engage in a ritual each night of untucking the sheets in his bed so he could escape quickly in the event of an emergency. He also had some bad dreams. He said he had more difficulty blocking out the unpleasant memories and dreams when he transferred to Cairns and began serving on patrol boats during 1972.

8.      He said the dreams (especially the dream about sharks coming through the scuttles) became more common. He became a regular sleepwalker. He described an incident where he awoke to find himself cursing an ironing board that he believed was obstructing his path. He said his motivation diminished. He said he also continued his pattern of heavy drinking.

9.      When at sea, he was able to purchase the beer rations issued to other sailors who preferred not to drink. His mates covered for him, and he conceded there was no reason for his officers to be aware of either his drinking habits or his sleep disturbances.

10.     Mr Turner was discharged from the Navy in 1978 due to a knee injury.

The Law

11.     The relevant statements of principles are No 4 of 1999 (as amended by no 55 of 1999) and No 7 of 1998. The applicant relies on factor 5(c) of each statement of principles.

12.     The decision of the Full Federal Court in Repatriation Commission v Deledio (1998) FCR 82 says I must consider whether the applicant’s account raises a reasonable hypothesis. The assessment is made having regard to the relevant statements of principles.

Testing the Hypothesis

13.     The applicant says his conditions were aggravated because he was unable to obtain appropriate clinical management of his PTSD and alcohol abuse conditions. He gives two reasons: because (a) (according to his treating psychiatrist) his PTSD would have made him secretive and unwilling to seek help; and (b) there were cultural barriers that discouraged sailors from seeking help for any form of psychiatric disorder. He said the cultural barriers were particularly real given his age and the fact he worked on a small ship in the company of “Old Salts” (older, more experienced sailors), and where he perceived he was obliged to go through naval medical personnel before seeking help.

14.     The meaning of “aggravation” was considered by the High Court in Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626. Windeyer J explained (at 637) a condition was aggravated if the consequences of the sufferer’s affliction become more serious. His Honour added (at 639) the real question was:

whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.

15.     The difficulties in obtaining appropriate clinical management of a condition were discussed in the Full Federal Court’s decision in Brew v Repatriation Commission (1999) 94 FCR 80. Merkel J noted the expression should be interpreted with an eye to practical reality. The Veterans’ Entitlements Act 1986 is beneficial legislation, after all.

16.     It was accepted in Brew that references in the statements of principles to an inability to obtain clinical management did not mean the applicant was physically prevented from obtaining help, or that help was unavailable. Merkel J said (at paragraph 30 of the judgement

It would be erroneous to limit “inability” to “some overwhelming psychological or emotional incapacity”..  If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management…I see no reason why those circumstances are not capable of constituting a “condition of not being able” to obtain treatment.

17.     With those statements in mind, Mr Honchin referred me to the opinion of Dr Rogers. The doctor said in his report:

The reluctance to communicate his distress was partly due to with the naval ethos at the time but also and more importantly was a direct consequence of his PTSD symptoms themselves which are characteristically kept secret or denied.

18.     The doctor’s opinion suggests it is reasonable to assume the applicant was unable to obtain appropriate clinical management of either condition. But Mr Stoner said I could not rely on the applicant’s PTSD as a source of inability because it was not itself an accepted condition. He referred to the Full Court’s decision in McKenna v Repatriation Commission (1999) 86 FCR 144. In that case, the veteran suffered from ischaemic heart disease and relied on the presence of hypertension as the means of establishing the causal link between his ultimate condition and his eligible service. The Court rejected the claim, saying the veteran could only establish the causal link if he could show that his hypertension itself arose out of service – which required consideration of the statement of principles relating to hypertension. The applicant was unable to establish any link between the hypertension and his service.

19.     The decision in McKenna makes sense. One cannot establish a link between a condition and eligible service by relying on another condition if that other condition is unrelated to service. The whole point of the legislative scheme is to require the Commonwealth to take responsibility for conditions that were caused, one way or another, by the veteran’s service in the armed forces. If one keeps that objective in mind, it is possible to distinguish the decision in McKenna from the present case. In this case, the applicant says his condition was aggravated by the circumstances of his service. In particular, his doctor says PTSD made the applicant reluctant to seek help – it may even have made him secretive. Subject to being satisfied there was in fact an aggravation, it is possible to find PTSD was the source of an inability to obtain appropriate clinical management. I think that is so even where the condition was not technically caused by eligible service for the purposes of obtaining a pension, albeit that it had its genesis while he was in the Navy.

20.     If I am wrong in that conclusion, it is nonetheless possible that the cultural factors on their own described by Dr Rogers could be the source of an inability to obtain appropriate clinical management of the conditions.

Fact Finding

21.     I am satisfied the PTSD condition was aggravated after the applicant commenced duties on the patrol boats in 1972, during his defence service. While he was drinking heavily and had engaged in other behaviour (like untucking his sheets) and had some dreams in the immediate aftermath of the collision in 1969, I am satisfied from his evidence that the dreams and sleepwalking and de-motivation became worse after 1972. I accept his explanation that he was no longer able to block out the night of the collision after he commenced service on the patrol boats.

22.     His condition was therefore aggravated in that the effects of the condition became more serious on the patient: Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626 at 639 per Windeyer J.

23.     I am not satisfied the applicant’s drinking became worse during his time on the patrol boats. A pattern of heavy drinking appeared to have been established from the time the Melbourne docked in Singapore after the collision, and continued when the applicant returned to Sydney. The applicant was certainly able to continue his drinking on the patrol boats, but it does not appear the condition was worsening, or that it was aggravated by an absence of treatment.

24.     The applicant made it clear he did not like visiting doctors. I accept Dr Rogers’ explanation that the applicant’s PTSD made him reluctant to seek help for a condition he did not understand. I also note the applicant was not necessarily aware he was sick – he said during his oral evidence that he did not realise his condition was abnormal. But I am also satisfied he was distressed by the symptoms, and wanted to do something about them apart from self-medicating with alcohol. I am therefore satisfied the applicant’s condition constituted an inability to seek appropriate clinical management of his illness.

25.     Even if the applicant’s condition could not be considered to be the source of an inability to obtain management, I am satisfied cultural factors were capable in their own right of creating an inability seek assistance. The applicant was a very young man when he joined the Navy. He was apparently impressionable. He spoke of a culture within the Navy that discouraged sailors from seeking medical assistance for anything but the most serious physical conditions. He said the “Old Salts” (longer-serving sailors) would actively discourage younger sailors from seeking assistance. He said there was particular sensitivity about seeking help for anything that might suggest a mental disorder when one served on a small ship, as sailors were conscious they must be able to trust their shipmates with their lives. He believed he was unable to approach civilian doctors for assistance – even when off-duty – without going through naval medical personnel on the base. The naval medical personnel on the patrol boat base in Cairns were not qualified doctors.

26.     I am satisfied after hearing all the evidence that Mr Turner genuinely felt unable to seek help for the symptoms he was experiencing. He was not merely discouraged from seeking help; he actually felt incapable of doing anything about the bad dreams and the sleepwalking and other symptoms because of his environment.

Conclusion

27.     The decision under review is varied in part. I conclude the applicant’s PTSD is related to his defence service, although I am satisfied his alcohol abuse condition is not so related. The earliest date of effect is 1 July 2001.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed:         ........................Sgd...........................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 3 March 2004
Date of Decision: 19 March 2004
The Applicant was represented by           Mr Honchin.
The Respondent was represented by Mr Stoner, a departmental advocate.