Watson and Repatriation Commission

[2007] AATA 1205

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1205

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 200500652

VETERANS' APPEALS DIVISION		)
Re		BRUCE WATSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr I Alexander, Member

Date5 April 2007

PlaceSydney

Decision The decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
  ...........................................
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – whether conditions described as depressive disorder, alcohol dependence or alcohol abuse are war-caused – Applicant served in the Royal Australian Navy – operational service aboard HMAS Vendetta and HMAS Sydney – Tribunal satisfied that the correct diagnoses are anxiety disorder with a depressive disorder and alcohol abuse – no evidence that the Applicant met all diagnostic criteria for alcohol abuse or alcohol dependence – Tribunal satisfied that the Applicant’s service aboard HMAS Sydney did not amount to a severe psychosocial stressor – decision under review affirmed

Veterans’ Entitlements Act 1986 – ss 6C, 120

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hancock (2003) 37 AAR 383

Benjamin v Repatriation Commission (2001) 70 ALD 622

Lees v Repatriation Commission (2002) 125 FCR 331

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16

REASONS FOR DECISION

5 April 2007   Senior Member M D Allen
Dr I Alexander, Member    

1.      By application made the 25^th day of May 2005 the Applicant sought review of a decision by the Respondent dated 14 August 2003 that rejected his claim to have the conditions stated to be “depressive disorder” and “alcohol dependence or alcohol abuse” attributed to his service in the Royal Australian Navy (“RAN”).

2.      The Applicant served in the RAN from 29 September 1958 to 3 September 1965.  During that period he had operational service, whilst a crew member of HMAS Vendetta, during the Malayan emergency for a total period of 105 days, over 16 distinct periods between 26 November 1959 and 5 July 1960.  A further period of 31 days operational service was experienced whilst aboard HMAS Sydney, on a voyage to and from Vung Tau in South Vietnam.

3. As the Applicant had operational service, as that term is defined in s 6C of the Veterans’ Entitlements Act 1986 (“VEA”), the standard of proof in this matter is that mandated by ss 120(1) and (3) of the VEA.

4. Sub-sections 120(1) and (3) of the VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal would be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A of the VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.

5. Sub-section 120(6) of the VEA provides that neither party to this review bears any onus of proof.

6.      The manner in which this Tribunal must approach its task where a SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. The so called Deledio principles are now so well known as not to require recapitulation here.

7.      Notwithstanding the manner in which the Tribunal is required to approach its task as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding, the standard of proof is that to the Tribunal’s “reasonable satisfaction” and in which the SoP regime, established by s 196B of the VEA, has no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622.

8.      We are satisfied, given the reports and evidence of Drs Dinnen and Delaforce, that the correct diagnosis of the Applicant’s disease is generalised anxiety disorder with a depressive disorder and alcohol abuse.  Dr Dinnen regards the Applicant’s alcohol abuse as being a sequelae of his depressive disorder, whereas Dr Delaforce regards the Applicant’s primary condition as being alcohol abuse, with the depressive disorder a subsequent result of that illness.  We note that neither Doctor regards the Applicant as having a post traumatic stress disorder (“PTSD”), and in earlier proceedings, Psychiatrists Dr Lee and Dr Shand opined that the Applicant was suffering a generalised anxiety disorder rather than PTSD.

9.      The evidence upon which the Applicant based his hypothesis connecting his diseases with service was not subjected to any real challenge by the Respondent.  The Applicant stated that he had been raised in a loving but strict Mormon family but emulating an older brother he had joined the RAN at age 17 years.

10.     His initial recruit training was at HMAS Cerberus in Victoria.  Being raised in the Mormon faith he had not been exposed to alcohol but had his first drink of alcohol when on leave from HMAS Cerberus.

11.     After recruit training the Applicant was posted aboard HMAS Vendetta which was then allocated to the Far East Strategic Reserve.  During this period the vessel conducted practice firings.  During these periods the Applicant’s action station was in an ammunition magazine loading shells onto a hoist for transmission to a gun.

12.     In his statement tendered in previous proceedings (A4 in these proceedings) the Applicant claimed that he was involved in six engagements with the enemy.  This is patently false but in his most recent statement (A2) the Applicant says:

“The history books say we were not fired on, but, I was there and I know what I was told by the older sailors.  I know the ship did so some exercises in the region; even these were scary, because, I was locked down in the magazine”.

13.     In these proceedings the Applicant re-stated that whilst at action stations in the magazine he would become very scared and his legs would go like jelly.  His statement contains the following passage:

“I was a young lad of 18 years, immature, and very sensitive to any aggression or threat (real or perceived) and therefore thought I was being threatened, and my life was in danger the whole time I was down in the magazine, we were loading the ammo onto the lift to go up to the gun turret.  I was so frightened I would get the sweaty palms and jelly in the legs; sometimes I even cried I was so upset, tears kept running down my face, and this made feel even worse”.

He added, “Because I was so young and inexperienced this was extremely frightening to me, I had no idea what would happen to us (me) in the magazine if the ship was hit by a stray or enemy shell”.

14.     Exhibit R6 sets out the history of the involvement of HMAS Vendetta in the Malayan emergency and at no time was it engaged in operations against an enemy, much less being fired upon, but it did carry out practice firings.

15.     During the time HMAS Vendetta was attached to the Far East Strategic Reserve, the Applicant went absent without leave from the ship whilst it was docked in Singapore.  He was taken into custody by Royal Naval Service Police and transported on a Royal Navy vessel to Colombo where he rejoined HMAS Vendetta.  As a result of his escape he was charged with a naval offence and a punishment imposed.

16.     In a report dated 2 July 2001, Dr Dinnen records the Applicant as stating that he “jumped ship” in Singapore because he had had enough of being on the HMAS Vendetta.  In evidence the Applicant said that he was finding things stressful aboard the Vendetta and did not want to go back into the magazine.  Ms Smith, Psychologist, in a report dated 1 June 1999 records a history that, “During his time in Malaysia he ‘jumped ship’ due to his level of homesickness”.

17.     Following his service aboard HMAS Vendetta the Applicant undertook a further period of training at HMAS Cerberus and was then posted to a shore establishment at Darwin.  During this period he reported sick for conditions diagnosed as “insomnia” and “nervous dyspepsia”.  He also stated that at that time he had come into conflict with his Commanding Officer, a Captain Keating.

18.     During the period 27 May 1965 to 26 June 1965 the Applicant was a crew member of HMAS Sydney when it undertook a voyage to South Vietnam.  The Applicant did not state how long HMAS Sydney remained in Vung Tau harbour on this voyage but a minute from the Deputy Chief of Naval Staff dated 5 December 1984, states that if unloading operations took more than one day HMAS Sydney proceeded to sea overnight in preference to remaining at anchor in the port.

19.     During this voyage by the Sydney the Applicant was an Atomic Biological Chemical Defence Monitor.  As he evocatively put it “I felt like a canary”; meaning that if any atomic, biological or chemical attack had taken place he would be the first to experience its effects.

20.     Although not the fact, the Applicant states that he was told at this time that limpet mines had been found attached to the hull of HMAS Sydney whilst anchored in Vung Tau harbour.  In cross-examination he stated that he found his Malaysian service more stressful than the voyage to Vietnam.

21.     After his voyage to South Vietnam aboard the Sydney, the Applicant was examined by a Naval Psychiatrist or Psychologist and was given what was termed a “free discharge”, although he still had two years left to serve of his period of engagement.  Unfortunately, the Applicant’s service documents do not contain any reference to the reason for discharge or any medical examinations prior to discharge being recommended.  The record of a medical examination at the time of discharge contains no notation of any psychiatric illness nor does it note any complaint by the Applicant of any signs or symptoms of psychiatric illness.

22.     As to his drinking, the Applicant states that he started drinking regularly whilst onboard HMAS Vendetta.  When non-operational, there was a daily issue of beer and there were never any problems getting an issue, although he was not yet 21.  When ashore off Vendetta he would drink “quite a lot” and thinks he drank to relive tension.  After service aboard HMAS Vendetta he would drink every day and get drunk most days.  After discharge from the Navy he continued to drink.

23.     The hypotheses raised by the material are that either the Applicant‘s alcohol dependence or his generalised anxiety disorder had their cause in the period aboard HMAS Vendetta, when he was at action stations in a magazine, and that the conditions were aggravated by the stress experienced aboard HMAS Sydney on its trip to South Vietnam.

24.     The relevant Statements of Principles are Numbers 1 of 2000 re Anxiety Disorder and 76 of 1998 re Alcohol Dependence or Alcohol Abuse.

25.     It was conceded by the Applicant’s counsel that he could not meet the criteria set out in either Instrument No. 17 of 2007 (the current Instrument) or Instrument No. 58 of 1988 (the Statement of Principles in force at the time of the Respondent’s decision) regarding Depressive Disorder.

26.     The diagnostic criteria in Instrument No. 1 of 2000 for Anxiety Disorder refers to the ICD code rather than the DSM.  The applicable factor for causation is factor 5(a)(ii) viz., experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder, whereas factor 5 (a)(v) refers to a clinical worsening viz., experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder.

27.     The term “severe psychosocial stressor” is defined as:

“… an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.

28.     Alcohol dependence is defined in Instrument No. 76 of 1998 in the following terms:

“… the presence of a constellation of cognitive, behavioural and psychological symptoms indicating the use of alcohol despite significant alcohol-related problems.  The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour”.

Whereas factor 5(a), (b), (c) and (d) read:

“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;

(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;

(c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse;

(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse”.

29.     For the Applicant to succeed, the Tribunal must be satisfied that none of the facts necessary to support the hypothesis raised by the Applicant have been negatived beyond a reasonable doubt.  In particular, the Tribunal must be satisfied to the requisite standard, that the Applicant did not suffer a severe psychosocial stressor two years before the clinical onset of either his anxiety disorder or alcohol abuse.

30.     The term “clinical onset” was explained in Lees v Repatriation Commission (2002) 125 FCR 331, in the following terms, namely, that there is a clinical onset of a disease either when a person becomes aware of some feature or symptom which enables a medical practitioner to say the disease was present at that time, or when a finding was made on investigation which is indicative to a medical practitioner of the disease being present.

31.     In Lees supra, the Court also pointed out that for a disease to exist, all of the symptoms (or features) given as the diagnostic criteria in the Statement of Principles must exist, not just some of them.

32.     Thus, to enable the Tribunal to say that within two years of the Applicant’s return from operational service aboard HMAS Vendetta he had the diagnostic criteria to enable a diagnosis of anxiety state to be made, he would have had to have had the following symptoms on or before 5 July 1962, viz. :

“A.Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B.The person finds it difficult to control the worry; and

C.The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:

D.The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and

E.The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F.The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”

33.     Similarly, if the initiating illness is regarded as alcohol dependence, which is the opinion of Dr Delaforce, the constellation of symptoms required is:

“A maladaptive patter of alcohol use, leading to a clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:

(1)    tolerance, as defined by either of the following:

(a)    a need for markedly increased amounts of alcohol to achieve intoxication or desired effect

(b)    markedly diminished effect with continued use of the same amount of alcohol

(2)    withdrawal, as manifested by either of the following:

(a)    the characteristic withdrawal syndrome for alcohol

(b)    the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms

(3)alcohol is often taken in larger amounts or over a longer period than was intended

(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use

(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects

(6)important social, occupational or recreational activities are given up or reduced because of alcohol use

(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol.”

34.     Unfortunately, there are no reports in the Applicant’s service documents of any psychiatric or psychological assessment during his service.  There are medical reports which show that the Applicant was treated at various naval establishments for various injuries and diseases, but the only possible relevant entries are on 9 May 1963 and 18 June 1963 for insomnia, and 29 April 1963 for nervous dyspepsia - both illnesses occurring in Darwin.

35.     Dr Dinnen was of the opinion that these entries in the Applicant’s service medical documents indicate the clinical onset of the Applicant’s anxiety disorder.  In his report and in his evidence Dr Dinnen does not descend into particularity as to how the insomnia and nervous dyspepsia could be regarded as indicia of a generalised anxiety state.  As pointed out by the New South Wales Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, a Court (or Tribunal) should not act upon an expert opinion, the basis for which is not explained by the witness expressing it.

36.     All that is known of the Applicant’s nervous dyspepsia and insomnia in 1963 is that they occurred at a time when the Applicant was in conflict with his commanding officer, and nervous dyspepsia is a generalised non-descriptive symptom consistent with many conditions, for example, gastro-oesophageal reflux, which is recognised as a war-caused disease suffered by the Applicant.  There is no analysis of the symptoms required to support a diagnosis of an anxiety state to evidence that either prior to 5 July 1962 or later those specific symptoms did in fact exist.  Further, we are satisfied beyond a reasonable doubt that at no time within the two years after operational service they did in fact exist.

37.     Similar comments can be made regarding the Applicant’s alcohol abuse.  Although the Applicant had one period of absence without leave whilst on shore leave in Singapore, there has been no evidence that it was alcohol-related, as opposed to either a reluctance to return to the Vendetta or as the Applicant allegedly told Ms Smith the psychologist, due to home sickness.  For the rest of his naval career there is no evidence of any alcohol-related offences or any warnings for inefficiency due to overindulgence in alcohol.

38.     Dr Delaforce compiled a comprehensive report respecting the Applicant after a consultation lasting 3 hours and 31 minutes, together with a follow-up interview lasting 16 minutes.  He also had access to clinical notes of the Applicant’s treating doctors, including Dr Altman, Psychiatrist, and the reports of Psychiatrists Drs Shand and Dinnen.

39.     In his report of 28 September 2005, Dr Delaforce explains the Applicant’s psychiatric problems thus:

“A better explanation of psychological/psychiatric problems related to his navy service comes from his feeling ashamed and guilty about his behaviour during service, including his going AWOL, excessive use of alcohol, and being diagnosed with gonorrhoea.  Such problems were aggravated by his strict Mormon upbringing and what he called his ‘religious guilt’.  This all resulted in him attending a Chaplain, being referred to a counsellor, obtaining an early discharge from the navy, and then avoiding telling people that he served in the navy”.

40.     Discussing the Applicant’s alcohol dependence, Dr Delaforce pointed out that you do not need a psychosocial stressor to develop alcoholism.  In his report he opined that the Applicant’s alcohol dependence was the result of alcohol abuse and that the main reason for the Applicant’s increasing use of alcohol was that “he got to like it”.

41.     So far as the diagnoses of insomnia and nervous dyspepsia are concerned, Dr Delaforce pointed out in evidence that insomnia can result from an increased use of alcohol and that the Applicant was having a lot of difficulty coping with naval life at that time.  (We have previously referred to the Applicant’s evidence of conflict with his Commanding Officer whilst in Darwin).

42.     Dr Delaforce was rigorously cross-examined; the result of that cross examination was to establish Dr Delaforce as a thorough and competent expert whose opinions must be treated with the utmost regard.

43.     The Applicant has given a history of a continued use of alcohol and of his intake of alcohol increasing.  There is no evidence, however, that by the time he was discharged from the Navy, nor for the two years subsequent, he met all the diagnostic criteria for alcohol abuse nor alcohol dependence.  Consequently, we are satisfied beyond reasonable doubt that the Applicant has not met the factors necessary to raise a reasonable hypothesis.  What the Applicant’s medical reports have concentrated on is a retrospective analysis of the Applicant’s illnesses without being able to demonstrate any symptomology objectively present at the requisite time.

44.     So far as the Applicant’s service aboard HMAS Sydney is concerned, we are satisfied beyond reasonable doubt that whereas the Applicant may have been apprehensive with regards to his service in Vietnamese waters or on the way to South Vietnam, the events both objectively and subjectively did not amount to a severe psychosocial stressor.  Further, we are satisfied beyond reasonable doubt that at no time after his return from South Vietnam did any diagnostic criteria for either alcohol abuse or dependence nor anxiety state exhibit a clinical worsening.

45.     As we are satisfied beyond reasonable doubt that the necessary factors have not been met so as to support a reasonable hypothesis of connection of the disease of anxiety state, alcohol dependence/abuse and depression with service, the decision under review is affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:

[Amanda Aitken]

....................................................................................

Associate

Date/s of Hearing  15 & 16 November 2006; 13 March 2007
Date of Decision  5 April 2007
Counsel for the Applicant                  Mr N Dawson
Solicitor for the Applicant                   KCI Lawyers

Representative for the Respondent   Department of Veterans’ Affairs, Advocacy Section