Wright and Repatriation Commission
[2004] AATA 803
•2 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 803
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/609
VETERANS' APPEALS DIVISION ) Re KEVIN WRIGHT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date2 August 2004
PlaceSydney
Decision The Tribunal determines that:
(1) the decision of the Veterans’ Review Board dated 7 March 2003 is set aside and in substitution thereof the Tribunal determines that the disease of chronic pancreatitis is war-caused with date of effect being 19 January 2002;
(2) the decision of the Repatriation Commission dated 22 October 2002 is varied as follows:
(a) the diagnosis of the psychiatric disorder is alcohol dependence and drug dependence (marijuana); and
(b) the diagnosis of post-traumatic stress disorder is deleted; and
(c) that the disease/injuries of alcohol dependence, drug dependence (marijuana), diabetes mellitus are war-caused with date of effect being 26 January 2002; and
(3) the remainder of the decision of the Repatriation Commission of 22 October 2002 is affirmed and this includes the diagnosis of the Applicant's non war-caused diseases/injuries and the payment of the Applicant's disability pension at 100 per cent of the General Rate.
[Sgd] Dr J D Campbell
Member
CATCHWORDS
VETERANS' ENTITLEMENTS - diagnosis of conditions claimed - clinical onset - entitlement - assessment - special rate - remunerative work
Veterans' Entitlements Act 1986, sections 14, 19, 24, 28, 120
Lee v Repatriation Commission [2002] FCAFC 398
Woodward v Repatriation Commission [2003] FCAFC 10
Banovich v Repatriation Commission (1986) 9 FLN 223
Forbes v Repatriation Commission (2000) 171 ALR 131
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
2 August 2004 Dr J D Campbell, Member 1. In this matter, Mr Kevin Wright (“the Applicant”) seeks a review of the following decisions:
(a) The decision made by the Veterans’ Review Board (“VRB”) dated 31 March 2003 to amend the diagnosis of the Applicant’s abdominal condition from acute pancreatitis, as determined by the Repatriation Commission (“the Respondent”) in a decision dated 10 August 2001, to chronic pancreatitis and having so done conclude that the disease was not war-caused;
(b) The decision of the Respondent dated 22 October 2002 that determined the following diseases/injuries are not war-caused:
·post-traumatic stress disorder
·drug dependence/drug abuse
·diabetes mellitus
·carpal tunnel syndrome of both wrists
·cervical spondylosis
·bilateral conductive hearing loss
·alcohol dependence/alcohol abuse;
(c) The decision of the Respondent dated 22 October 2002 to maintain the Applicant’s disability pension at 100 per cent of the General Rate.
2. The Applicant was born on 13 January 1949 at Toowoomba, Queensland. He served in the Navy from 5 January 1965 until 29 November 1973, with two periods of operational service from 24 April 1966 to 18 May 1966 and from 24 May 1966 to 11 June 1966, and one major period of absence without leave from 6 October 1971 until 16 November 1973.
3. The Applicant lodged a claim on 19 January 2000 for the conditions of post-traumatic stress disorder, alcohol abuse, drug dependence or drug abuse, chronic bronchitis and diabetes mellitus to be accepted as war-caused conditions. All conditions nominated in the claim were refused by the Respondent on 21 March 2000, and this decision was affirmed by the VRB on 6 February 2001.
4. The Applicant lodged a claim for pancreatitis on 3 January 2001. The Respondent nominated the diagnosis of this condition to be acute pancreatitis on 10 August 2001. The Respondent refused the claim on the grounds that while the Applicant did suffer from alcohol abuse, there was no diagnosis of alcohol abuse during service in Vietnam. Similarly, the Respondent was unable to identify material pointing to other factors nominated within the Statement of Principles (“SoP”) Instrument Number 74 of 1998. On 31 March 2003 the VRB amended the diagnosis to chronic pancreatitis and concluded that this condition was not war-caused as the Applicant’s material was not congruent with any of the factors nominated within SoP Instrument No 57 of 2001 concerning chronic pancreatitis.
5. On 26 April 2002 the Applicant lodged a claim for the following conditions:
·post-traumatic stress disorder
·drug dependence or drug abuse
·diabetes mellitus
·carpal tunnel syndrome of both wrists
·alcohol dependence or alcohol abuse
·chronic bronchitis and emphysema
·bilateral sensorineural hearing loss with tinnitus
·bilateral conductive hearing loss
·cervical spondylosis causing problems with use of hands.
6. On 3 July 2002 the Respondent accepted the Applicant’s claim for bilateral sensorineural hearing loss and bilateral tinnitus and determined that a disability pension at 100 per cent of the general rate be granted from 26 January 2002. A decision on the other conditions was deferred until an additional statement regarding smoking was received from the Applicant.
7. On 22 October 2002 the Respondent accepted the Applicant’s claim for chronic bronchitis and emphysema and determined that the other conditions nominated in the Applicant’s claim of 26 April 2002 were not related to service and that no medical condition of alcohol dependence or alcohol abuse was present. Disability pension was maintained at 100 per cent of the general rate.
8. On 31 March 2003 the VRB affirmed the decision of 22 October 2002 and affirmed the decision to continue disability pension at 100 per cent of the general rate.
issues
9. The issues before the Tribunal are:
a)the diagnosis of the various conditions nominated by the Applicant
b)the consideration and determination as to whether each diagnosed condition was or was not a war-caused disease and/or injury; and
c)the assessment as to whether the Applicant is entitled to pension at the Special rate.
pertinent matters
10. The Tribunal notes that the Applicant does not wish to pursue his claim in relation to the following conditions claimed:
·bilateral conductive hearing loss
·cervical spondylosis
·carpal tunnel syndrome of both wrists.
11. The Tribunal observes that if the Applicant’s claim for chronic pancreatitis is successful, the date of effect for such an entitlement would be 19 January 2002. In relation to for the remaining entitlements, and an assessment of payment at the Special Rate, the date of effect would be 26 January 2002.
12. The Tribunal notes that the Applicant was granted a service pension (invalidity) with date of effect being 19 January 2000. The conditions nominated as preventing him from working were diabetes mellitus and post-traumatic stress disorder (Exhibit A5).
finding
13. The Tribunal having considered all the evidence concludes that:
(a) the conditions suffered by the Applicant are:
· alcohol dependence
· drug dependence
· chronic pancreatitis
· diabetes mellitus
· bilateral sensorineural hearing loss
· bilateral tinnitus
· bilateral conductive hearing loss
· cervical spondylosis
· bilateral carpal tunnel syndrome
· bronchitis and emphysema; and
(b) the war-caused diseases/injuries are:
· alcohol dependence
· drug dependence
· chronic pancreatitis
· diabetes mellitus.
(c) These war-cause injuries/diseases being in addition to the following war-causes diseases/injuries that had been previously determined:
· bilateral sensorineural hearing loss
· bilateral tinnitus
· bronchitis and emphysema.
(d) The Applicant is not entitled to payment of a disability pension at the special rate, as non accepted disabilities of cervical spondylosis, bilateral carpal tunnel syndrome and bilateral conductive deafness contribute to the Applicant’s inability to undertake remunerative work.
Applicant’s evidence
14. The Tribunal is mindful that the standard of proof for diagnosis of a disease and/or injury is one of reasonable satisfaction. In determining diagnosis of a disease and/or injury, the Tribunal must be diligent in the evaluation of the material placed before the Tribunal. The Applicant’s history in this matter is particularly relevant and the following paragraphs encompass much of his story.
15. The Applicant told the Tribunal that he joined the Navy before the age of 16 and spent 12 months at HMAS Leeuwin before being posted to HMAS Sydney as a stoker. He sailed in HMAS Sydney to Vietnam in April/May 1966 and while in Vung Tau Harbour undertook duty in the bomb room which was located at the sixth level below deck in the forward end of the ship. The Applicant described the conditions in the bomb room as extremely hot and dimly lit. He described one occasion in which he descended alone by lift to clear and stack ammunition boxes on the lift so that a second person could join him in the task of unloading the ammunition. After about 10 to 15 minutes, and after he had returned the lift for unloading, the Applicant stated that he heard explosions. He thought the ship was under attack; he ceased work; he froze and he panicked. After a further 10 minutes the Applicant stated that the lift returned with another sailor who told him about the scare charges. The Applicant said that at the time he was confused, shaking and sweating and that for the remainder of his two hour shift in the bomb room he felt exhausted and scared.
16. The Applicant stated that he felt embarrassed, and as though he had let himself down. He said he panicked for no reason when told of the scare charges by the other sailor and remained shaking and sweating. He stated that at the end of his four hour shift with two of the four hours being spent in the bomb room, he went to have something to eat and to get his beer issue. The Applicant said that he was not affected when further scare charges were detonated during other activities in his shift as he knew what was occurring.
17. The Applicant described to the Tribunal an incident which occurred while he was returning to HMAS Sydney by train prior to first sailing to Vietnam. He said he was offered a drink from a bottle and collapsed in a drunken stupor eventually being thrown off the train. He was detained by the police and released to resume his travels the next day. On reporting his ordeal on return to HMAS Sydney, he was warned by his officer to stay away from hotels. The Applicant believes the bottle offered may have contained methylated spirits and that this was his first alcoholic drink.
18. The Applicant described his first trip on HMAS Sydney to Vietnam. He said during the trip he experienced difficulty sleeping, and was hot and exhausted. He does not remember being told about Operation Awkward, because as an ordinary seaman he was not told much. However, he does remember the ship being closed up for approximately 10 days during the latter part of the voyage.
19. The Applicant stated he was unable to remember when the daily beer ration commenced on the voyage to Vietnam, but remembers receiving a 26oz can for 20 cents each evening. On the return voyage to Sydney, the Applicant stated that the ship spent a period of 10 days in Hong Kong during which time he had three of every four days off work. During these periods of leave he would drink as much as he could, and on one occasion was detained by the Hong Kong police, and later released. On his return trip to Sydney, the Applicant stated that he continued to drink all day every day.
20. The Applicant stated that he went to Vietnam a second time on HMAS Sydney in the same year. He described his trip as uneventful, and said he cannot remember much about it. After some nine to ten months on HMAS Sydney, the Applicant stated he was posted to HMAS Cerberus to undertake a stoker course for six months. While at HMAS Cerberus, the Applicant stated that he drank at the wet canteen as well as a lot on leave weekends. He said he may have been charged with being drunk and also that he started drinking rum.
21. The Applicant stated that his next posting was to HMAS Supply, where he spent 12 months in the Far East with the ship visiting ports in Japan, Singapore and Hong Kong. During this period the Applicant stated that he smuggled rum on board, enjoyed his beer issue and commenced smoking marijuana in 1967. He said he was arrested by a US Navy Shore Patrol on his first night’s leave in Japan because he was intoxicated, which resulted in stoppage of leave and a fine.
22. The Applicant stated that he volunteered for the submarine service in 1968 as he wanted to visit England. He stated that following a psychological assessment he was accepted within a couple of weeks and was posted to the United Kingdom for training at HMS Dalton and HMS Osiris for a period of 12 months. The Applicant stated that he continued to drink heavily with an increasing intake of spirits.
23. The Applicant returned to Australia and served on HMAS Oxley and HMAS Otway. He remembered the Otway hitting the bottom, which made him nervous. After a further period of six to 12months, he went absent without leave in 1971, being apprehended by the civilian police in Newcastle in 1973 and discharged from the Navy shortly after.
24. The Applicant stated that during his two year period of absence without leave from the Navy, he worked on trawlers and in a couple of mines. He said after leaving the Navy he worked as a painter, docker, coalminer, truck driver, kitchen hand, baker, sales representative, station hand and a teacher. He also worked on trawlers, in the fire brigade, in saw mills and in a bauxite mine, as well as in hospital maintenance. The Applicant stated that most activities were for a limited period of three to nine months, after which he would leave and drink and/or smoke marijuana until the money was exhausted. He stated that his teaching activities continued for some three years, after he concluded his degree.
25. The Applicant stated that he had an attack of pancreatitis at Gove in 1974 and was evacuated to Darwin Hospital. In 1976 he was admitted to and operated on for his pancreatitis and during this hospitalisation was diagnosed as suffering from diabetes mellitus type I, for which he has been treated with daily intra muscular insulin. The Applicant stated that he ceased using alcohol in 1986 because of his pancreatitis, but recommenced in 2001 after completing Dr Vickery’s post-traumatic stress disorder program in Newcastle.
26. The Applicant stated that he is currently drinking 20-24 stubbies of beer a day plus wine, commencing early in the morning and with no set routine to his drinking. He has been smoking marijuana since 1967, with a period of imprisonment for cultivation and is currently smoking some two ounces per week. The Applicant stated that he has lost his drivers license three times in 10 years because of alcohol intoxication.
27. The Applicant detailed to the Tribunal how he completed his fine arts degree following his period of imprisonment and that he was successful as an art teacher and artist. As an artist he has had successful exhibitions selling both paintings and ceramics. During productive periods, he would complete 12 works of art in six months, but when he drinks alcohol, his productivity and the artistic merit of his efforts declines significantly. The Applicant stated that when he is not drinking and is only using marijuana both production rate and artistic merit can be maintained. The Applicant stated that he has moved to Townsville to live with his aged parents in an attempt to rehabilitate himself.
28. The Applicant stated that he applied for and was granted a service pension (invalidity) from 19 January 2000, with his disabilities being nominated as post-traumatic stress disorder and diabetes mellitus (Exhibit A5). The Applicant stated that he currently owes the bank $8,500 and further money to his parents and cannot afford to purchase art material for either his painting or ceramic activities. He also stated that he was injured on a boat in 1999 when he slipped and fractured two cervical vertebrae. Nevertheless, he continues to try and paint from time to time, although he is less than enthusiastic about his attempts in Townsville.
considerations and findings
diagnosis of various diseases/injuries
psychiatric condition
29. The Tribunal notes that the Applicant was granted a service pension (invalidity) from 19 January 2000. Further, it is observed that the basis for such a finding was a diagnosis made by Dr Law, a specialist psychiatrist, in his report of 19 January 2000 (T7) that the Applicant suffered from service related post-traumatic stress disorder and poly-drug abuse of a moderately-severe to severe degree. The Tribunal observes that Dr Law, in making such a diagnosis, relied upon the Applicant’s history of a submarine hitting the bottom of the sea during which the Applicant felt panicky and helpless; the Applicant’s history of impaired sleep, and bad dreams and nightmares of being chased by someone and being trapped in the water or on a boat. Dr Law also noted a history of the Applicant’s distressing, repeated and intrusive recollection concerning the submarine being stuck in the mud and the action of the coxswain at that time, the Applicant’s impaired concentration, his impatience and easily agitated nature, as well as his feelings of dejection and depression.
30. The Tribunal also notes the report of Dr Lumley, consultant psychiatrist, dated 7 April 1997 (T5) in which he describes the Applicant as having commenced consuming excessive amounts of alcohol, when working the cargo handling of ammunition, particularly in the ammunition store. Dr Lumley described the Applicant’s complaints at that time as those of insomnia and a feeling of depression. Further, Dr Lumley noted that there was not a history of dreams or flash backs to the time of his service with the Navy. Dr Lumley considered that the Applicant suffered from a mild depressive illness, which was not associated with his navy service, and that he was not suffering from post-traumatic stress disorder.
31. In a psychiatric report dated 9 January 2001 (Exhibit R15), Dr Vickery, a consultant psychiatrist, notates his assessment of the Applicant during his six week post-traumatic stress disorder patient program at Lingard Hospital commencing 11 October 2000. In his report Dr Vickery noted:
“16 October 2000 Mr Wright… remembered “losing it” on the first trip on the Sydney when he was unloading ammunition some 7 decks down in semi darkness…and was fearful the whole time…He went on leave and was “wiped out” for 10 days.
25 October 2000 Mr Wright was increasingly concerned with his own problems and blaming everybody else without taking any responsibility… He was aware of some difficulty in coming to terms with the “stolen generation” and his ethnic conflicts and oppression…”
32. In a report dated 25 July 2003 (Exhibit R 3), Professor Mattick, a consultant psychologist, recorded that the Applicant commenced drinking when travelling to Vietnam on HMAS Sydney in 1966, at which time he was consuming a 26oz can of beer each evening. Professor Mattick records the Applicant as stating he drank until he blacked out “in Hong Kong, during HMAS Sydney’s stay while returning from Vietnam in 1966”. Further, by the time the Applicant was at HMAS Cerberus he was drinking 20 beers a day, because he enjoyed it. On HMAS Supply he drank a daily 26 oz can of beer while at sea and drank to excess whenever he was ashore and in the United Kingdom he drank 7oz of rum daily plus as much beer as he could get. When the Applicant was on HMAS Oxley he consumed the daily beer ration of 26oz can, a bottle of rum and when ashore he would drink spirits. On HMAS Otway he drank two 26oz cans of beer per day plus rum smuggled on board. The Applicant deserted so that he could drink more alcohol, which he did. After being discharged from the Navy he continued to drink in similar fashion up to 1986 at which time he suffered an episode of delirium tremens and was hospitalised for detoxification. Professor Mattick records the Applicant as abstaining from alcohol from 1986 until two and a half years ago, when he recommenced drinking with a six-pack of beer and cask of wine per day, later moving on to beer and whisky.
33. In relation to illicit drugs, Professor Mattick records a history of the Applicant commencing to smoke cannabis while on HMAS Otway; that he regularly used cannabis from 1978, and from 1986 smoked it continuously up to the present time, using at least two ounces per week. Professor Mattick records the Applicant as having used other illicit substances from time to time.
34. Professor Mattick concluded that the Applicant met the criteria for alcohol abuse and dependence with recurrent alcohol use despite problems caused or exacerbated by use, with clinical onset commencing soon after he commenced drinking on HMAS Sydney. Professor Mattick also concluded that the Applicant met the criteria for a diagnosis of drug abuse from 1986 and that he currently meets the criteria for a diagnosis of dependence, with clinical worsening occurring in 1986, at the time of his withdrawal from alcohol.
35. Professor Mattick did not believe that there was evidence that the Applicant suffered a severe stressor during his navy service, and as such did not believe that the Applicant met the criteria for the diagnosis of a psychiatric disorder, namely post-traumatic stress disorder. Professor Mattick, in noting that the Applicant was not seeking any remunerative employment, concluded that the Applicant, because of his cannabis dependence, would be unable to work in any paid capacity.
36. In oral evidence, Professor Mattick reaffirmed his view that the Applicant’s alcohol and drug use problems were not associated with his operational or eligible service, and that the Applicant drank alcohol because he enjoyed the effect of alcohol.
37. In a report dated 4 August 2003 (Exhibit R2), Dr White, a consultant psychiatrist, detailed the Applicant’s history of alcohol and drug use and his psychological symptoms and concluded that the Applicant did not suffer from post traumatic stress disorder. Dr White determined that there was no good evidence that the Applicant suffered from any discreet psychiatric disorder. Dr White believed the Applicant’s current psychiatric symptoms and dysfunctional impairment can be understood in terms of chronic severe marijuana abuse. Dr White is of the opinion that drug and alcohol abuse is not a psychiatric disorder, but is evidence of a temporary behavioural dysfunction.
38. In a report dated 21 August 2003 (Exhibit A3), Dr Dinnen, a consultant psychiatrist, having detailed the Applicant’s clinical history, concluded that the Applicant developed severe problems with alcohol addiction during service and later replaced alcohol in part with other substances. Dr Dinnen concluded that the Applicant suffered from alcohol dependence and marijuana dependence and that he was more vulnerable to stressors in Vietnam because of his age and/or constitutional vulnerability, being either his pre-existing personality and/or a genetic predisposition. Dr Dinnen also found that the Applicant experienced a severe stressor as a consequence of his subjective response to the bomb room incident on HMAS Sydney. Dr Dinnen also noted that there was insufficient evidence to demonstrate clinical features indicative of a diagnosis of post-traumatic stress disorder.
39. In addressing the issue of psychiatric diagnosis, the Tribunal was assisted by a concurrent evidence session in which Dr Dinnen and Dr White were involved. It was evident to the Tribunal that Dr White viewed alcohol and substance abuse and/or dependence as a behavioural dysfunction and not a mental illness, and that he had severe reservations that a single severely stressful event could trigger off a life of alcohol and/or substance dependence. Dr Dinnen contended that alcohol and drug dependence was an axis 1 disorder nominated in DSM IV and affirmed his views given in his earlier written evidence.
40. The Tribunal is reasonably satisfied that the appropriate diagnosis for the Applicant’s psychiatric condition are:
·alcohol dependence
·drug dependence.
41. In so stating the Tribunal notes that in relation to alcohol, the Applicant
·commenced drinking (beer) on his first voyage to Vietnam on HMAS Sydney in 1966,
·engaged in a maladaptive pattern of alcohol use as indicated by
ohis episode of excessive drinking over a period of 10 days in Hong Kong on the return voyage on HMAS Sydney and his detention by the Hong Kong police on that occasion
ohis subsequent posting to HMAS Cerberus when he increased his daily alcohol intake to 20 beers a day, with further excessive drinking on leave. There is also the fractured jaw incident in October 1966 as a consequence of a fight while under the influence of alcohol.
oin his next posting HMAS Supply, a daily beer ration, and drinking to excess when ashore; an episode of being charged for drunkenness in Japan with leave stoppage and a fine
oat HMS Osiris a daily rum ration (7ozs), as much beer as he could get, as well as being disciplined for being drunk in Naples
owhile serving on HMAS Oxley and HMAS Otway he continued drinking in excess including beer and a bottle of rum a day, and when ashore drinking of spirits
oincreasing relationship difficulties while serving on HMS Osiris (fathered a child) and increasing involvement in disciplinary processes as a consequence of alcohol – Japan forfeited leave
oHMAS Otway – two episodes of disciplinary punishments in July and September 1969, the latter resulting in a period of detention – a further episode of being absent without leave from 6 November 1971 to 14 November 1973, resulting in his discharge from the Navy
oan episode in which he chopped off his little finger so that he could stay ashore and drink
oa continuance of excessive drinking after he left the Navy, associated with intermittent attacks of pancreatitis and an episode of delirium tremens in 1986, after which he abstained from alcohol for 15 years. Recommenced drinking alcohol in 2000/2001 and currently is drinking a minimum of 20 beers a day
ohis parents noted his excessive drinking habits when he returned home on leave, and the difficulties he was experiencing with a particular relationship (father’s letter of 31 August 2000 T14 p67).
42. While the Tribunal has not nominated every particular incident in which the Applicant’s excessive alcohol intake has been an issue during his period of Navy service, it is evident to the Tribunal that the Applicant satisfied the following diagnostic criteria for alcohol dependence by the time he had completed his training at HMAS Cerberus:
·tolerance as evidenced by markedly increased amounts of alcohol to achieve desired effect
·alcohol taken in larger amounts
·a great deal of time spent in activities to obtain and use alcohol
·his range of social, occupational and recreational activities were reduced to those involving alcohol consumption
·his use of alcohol continued despite having knowledge that it was causing him problems (physical harm – fractured jaw) and disciplinary problems.
43. In so stating, the Tribunal reinforced the opinions of both Professor Mattick and Dr Dinnen in its own finding. The Tribunal was unable to accommodate the views of Dr White, as he had a particular view about the nature and criteria for the diagnosis of alcohol dependence, which was not shared by the other consultants, nor by the Tribunal in light of the diagnostic criteria nominated in DSM IV.
44. In summary the Tribunal finds that the Applicant suffers from alcohol dependency. Further the Tribunal observes that the material points to the clinical onset in accordance with the Full Federal Court decision in Lees v Repatriation Commission [2000] FCAFC 398, being as early as shortly after the drinking episode in Hong Kong (Drs Mattick, Dinnen) and no later than his completion of training at HMAS Cerberus in April 1967.
45. In addressing the issue of drug dependence the Tribunal acknowledges that the three clinicians all concur in a diagnosis of drug dependence, with clinical onset of dependence commencing in 1986, with Professor Mattick believing a clinical worsening occurred later in 1986, at the time of withdrawal from alcohol.
46. The Tribunal concludes to its reasonable satisfaction that a diagnosis of drug dependence (marijuana) is an appropriate diagnosis in this matter.
47. In addressing the diagnosis of post-traumatic stress disorder, a diagnosis made by Drs Law and Vickery, the Tribunal in turn acknowledges the opinions of Drs Lumley, White, Mattick and Dinnen that such a diagnosis cannot be sustained. In so stating the four doctors indicated that the essential clinical features to support such a diagnosis were not evident from the clinical history of the Applicant. The Tribunal, in noting the brevity and absence of detail, let alone detail being inconsistent with what the Applicant has related to others and to the Tribunal, of Dr Law’s report concludes that the diagnosis of post-traumatic stress disorder is not an appropriate diagnosis in this matter.
physical disease/injuries
48. The Applicant has detailed a clinical history of an episode of acute pancreatitis while at Gove in 1974. In 1976 the Applicant was admitted to St Vincent’s Hospital in Sydney with a diagnosis of pancreatitis, confirmed by laparotomy. During the admission a diagnosis of diabetes mellitus type one was made, which would indicate an irreparable morphological change in the pancreas, which by definition constitutes that the condition has moved to a stage of chronic pancreatitis. The Tribunal also acknowledges the opinion of Dr Moffitt, consultant diabetologist, in his report of 13 December 2000 (T12 p61) that the Applicant was suffering from both chronic pancreatitis and diabetes mellitus for which he was being treated with intramuscular insulin.
49. The Tribunal concludes that to its reasonable satisfaction that the diagnosis of chronic pancreatitis and diabetes mellitus is applicable in this matter.
50. In considering all the material, the Tribunal, while mindful that the Applicant is not pursuing issues as regards entitlement, observed that there are other conditions for which the Applicant has been examined, investigated and treated. The Tribunal notes the report of Dr Burns, consultant occupational physician, dated 1 September 2003 (Exhibit A4), the report of Dr Mills, consultant physician in occupational medicine dated 11 December 2003 (Exhibit R9) and the clinical report dated 14 August 2002 and records of Dr Mossely, attending general practitioner (T23 p99-102 and Exhibit R13). Following a review of such material the Tribunal is reasonably satisfied that the Applicant suffers from the following diseases/injuries:
a)Cervical spondylosis, with severe left foraminal narrowing at both C5-C6 and at C6-C7 – causing neck pain and associated with loss of sensation and paresthesia in the left hand;
b)bilateral carpal tunnel syndrome – multiple operations, with pins and needles in his left hand and drops things from time to time; left hand is said to be a major problem;
c)arthritis in shoulders and low back – experiences pain in his low back, which radiates to his legs and is only able to walk 50 metres;
d)conductive deafness – bilateral.
issue of causation
51. In addressing the issue of alcohol dependence, the Tribunal notes that the appropriate Statement of Principle (“SoP”) is Instrument No 76 of 1998, and that there is material pointing to raised facts which hypothesise a connection between the Applicant’s alcohol dependence and his service.
52. The relevant factor is factor 5(b) of the SoP instrument No 76 of 1998, namely experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
53. In addressing the issue as to whether there is material pointing to the Applicant experiencing a severe stressor, the Tribunal observes that that there is material pointing to the occurrence of an event involving threat of death /and or injury and/or engagement with the enemy (isolation of Applicant alone in the bomb store six floors below deck on HMAS Sydney in Vung Tau Harbour at the time detonations occurred external to the hull). Further, the Tribunal observes that the material points to both the perception by the Applicant that the ship was under enemy attack and the Applicant’s subjective response (froze, stopped work, sweating, shaking, panic, confused and scarred for 10 minutes). Further, the material points to the Applicant later becoming embarrassed about his response, when he became aware of the nature of the detonations (scare charges). Such material, in the Tribunal’s opinion, points to the Applicant experiencing a severe stressor with both objective and subjective elements of the definition being pointed to by the material (Full Court decision in Woodward v Repatriation Commission [2003] FCAFC 160 considered and followed).
54. In addressing the issue as to whether the material points to the clinical onset of alcohol dependence within two years of experiencing a severe stressor, the Tribunal is of the opinion that it does. In so stating the Tribunal earlier detailed the Applicant’s history of alcohol intake over time, considered the definition of clinical onset as stated by the Full Court in Lees (supra) and the analysis and opinions of Professor Mattick and Dr Dinnen and formed the opinion that the material points to the Applicant’s clinical onset of alcohol dependence within two years of experiencing a severe stressor.
55. The Tribunal, as a consequence, is of the opinion that the hypothesis nominated is a reasonable hypothesis, in that the material points to “raised facts” that are congruent with factor 5(b) of SoP Instrument No 76 of 1998 concerning alcohol dependence or alcohol abuse.
56. In addressing issues raised by section 120(1) of the Veterans' Entitlements Act 1986 (“the Act”), the Tribunal notes the historical report of Commodore Mulcare (Exhibit R4) and his comments in oral evidence concerning the beer issue regime in Navy ships at that time, and in particular the rules which were said to operate to prevent an issue to underage sailors. While of general assistance to the Tribunal such advice is not of particular assistance as to what actually occurred on HMAS Sydney and further to rebut the Applicant’s assertion that he was able to circumvent such rules.
57. The Tribunal has already commented upon the difficulties inherent in Dr White’s opinion. The Tribunal accepts that there is material pointing to a possible genetic predisposition (uncle) and behavioural predisposition, as perhaps best expressed by the Applicant’s comments of liking the effects of alcohol. However, the Tribunal concludes that such material does no more than suggest a possibility. As such the Tribunal is not satisfied that such possibilities constitute facts.
58. For these reasons the Tribunal is not satisfied beyond reasonable doubt that the Applicant’s alcohol dependence was not war-caused, and as such the Applicant’s alcohol dependence is a war-caused disease/injury.
chronic pancreatitis
59. The Tribunal has earlier concluded that the Applicant suffers from chronic pancreatitis. The Tribunal is of the opinion that the material points to a hypothesis in which the Applicant’s alcohol intake being causative of the Applicant’s chronic pancreatitis.
60. The Tribunal observes that the appropriate SoP in this matter is Instrument No 57 of 2001 concerning chronic pancreatitis and that factor 5(a) is the relevant factor. Further, following analysis of all the material, the Tribunal is of the opinion that there is material pointing to the Applicant consuming 30 kg of alcohol within a two-year period before the clinical onset of chronic pancreatitis (20 drinks a day) and that alcohol consumption commenced at least two years before the clinical onset of chronic pancreatitis. The Tribunal has earlier indicated that there is material pointing to the clinical onset of chronic pancreatitis in 1976 when the Applicant was admitted to St Vincent’s Hospital in Sydney.
61. The Tribunal is of the opinion that the hypothesis nominated is a reasonable hypothesis as each element of factor 5(a) has been pointed to by the material and the “raised facts” are consistent with each element of the factor.
62. The Tribunal concludes that the Applicant’s chronic pancreatitis is a war-caused disease, as the Tribunal is not satisfied beyond reasonable doubt that the Applicant’s chronic pancreatitis is not a war-caused disease, the Tribunal having considered all the material.
diabetes mellitus
63. The Tribunal has earlier concluded that the Applicant suffers from the disease of diabetes mellitus type one. The Tribunal is of the opinion that the material points to a hypothesis that the Applicant had chronic pancreatitis before the clinical onset of diabetes mellitus.
64. The Tribunal observes that the relevant SoP in this matter is Instrument No 11 of 2004 concerning diabetes mellitus. While this Instrument was not promulgated at the time of the hearing, the Tribunal observes that the relevant factor 5(f) in Instrument No 11 of 2004 and factor 5(e) in Instrument No 82 of 1999 as amended by Instrument No 9 of 2001 and Instrument 91 of 2001 are identical.
65. Following an analysis of all the material, the Tribunal is of the opinion that the material points to the Applicant suffering from chronic pancreatitis in 1976, with the clinical onset of diabetes mellitus occurring later, marked by his admission to St Vincent’s Hospital in 1976. As such the Tribunal is satisfied that the hypothesis nominated is a reasonable hypothesis as each element of factor 5(f) has been pointed to by the material and the “raised facts” are consistent with each element of the factor.
66. The Tribunal having considered all the material, is not satisfied beyond reasonable doubt that the Applicant’s diabetes mellitus is not a war-caused disease, and accordingly concludes that the Applicant’s disease of diabetes mellitus is a war-caused disease.
drug dependence
67. The Tribunal has earlier concluded that the Applicant suffers from drug dependence, namely marijuana dependence. The Tribunal is of an opinion that the material points to a hypothesis linking the Applicant’s alcohol dependence with the subsequent onset of drug dependence.
68. The Tribunal observes that the relevant SoP in this issue is Instrument No 78 of 1998 concerning drug dependence or drug abuse. Following analysis of all the material the Tribunal is of the opinion that the material points to the Applicant suffering from alcohol dependence, an Axis one disorder under DSM IV prior to the clinical onset in 1986 of marijuana dependence. The Tribunal in noting such material, also notes the opinions of Professor Mattick, Dr White and Dr Dinnen as regards the timing of clinical onset of drug dependence.
69. As a consequence the Tribunal is satisfied that the hypothesis nominated is a reasonable hypothesis as the material points to each element of factor 5(a) of Instrument No 78 of 1998, with the “raised facts” being consistent with each element of the factor.
70. The Tribunal having considered all the material is not satisfied beyond reasonable doubt that the Applicant’s drug dependence is not war-caused. Accordingly the Tribunal concludes that the Applicant’s drug dependence (marijuana) is a war caused disease.
assessment – special rate
71. The criteria for assessment of a disability pension at the special rate are detailed in section 24 of the Act. After consideration of all the material the Tribunal finds that the Applicant satisfies section 24(1) (aa) of the Act in that he had made a claim under section 14 of the Act, section 24(1) (aab) of the Act in that he was less than 65 years of age at the time of claim and 24(a)(1) of the Act in that his degree of incapacity from war-caused injury and/or disease had already been determined at 100 per cent of the General Rate.
72. In addressing section 24(1) (b) of the Act the Tribunal notes the following:
a) the Veterans’ war-caused injuries/diseases are:
· bilateral sensorineural deafness
· bilateral tinnitus
· bronchitis and emphysema
· alcohol dependence
· chronic pancreatitis
· diabetes mellitus
· drug dependence.
b) the issue of remunerative work:
(i)in accordance with section 28 of the Act the Tribunal concludes that the kinds of remunerative work which the Veteran might reasonably undertake is remunerative work associated with maintenance of particular kinds of machinery, general labouring, art teacher and artist;
(ii)The Tribunal acknowledges that the term remunerative work is defined in section 58 (1) of the Act as including any remunerative activity. The Tribunal in turn acknowledges the Federal Curt decision in Banovich v Repatriation Commission (1986) 9 ALN 223 in which the term remunerative work is stated to be used in context which indicates an intention to refer to work generally. Further, the Tribunal acknowledges the definition of “work” in the Shorter Oxford dictionary as “action involving effort or exertion directed to a definite end especially as a means of gaining one’s livelihood”;
(iii)The Tribunal is mindful that the Applicant lodged his claim under section 14 of the Act on 26 April 2002. The Tribunal also notes that the Applicant held an exhibition of his paintings and ceramics at St Albans Gallery in September/October 2002 and two paintings in an exhibition entitled Kaleidoscope in 2003 (Exhibits A6 A8). It is evident to the Tribunal that the Applicant must have pursued artistic work activity prior to the solo exhibition in September/October 2003 and that it was intention to receive remuneration for such activity.
(iv)The Tribunal also notes that the Applicant received a service pension (invalidity) from 19 January 2000. The Tribunal notes the quantum of remuneration from the solo exhibition that the Applicant would have received was $2295 less commission (Exhibit A9), while the Tribunal is unaware as to whether further paintings have been sold.
(v)The Tribunal is aware that the Applicant’s view of his current artistic activities is somewhat disparaging. The Tribunal, while aware that the Applicant intermittently seeks to pursue his natural artistic talents concludes that on the evidence before the Tribunal the artistic work performed by the Applicant since his application on 26 April 2002 is no more than an expression of his talent and certainly not performed with the intention of gaining a livelihood. While noting that the Applicant may have received some financial returns from the sale of his art in September/October 2002, the Tribunal concludes that such a financial return is consistent with an individual carrying on a pursuit of individual preference, namely a hobby with the financial return assisting in meeting the financial outlay for the material associated with the hobby activity.
(vi)Accordingly the Tribunal concludes that the Applicant did not undertake any remunerative work from his date of application. Further, the Tribunal concludes that there is no evidence to suggest that the Applicant has been genuinely seeking to engage in remunerative work since being granted his service pension (invalidity) from 19 January 2000.
(vii)While argument could be made that the exhibitions in 2001, 2002 and 2003 by the Applicant were attempts by the Applicant to genuinely seek to engage in remunerative work, such argument would involve an acceptance that the solo exhibitions and the activity involved in preparation for such were indeed remunerative work activities. With such a designation the Applicant’s claim for a special and/or intermediate rate would fail, as it is evident that he did undertake such activities and did receive payment for his activities.
(viii)The Tribunal concludes that the Applicant satisfies section 24(1) (b) of the Act, in that the Applicant’s accepted war-caused diseases/injuries alone prevent him from undertaking remunerative work for periods aggregating more than eight hours per week. In so finding the Tribunal accepts the opinions of Drs Hills, Burns, Dinnen and White and Professor Mattick.
73. In addressing sections 24(1)(c) and 24(2) of the Act, the Tribunal has already considered and concluded that there is no evidence to suggest that the Applicant has been seeking to engage in remunerative work since he received his service pension (invalidity) on 19 January 2000. Accordingly the Tribunal concludes that the substantial cause provisions contained within section 24(2) (b) are not available to the Applicant in this matter.
74. The Tribunal has already detailed the Applicant’s war-caused diseases and/or injuries. The Tribunal also notes that the Applicant suffers from the following non accepted conditions:
·cervical spondylosis, with left foraminal narrowing at both C5-C6 and C6-C7 – causing neck pain and associated with loss of sensation and paresthesia in the left hand;
·bilateral carpal tunnel syndrome – multiple operations, with pins and needles in his left hand – drops things from time to time;
·arthritis in shoulders and low back – experiences pain in his low back, which radiates to his legs and is only able to walk 50 metres;
·bilateral conductive deafness.
75. the Tribunal, mindful of the decisions in Forbes v Repatriation Commission (2000) 171 ALR 131 and Flentjar v Repatriation Commission (1997) 48 ALD 1 concludes that the Applicant does not satisfy sections 24(1) (c) and 24(2) of the Act. The reason for this finding being that the Applicant has been prevented from continuing to undertake remunerative work because of both his war-caused diseases/injuries and his non accepted conditions, which prevent him from satisfying the alone test. The non accepted conditions include conditions which have effect the Applicant’s inability to work or to obtain and hold suitable remunerative employment. That such conditions have employment consequences is evident from the nature of the conditions and the outline of the effects of same as nominated in the reports of Drs Mills and Burns and the clinical records of Dr. Mossely.
76. The Tribunal concludes that the Applicant does not satisfy the requirements for payment of a pension at the special rate. For similar reasoning the Tribunal concludes that the Applicant is not entitled to payment of a pension at an intermediate rate pursuant to section 23 of the Act. Further, the Tribunal concludes that the Applicant does not satisfy the requirements for payment of extreme disability adjustment pursuant to section 22(4) of the Act in that the Applicant does not have lifestyle rating of 6.
determination
77. The Tribunal determines that
(a) the decision of the Veterans’ Review Board dated 7 March 2003 is set aside and in substitution thereof the Tribunal determines that the disease of chronic pancreatitis is war-caused with date of effect being 19 January 2002;
(b) the decision of the Repatriation Commission dated 22 October 2002 is varied as follows:
(i) the diagnosis of the psychiatric disorder is alcohol dependence and drug dependence (marijuana); and
(ii) the diagnosis of post-traumatic stress disorder is deleted; and
(iii) the disease/injuries of alcohol dependence, drug dependence (marijuana), diabetes mellitus are war-caused with date of effect being 26 January 2002; and
(c) the remainder of the decision of the Repatriation Commission of 22 October 2002 is affirmed and this includes the diagnosis of the Applicant's non war-caused diseases/injuries and the payment of the Applicant's disability pension at 100 per cent of the General Rate.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: A. Krilis
AssociateDate/s of Hearing 1 and 2 April 2004
Date of Decision 2 August 2004
Counsel for the Applicant Mr Neil Dawson
Solicitor for the Applicant M Jodie Buchanan
Counsel for the Respondent Ms Rhonda Henderson
Solicitor for the Respondent Ms Angela Nansen
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