Kelly and Repatriation Commission [1999] AATA 57 (4 February 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/1250

VETERANS' APPEALS DIVISION )

Re RAYMOND KELLY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 4 February 1999

Place Sydney

Decision The decision under review is set aside. In substitution therefor, the Tribunal decides that the applicant's conditions of post traumatic stress disorder and psoriasis are service related, and remits the matter to the respondent for assessment of pension in accordance with this decision.

(Sgd) Dr J D Campbell

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

Member

CATCHWORDS

Veterans' Affairs - pension - post traumatic stress disorder - psoriasis - whether criteria for Statement of Principles is satisfied - whether conditions caused or aggravated by period of eligible defence service

Veterans' Entitlements Act 1986 - sections 120(4), 120B, 9(1)(e)

Explanatory Memorandum to The Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994

Repatriation Commission v M J Smith (1987) 15 FCR 327

Re Lee and Repatriation Commission (1986) 11 ALD 56

Repatriation Commission v Yates (1995) 38 ALD 80

Deledio v Repatriation Commission (1997) 47 ALD 261

Commonwealth v Johnson (1980) 31 ALR 445

REASONS FOR DECISION

4 February 1999 Dr J D Campbell

1. This is an application by Mr Raymond Kelly (the applicant) to review a decision of the Repatriation Commission (the respondent) dated 26 April 1996. That decision determined that the applicant's claim for bilateral sensorineural hearing loss with tinnitus was accepted however, the applicant's claim for post traumatic stress disorder (PTSD), psoriasis and non-specific skeletal chest pain was refused on the basis that those disabilities were not related to the applicant's eligible defence service. The respondent determined that the applicant was entitled to be paid a pension at 10% of the General Rate with effect from 20 April 1995. The applicant appealed this decision to the Administrative Appeals Tribunal (the Tribunal) on 16 September 1997.

2. A hearing was held before the Tribunal on 8 December 1998 at Taree. The applicant was represented by Mr Davies, solicitor and the respondent was represented by Ms Doggett, delegate of the Department of Veterans' Affairs (the Department). The applicant gave evidence to the Tribunal in person. Evidence was also given by Dr McMurdo and Professor Sambrook by telephone. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act (the T'documents) together with the following exhibits:

* Exhibit A1 - Applicant's Statement of Facts and Contentions dated 1 July 1998;

* Exhibit A2 - Statement of Applicant with attachments dated 22 June 1998;

* Exhibit A3 - Applicant's Certificate of Service issued 28 June 1996;

* Exhibit A4 - Applicant's Written Submission;

* Exhibit R1 - Respondent's Statement of Facts and Contentions;

* Exhibit R2 - Statement of Principles concerning Psoriasis No 22 of 1998;

* Exhibit R3 - Report of Dr McMurdo dated 3 February 1998;

* Exhibit R4 - Report of Professor Sambrook dated 5 February 1998;

* Exhibit R5 - Supplementary report of Professor Sambrook dated 22 May 1998;

* Exhibit R6 - Letter from the Department of Defence to the Department of Veterans' Affairs dated 30 September 1996 enclosing movement records of HMAS Onslow;

* Exhibit R7 - Letter from the Department of Defence to the Department of Veterans' Affairs dated 6 October 1998;

* Exhibit R8 - Respondent's Written Submission.

Issues

3. At the commencement of the hearing Mr Davies indicated to the Tribunal that the applicant no longer sought to include non-specific skeletal chest pain as part of his claim, as this condition appeared to resolve once the applicant ceased smoking. Therefore the relevant issues for determination are whether or not the applicant continues to suffer from the conditions of PTSD and/or psoriasis, and if so, whether the clinical onset of these conditions was during the period of the applicant's eligible defence service or alternatively, whether these conditions were aggravated by the applicant's eligible defence service.

Legislation

4. Subsection 120(4) of the Veterans' Entitlements Act 1986 (the Act) provides that the applicable standard of proof in relation to eligibility for a pension is to the reasonable satisfaction of the Commission. The subsection provides as follows:

120 Standard of proof

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

(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 eligible war service (other than operational service) rendered by a veteran;

(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

Note 1: Subsection 120(4) is relevant to these claims.

Note 2: For 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(3) 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) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B(3) or (12); or

(ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

(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(3), 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.

9 War-caused injuries or diseases

(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:.........

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

Relevant statements of principles

5. Since the applicant's claim was lodged after 1 June 1994, any relevant Statement of Principles (SoP) applies pursuant to section 120B of the Act. It was agreed by the parties that the relevant SoP for Post Traumatic Stress Disorder is Instrument No. 16 of 1994 as amended by 226 of 1995:

"...the factors that must exist before it can be said that, on the balance of probabilities, post traumatic stress disorder or death from post traumatic stress disorder is connected with the circumstances of that service, are:

(a) experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or

(b) experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or

(c) inability to obtain appropriate clinical management for post traumatic stress disorder."

6. The definition of "stressor" is:

" (a) the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and

(b) the person's response to that event involved intense fear, helplessness or horror;"

7. It was agreed between the parties that the relevant SoP for Psoriasis is Instrument No 22 of 1998:

"The factors that must exist before it can be said that, on the balance of probabilities, psoriasis or death from psoriasis is connected with the circumstances of a person's relevant service are:

(a) undergoing treatment with lithium at the time of the clinical onset of psoriasis; or

(b) undergoing treatment with an oral or parenteral beta-blocker at the time of the clinical onset of psoriasis; or

(c) suffering trauma or other interruption to the integrity of the epidermal and dermal layers of the skin at the affected site (resulting in the occurrence of the Koebner phenomenon) within the 30 days immediately before the clinical worsening of psoriasis; or

(d) undergoing treatment with a drug from the specified list at the time of the clinical worsening of psoriasis; or

(e) suffering from alcohol dependence or alcohol abuse involving regular consumption of an average of 420 g/week of alcohol (contained within alcoholic drinks), at the time of the clinical worsening of psoriasis; or

(f) suffering from a clinically significant anxiety disorder or a clinically significant depressive disorder at the time of the clinical worsening of psoriasis; or

(g) inability to obtain appropriate clinical management for psoriasis."

Applicant's evidence

8. The applicant gave evidence that he is currently in receipt of a disability support pension along with a small pension from the Department in relation to his accepted condition of tinnitus. The applicant entered the Royal Australian Navy (RAN) on 5 January 1966 at the age of 15 and ceased service on 31 December 1973 (Exhibit A3), attaining the rank of Acting Leading Seaman - Underwater Weapons Submarines. The applicant rendered eligible defence service during the period 7 December 1972 to 31 December 1973. At the time that he entered service the applicant's health was excellent, being only 15 years and ten months old he did not yet smoke or consume alcohol.

9. For the period 1969 to 1973, the applicant served mainly aboard the HMAS Onslow. The applicant alleges that the incident which gave rise to his condition of PTSD took place aboard the Onslow during the latter part of December 1971, hereinafter known as the "torpedo incident". The respondent does not dispute that this incident took place.

10. The following statement made by Mr J A Rana, Warrant Officer which appears at paragraphs 7 and 8, page 72 of the T'documents is in the applicant's view an accurate account of what took place during the torpedo incident:

"7. During the later part of 1971 the Onslow was deployed to Hawaii to partake in an annually (sic) exercise called RIMPAC. During this exercise we were hit in the stern whilst dived by a practise MK44 torpedo; fired from the US Coast Guard ship, the US Rush. At the time of the incident Ned (the applicant) was in the after ends of the submarine; the location of impact. He heard the bang and then noticed that the after compartment was flooding. He alerted the command by reporting the event over the main broadcast. There was a noticeable amount of anxiety in his voice which could be expected under the circumstances. It was rumoured that he was doubling on the spot whilst making his report, not surprising, as there was water lapping about his feet. His natural instinct would have been to evacuate the compartment before making his report, however, he was well trained and he carried out the correct procedure.

The boat was forced to carry out an emergency surface and return to harbour to eventually undergo a docking.

8. The incident was taken lightly by most, however, Ned seemed to remain distressed by the accident. It became the topic of conversation at the bar and social events with many a joke relating to the incident being told at Ned's expense. I mention the bar chatter and ribbings that occurred, as sailors are insensitive towards their shipmates' feelings and I think this may have had a detrimental effect on him.

The underlined (sic) effect that it had on Ned was never realised. I truly believe that this mishap coupled with other incidents that must remain censored, caused him undue stress, which unfortunately remained concealed, and this stress ultimately lead (sic) to Ned's decision to retire from the RAN."

11. The applicant elaborated on the above account by adding that the depth gauge on the submarine hit maximum and that the water was up around their waists causing both himself and the other submariner to believe that they were going to die. The applicant stated that they held onto each other and waited for the submarine to implode. When the submarine eventually re-surfaced the applicant was very surprised that he had survived the incident. The applicant explained that the submarine returned home on the surface as a show of goodwill. During this period he felt confused, as though he had lost his will not to be a coward. The applicant sought counselling from his supervisors who in turn offered him a position as a torpedo instructor. The applicant stated that he was never the same after the torpedo incident and that whenever the submarine performed a deep dive the same fears of death returned.

12. While the applicant remained generally anxious and fearful during routine service, there were two specific incidents that the applicant believed aggravated his PTSD condition. Whilst in Sydney Harbour the applicant's submarine, which was carrying 30 torpedoes was almost run over by a tanker ship. The incident caused a complete electrical failure in the submarine, all of the hydraulics were shut down and the crew had to wear gas marks. The applicant described how the bow of the tanker ship was bearing down on the submarine, the submarine dived and in doing so the submarine became flooded; fortunately the tanker narrowly missed the submarine. The incident caused the applicant to believe that his life was again in real danger. As a result of this incident, the applicant wanted to be discharged from service.

13. The applicant discussed a further incident which he felt brought him to the brink of despair. After serving aboard the HMAS Otway for one week the applicant was looking forward to taking recreational leave, however upon disembarking from the Ottway, the applicant was informed that he had to immediately replace a fellow submariner on another vessel. The applicant stated that this was too much for him to bear, however he had no choice but to board the other vessel or else he risked being court martialled. The applicant was particularly fearful aboard this other vessel as the seaman were less experienced as they consisted mainly of conscripts. In addition to these two incidents, the applicant spoke of other frightening experiences when the submarine would hit the bottom of the ocean bed, causing the applicant to fear for his life.

14. As a result of these incidents the applicant stated that he was in a permanent state of paranoia, he constantly feared for his life and felt that he had become a coward. The applicant had difficulty sleeping, particularly if a junior submariner was in charge, in which case he would get out of bed and sit with that person while they were on their shift. The applicant was unable to pinpoint the precise time that the above two incidents occurred however, the applicant was certain that they occurred after the torpedo incident and more than likely occurred within the last 12 months of his service.

15. The applicant's method of dealing with his condition was by using marijuana and alcohol. The applicant explained that on a submarine there was ample alcohol available and that he would drink eight or nine cans of beer as well as rum, if available, per night. The applicant would regularly drink the other submariner's ration of alcohol and sometimes would drink until the supply was exhausted. Prior to the torpedo incident the applicant stated that he did not drink anywhere near that extent of alcohol but after that incident he "lost the plot". The applicant estimated that his alcohol intake had definitely doubled. The applicant continues to drink a large volume of alcohol, however his drinking is occasionally curbed by his visits to his psychiatrist. It did not occur to the applicant to seek medical assistance for his problems as there was no trained medical person aboard the submarine, apart from a sick-bay attendant, whom he stated was capable of dealing only with minor ailments. The closest hospital was at the Balmoral base and it was the applicant's view that submariners were not well liked there due to their appearance and lack of cleanliness, so he did not feel comfortable seeking treatment.

16. The applicant explained that before joining the RAN all applicants were heavily screened by psychiatrists and a lot of people did not get through. However, there were no further screenings or counselling sessions and the only outlet he had for his psychological problems was alcohol. The applicant sought counselling from some of his senior officers however they did not want to lose him and he was promised promotion as an incentive. When he was eventually offered a Petty Officer position as well as a salary increase, he turned it down because he was no longer able to cope. When the incoming government withdrew Australian troops from Vietnam and offered servicemen who had been serving for five years or more the opportunity to leave the armed forces the applicant took up this opportunity. The applicant said that the only way that he could have left before then was if he either suicided or went AWOL. The applicant stated that the idea of suicide played on his mind constantly. In cross examination the respondent drew to the applicant's attention that RAN records indicated that his emotional stability was marked as normal on health summary checks. The applicant replied that the medical examinations were by no means thorough and that the medical officer simply ticked boxes, as the real purpose of the examination was in fact a chest x-ray to screen for asbestos. The applicant explained that during his time in the RAN his condition was not recognised in the way that it is now, and that they were "macho times, you didn't talk to your mates about your feelings." The applicant stated that he was fighting this turmoil every day.

17. In relation to his psoriasis condition the applicant first sought medical attention after the torpedo incident, when he noticed the appearance of scabs and a rash over his legs, arms, beard, neck and hair. The applicant sought treatment from the medical officer who gave him a dye to apply to his skin. After leaving the RAN, the applicant continued to suffer from psoriasis, he tried using creams to treat his condition which he was given by a pharmacist at Lingard Hospital, however the cream cost $40 - $50 a tube, he said that it worked well but he could not afford to keep using it. The applicant stated that while his psoriasis can generally be controlled with medication, stress exacerbates the condition, which he finds very embarrassing in front of other people, and consequently he is forced to wear long clothes during the summer months. The applicant stated that his condition became worse at the end of 1972, a year before he left the RAN.

18. In relation to his employment history the applicant gave evidence that after leaving the RAN he was employed as a fur cutter with Akubra Hats between 1974 to 1978. For the period 1978 to 1994, the applicant worked as a bowser attendant at Macleay Auto Spares. The applicant was retrenched from this position after the business was sold. From 1994 onward the applicant has been mostly unemployed having tried many different jobs without success. The applicant described how he was fired from a position as a terminal operator at a service station because he was unable to cope with what would normally be considered low levels of stress, that such things as dealing with a few people at the counter would cause him to become flustered. The applicant stated that his condition makes it very difficult for him to handle any responsibility which is in strong contrast to the levels of stress he dealt with as a submariner responsible for five other men. At present, the applicant needs constant reassurance from his partner and is scared to perform the most simple domestic tasks. The applicant also attributed the break down of his marriage to his condition of PTSD.

Medical Evidence - Post Traumatic Stress Disorder

19. The applicant was referred to Ian McCombie, psychologist by the Vietnam Veterans' Counselling Service for treatment of his emotional difficulties. Mr McCombie provided a report dated 27 November 1995. Mr McCombie opined that the applicant's profile indicated that he suffered from chronic PTSD and Dysthymic disorder. Mr McCombie noted the following:

"I feel that these disorders have a negative impact upon his (the applicant's) enjoyment of life and his ability to maintain relationships. I feel that his emotional difficulties have a negative impact upon his ability to gain and retain employment. I feel that his difficulties will not resolve, in spite of treatment. They will wax and wane in response to the level of stress he is experiencing at the time. He is presently stabilised. However, he will, and does, experience severe exacerbations of his emotional disturbance."

20. The applicant was examined by Dr Chambers, psychiatrist on 5 December 1995. Dr Chambers provided a report dated 5 January 1996. It was the opinion of Dr Chambers that based on the history provided, the applicant was suffering from PTSD and would benefit from medication and regular counselling.

21. The report from Dr Steele dated 27 March 1997, indicates that the applicant attended the Combat Related PTSD programme at Lingard Hospital for a three week period in February 1997. The applicant also underwent an alcohol detoxification programme. The notes refer to the applicant's excessive alcohol intake and excessive stress throughout the programme. Dr Steele was of the opinion that the value of the programme was somewhat reduced, as the applicant's partner was unable to attend and because the applicant took time out from the programme due to his excessive distress, which in turn led to drinking alcohol to excess after a period of abstention.

22. The applicant was referred to Dr McMurdo, psychiatrist at the request of the respondent on 29 January 1998. In his report dated 3 February 1998, Dr McMurdo noted that the applicant informed him of the torpedo incident and of how he and the other submariner involved thought that they were going to die, he also stated that he did not seek any counselling and sought solace in alcohol. The applicant also informed Dr McMurdo of his constant fear of being hit while serving in hostile waters in war zones, that the crew were not informed of what was going on and that this period of his service aggravated his feelings of insomnia and general fearfulness. Dr McMurdo observed that throughout the examination the applicant appeared very agitated and restless, he sweated more than was normal for the office temperature and stuttered in the manner of an anxious person. Dr McMurdo noted that there did not appear to be any psychosis but the applicant had problems with his short term memory and simple calculations.

23. Dr McMurdo was of the view that the applicant had in the past certainly met the criteria to satisfy the diagnosis of PTSD as defined by the SoP and believed that the torpedo incident was indeed a frightening stressor, however it was now unclear whether the ravages of alcohol had taken over from the PTSD as the applicant's predominant problem. Dr McMurdo further stated that it was probable that the "secret operations" undertaken by the applicant could aggravate a pre-existing condition of PTSD however, no specific incident was mentioned by the applicant which caused him to be horrified. Dr McMurdo believed that it was possible, not probable, that the applicant's eligible service may have aggravated his condition, however he had no evidence of the history of the applicant's service to be satisfied that his symptoms became significantly worse during the relevant period. Dr McMurdo went on to assess the applicant's level of impairment using the GARP, Emotional and Behavioural at 45 and noted that the applicant satisfied all of the criteria for this definition including well established alcohol abuse.

24. In giving evidence to the Tribunal, Dr McMurdo opined that the applicant had suffered from PTSD at the time that the submarine was hit. However he did not think that he had ongoing symptoms of PTSD because he was able to continue working and admitted to enjoying certain aspects of his work, which he found to be a little inconsistent. Dr McMurdo believed that the symptoms of excessive alcohol disorder may have subsumed the symptoms of PTSD, which caused the diagnosis to become excessive alcohol abuse. Dr McMurdo conceded that the everyday service of a submariner who had experienced the torpedo incident could amount to a stressor if there was a similar risk of the same sort of incident occurring again. Dr McMurdo explained that the fact that the applicant continued to work in the submarine meant that the disorder was not overwhelming but the ongoing service could reawaken the disorder, it could become temporarily aggravated but not necessarily permanently worse. Dr McMurdo was asked whether it was possible for the condition to become temporarily worse and then revert back to normal, he replied that this was possible, however it may have been concealed by the alcohol abuse. Dr McMurdo was then asked if the applicant had been granted leave after the torpedo incident would his condition have improved, he replied that if it was extended leave that was possible, however if he was re-exposed to the same danger it could undo the benefit of any leave.

25. Dr McMurdo also confirmed that serving on a submarine that was carrying out diving exercises could aggravate an underlying condition of PTSD. In relation to the two episodes where the applicant feared for his life, apart from the torpedo incident, Dr McMurdo recalled that they had been mentioned by the applicant previously, and stated that they could have aggravated his anxiety disorder. Dr McMurdo also stated that it is common for people who suffer from PTSD to use alcohol or drugs and that it is a probability that the PTSD is the cause of the applicant's excessive drinking. Dr McMurdo stated that it was a fairly common approach in the services to not seek medical attention or counselling for emotional problems but rather to simply discuss matters with senior officers. It was Dr McMurdo's view that the applicant did not exhibit any signs of exaggerating his symptoms throughout his examination and had in fact admitted to a reduction of certain symptoms. However, it was Dr McMurdo's opinion that the applicant did not exhibit symptoms of PTSD at the time of his examination.

* Medical Evidence - Psoriasis

26. Dr Land, dermatologist examined the applicant in relation to his psoriasis and provided a report dated 4 May 1995. Dr Land noted that the applicant suffered from psoriasis particularly in the region of his legs as well as the arms and scalp. Dr Land further noted that stress is a well recognised precipitant of the disorder and believes it is a significant factor in the genesis of the applicant's condition. Dr Land prescribed the applicant with Halciderm cream and Celestone ointment for treatment.

27. On 9 February 1996, the applicant was referred to Dr Lee, dermatologist at the request of the Department. Dr Lee noted that the applicant had informed him that his skin problems had begun when he was in the Navy. The applicant also indicated that his skin problems would flare up with anxiety. On examination a number of psoriaform lesions particularly on the limbs were present as well as in the area of the scalp. Dr Lee noted that it was possible that the applicant had chronic psoriasis.

28. Professor Sambrook, rheumatologist examined the applicant both in relation to his non-specific skeletal pain and his psoriasis condition at the request of the respondent. In his report dated 5 February 1998, Professor Sambrook noted that both Dr Land, dermatologist and Dr Lee, dermatologist diagnosed the applicant as suffering from psoriasis and that there does exist a possible relationship between psoriasis and stress. Professor Sambrook noted the presence of a psoriaform rash over the applicant's upper arms, lower limbs and lower lumbar region. Professor Sambrook agreed with the diagnosis of the two dermatologists and opined that the applicant suffers from psoriasis, attributing an impairment rating of 5 in accordance with the GARP. Professor Sambrook went on to state:

"Psoriasis is a chronic inflammatory skin disorder of unknown aetiology although genetic factors are relevant. However stress has been identified as a precipitating factor. There is no evidence that living in close quarters, inability to shower or maintain dermal hygiene or sleeping in shared bunks is a factor in its development or permanent aggravation......I have reviewed the SoP's for psoriasis and I do not believe that Mr Kelly comes within SoP's for this condition under any category. It should be noted that the SoP's do not mention the issue of stress as an aggravating or contributing factor and this is not consistent with currently accepted medical opinion. If post traumatic stress disorder has been accepted as a service related condition then this may be a factor that should be considered as an aggravating event for his psoriasis...."

29. In evidence, Professor Sambrook stated that the applicant's condition had not worsened but had continued to trouble him at a static level. Professor Sambrook was referred to the amended SoP, which was not in place at the time of the reviewable decision or his examination, and was asked if it changed his view, in particular he was referred to paragraph (f) which refers to anxiety/depressive disorder. Professor Sambrook opined that PTSD would have made the applicant's condition more severe than it otherwise would have been. Professor Sambrook stated that the PTSD does not create the condition itself but can certainly aggravate the condition, which is why it has been included in the current SoP. Professor Sambrook was asked if he believed the applicant would now come within paragraph (f) of the SoP and he answered that it was possible. He went on to state that where a person was suffering from psoriasis and then suffered further stress, if that person developed a significant worsening of the condition it is reasonable to assume that stress would have been an aggravating factor. Professor Sambrook was of the view that alcohol dependency/abuse was not a significant risk factor in terms of psoriasis. Professor Sambrook also stated that an inference can be drawn between the amount of medical treatment received by a person and the state of the condition, whereby regular treatment would infer that the condition is getting worse.

Applicant's submissions

30. Mr Davies submitted that the applicant experienced a number of stressful incidents throughout the course of his service, the most noteworthy being the torpedo incident on 15 November 1971. Mr Davies asserted that this incident shook the nerve of the applicant such that he has never recovered and in fact his condition worsened as a result of his continued service. Mr Davies further submitted that the applicant comes within paragraphs 1(b) and (c) of the SoP concerning PTSD, as the applicant was involved in events on a daily basis that concerned actual or threatened death or serious injury, threats to the applicant's or other person's physical integrity and that the applicant's continued service involved intense fear, helplessness and horror. Mr Davies referred to the accounts of the torpedo incident made by Mr Peter Smith at page 74 of the T'documents, Mr J Joyce at pages 116 to 126 of the T'documents and that of Mr J A Rana at pages 72 and 73 of the T'documents. It was submitted that there has been a permanent increase in the underlying pathology of PTSD during the applicant's subsequent period of eligible service. It was also submitted that the applicant experienced an inability to obtain appropriate clinical management for his PTSD and instead masked his condition with the over consumption of alcohol and excessive smoking.

31. In relation to psoriasis Mr Davies submitted that the applicant came within the ambit of paragraphs 5(e), (f) and (g) of the SoP and referred to Professor Sambrook's comments in relation to stress being an acknowledged aggravating factor of PTSD. Mr Davies also noted that since Professor Sambrook's report the SoP had been amended to include stress as a relevant factor and that this was acknowledged by him in evidence.

Respondent's submissions

32. It was submitted by Ms Doggett that the earliest date of effect, should the applicant be successful, is 20 April 1995, being three months prior to the lodgement of the applicant's claim. It was further submitted that should the applicant be successful in having any of the claimed conditions accepted as service related, then the assessment of those conditions should be remitted to the Department.

33. Ms Doggett referred the Tribunal to the decision of Repatriation Commission v M J Smith (1987) 15 FCR 327 in relation to the definition of reasonable satisfaction in terms of section 120(4) of the Act and submitted that there is a distinction of substance between probabilities and mere possibilities, even if the possibility may be real as distinct from fanciful. In relation to the application of section 120B of the Act, Ms Doggett referred to the Explanatory Memorandum to The Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 and submitted that a connection will only be held to exist to the Commission's reasonable satisfaction if there is a SoP relating to the relevant type of condition or injury and that there must exist at least one of the minimum factors stated to be required to exist and to be related to the person's service. Ms Doggett further submitted that because the applicant's claim was lodged after 1 June 1994, the relevant SoP are binding on the Tribunal.

34. In relation to PTSD, Ms Doggett submitted that the appropriate SoP is Instrument No. 16 of 1994 as amended by Instrument No. 226 of 1995. Ms Doggett stated that the applicant claims to have experienced a stressor when his submarine was struck by a torpedo during exercises near Hawaii in November 1971. It is the respondent's position that this stressor occurred outside the applicant's period of eligible defence service and therefore does not satisfy the SoP. The applicant has also claimed that his subsequent service on the HMAS Onslow may have aggravated the condition from which he now suffers. The respondent submitted that this presumes that the clinical onset of the applicant's PTSD was prior to the applicant's period of eligible service. Ms Doggett referred to the report of Dr McMurdo dated 3 February 1998, where it was stated that the applicant's failure to notify medical officers during examinations which took place on 11 July 1972 and again on 20 November 1973 would indicate that the applicant's anxiety level was not grossly disabling nor subjectively distressing at that time. Ms Doggett argued that it was more likely than not that the clinical onset of the applicant's condition was not during his period of eligible defence service.

35. In relation to the issue of aggravation, Ms Doggett referred to the decision of Re Lee and the Repatriation Commission (1986) 11 ALD 56 at 68:

"A condition cannot be made worse or be aggravated unless it first exists. The paragraph does not talk of aggravating a susceptibility or predisposition to a particular disease. It does not talk about inducing, encouraging or eliciting a disease from a disposition. It takes an existing condition and postulates the question whether service has worsened that condition."

36. The respondent submitted that in order for the applicant's condition of PTSD to have been aggravated, the underlying pathology of the disease must be shown to be worse, not just the symptoms of the disease. Ms Doggett referred to the decision of Lindgren J in Repatriation Commission v Yates (1995) 38 ALD 80 at 87, particularly in relation to the finding that the Tribunal had erred in concluding that a temporary worsening of symptoms caused by service was equivalent to a temporary aggravation of an underlying disease. His Honour also noted that:

"an aggravation of a disease need not be literally "permanent" .......It accepted (as it was entitled to do) that Yates' defence service had temporarily worsened the disease's symptoms and associated discomfort. Its error was, without more, to link the two to reach the conclusion that the temporary worsening of the symptoms was equivalent to a temporary aggravation of the underlying disease."

37. The respondent also submitted that the SoP requires that, in order for the applicant's PTSD to satisfy factor 1(b), the applicant needs to have experienced a stressor as defined by the SoP. The respondent submitted that the movement record of the HMAS Onslow for the period of the applicant's eligible defence service indicated that for that whole period of eligible defence service, apart from one trip to Auckland, the HMAS Onslow did not leave Australian waters nor is there any record of the applicant travelling into hostile waters during that period.

38. In relation to the applicant's claimed condition of psoriasis, Ms Doggett acknowledged that the relevant SoP is Instrument No. 22 of 1998. Ms Doggett noted that the applicant first sought treatment for a skin condition on 17 March 1972. As this was prior to the applicant's period of eligible defence service, the question as to whether this condition has been aggravated by the applicant's eligible defence service arises. The respondent submitted that their earlier submission in relation to the meaning of aggravation would also apply here and that there is no indication that the applicant's psoriasis has been made permanently worse by the applicant's eligible defence service.

Findings

39. Subsection 120(4) of the Act provides that the Commission must determine a matter to its reasonable satisfaction. In matters relating to a veteran's eligible defence service, the Tribunal must determine whether the material before it raises a connection between the claimed condition(s) and the circumstances of the service rendered by the veteran. If there is a relevant SoP in place, as there is in the present case, the Tribunal can only be so satisfied, if the SoP upholds the connection between the condition(s) and the eligible service on the balance of probabilities, in accordance with subsection 120B(3) of the Act (see Heery J at 270 - 271, Deledio v Repatriation Commission (1997) 47 ALD 261).

40. The applicant claims that he continues to suffer from the conditions of PTSD and psoriasis, which he asserts are directly related to his period of eligible defence service, being the period 7 December 1972 to 31 December 1973. The applicant submitted that he was exposed to a number of stressors during this period which either caused and/or aggravated his conditions.

Post Traumatic Stress Disorder (PTSD)

41. The respondent has argued that it is more likely that the clinical onset of PTSD occurred before the applicant's period of eligible defence service and therefore does not satisfy the requirements of the SoP. This view would appear to be supported by the evidence given by the applicant as well as the medical evidence before the Tribunal. In particular that given by Dr McMurdo, who was of the opinion that the applicant had in the past "certainly met the criteria to satisfy the diagnosis of PTSD as defined by the SoP," and in giving evidence to the Tribunal stated that, "the applicant had suffered PTSD at the time that the submarine was hit." In the report provided by the applicant's treating psychiatrist, Dr Chambers, it is noted that the applicant attributed his symptoms of PTSD to the torpedo incident which he described as the most frightening incident he has ever had to deal with. In evidence, the applicant indicated that it was immediately after the torpedo incident that he first suffered feelings of great anxiety and fear. There is sufficient evidence before the Tribunal to conclude that the clinical onset of PTSD occurred as a result of the applicant experiencing a stressor, in the form of the torpedo incident, which occurred prior to his period of eligible defence service. Therefore the applicant is unable to come within the terms of paragraph 1(a) of the SoP.

42. However, it was submitted that the torpedo incident was not the only stressor experienced by the applicant during his period of eligible service. The applicant argued that there were two specific incidents in addition to his ongoing service that amounted to further stressors, which had the effect of aggravating his pre-existing condition of PTSD. The applicant also submitted that it is more probable than not that these stressors occurred during the period of eligible defence service.

43. The decision of the Tribunal in Re Lee (supra) held that a condition could not be made worse or be aggravated unless it was first found to exist. The Tribunal has already found that the applicant was suffering from PTSD prior to his period of eligible defence service, the issue then becomes whether or not the eligible period of service has aggravated the pre-existing condition. The respondent has submitted that for there to be an aggravation, the underlying pathology of the disease must have become worse and not just the symptoms of the condition. Further, that it is not enough that the condition has simply progressed along its ordinary course. The respondent referred to the Full Federal Court decision of Commonwealth v Johnson (1980) 31 ALR 445 at 466, where it was stated: ".....Something else must contribute an increased gravity to the employee's disease, a gravity over and beyond what the natural progress of the disease produces."

44. The Tribunal accepts the respondent's submission that it is necessary in order to satisfy paragraph 1(b) of the SoP, that a stressor must have been experienced by the applicant, prior to the clinical worsening of the PTSD. The applicant has argued that the criteria contained in paragraph 1(b) has been satisfied and that in addition, paragraph 1(c) has also been satisfied, in that the applicant was unable to obtain appropriate clinical management for PTSD. The respondent disputed the applicant's assertion that further stressors occurred and argued that the movement records of HMAS Onslow (Exhibit R6) indicate that the submarine did not leave Australian waters apart from one trip to Auckland.

45. The applicant described for the Tribunal, two significant incidents that he believes aggravated his condition. The first being the "tanker incident", which occurred when the HMAS Onslow almost collided with a tanker ship in Australian waters. For a period of time, the applicant was faced with the very real possibility that the submarine would in fact collide with the tanker ship and it was only by a narrow margin that the submarine was in fact spared. In an effort to avoid the collision, the submarine dived deeper into the ocean, which caused the submarine to flood, a result that may well have reminded the applicant of the flooding caused when the submarine had been hit by the torpedo. The applicant found this incident so distressing that he felt that he could no longer continue in service and had hoped that he may be discharged.

46. The applicant described a further incident which occurred after he had served on board another vessel for a period, and at the end of this service expected to take leave. However, rather than commence his period of leave, the applicant was immediately asked to board another submarine. While of itself this incident may not appear to be overly distressing, when one bears in mind the state of the applicant's emotional condition at that time, where the applicant had already felt as though he could no longer carry on, it is not difficult to imagine how this command and his inability to refuse to carry it out without incurring punishment, would be most distressing for the applicant.

47. In giving evidence, Dr McMurdo conceded that even the everyday service of a submariner who had experienced the torpedo incident could amount to a stressor, if there was a similar risk of the same sort of incident occurring again. Dr McMurdo also confirmed when questioned, that the above two incidents were capable of aggravating the applicant's pre-existing disorder. Dr McMurdo also stated that it was a fairly common approach for men in service not to seek counselling for their emotional problems but rather to seek solace in alcohol.

48. In considering the effect that these incidents would have had on the applicant, it is important to view them in the context of a person who has already endured the effects of the torpedo incident. An incident which would have undoubtedly instilled a sense of fear and horror in most people. It is also important to consider the fact that the applicant was left to recover from this incident in the claustrophobic environment of a submarine, without the aid of proper counselling and in an atmosphere not conducive to discussing one's emotions with colleagues. It is therefore not difficult to imagine the effect that the two incidents would have had on the applicant's already fragile condition, and why he may have viewed these incidents as involving a threat of death or serious injury, causing him to feel fear, helplessness and horror.

49. There was some doubt as to the exact timing of these incidents, which could only be resolved in part by reference to the movement records of the HMAS Onslow. However, the Tribunal found the applicant to be a most honest and co-operative witness who answered all questions to the best of his ability. Therefore, in this regard, the Tribunal accepts the applicant's evidence, albeit somewhat lacking in precision. The Tribunal notes that at no stage did the respondent call into question the credibility of the applicant. Therefore the Tribunal finds that the incidents most likely occurred during the applicant's eligible period of service, as the applicant was able to confirm that they definitely occurred after the torpedo incident and approximately one year before the termination of his service. The fact that the applicant did not attempt at any stage to pinpoint the exact timing of these incidents, even when he had ample opportunity to do so when answering questions put by his solicitor, only served to strengthen his credibility. Accordingly, the Tribunal accepts that these incidents are stressors as defined by the SoP and that they occurred during the applicant's period of eligible defence service.

50. The respondent also argued that the applicant's pre-existing condition of PTSD had not been aggravated during the relevant period nor did the applicant continue to suffer from the effects of the condition. This view was supported to some extent by Dr McMurdo, who stated that the applicant no longer appeared to be suffering from the disorder, however he did concede that the symptoms may have been masked by the applicant's alcohol abuse, which he believes to now be the applicant's predominant problem. However, this diagnosis must be weighed against the evidence of Dr Chambers, the applicant's treating psychiatrist, who believes the applicant continues to suffer from the disorder. As well as the evidence provided by Ian McCombie, psychologist who diagnosed the applicant as suffering from chronic PTSD and from the notes provided by Dr Steele, the Director of the PTSD Programme attended by the applicant in February 1997.

51. In considering whether the applicant's condition had been aggravated as a result of the aforementioned stressors, the Tribunal has relied on the available medical evidence, as well as the evidence of the applicant, which is largely consistent with the history given to medical practitioners at the time of his examinations. The Tribunal has also considered the applicant's work history, and considers it significant that a man who entered the RAN with the intention of making naval service his career, ended his career somewhat prematurely, even though he had been offered a promotion and salary increase. The applicant's work history indicates that for the period between 1974 and 1994, he was employed largely in non-skilled labour positions, which were not reflective of the applicant's capabilities before the onset of his condition. The applicant eventually reached a point where he was no longer capable of maintaining employment and could not cope with performing jobs that involved only minimum levels of stress. In addition the applicant has nursed a severe alcohol problem since the time of the torpedo incident. All of these factors contribute to a finding that the applicant's pre-existing condition was not merely progressing along its ordinary course but rather, was made permanently worse by the incidents in question. Therefore the Tribunal finds that the applicant suffered an aggravation of his conditon of PTSD during his period of eligible defence service.

52. Having already found that the available material raises a connection between the applicant's condition of PTSD and his eligible defence service, and that the relevant SoP upholds the contention that the condition, on the balance of probabilities is connected with that service, the Tribunal is reasonably satisfied that the applicant's condition of PTSD is service related.

Psoriasis

53. The respondent has submitted that because the applicant first sought treatment for a skin condition in March 1972, and because this pre-dates the applicant's period of eligible defence service, there is no indication that the applicant's psoriasis condition has been made permanently worse by his eligible defence service. There is no real dispute that the applicant in fact suffers from psoriasis, even the report of Professor Sambrook tendered by the respondent confirms this to be the case. The issue is whether or not the condition is service related. At the time that Professor Sambrook provided his initial report, the relevant SoP did not include stress as a precipitating factor in relation to psoriasis. A fact that Professor Sambrook noted was inconsistent with currently accepted medical opinion, and that if PTSD was accepted as a service related condition, it could be a contributing factor to the condition of psoriasis. At the hearing of this matter, Professor Sambrook gave evidence that PTSD would have made the applicant's condition more severe than it otherwise would have been. He further noted that stress did not create the condition itself, but could most certainly aggravate it. Professor Sambrook did not believe that alcohol dependency would have been a significant contributing factor. Both of the applicant's dermatologists Dr Land and Dr Lee diagnosed the applicant as suffering from psoriasis. Dr Land acknowledged stress as a precipitant of the disorder.

54. The fact that the applicant may have first sought treatment for a skin disorder in March 1972 and again in July 1972 tends to suggest that the applicant was already suffering from psoriasis prior to the commencement of his period of eligible service. Before it can be said that a person is suffering from psoriasis in connection with their eligible service, one of a number of factors must be present. Paragraph 1(f) of the SoP requires a person to be suffering from a clinically significant anxiety disorder at the time of clinical worsening of psoriasis. The Tribunal has already found the applicant to have been suffering from PTSD in the final year of his service, being the time that the applicant claims his psoriasis condition became worse. Unfortunately, there is no detailed account of the applicant's physical condition during his period of eligible service. The only available record is a medical examination summary dated November 1973, which records the applicant's skin as normal. However, the Tribunal notes the applicant's evidence that in his opinion these examinations were of a perfunctory nature and were primarily for the purpose of screening for asbestosis. The Tribunal accepts the applicant's evidence that it was in his final year of service that his condition became worse. It would also appear from more recent medical evidence that his condition continues to be aggravated by stress, and can be controlled only through use of medication. Therefore the Tribunal finds that the applicant's condition of PTSD has aggravated the psoriasis condition causing it to become permanently worse.

55. Accordingly, there is sufficient evidence for the Tribunal to conclude that the available material raises a connection between the applicant's condition of psoriasis and his eligible defence service, and that the relevant SoP upholds the contention that the condition, on the balance of probabilities is connected with that service. Therefore the Tribunal is reasonably satisfied that the applicant's condition of psoriasis is service related.

56. For the reasons given above, the decision under review is set aside. In substitution therefor, the Tribunal decides that the applicant's conditions of PTSD and psoriasis are service related, and remits the matter to the respondent for assessment of pension in accordance with this decision.

I certify that this and the 25 preceding pages are a true copy of the decision and reasons for decision herein of Dr J D Campbell, Member.

Signed: J Demetrius .....................................................................................

Associate

Date/s of Hearing 8 December 1998

Date of Decision 4 February 1999

Solicitor for the Applicant Mr Davies, Davies, Spicer, Drake Solicitors

Respondent's Representative Ms Doggett, delegate of the Department of Veterans' Affairs