|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 22 March 2002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1428
VETERANS' APPEALS DIVISION )
Re Robert John Stewart
Applicant
And Repatriation Commission
Respondent
Tribunal Mr M J Sassella, Senior Member
Date 1 February 2002
Place Sydney
Decision The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant qualifies for a Disability Pension at 30% of the general rate with effect from 19 March 1998.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - claim for disability pension - anxiety disorder - alcohol abuse - hypertension - stress while on active service - failure by naval authorities to provide appropriate clinical management of problems - aggravation or contribution to anxiety during service not met - generalised anxiety disorder present at time of onset of alcohol abuse - alcohol abuse not service related - hypertension not service related - disability pension granted for anxiety disorder
Repatriation Commission v. Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193, 206
Repatriation Commission v Wellington (1999) 57 ALD 507
Repatriation Commission v Wederkind [2000] FCA 649
Veterans' Entitlements Act 1986 - ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(8), (9) "Relevant documentary medical evidence", 20(1), 21A, 68(1) "defence service" (a), (b), "member of the Forces", "terminating date", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.
SoP 1/2000 concerning anxiety disorder.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 31/2001 concerning hypertension.
1 February 2002 Mr M J Sassella, Senior Member
History of the application
1. On 19 June 1998 Robert John Stewart ("the Applicant") lodged a formal claim for a Disability Pension with the Department of Veterans' Affairs ("the DVA") (T4). He lodged this claim in respect of the conditions diabetes mellitus, ischaemic heart disease ("IHD"), hypertension, cerebral ischaemia and adjustment disorder. It was his contention that these conditions were related to his navy service between 1965 and 1982.
2. On 26 September 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claim in respect of these conditions (T10). The Respondent found no reasonable hypothesis that would link the onset of these conditions to the Applicant's operational service.
3. On 26 October 1998 the Applicant lodged an application for review of this decision with the Veterans' Review Board ("the VRB") (T11).
4. On 7 December 1998 the Applicant was informed by the DVA that that it had elected not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).
The decision under review
5. On 21 July 1999 the VRB affirmed the decision under review, despite adding the diagnosis of chronic anxiety state with depression and alcohol dependence (T14). In relation to the Applicant's smoking history the VRB found the contemporaneous evidence given by the Applicant to medical officers during his service was more credible than his later statements about his smoking history. The Applicant reported his smoking consumption as being 20 cigarettes a day on 8 August 1973, 29 May 1975 and 10 December 1981. It was therefore found that his smoking consumption was established before his first period of operational service which occurred some 40 months later. The Applicant's smoking habit was not service-caused.
6. Again, in relation to his alcohol consumption, the Applicant's later evidence was found to be not as credible or reliable as that given to medical officers during his navy service. A history of being a light drinker, or consuming only three drinks a day, was recorded on 8 August 1973 and 10 December 1981. The VRB found that the Applicant's alcohol consumption commenced at about two cans of beer a day and increased to around three cans a day by the end of his service. Therefore, any alcohol dependence was found not to be related to navy service.
7. The condition diabetes mellitus was found not to be service-related. This flowed from the condition's possible relationship to cigarette smoking, which had already been found not to be related to his time in the navy. Further, the Applicant's mother was an insulin dependent diabetic, and diabetes mellitus is caused by an hereditary disposition in most if not all cases.
8. The VRB then examined the condition of IHD. Diabetes mellitus is a possible factor that can cause the condition but the VRB had already found that this was not service-related. Smoking was also dismissed as a causal factor for the same reason. Dyslipidaemia was then examined as a possible cause but the Applicant's medical documents produced no evidence that this condition was related to his service in any way.
9. In relation to the condition of hypertension, the VRB found that the Applicant's contention that alcohol dependence was the contributing factor was unsustainable in that the VRB had already found that this was not related to his navy service.
10. Similarly cerebral ischaemia was found not to be service-related in that the possible contributing factors of smoking, diabetes mellitus and IHD were not in themselves related to service.
11. The VRB then examined the Applicant's adjustment disorder. Factors (a), (b) and (c) of the relevant SoP were investigated as possible causes. The report of Dr Subhas (T9) contained the opinion that the adjustment disorder was related to the Applicant's various physical problems, however the VRB had already found that these were not service related. Therefore factors (a) and (b) of the SoP were eliminated as possible service related caused. Factor (c) would only be relevant if the condition was present before or during his service. The condition was not diagnosed until 1998, 16 years after cessation of service.
12. In relation chronic anxiety state with depression, a "stressful event" during the Applicant's service in Vietnamese waters was said to be the cause of this condition. The Applicant had seen helicopters in combat and shells being fired from an airbase. He stated that he feared for his life and that of the entire crew. The VRB found significant inconsistencies in the Applicant's evidence and noted from the report of Dr Subhas that he did not start to suffer anxiety until he was afflicted with serious physical conditions.
13. Finally, the VRB considered the condition of alcohol dependence. It found that none of the factors of the relevant SoP were satisfied in that the Applicant did not suffer a severe stressor and that his alcohol consumption was not related to service. The VRB was ultimately satisfied that there was no reasonable hypothesis liking any of the Applicant's conditions to his navy service.
14. On 20 September 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of this decision (T1).
Background
15. The Applicant was born on 4 October 1943. He was the second of three children (all by different fathers) and lived with his grandparents until the age of 15. The Applicant did not meet his mother until he was 16 (Ex A1). At the age of 12 or 13 his grandmother died and he was cared for by his grandfather and uncle. The Applicant married in 1965. He and his wife have one son and one daughter.
16. The Applicant rendered eligible service (also being operational service) whilst in transit to and from Vietnamese territorial waters during the following periods:
* 27 May 1965 - 26 June 1965
* 20 May 1968 - 7 June 1968
* 15 May 1971 - 24 May 1971
* 14 February 1972 - 9 March 1972
17. He also rendered defence service from 7 December 1972 to 19 February 1982. He was discharged at his own request. The Applicant is not currently in receipt of a Disability Pension.
18. The Applicant is currently unemployed but has had about six jobs since 1982. He has worked as a security guard and also at McDonalds (T9). The Applicant has not worked since December 1997, often losing his jobs because of aggressive behaviour and drinking (T13).
19. The Applicant receives a Service Invalidity Pension and a Defence Force Retirement and Death Benefits pension.
Relevant legislation
20. The following provisions in the Act are relevant. Sections: 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 19(8), (9) "Relevant documentary medical evidence", 20(1), 21A, 68(1) "defence service" (a), (b), "member of the Forces", "terminating date", 69(1)(a), (b), (c), 70(1)(b), (d), 71(1), (2), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.
The following extracts from SoPs are relevant.
SoP 1/2000 concerning anxiety disorder.
SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 31/2001 concerning hypertension.
Veterans' Entitlements Act 1986
...
6C Operational service - post World War 2 service in operational areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
...
7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
...
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:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
...
Part II - Pensions, Other than Service Pensions, for Veterans and their Dependants
...
Division 2 - Eligibility for pension
13 Eligibility for pension
(1) Where:
...
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
...
(d) in the case of the incapacity of the veteran--pension by way of compensation to the veteran;
in accordance with this Act.
...
Division 3 - Claims for pensions and applications for increases in pensions
...
14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
...
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
...
19 Determination of claims and applications
...
(8) Where the Commission grants the whole or a part of a claim or application, the Commission may pay to the claimant or applicant an amount, calculated in accordance with a scale approved by the Commission, in respect of the expenses (if any) incurred by the claimant or applicant in providing for the production of relevant documentary medical evidence.
(9) In this section:
...
...
relevant documentary medical evidence, in relation to a claim or application referred to in subsection (8), means certificates, reports or other documents from a medical practitioner, or from a hospital or similar institution in which the veteran or deceased veteran in respect of whom the claim is made had received medical treatment, in support of the claim or application, being certificates, reports or documents reasonably used:
(a) in support of the claim or application; or
(b) if a part only of the claim or application was granted--in support of that part of the claim or application.
...
20 Dates of effect that may be specified in respect of grant of claim for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
...
Division 4 - Rates of pensions payable to veterans
21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(2) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension.
...
Part IV - Pensions for Members of Defence Force or Peacekeeping Force and their Dependants
Division 1 - Interpretation
68 Interpretation
(1) In this Part, unless the contrary intention appears:
...
defence service means:
(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
...
member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A;
...
terminating date means the date on which the Military Compensation Act 1994 commences.
...
69 Application of Part to members of the Forces
(1) Subject to this section, where a person:
(a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c) if the person:
(i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii) has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
...
Division 2 - Eligibility for pension
70 Eligibility for pension under this Part
(1) Where:
...
(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
...
(d) in the case of the incapacity of the member--pension by way of compensation to the member;
in accordance with this Act.
71 Application of certain provisions of Part II
(1) Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
(2) For the purposes of the application of Divisions 2A, 3, 6 and 7 of Part II as provided in subsection (1):
(a) a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
(b) a reference in those divisions to the death of a veteran that was war-caused shall be read as a reference to the death of a member of the Forces or a member of a Peacekeeping Force that was defence-caused;
(c) a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(d) a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and
(e) a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.
Division 3 - Rates of pension
73 Application of Divisions 4 and 5 of Part II
(1) The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.
...
Part VIII - General Provisions Applicable to Pensions etc.
...
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(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.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
120A Reasonableness of hypothesis to be assessed 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 operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
...
(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
...
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).
(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.
...
Part XIA - the repatriation medical authority
Division 1 - Establishment, functions and powers
196B Functions of Authority
(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For defence service and hazardous service see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
...
196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
...
Statement of Principles concerning ALCOHOL DEPENDENCE OR ALCOHOL ABUSE (No. 76/98)
...
Kind of injury, disease or death
2.(a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
...
"alcohol abuse" means the presence of cognitive, behavioural or
physiological symptoms indicating the use of alcohol despite
significant alcohol-related problems, however these symptoms
have never met the criteria for alcohol dependence. Additionally,
signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to
clinically significant impairment or distress, as manifested
by one (or more) of the following, occurring within a 12-
month period:
(1) recurrent alcohol use resulting in a failure to fulfil
major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is
physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or
exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for
alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude
acute alcohol intoxication in the absence of alcohol dependence or
alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303
or 305.0.
...
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting alcohol dependence or
alcohol abuse or death from alcohol dependence or alcohol abuse
with the circumstances of a person's relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
...
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
...
Other definitions
8. For the purposes of this Statement of Principles:
...
"DSM-IV" means the fourth edition of the American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders;
...
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
...
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this First day of December 1998
Statement of Principles concerning ANXIETY DISORDER (No. 1/2000)
...
Kind of injury, disease or death
2. (a) This Statement of Principles is about anxiety disorder and death
from anxiety disorder.
(b) For the purposes of this Statement of Principles, "anxiety disorder" is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
...
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person's relevant service are:
(a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
...
(v) experiencing a severe psychosocial stressor within the two
years immediately before the clinical worsening of anxiety
disorder; or
...
(c) inability to obtain appropriate clinical management for anxiety
disorder.
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(a)(v) to 5(a)(vii) and 5(c) apply only to material contribution to, or aggravation of, anxiety disorder where the person's anxiety disorder was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
...
Other definitions
8. For the purposes of this Statement of Principles:
...
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
...
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
"severe psychosocial stressor" means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury of a close friend or relative, assault
(including sexual assault), major illness or injury, experiencing a loss such
as divorce or separation, loss of employment, major financial problems or
legal problems;
...
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-eighth day of January 2000
Statement of Principles concerning HYPERTENSION (No. 31/2001)
...
Kind of injury, disease or death
2. (a) This Statement of Principles is about hypertension and death
from hypertension.
(b) For the purposes of this Statement of Principles, "hypertension"
means permanently elevated blood pressure, evidenced by:
(i) a usual blood pressure reading where the systolic reading
is greater than or equal to 140 mmHg and/ or where the
diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to
reduce blood pressure,
attracting ICD codes I10, I11, I12, I13 or I15. This definition
excludes temporary elevations in blood pressure from conditions
such as acute renal failure, neurogenic hypertension, eclampsia,
pre-eclampsia or medications.
...
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting hypertension or
death from hypertension with the circumstances of a person's relevant
service are:
...
(b) suffering from alcohol dependence or alcohol abuse, involving
consumption of an average of at least 200 grams per week of
alcohol (contained within alcoholic drinks) at the time of the
clinical onset of hypertension; or
...
Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Twenty-fourth day of May 2001
Documentary medical and other evidence
21. On 23 January 1962 the Applicant presented to a Medical Officer and was diagnosed with coryza and acute pharyngitis. He was advised to stop smoking (T3/12a).
22. On 23 October 1963 the Applicant presented to the medical officer where he was diagnosed with anxiety reaction (T3/14). He was "upset by a reprimand this AM. Very disturbed physically."
23. On 15 June 1964 the Applicant by described by a service psychiatrist as an "immature, dependent man with a disturbed family background..." (T3/15-16). The Applicant felt that the navy threatened the stability of his coming marriage. He was diagnosed with "inadequate personality."
24. On 18 June 1964 the same examining psychiatrist, Captain W Green, stated that the Applicant was likely to be a difficult management problem and that it was unlikely that he would improve in the foreseeable future (T3/17).
25. On 16 and 17 July 1964 "hyper somnia" was diagnosed (T3/18). He kept falling asleep while on watch and this condition apparently first became apparent in January 1963. On 16 July 1964 he was admitted to Balmoral Naval Hospital with mild reactive depression.
26. On 19 and 27 August 1965 it was noted on the Applicant's out-patient record that his symptoms had largely been resolved following his marriage (T3/28). He had "no psychiatric symptoms."
27. On 24, 25 and apparently 23 June 1968 clinical notes stated that the Applicant was suffering from slight fatigue and worry over his wife and son (T3/31-32). This had caused a recurrence of his "hypersomnia". He was described as anxious and immature and "genuinely agitated."
28. On 22 and 26 July 1968 he was described as performing badly and Surgeon Lieutenant J Vett said that "he would be a chronic problem on board (T3/35-36). It was further stated by psychiatrist Dr J McGeorge that he could possibly be discharged on the grounds of inadequate personality.
29. On 20 August 1973 an in-patient summary noted tobacco consumption of 20 cigarettes a day and a "light intake of alcohol only" (T3/40). A report prepared for a psychiatric examiner of around the same date noted that the Applicant was rather "anti social" and a "wardrobe drinker." He tended to over react with more junior personnel and several complaints had been made in this respect (T3/40).
30. On 29 April 1980 the Applicant was examined by a medical officer and described as nervous and anxious over his hospitalisation and his absence from his children. (T3/42).
31. Medical reports of November and December 1981 noted a "marginal diabetic curve" and hypertrigliceridaemia (T3/44-45). It was further noted that the Applicant smoked 20 cigarettes a day and drank approximately three alcoholic drinks a day. Diabetes mellitus was diagnosed. In conclusion it was stated that the Applicant was fit to be discharged from the navy.
32. On 10 August 1998 the DVA received a cigarette smoking claimant report from the Applicant (T6). He stated that he first started smoking in October 1962 upon his first sea posting and the smoked 10-15 cigarettes a day. By March 1971 he was smoking 20-30 a day due to increased stress upon promotion and travelling to Vietnam.
33. On the same date the DVA received an alcohol questionnaire from the Applicant (T7). He started drinking in 1962 and drank every day, two cans of beer on each occasion. The Applicant stated that there was a steady increase in 1965 after his Vietnam posting where he was away from his wife and family. At the time of completing the questionnaire the Applicant was drinking two to three times a week. He would drink half a bottle of wine and six stubbies of beer over a weekend.
34. On 3 August 1998 Dr L S Martin completed various medical assessments in respect of the Applicant (T8). An episode of angina was noted in 1993 in relation to IHD and it was further noted that the Applicant suffered from bursts of anger and excessive eating and drinking in relation to depression/anxiety. The Applicant lost his job over his behaviour in the workplace. He also suffers from some delusional behaviour.
35. On 16 September 1998 Dr Subhas, consultant psychiatrist, reported on the Applicant (T9). He noted significant problems since the Applicant underwent an operation for blockage of the carotid artery. He used to play golf but has since stopped. The Applicant felt that his smoking and drinking had aggravated his coronary artery disease and his diabetes. He had suffered blackouts as a result of binge drinking. The Applicant had a triple-bypass operation in 1992-93. Dr Subhas noted that he was not exposed to any traumatic experiences in Vietnam and he has no flashbacks. It was his opinion that the Applicant had an adjustment disorder in relation to his various problems over the recent period. He gave no opinion, however, as to whether the Applicant's reported past heavy drinking and smoking habits were related to his navy service. The Applicant certainly believed this to be the case.
36. On 16 June 1999 Dr Keshava, also a consultant psychiatrist, reported on the Applicant (T13). He noted disturbed sleep, a short temper, agitation and restlessness. He further noted dreams about naval service in Vangtau [sic] harbour. The Applicant reported drinking ¾ to one bottle of scotch a day, this being sharply in contrast with the evidence in the drinking questionnaire and that given to medical officers during his service. At the time of this report the Applicant stated that he was drinking up to six cans and two to three nips of whisky a day. He was smoking up to 40 cigarettes a day but gave up the habit in January 1998. Dr Keshava also noted alcoholic blackouts. Dr Keshava concluded:
"He lacks insight into his alcohol problem and his prognosis is poor. He is not fit for any gainful employment and he is totally and permanently incapacitated. He needs ongoing psychiatric support. His chronic anxiety state and alcohol dependence have stemmed from his active service in the navy."
37. On 29 December 1999 Dr Tim Anderson, consultant occupational physician, reported on the Applicant (Ex R1). He stated that the anxiety condition had started around the time of the Applicant's myocardial infarct and his cardiac bypass surgery in the early 1990s and that such a condition is "quite a common phenomenon following such severe illness." Dr Anderson further stated that his alcohol and tobacco consumption was entirely the choice of the Applicant and that there was no particular issue during his service that could account for these two habits. He found a total impairment rating of 11 points under "GARP" (Guide to the Assessment of
Rate of Veterans Pensions (5th ed), http://www.dva.gov.au/pensions/policy/garp/garp.htm) but stated that none of the claimed conditions could reasonably be related to the Applicant's navy service.
38. On 29 February 2000 Dr Schultz, consultant psychiatrist, reported on the Applicant (Ex R2). Dr Schultz noted that the Applicant started binge drinking after his first trip to Vietnam. He also noted the various medical documentation. Dr Schultz found that the Applicant was experiencing psychiatric difficulties before he went to Vietnam and that these were identified by several psychiatrists. There was no evidence that the Applicant was still suffering from an adjustment disorder and Dr Schultz diagnosed alcohol abuse and "probably" alcohol dependence. He found no relationship between this condition and the Applicant's navy service. Dr Schultz thought it unlikely that the Applicant could work for more than eight hours a week but that the major reason for this was the Applicant's physical condition caused by a stroke in January 1998.
39. On 15 June 2000 Dr Dinnen, consultant psychiatrist, provided a report on the Applicant (Ex A1). He noted that the Applicant was a binge drinker and that frequently during his service he had disagreements with his superior officers. When he is worried he can drink a bottle of scotch by himself. The Applicant stated that he underwent stress in the navy and became "aggro" after not receiving promotion that he thought he deserved. The Applicant recalled being worried about his marriage while he was at sea. He described particularly stressful events such as witnessing missile fire from his ship; the occasion when he was part of a search party looking for five midshipmen who had gone missing on a training exercise; and an incident between 1966 and 1968 when, during refuelling at sea, his ship was exposed to particularly violent weather.
40. Dr Dinnen noted the variety of medical documentation and advised that a diagnosis of alcohol abuse was appropriate and that this developed during his career in the navy. He also diagnosed an underlying personality disorder. Alongside the alcohol abuse, Dr Dinnen further diagnosed generalised anxiety disorder which also commenced during the Applicant's navy career. Dr Dinnen found no evidence of a stressor that would satisfy the relevant SoP but found that "stressful circumstances of his service affecting a vulnerable personality that led to the development of the chronic problems which have been identified by psychiatrists and doctors over the past 35 years." He recommended a GARP rating of 17 points.
41. On 2 August 2000 Dr Dinnen provided a further report (Ex A2). He was asked to comment on whether the authorities in the navy had failed to provide appropriate clinical management for the Applicant. Dr Dinnen took detailed notes on the various psychiatric consultations from the Applicant's service documents (T3). Dr Dinnen found that, although psychiatric problems were identified during service, they were "not considered in sympathetic fashion." Further:
"...he was not provided appropriate clinical management for these problems throughout his service, that the condition was not fully investigated and diagnosed, and that much of his difficulties were incorrectly attributed to personality problems rather than ongoing anxiety disorder..."
42. On 13 August 2000 Dino Cipriani, psychologist (Ex R4), examined the Applicant. He also took a detailed medical and social history from the Applicant. Mr Cipriani noted that the information given by the Applicant to Drs Subhas and Keshava differed, suggesting moderate alcohol intake to the former and heavy intake to the latter. He also noted that the service documents suggested a light drinking pattern. He found no evidence of anxiety or depression, emotional lability, irritability or frustration tolerance. Further, Mr Cipriani found no evidence on the available information of a diagnosis of generalised anxiety disorder, although the Applicant did appear to be suffering from mild depression as a result of his health problems. He stated that the Applicant would be suitable for a number of clerical or sales positions. He could work as a carpark attendant or as a ticket seller. Mr Cipriani noted that the Applicant's liver function tests were normal and there was no evidence that alcohol consumption had affected his employment. Further, alcohol use was related to the Applicant's upbringing and family problems. He concluded:
"...Mr Stewart has a history of personality problems relating to parental rejection and was prone to develop neurotic and psychosomatic symptoms. He appears to have been smoking heavily within a week of joining the navy suggesting that smoking was not service or operations related. I doubt that he has ever qualified for a diagnosis of alcohol abuse during service and I do not regard subsequent binge drinking as service related..."
43. In a statement of 24 August 2000 the Applicant said that he saw a psychiatric specialist on only one occasion in June 1964 (Ex A3).
44. On 29 September 2000 the Applicant made a further statement (Ex A4). He stated that he started binge drinking in 1972 after his posting to HMAS Albatross where he would spend most nights in the mess. Previous to this he had only consumed two or three cans of beer a day.
45. On 12 October 2000 the Applicant's wife made a statement (Ex A5). She said that her husband was only a light drinker when they were first married in 1965. The Applicant would often call from overseas when drunk. He continued drinking when he returned from Vietnam. She has on occasions seen the Applicant drink a full bottle of scotch. He drank particularly heavily after junior officers went missing on the barrier reef.
Hearing and appearances
46. The Tribunal convened a hearing in Sydney on 22 November 2000 and 13 March 2001. Mr Dawson of Counsel represented the Applicant and Ms Hook from the advocacy section of the DVA represented the Respondent. The following materials were taken into evidence at the hearing and marked as exhibits:
* Exhibit TD1 - Section 37 Statement and associated T documents provided by DVA.
* Exhibit A1 - Report of Dr Dinnen, psychiatrist, dated 15 June 2000.
* Exhibit A2 - Report of Dr Dinnen dated 2 August 2000.
* Exhibit A3 - Statement of the Applicant dated 24 August 2000.
* Exhibit A4 - Statement of the Applicant dated 29 September 2000.
* Exhibit A5 - Statement of Linda Stewart dated 12 October 2000.
* Exhibit A6 - Applicant's amended statement of facts and contentions dated 29 August 2000.
* Exhibit R1 - Report of Dr Anderson, occupational physician, dated 29 December 1999.
* Exhibit R2 - Report of Dr Schultz, psychiatrist, dated 29 February 2000.
* Exhibit R3 - Clinical notes of Dr Martin.
* Exhibit R4 - Report of Mr D Cipriani, psychologist, dated 13 August 2000.
* Exhibit R5 - Respondent's statement of facts and contentions dated 14 September 2000.
47. Exhibit A6 indicates that the Applicant pursues only the rejection in relation to anxiety disorder, alcohol abuse and hypertension.
48. Counsel for the Applicant objected to the acceptance of Mr Cipriani's report as Ex R4 on the basis that Mr Cipriani is a psychologist and not a medical practitioner. He said that it was not a report on which the Tribunal could properly rely. Mr Dawson relied on s 19 of the Act which requires the Respondent to pay the veteran for any out of pocket expenses incurred in obtaining relevant documentary medical evidence. "Relevant documentary medical evidence" is defined in s 19(9) to apply only to documents emanating from a medical practitioner, a hospital or a similar institution. Mr Dawson objected to the Respondent in its statement of facts and contentions (Ex R5) relying on Ex R4 for the purposes of diagnosis.
49. Ms Hook for the Respondent said that the Respondent was relying on Ex R4 for its detailed history amongst other things.
50. Mr Dawson was adamant that his objection should stand because the report was being advanced as a medical assessment. The Tribunal took the view that, while the opinion of a psychologist would be less valuable than that of a medically qualified person in relation to strictly medical matters, the expertise of a psychologist may cause his or her report to be valuable in relation to such matters as history, vocational potential and administration of psychological tests. The fact that the Respondent proposed to use Mr Cipriani's report to assist in establishing a diagnosis did not mean that the report should be excluded. The Tribunal was free to reject its use for that purpose but it could use it for other purposes. Alternatively, it might be useful to consider Mr Cipriani's report if the medical experts disagreed as to the appropriate diagnosis. There may be information within it not available elsewhere. It was for these reasons that the report was accepted as Exhibit R4.
Findings on material questions of fact with reference to the evidence and other material in support of those findings
51. The Tribunal makes the following uncontentious findings:
* The Applicant rendered operational service from 27 May 1965 to 26 June 1965, from 20 May 1968 to 7 June 1968, from 15 to 34 May 1971 and from 14 February 1972 to 9 March 1972 (T3/9). The Applicant rendered defence service from 7 December 1972 until 19 February 1982 (s 68(1) of the Act).
* The Applicant lodged a valid claim on 19 June 1998 (T4).
* The date of effect of any decision in the Applicant's favour is 19 March 1998 (s 20(1) of the Act).
* The standard of proof in relation to disabilities attributable to operational service is the reasonable hypothesis standard (s 120(1) of the Act). That in relation to disabilities attributable to defence service is the reasonable satisfaction standard (s 120(4) of the Act).
* The SoPs relevant to the application are, prima facie, SoPs 76/98 (operational service) and 77/98 (defence service) concerning alcohol dependence/abuse and 1/2000 (operational service) and 2/2000 (defence service) concerning anxiety disorder. However, if a SoP relating to a relevant disability was in force at the time of the primary decision and assists the Applicant to a more favourable result, then that SoP can be applied (Repatriation Commission v Gorton (2001) 33 AAR 370; Repatriation Commission v Williams [2001] FCA 1195).
Anxiety disorder
52. The hypothesis advanced for the Applicant was that he was unable to obtain from the navy appropriate clinical management for his psychiatric condition. He had that condition prior to going to Vietnam and it was worsened by the inability to obtain appropriate treatment (transcript, 13.3.01, P-8).
53. There is a relevant SoP, namely SoP 1/2000 concerning anxiety disorder.
54. It is necessary to ascertain whether the hypothesis advanced is consistent with the template provided in the SoP.
55. There appears to be an issue as to whether the Applicant has anxiety disorder or some other psychiatric condition. The existence of a psychiatric condition has, under s 120(4) of the Act, to be established to the Tribunal's reasonable satisfaction.
* Dr Subhas diagnosed an adjustment disorder in reaction to his physical disabilities in and before 1998 (T9) which, Dr Schultz said (Ex R2) would have resolved after a time.
* Dr Keshava (T13) diagnosed chronic anxiety state with depression and alcohol dependence in 1999.
* Dr Anderson (Ex R1) could see no significant psychiatric condition suffered by the Applicant in the navy, but Dr Anderson is an occupational physician whose views on psychiatric matters are not authoritative.
* Mr Cipriani, the psychologist (Ex R4), saw no evidence of anxiety or depression when he saw the Applicant.
* Dr Schultz (Ex R2) diagnosed only alcohol abuse and alcohol dependence and referred to a history of immature and inadequate personality. In oral evidence Dr Schultz rejected the diagnosis of generalised anxiety disorder because such a condition should affect all components of the sufferer's life most of the time. It can be compared to, and must be different from, the anxiety we can all have. In cross-examination Mr Dawson attempted to have Dr Schultz accept that the Applicant has generalised anxiety disorder by having him agree that the Applicant suffers from each of a number of different components of the disease. Thus, he was asked to agree that Mr Stewart was a worrier, that he worried more than the average person, that he cannot control this problem, that he is irritable, fatigued, restless and that his demeanour on examination was not that of a person with a personality disorder. Dr Schultz agreed only to the extent that the Applicant exhibits many of the hallmarks of a person with generalised anxiety disorder. However the symptoms can be common across a number of different conditions.
* Dr Dinnen considered that the Applicant suffers from generalised anxiety disorder. In oral evidence he located the start of the condition in 1963 or 1964 when some midshipmen were lost. His later experiences, including the Vietnam trips, aggravated the condition. In Ex A1 Dr Dinnen simply said, "I do not find convincing the evidence of post traumatic stress disorder. Associated with the long standing abuse of alcohol is a tendency to anxiety which warrants the diagnosis of generalised anxiety disorder, also commencing during his navy career". It appears that Dr Dinnen was referring to Mr Stewart's history where he said that he gets "aggro" at times and is short tempered. He put his fist through the wall at his house in 1964 before he left the navy. He had disagreements with officers. He underwent stress in the navy. He had worries about his family when away at sea for lengthy periods.
56. The consistent history of problems evidenced over many years in T3 and the particular analysis provided by Dr Dinnen in Ex A1 suffice to satisfy reasonably the Tribunal that the Applicant suffers from an anxiety disorder. This is with some misgiving as there is no substantial evidence as to the Applicant's anxiety levels on a day to day basis. Not even Mrs Stewart canvassed this in her evidence. However, the Tribunal is satisfied that the Applicant has a psychiatric condition above and beyond alcohol abuse/dependence and there is no other diagnosis seriously presented.
57. Dr Dinnen considered that the Applicant's case satisfied the requirements in factors 1(c) ["experiencing a stressful event not more than two years before the clinical worsening of generalised anxiety disorder"] and (d) ["inability to obtain appropriate clinical management for generalised anxiety disorder"] of SoP 48/94. In SoP 1/2000 the equivalent factors are:
* 5(a)(v), "experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder"; and
* 5(c), "inability to obtain appropriate clinical management for anxiety disorder".
58. The Tribunal is not satisfied that the hypothesis posits a severe psychosocial stressor associated with operational service. Clause 8 of the SoP requires that an identifiable occurrence must evoke feelings of substantial distress in the individual. Examples are being shot at, the death or serious injury of a close friend or relative, assault, major illness or injury, divorce, separation, loss of employment and major financial or legal problems. Dr Keshava (T13) describes "traumatic experiences" in Vietnam only vaguely and unhelpfully. He does refer to the Applicant being on the top deck of the ship in Vung Tau Harbour when shells were fired from the air base and helicopters were flying around firing. He said he thought they would "all die". This does not amount to the Applicant being shot at. Mr Cipriani (Ex R4/13) and Dr Schultz (Ex R2/3) cover similar ground, with similar lack of any immediate danger to the Applicant.
59. The Applicant spoke of several stressors in his oral evidence. Coffins containing aborigines were brought on board at one time. When he was on the HMAS Sydney before operational service five midshipmen were lost from a whaling boat. The Applicant assisted in the search and rescue effort. They were found dead after four weeks. He spoke of the air combat in Vung Tau Harbour saying that he and others should have been more scared than they were, that he was 21 years old, young and foolish, and did not know what to expect. They "should have been more worried about what might have happened". This certainly suggests no undue stress at the time. On a trip involving the HMAS Anzac (May 1968) he was anxious because of the work he did involving making up and deploying scare charges. When on the HMAS Parramatta going to and from Vietnam in 1969 he was "not real happy" about being there because his wife had just given birth to a son. This was the most substantial explanation of any hypothesis that the Applicant experienced a severe psychosocial stressor in operational service. The Tribunal considers that these matters do not satisfy the requirements for a severe psychosocial stressor.
60. Mrs Stewart's evidence was to the effect that the Applicant's Vietnam experiences changed him, that he drank and smoked more and became moody. However, she could not attribute this to any particular voyage and could refer only to the loss of the midshipmen in discussing stressors. On even that matter she had heard little from the Applicant himself. Dr Dinnen (Ex A1/3) was told about the lost midshipmen and another incident when a ship was refuelled at sea in violent sea conditions during which one third of the ship was out of the water.
61. As if to concede that the hypothesis is not consistent with factor 5(a)(v) of the SoP, counsel for the Applicant relied more heavily on inability to obtain appropriate clinical management. Counsel relied most heavily on Dr Dinnen's evidence. In his oral evidence Dr Dinnen discussed "inadequate personality disorder". It was a diagnosis at the time (ie 1964 - T3/15). It meant that a person's psychiatric development was influenced by flaws in his or her early development. There were flaws in the Applicant's adaptation to the navy. He caused problems for those around him. His adjustment to circumstances reflected general weaknesses in his ability to respond to changes in circumstances. His responses were not adult, mature responses. Such a condition renders a person more vulnerable to other conditions. An anxiety reaction was diagnosed when the Applicant was "18" (23 October 1963 - T3/14) [the Applicant would appear in fact to have been 20 at the time as he was born in 1943]. Dr Dinnen noted that that the Applicant was prescribed Soneryl tablets. Soneryl was a tranquiliser which would not be prescribed merely for a personality problem. The Tribunal's own searches on the Internet indicate that Soneryl was discontinued in 1997 and that it was a rather strong drug. The inference was that, in 1963, the Applicant had a reasonably serious psychiatric problem.
62. Dr Dinnen noted that psychiatrist Dr Green saw the Applicant in Hong Kong when was 20 (15 June 1964 - T3/15-16). Dr Green wrote, "Long term psychotherapy may well produce good results, but it is impossible under the circumstances from this office". Dr Dinnen noted that long-term psychotherapy was not given to Mr Stewart. Dr Dinnen considered that such therapy could have had long-term beneficial effects.
63. The Applicant was returned to HMAS Penguin where Dr McGeorge saw little of psychiatric importance in his case (17 July 1964 - T3/23). The Tribunal notes that Dr Green agreed with the Applicant's return to Australia. He said on 18 June 1964 (T3/17)
"Disposal of this patient apparently poses a problem since my last note. ... With his particular temperament and attitudes it is unlikely that he will improve greatly in the foreseeable future, and he is likely to prove a difficult management problem during the present trip. Certainly a return to Australia would help this man to resolve his conflict, and he would undoubtedly benefit greatly from this. ..."
64. Dr Dinnen criticised Dr McGeorge as seeing only the Applicant's personality problems rather than a condition that might respond to counselling and care. The condition was treated superficially. Again, the Tribunal notes that Dr Green (T3/17) actually agreed with the navy's diagnosis. He wrote, "If Stewart remains on the ship, not only is he likely to retain his ... present symptoms, but without manipulation of his environment is quite likely to develop other manifestations of his disturbed personality".
65. Dr Dinnen noted that on 22 September 1965 (T3/29) a navy report said that Mr Stewart had mild reactive depression but no psychiatric symptoms. Indeed, it went on to say that his symptoms had largely resolved since his marriage earlier that year, that he no longer slept on duty and that he felt well. Dr Dinnen suggested that the Applicant's presentation at the time may have been to improve his prospects for promotion. The Applicant is recorded in the report as expressing concern that his charges for sleeping while on duty may hinder his promotional chances. Dr Dinnen was highly critical of this document. He said that it demonstrated that the navy had little concern for the Applicant and that the evaluation was inconsistent, that the Applicant had a significant psychiatric disorder and was given little help with it.
66. Dr Dinnen noted that the Applicant was said to have an anxiety state again in 1968 (T3/31). The Tribunal notes, however, that that was said to stem from slight fatigue and worry about his wife and son and "trouble with his mess".
67. Dr Dinnen regarded Mrs Stewart's evidence as indicating that the Applicant had a case of ongoing anxiety and depression rather than an inadequate personality. Dr Dinnen considered that, as regards the Applicant's current condition, it was two-thirds attributable to inappropriate clinical management in the navy and one-third to his recent physical conditions.
68. In cross-examination Dr Dinnen described the Applicant's appropriate clinical management as professional ongoing management. Dr Green had diagnosed an anxiety disorder. Later assessments give that diagnosis little weight, preferring to accept that he had a personality disorder. There was inadequate administration of medications. The navy's attitude was that he was a difficult fellow. A less sympathetic, less comforting approach than was required was provided. At least a brief course of psychotherapy was in order and a longer course would have been even better.
69. Asked to consider what standards of treatment applied in 1963 Dr Dinnen said that a brief psychotherapy course would have been less likely to be considered as relevant. Longer term therapy was available and normally offered to private patients in the 1960s.
70. There was some reference to the navy's use of "surgeons" to treat psychiatric patients. He was seen by Surgeon Lieutenant Carney in 1965 (T3/28), a surgeon lieutenant in 1964 (T3/30), Surgeon Lieutenant Vett in 1968 (T3/32) and Surgeon Captain Cotsell in 1968 (T3/32). Dr Dinnen said that generally a surgeon would not do psychiatric work. However, it was thought that "surgeon" may be a courtesy title in the navy.
71. There has, therefore, been effectively raised a hypothesis that the Applicant's anxiety condition was worsened as a result of his inability to obtain appropriate clinical management for the condition in the navy. This hypothesis must also be consistent with clause 6 of SoP 1/2000. Clause 6 requires that the anxiety disorder, or its aggravation, must have been contracted before or during the veteran's operational service.
72. The Applicant's hypothesis would be that this requirement is met, that the Applicant's condition was notably aggravated during his voyages to and from Vietnam and his time in Vung Tau Harbour.
73. The Tribunal finds that the Applicant's hypothesis has survived the application of step 3 of the steps set down in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. If the Respondent is to succeed in having the decision on anxiety disorder affirmed it must show beyond a reasonable doubt that the incapacity did not arise from war-caused injury.
74. Ms Hook managed to elicit from Dr Dinnen that he was largely applying treatment standards of the current day in forming his opinion that the Applicant's treatment was inappropriate. However, Dr Dinnen still considered that Mr Stewart could have been a candidate for a course of psychotherapy in 1963. The Federal Court has made clear that the appropriate clinical management has to be assessed as at the time of the incapacity (Repatriation Commission v Wellington (1999) 57 ALD 507 and Repatriation Commission v Wedekind [2000] FCA 649 per Kenny J at paragraph 17).
75. Dr Schultz addressed this issue in his oral evidence. He noted that the navy reviewed the Applicant a number of times, that he was listened to and was given support and advice. The Applicant appeared affected by difficulties accommodating the simultaneous demands of the navy and his family. He had had an unorthodox childhood and upbringing and had unresolved issues involving his parents. His treatment as at 1963 was appropriate. In cross-examination the Applicant's counsel sought to reduce the value of Dr Schultz's evidence concerning the 1960s by ascertaining that he had had five years experience as a psychiatrist in 2001. Dr Schultz responded that anxiety disorders in the 1960s were treated via psychotherapy and by means of fewer medications than we have today.
76. Mr Dawson observed that the Applicant was not given psychotherapy. Dr Schultz said that he was treated supportively at the time much as patients with similar problems today would be treated. Dr Schultz conceded that Mr Stewart was not given a long term course of regular therapy sessions as recommended by Dr Green. However, Dr Schultz proceeded to say that he would not put a person presenting as the Applicant did in 1964 into long-term psychotherapy.
77. Mr Dawson quizzed Dr Schultz about the medication Soneryl. Dr Schultz was unfamiliar with it. It was explained that it was a tranquiliser. Dr Schultz considered such a medication appropriate as a short-term treatment to reduce anxiety. It would be an appropriate treatment for a one-off anxiety attack but inappropriate undertreatment if anxiety were constantly present. It was noted that in 1980 something similar occurred where the Applicant was diagnosed as having anxiety and was prescribed Diazepam. Dr Schultz also agreed with Mr Dawson that the navy records in T3 refer often to "discussions" with the veteran. This may suggest something less than a full consultation. Dr Schultz agreed also that the navy records do not indicate any follow up to any proposed courses of action.
78. Mr Dawson took Dr Schultz to the material on the Applicant's time in Balmoral Naval Hospital. He spent two weeks there after seeing Dr Green in Hong Kong. This was where he was when Dr McGeorge wrote that there was little of psychiatric importance in the case. Dr Schultz took that to mean that the Applicant displayed no psychotic symptoms. It is apparently something of a term of art. However, he accepted also that there was no reference to the Applicant suffering an anxiety condition. The emphasis was entirely on personality defects (T3/20-23). When asked if this was appropriate treatment Dr Schultz said:
"But you will see admissions like that now, where somebody who is feeling distressed and they would go to hospital for what they sometimes call just time out. You're right, it doesn't necessarily resolve the problem but it resolves current situation." (Transcript, 22.11.2000 P-69)
79. Dr Schultz agreed that the treatment the Applicant received in his time at HMAS Penguin was not ideal. It tended to concentrate on organic rather than psychiatric systems.
80. Mr Dawson homed in also on the Applicant coming to notice again the following year. That should have prompted closer attention to his problems. Dr Schultz agreed that that would be ideal but commented that even today most general practitioners encountering a patient with anxiety who presented a year earlier with anxiety would not refer the patient to a psychiatrist.
81. Mr Dawson called attention to later instances in 1968 (T3/31, "general anxiety state"; T3/32, "genuinely agitated"; T3/35, "worried and anxious"), yet Dr McGeorge writes in July 1968, "[H]e is taking advantage of his previous symptoms to make a nuisance of himself ... his discharge ... could be considered for inadequate personality" (T3/36). That was said to be a rash analysis given the Applicant's history. Dr Schultz did not actually respond to this.
82. The Tribunal finds on this evidence that the Applicant was unable to obtain appropriate clinical management for his anxiety condition. While the evidence was that generalised anxiety disorder, and presumably variants of that disease, was not diagnostically recognised until 1980, T3 indicates that anxiety conditions were known to the psychiatric profession. The Tribunal is convinced by the answers given by Dr Schultz to Mr Dawson that there were manifest deficiencies in the navy's handling of Mr Stewart and his problems according to the standards of the time.
83. The difficulty for Mr Stewart, however, is that it is only that inability as it applied during his short bursts of operational service that can be taken into account. The Applicant's sleeping on duty and the attempts to deal with his condition, be it anxiety or inadequate personality, virtually always took place outside his periods of operational service. The Tribunal relies on the records in T3 to support this proposition. The Tribunal is therefore satisfied beyond a reasonable doubt that the requirement in clause 6 of the SoP, that a contribution to, or aggravation of, anxiety disorder must have occurred during operational service has not been met. The Tribunal therefore finds that the Applicant's anxiety disorder was not war-caused.
84. In accordance with the Federal Court decisions in the Williams (supra) and Gorton (supra) cases, the Tribunal has considered the SoP on generalised anxiety disorder in force at the date of the primary decision, SoP 48/94 as amended by SoP 275/95 to ascertain whether it assists the Applicant better. The Tribunal has concluded that it does. The Applicant can be accepted as suffering from generalised anxiety disorder on the basis of Dr Dinnen's evidence, as canvassed earlier. However there are problems.
85. Although the Applicant has probably experienced a stressful event under the more liberal definition in clause 4, that must have occurred in operational service not more than two years before the clinical onset or clinical worsening of generalised anxiety disorder (clause 1(b), (c)). The Applicant hypothetically had an anxiety condition before operational service, so clause 1(b) cannot be satisfied. It was the Applicant's case that his condition worsened after his experiences in Vietnam. He could be said to have seen the firing going on around him as causing anxiety and stress (as required in clause 8). This predated an aggravation of his condition. That was the evidence of Mrs Stewart. There is nothing to disprove this beyond a reasonable doubt.
86. The Tribunal therefore finds that the Applicant's generalised anxiety disorder was a war-caused disability.
Alcohol dependence or alcohol abuse
87. The applicable SoP is prima facie SoP 76/98 concerning alcohol dependence and alcohol abuse.
88. The hypothesis is that the Applicant's alcohol abuse and/or dependence was linked with his operational service and that at the time of its onset he suffered from a psychiatric disorder.
89. It is necessary to ascertain whether the Applicant's hypothesis is consistent with the requirements in SoP 76/98. There is general agreement that the Applicant suffers from alcohol abuse. The Respondent conceded this in its statement of facts and contentions, convinced of the fact by Dr Schultz's report. The Tribunal notes that Drs Keshava (T13), Anderson (Ex R1) and Dinnen (Ex A1) all agreed that the Applicant suffers from alcohol abuse. Only Mr Cipriani (Ex R4) disagreed, finding no psychiatric symptoms. On the weight of that evidence, the Tribunal finds that the Respondent was correct to concede that the Applicant suffers from that condition.
90. The SoP requires a date of clinical onset. Mr Dawson submitted as the hypothesis that this was during operational service.
91. Factor 5(a) in the SoP is then satisfied in that the Applicant suffered from a psychiatric disorder, generalised anxiety disorder, at the time of clinical onset of alcohol abuse.
92. Clause 4 requires the hypothesis to posit that the alcohol abuse was related to the Applicant's relevant (ie Vietnam) service. Mr Dawson merely stated in his final submissions, "[T]he alcohol abuse is clearly and accepted by Dr Schultz as well, tied to his service in Vietnam" (transcript, 13.3.01, P-6). However, Dr Schultz says in Ex R2/9, "Apart from the temporal relationship between the commencement of his drinking and his involvement in the navy, I can find no other relationship between his drinking and his naval service". Dr Schultz went no further in cross-examination (transcript, 13.3.01, P-3). Dr Dinnen (Ex A1) suggests no more than a temporal connection. Mrs Stewart gave evidence that the Applicant drank not a great deal before going to Vietnam.
93. The Applicant stated (Ex A4) that he began drinking on his first sea posting on the HMAS Gascoyne in late 1962 or 1963. This altered in June-August 1965 after he left Vietnam. He wrote, "I started to drink a spare beer issue if I could get it and when posted to HMAS CEREBRUS would have a drink or two in the mess at lunch and on weekends while watching football". In 1972 on the HMAS Sydney, on the way back from Vietnam he drank at a party all night until about 5.00 am. He was then posted to HMAS Albatross. He spent most weekends at home but spent most nights in the mess. He started to binge drink on weekends. He and a friend would drink, watch football and play cards from Saturday afternoon until three or four o'clock on Sunday morning.
94. The Applicant in his oral evidence said he first drank on the HMAS Gascoyne late in 1962. He was issued with two small cans a night. He drank 1½ to two cans a night. By 1965 when in Vietnam he drank as much beer as he could get hold of. He obtained some beer from his colleagues so that he could drink four to six cans a day. By 1972 he was binge drinking to blackout stage. He would binge drink every weekend after 1972 when on land. At sea he gathered as many cans as he could. By 1980-1982 he drank three or four schooners at lunch times. He then drank more at home, especially on weekends. He now drinks only scotch as beer disagrees with his diabetes. He might have ¾ bottle of scotch at night if a friend comes over and up to a full bottle of a weekend. However he tends to drink exclusively or mainly on weekends. His friend does not come to see him regularly.
95. The Applicant told Mr Cipriani (Ex R4/6) that he attributed his binge drinking to a combination of peer group influence and "just trying to forget about everything for a while and 'take time out for myself'". In T7, a DVA alcohol questionnaire, the Applicant said that there was a steady increase in his alcohol consumption in 1965 after Vietnam when he was away from his home port and his wife and family.
96. The Tribunal considers that this amounts to an assertion that there was more than a mere temporal connection between the Applicant's operational service and an increase in his drinking. It was said to be his Vietnam-related service that took him away from his home base and that prompted him to drink more heavily.
97. The Tribunal therefore finds that the hypothesis accords with the requirements in the SoP. The remaining issue is whether step four from the Deledio case (supra) causes any difficulties for the Applicant. It is possible that the Applicant's alcohol abuse did not commence until well after operational service and that the Tribunal can be satisfied beyond a reasonable doubt that clause 4 of the SoP was not satisfied. If so the disability is not war-caused. The evidence is:
* T7 finds the Applicant in August 1998 stating that he drank two small cans of beer a day from 1962 with an unspecified increase in consumption in 1965.
* Mr Cipriani (Ex R4/10) summarises the documentary evidence available to him. He writes, "With regard to his alcohol intake, Mr Stewart provided contradictory information to Dr Subhas on 10.09.98 [T9] and to Dr Keshava [T13]. The history provided to the former suggesting moderate drinking ["he has a few beers and a couple of Scotch's at the weekend but he believes that he has moderated his drinking"] and the history provided to the latter suggesting heavy drinking ["Apparently he used to drink ¾ to one bottle of scotch whisky a day! He now drinks up to six cans of beer and two or three nips of whisky a day"]. However, the service medical documents indicated that his alcohol consumption was light (approximately three drinks per day). This was reported when he was being medically investigated in August 1973 and December 1981. His alcohol consumption had therefore increased from two cans of beer per day to three cans per day by the end of his naval service. His alcohol abuse was therefore regarded [by the VRB] as unrelated to service." These observations are confirmed by the documents. At T3/40 in a hospital in-patient summary dated August 1973 he is recorded as having a "light intake of alcohol only". At T3/45 in navy out-patient clinical notes dated 10 December 1981 he is recorded as having an "alcohol intake [of] approximately three drinks per day". Mr Stewart had told Mr Cipriani that "he began drinking at sea in 1963. He said that that the ration included a can of beer per night though he could obtain extra beer if he wanted to. He said he drank the normal beer ration until 1966 but then would also drink others' rations and began to binge drink from 1969 while onshore overseas. Mr Stewart said that his drinking almost got him into trouble in 1972 on his way back from Vietnam. He said that there was a party for the NCO's at which he got very drunk and missed a muster. After returning to Australia, Mr Stewart reportedly continued to be a binge drinker, particularly during football season. He said that he currently drinks four scotch, ice and water per day over three days, however, when his mate visits him, he may drink three-quarters of a bottle of scotch (once every two or three months). Mr Stewart denied having any problems with alcohol apart from his tendency to binge drink. He said that when football is not on, he may not drink at all for up to several months at the time. Mr Stewart attributed his binge drinking to a combination of peer group influence and just try to forget about everything for awhile and 'take time out myself'" (Ex R4/6).
* Mr Stewart told Dr Anderson (Ex R1/3) that he has always been a binge drinker of scotch whisky and beer. He said he was quite unable to control this and does not know why he does it.
* He told Dr Dinnen (Ex A1/2) that he was a binge drinker from the time of his last trip to Vietnam. He was able to drink more than two cans of beer a day because of access to others' rations.
* He told Dr Schultz (Ex R2/4) that he began binge drinking after his first trip to Vietnam and he began getting other people's alcohol rations on a regular basis. He then drank heavily for the rest of his time in the navy. After the navy he binge drank once or twice a month. He still occasionally binge drinks and regularly drinks six to twelve cans of beer a day. He will drink up to a bottle of scotch if he goes to a friend's house.
98. The least that can be said is that the Applicant has been all over the place with the evidence he has given various doctors and others since late 1998. It is impossible to distil a credible account of his alcohol history from his evidence. It is therefore useful that the navy's documentary evidence from 1973 and 1981 exists. That shows that, at least when he was in the navy, regardless of other versions the Applicant has offered, he was assessed as a moderate drinker. That is the best evidence in the Tribunal's view. The Tribunal finds, therefore, that the Applicant did not suffer from alcohol abuse when he was in, or when he left, the navy. In making this finding the Tribunal is satisfied beyond a reasonable doubt. The Tribunal considers that any excessive consumption of alcohol within the navy would have been known to the medical officers completing the documents in T3. This finding means that the Tribunal is also satisfied beyond a reasonable doubt that any alcohol abuse condition that might currently afflict the Applicant, and there may no longer be any such condition, is not related to any operational service rendered by him.
99. The Tribunal has considered the SoP in force at the time of the primary decision, SoP 5/94 concerning psychoactive substance abuse and dependence, and considers that it does not assist the Applicant. Clause 2 of that SoP is similar in effect to clause 4 of SoP 76/98.
100. The Tribunal has considered SoP 77/98 on alcohol dependence or alcohol abuse as related to defence service and SoP 6/94 on psychoactive substance abuse and dependence as related to defence service. Again the Tribunal finds that the Applicant cannot succeed under these SoPs because, for similar reasons as above, any alcohol abuse is not related to any defence service performed by the Applicant.
Hypertension
101. The Applicant's claim in respect of hypertension was not ventilated to any significant degree in the Tribunal. However, it seemed common ground, and the Tribunal so finds, that the only hypothesis justifying acceptance of hypertension as war-caused that could satisfy the Deledio (supra) requirements is that the Applicant became hypertensive as a result of his war-caused alcohol abuse. This is the only factor in the relevant SoPs (ie SoPs 31/2001; 32/2001; 64/98 and 65/98) that the Applicant can utilise. As the Tribunal has ruled against the Applicant on alcohol abuse he cannot succeed in relation to hypertension.
GARP ratings
102. Mr Dawson pressed the Tribunal to endorse the GARP ratings proposed by Dr Dinnen in Ex A1. These ratings apply to generalised anxiety disorder and alcohol abuse. Dr Dinnen recommended a rating of 17.
103. Dr Anderson (Ex R1) suggested GARP ratings. For GARP chapter 4 the rating would be 11. Dr Anderson proposed a lifestyle effects rating of 3.
104. No other evidence on ratings was submitted. Dr Dinnen's recommendations are explained and the explanations appear cogent to the Tribunal. The Tribunal is therefore prepared to find that a GARP rating of 17 is the appropriate rating in respect of the Applicant's anxiety disorder.
105. The appropriate lifestyle rating will be assessed by reference to the Applicant's answers in the questionnaire in T5.
* For table 22.1 ("personal relationships") he qualifies for a 2 rating because his personal and social relationships are mildly affected. He has said that his personal relationships are unaffected by his disabilities. However he also is moody and irritable, withdrawn and has reduced sex life.
* For table 22.2 ("mobility") he qualifies for a 1 rating, intermittent effects on mobility. He has difficulty walking or driving long distances and walking up stairs.
* For table 22.3 ("recreational and community activities") he qualifies for a 2 rating. He can enjoy passive pursuits such as watching television and he can engage in a hobby. He has a friend whom he visits or who visits him.
* For table 22.4 ("domestic activities") he qualifies for a 3 rating. He can engage in a good number of domestic activities but needs time to do them.
* For table 22.5 ("employment activities") he qualifies for 1 rating. The Applicant's accepted disability would impede him intermittently in doing relevant work.
106. This results in a lifestyle rating of 2.
107. The Applicant's degree of incapacity is therefore 30 (GARP scale 23.1).
108. The Applicant therefore qualifies for a Disability Pension at 30% of the general rate (s 21A of the Act).
Conclusion
109. The Applicant has succeeded in his application to the extent that he qualifies for a Disability Pension at 30% of the general rate. This is in respect of the disability of anxiety disorder.
Decision
110. The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant qualifies for a Disability Pension at 30% of the general rate with effect from 19 March 1998.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed: .....................................................................................
Associate
Date/s of Hearing 22 November 2000 & 13 March 2001
Date of Decision 1 February 2002
Counsel for the Applicant Mr Neale Dawson
Solicitor for the Applicant R L Whyburn and Associates
Counsel for the Respondent Ms Philippa Hook
Solicitor for the Respondent Mr Jim Marsh
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2002/58.html