|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 18 September 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
) | |
|
|
Re |
RONALD TREVOR WILSON |
|
|
And |
REPATRIATION COMMISSION |
Tribunal |
Senior Member WJF Purcell |
Decision
|
|
The Tribunal affirms the decision under review. |
(Signed)
(Senior Member)
VETERANS' APPEALS - veterans' entitlements - Disability Pension - whether applicant's conditions of anxiety disorder and alcohol dependence or alcohol abuse are war-caused - whether applicant experienced severe stressors during operational service - whether clinical onset of alcohol dependence occurred within 2 years of these stressors - reasonable hypothesis
Veterans' Entitlements Act 1986 sections 120, 120A
Statement of Principles Instrument No 45 of 1998
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 1 of 2000
25 July 2003 |
Senior Member WJF Purcell |
|
1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 14 July 2000, insofar as it rejected claims for anxiety disorder, alcohol dependence or alcohol abuse, and non melanotic malignant neoplasm of the skin. On 9 April 2001 the Veterans' Review Board (VRB) affirmed the decision in relation to anxiety disorder and alcohol dependence or alcohol abuse; and on 15 August 2001 it affirmed the decision in relation to non melanotic malignant neoplasm of the skin.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr White represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, and Dr C Reid, Dermatologist. Mr Doube represented the Commission.
3. The applicant, who is 61 years of age, was a postal worker in Port Pirie before joining the Royal Australian Navy (the Navy) as a steward on 14 March 1960, when he was nearly 18 years of age. He was discharged from the Navy on 14 April 1969, just short of his 27th birthday. He has 3 periods of operational service in Malaya, with the Far East Strategic Reserve, aboard HMAS Yarra (the Yarra) and 7 separate periods of operational service in Vietnamese waters, aboard HMAS Sydney (the Sydney). The periods of service are as follows:
HMAS Yarra
23/6/62 to 23/8/62 (Malayan Emergency) (62 days)
10/9/62 to 2/10/62 (Malayan Emergency) (23 days)
10/5/63 to 19/5/63 (Malayan Emergency) (10 days)
HMAS Sydney
8/4/67 to 22/4/67 (Vietnam) (1 day in Vung Tau Harbour)
28/4/67 to 12/5/67 (Vietnam) (1 day in Vung Tau Harbour)
19/5/67 to 14/6/67 (Vietnam) (1 day in Vung Tau Harbour)
20/12/67 to 3/1/68 (Vietnam) (1 day in Vung Tau Harbour)
17/1/68 to 16/2/68 (Vietnam) (1 day in Vung Tau Harbour)
27/3/68 to 26/4/68 (Vietnam) (1 day in Vung Tau Harbour)
21/5/68 to 13/6/68 (Vietnam) (1 day in Vung Tau Harbour)
(7 days total in Vung Tau Harbour)
4. The applicant maintains that the conditions arose in the course of his operational service, and the test is that of reasonable hypothesis in accordance with section 120 of the Veterans' Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
"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.
(2) ...
(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.
..."
5. Section 120A of the Act provides:
"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).
(2) ...
(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.
..."
6. The applicant puts forward the hypotheses that his conditions of anxiety disorder and alcohol dependence or alcohol abuse relate to his operational service, in that, on the whole of the material, the "severe stressors" and "severe psychosocial stressors" he experienced within the 2 years immediately before the clinical onset of the conditions, connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to hypotheses that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles, at least one of the Factors set out in Clause 5 of the respective Statement of Principles must as a minimum exist, before it can be said that a reasonable hypothesis has been raised.
7. The appropriate Statement of Principles for the condition of Generalised Anxiety Disorder is Instrument No 1 of 2000 (the Anxiety Disorder SoP). The applicant contends that Factor 5a(ii) of the Statement of Principles is satisfied:
"experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;"
"Severe psychosocial stressor" is defined as:
"... an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;".
8. The appropriate Statement of Principles for the condition of Alcohol Dependence or Alcohol Abuse is Instrument No 76 of 1998 (the Alcohol Abuse SoP). The applicant contends that Factor 5(a) or 5(b) of the Statement of Principles is satisfied:
"(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
..."
In relation to Factor 5(a), the psychiatric disorder he asserts is "generalised anxiety disorder". "Experiencing a severe stressor" is defined as:
"... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror."
9. The applicant submits that 4 incidents which occurred during his operational service, constitute "severe psychosocial stressors" or "severe stressors". The first 2 incidents occurred aboard the Yarra with the Far East Strategic Reserve; the last 2 incidents occurred aboard the Sydney during his Vietnam service.
(a) Being located below the water line in a small sealed room, known as the ammunition bay, on board the Yarra, when it was called to action stations, and having to load shells from this ammunition bay (the ammunition bay incident).
(b) Being on the upper bridge of the Yarra in the early hours of one morning, when another vessel cut across its bow, and the Yarra had to take evasive action to avoid a collision (the near collision incident).
(c) Being stationed below the water line on board the Sydney, whilst it was anchored in Vung Tau Harbour, and hearing a number of explosions. The applicant says that initially he was unaware of what these explosions were, but he subsequently learned they were scare charges (the scare charges incident).
(d) Being on board the upper deck of the Sydney when it was anchored in Vung Tau Harbour, and unexpectedly hearing automatic weapon fire which he thought might have come from the mainland (the weapon fire incident).
10. The Commission contends that none of the 4 events satisfies the definition of "severe psychosocial stressor" or "severe stressor" in either the Anxiety Disorder SoP or the Alcohol Abuse SoP. None of them is objectively of such a nature as to be an event of such severity, similar to the examples quoted in the definitions, as to cause ongoing psychiatric scarring. It submits further, that Factor 5(a) of the Alcohol Abuse SoP is not satisfied, in that the applicant did not have a "clinically significant" psychiatric condition requiring ongoing, continuing treatment within the 2 years immediately before the clinical onset of his alcohol abuse. It was not until 1996 that there was any psychiatric condition requiring treatment from a medical practitioner.
11. The applicant spent his entire 9 years in the Navy as a steward; and when he returned to civilian life he worked for 1 year as a parking inspector and barman. He became then, a steward and bank messenger with the Bank of Adelaide, which became the ANZ Bank. He remained an employee of the ANZ Bank and then Esanda Finance for 27 years, until he was retrenched in July 1997 at the age of 55. He has not worked since July 1997..
12. The applicant lodged a claim for Disability Pension for inter alia "depression" on 22 July 1997. He stated that he first became aware of the disability in 1996. He lodged a further claim for Income Support Pension on 12 August 1997, stating that his depression started in October 1996. The Commission referred the applicant to Dr J Truman, Psychiatrist, who reported on 11 September 1997, in part, as follows:
...
"He stated that in the Spring of 1996 he became distressed by the fact that his sixty four year old brother had been a long time patient at Glenside Hospital, suffering from schizophrenia, and with whom he had had very little contact over the years, until it was found that his brother was suffering from cancer of the bowel. He had surgery, but he did not recover consciousness, and died some four weeks later. He believes this triggered what he calls "depression", and he saw his general practitioner about October, 1996, but treatment was not introduced until some three or four weeks prior to my seeing him, i.e. antidepressant medication, namely, Aurorix 300 mgs. bd.
SYMPTOMATOLOGY: He complained of becoming easily upset, very flustered, impaired concentration, not coping at work, loss of self esteem, loss of confidence, and he became socially avoidant as he became very anxious with people, and he was also irritable towards his wife.
The situation is further complicated by the fact that he had been working at Esanda Finance (ANZ Bank) for many years, and he enjoyed the work, but in July 1997, he was retrenched. He stated that this worsened his condition, as he missed the job, which he had always enjoyed.
...
He joined the Navy at the age of eighteen years, which he enjoyed, apart from the fact that he injured his back just prior to going to sea. He was shifting beer kegs, (he was a steward at the time). He apparently made five trips to Vietnam, which were uneventful.
...
CONCLUSIONS: This man is suffering from a Mild Adjustment Disorder with mixed emotional features, (DSM IV 309.28). I am of the opinion that his experiences in the Navy are not an aetiological factor. The cause is the loss of his brother and his job." [T8/174-175]
13. On 30 September 1997 the Commission refused the applicant's claim for "adjustment disorder", on the basis that his experiences in the Navy were not aetiological factors, and that the cause was the loss of his brother and his job. On 12 May 2000, the applicant, with the assistance of Mr Coxon of the Vietnam Veterans' Association, lodged a new claim for inter alia "emotional and behavioural condition", of which, he stated, he first became aware in 1969. He requested that he be referred to Dr Ewer for assessment. He applied also, for acceptance of "solar skin damage" and stated that he first became aware of the disability in 1974.
14. Dr Ewer interviewed the applicant on 7 July 2000. He diagnosed generalised anxiety disorder, and the additional conditions of alcohol abuse "for many years", and nicotine abuse which was "in remission" [T10/184]. He reported that he believed that the applicant's generalised anxiety disorder was related to his war service - firstly because the applicant denied experiencing feelings of anxiety prior to going to Vietnam, and secondly because there is a temporal relationship between the stressors the applicant described and his developing a generalised anxiety disorder, in the sense that the latter came on directly after the former. Dr Ewer considered that there was a causal link between the stressors and the applicant developing anxiety disorder, because the latter condition focuses primarily upon the stressors described by the applicant.
15. Dr Ewer reported also, that he believed that the applicant's alcohol abuse was related to war service, firstly, because the applicant started to abuse alcohol whilst off the shores of Vietnam; secondly, alcohol was cheap and readily available to sailors during the Vietnam War; and thirdly, because the applicant gave a clear history of using alcohol to relieve the distress he was experiencing in the waters off the shores of Vietnam. The applicant continued this pattern of abuse upon returning to Australia, and Dr Ewer considered that psychological studies indicate that individuals suffering from a generalised anxiety disorder have a high rate of substance abuse. The applicant's nicotine abuse was a pre-existing condition in Dr Ewer's view, but he believed it was exacerbated and perpetuated by the stresses described, and by the applicant's generalised anxiety disorder.
16. Dr Ewer outlined the applicant's alleged stressors in the following terms:
"...
1. Mr. Wilson told me that he felt guilty taking young men to fight a war in Vietnam. He felt that he was in some way contributing to their suffering.
2. Mr. Wilson told me that he was below the waterline on a number of occasions when he heard explosions. Mr. Wilson was initially frightened and apprehensive but he soon realized these explosions were caused by scare charges.
3. Mr. Wilson told me that his anxiety was contributed to by listening to the stories told by soldiers on their way home. He was distressed to hear of people being shot, killed and wounded.
4. Mr. Wilson told me that his emotional state was worsened in Vietnam because of the noise and heat on-board the Sydney. This contributed to the problems he had sleeping.
5. Mr. Wilson told me that he experienced considerable anxiety when he heard gunfire and shells exploding. He felt anxious knowing that he was so close to the war.
6. Mr. Wilson told me that he was distressed when he heard about a young sailor who had fallen and sustained a bayonet wound. The man had to be flown to Papua New Guinea.
..." [T10/180-181]
17. On 14 July 2000 the Commission refused the claim for anxiety disorder, alcohol dependence or abuse, and non melanotic malignant neoplasm of the skin. In relation to anxiety disorder the delegate considered that there was no history of the applicant experiencing a severe psychosocial stressor, as required by the Anxiety Disorder SoP. In relation to the condition of alcohol dependence or alcohol abuse, the delegate considered that although there was a history of an anxiety disorder, that disorder was not due to operational service; and that there was no history of the applicant experiencing a severe stressor. On the same day the delegate refused the claim for non melanotic malignant neoplasm of the skin (the skin cancer condition), which the applicant had claimed was due to solar exposure during his eligible periods of service. The delegate considered that the increased risk for ultraviolet radiation caused by operational service was less than 10%; and that the skin cancer condition was not due to sun exposure during operational service.
18. The applicant applied for review of the decisions, and on 9 April 2001 the VRB affirmed the decision regarding anxiety disorder, and alcohol dependence or abuse, and stated in part:
"...
Anxiety Disorder and Alcohol Dependence or Alcohol Abuse
Mr Coxon pointed to the report of Dr M Ewer copied at folios 53-60. He indicated that Dr Ewer diagnosed generalised anxiety disorder and alcohol abuse. Dr Ewer had recorded six events which he considered to be stressors leading to the veteran's psychiatric conditions. The Board discussed the matter with the veteran, and in particular discussed an occasion when a young soldier sustained a bayonet wound, apparently to his anus. The veteran told the Board that the most stressful thing about his Vietnam service had been the cramped conditions and the "noise factor" in Vietnam. He also told the Board about the commotion with helicopters "shooting on and off" the ship and also the dropping of scare charges. He acknowledged that they knew that such charges would be dropped but nonetheless they often caused surprise.
The veteran said that he considered his experiences on the Sydney had been much the same as those of the other sailors. He felt affected when bringing the troops home, and the stories they told. He had not been placed on sentry duty during his tours. He told the Board more of the incident when a soldier was injured apparently because of a practical joke by his fellow soldiers. The veteran heard the commotion but was not required to go to assist him. The veteran believed that the young man had recovered but the incident "stuck in his mind".
..." [T2/9]
19. The VRB concluded that during the applicant's tours to Vietnam no incident was of the severity to meet the definition of "severe stressor" or "severe psychosocial stressor".. In relation to the skin cancer condition, the VRB on 15 August 2001, took into account the applicant's additional service in the Far East Strategic Reserve, which had been recognised recently as operational service, and sought a new service risk summary taking into account the service in both the Far East Strategic Reserve and Vietnam. The VRB noted that the summary indicated an increase in risk of only 3.32% for the arm and face, well short of the 10% required under the Statement of Principles.
20. The applicant's first appointment with Dr Ewer was on 7 July 2000. By the time he saw Dr Ewer on the second occasion, on 8 September 2001, his service in the Far East Strategic Reserve had been recognised by the Minister as operational service, and the VRB had affirmed already, the Commission's refusal of the applicant's claim. Dr Ewer outlined in his report of 11 September 2001, the 2 stressors which the applicant alleged now, occurred during his service in the Far East Strategic Reserve, namely being in the ammunition bay when called to action stations (the ammunition bay incident) and being on the upper bridge of the Yarra when it was forced to take evasive action (the near collision incident). Dr Ewer stated in part:
"...
Upon reflection he believes his anxiety began during his time in the Far East Strategic Reserve. He recalls anticipatory anxiety, excessive worry and a reduced ability to cope.
Mr. Wilson's anxiety continued after that time and he reports that it continued during his trips to Vietnam.
...
5.1 The further details regarding the stressors are described above. Mr. Wilson reports that his anxiety came on soon after the stressors which occurred during his trip to the Far East Strategic Reserve. His anxiety can be well understood in the context of these stresses. Consequently I am of the opinion these stressors have caused his generalized anxiety.
5.2 I have reviewed the Statement of Principles concerning Anxiety Disorders published by the Repatriation Medical Authority. In particular I note the definition of a severe psychosocial stressor. This is described as "an identifiable occurrence that evokes feelings of substantial distress in an individual".. Various examples are cited including major financial problems and loss of employment. In my opinion, the stressors which occurred when Mr. Wilson was in the Far East Strategic Reserve are severe psychosocial stressors as defined by the Statement of Principles. They are identifiable occurrences which evoked intense feelings of distress in Mr. Wilson. Indeed, these stresses would evoke distress in most people.
5.3 From the description given to me by Mr. Wilson, his Generalized Anxiety Disorder began within two years of experiencing the psychosocial stressors during his time in the Far East.
..." [Exhibit A1]
21. The applicant gave lengthy oral evidence. He was not an impressive witness. The contradictions in his evidence were legion, and I consider that he exaggerated the effect upon him of the alleged stressors, and that much of his evidence was recent invention. In my view, he tailored his evidence in a deliberate attempt to bring the alleged stressors within the relevant Statements of Principles. Much of his evidence was simply not credible. This does not mean that I discount the whole of his testimony, but I prefer to rely on other more acceptable evidence, in areas of dispute on the evidence.
22. The other witnesses, Dr Reid and Dr Ewer, relied upon the veracity of the applicant's statements in relation to the history of events; and I take this into account in my assessment of the weight to be given to their evidence and opinions.
23. The applicant said in evidence that he did not tell Dr Truman of the stressors that occurred in both the Far East Strategic Reserve and Vietnam, as Dr Truman did not ask him any questions about those periods of service. He said in evidence also, that in August 1997 he felt depressed and sought treatment from his General Practitioner. He did not know why he was depressed, he did not attribute it to war service. When he completed his claim in July 1997, he left unanswered the question on the claim form as to how his service caused his disability. He said that by the time he lodged his second claim, on 3 May 2000, he had the assistance of Mr Coxon of the Vietnam Veterans' Association. He stated, on that claim form, that his experience during operational service caused his disability, and also that he wished to see Dr Ewer. He said in evidence that when he first saw Dr Ewer in July 2000, he did not tell Dr Ewer of the stressors he suffered in the Far East Strategic Reserve, because he thought that the interview "was about Vietnam". It was not until later, when the Malayan service was recognised, that he mentioned those experiences to Dr Ewer during his second interview in September 2001.
24. The applicant gave evidence that in relation to the 2 alleged stressors aboard the Yarra (the ammunition bay incident, and the near collision incident), the only time he was required to undertake duties other than those of a valet/steward was during training exercises with the South East Asian Treaty Organisation. He was assigned guard duties occasionally, and when action stations were called, he and the leading steward were assigned to the ammunition bay where shells were loaded onto a hoist. He said in evidence that he felt claustrophobic, and the smell of cordite caused him further anxiety. He said he always felt anxious, and dreaded going down to the ammunition bay, not knowing whether it was "for real" or practice.
25. I heard extensive evidence from the applicant regarding the ammunition bay incident. I do not consider that this alleged stressor is of such a nature as to evoke feelings of substantial distress, similar to the examples quoted in the definition of a "severe psychosocial stressor" in the Anxiety Disorder SoP; nor is it of such a nature that it might evoke intense fear, helplessness or horror, similar to the examples quoted in the definition of a "severe stressor" in the Alcohol Abuse SoP. In addition, I am satisfied on the evidence, that the applicant's reaction to the alleged stressor was not such as to be consistent with reacting to a "severe stressor" or a "severe psychosocial stressor".
26. The near collision incident - the applicant served on the Yarra for some 28 months, a little more than 3 months of which was operational service. The Report of Proceedings of the Yarra [Exhibit R3] makes no mention of this, or any similar incident. The applicant was unable to provide any detail of the date of the event, during which he alleged a Lieutenant Hillow, the officer in charge, a volatile character, "flew off the handle" as the Yarra nearly collided with another vessel. He could not recall whether the Yarra took evasive action. He said in evidence that the other personnel on the deck appeared unconcerned over the incident; and he himself did not stay long on deck after the incident, but went down to the galley to obtain a cup of tea for Lieutenant Hillow. He then went to bed. I do not accept the applicant's evidence that this near collision incident occurred during his period of operational service.
27. As to the first of the alleged Vietnam stressors (the scare charges incident), the applicant gave evidence that the crew of the Sydney had undergone training sessions before leaving for Vietnam, and he was aware that scare charges would be used whilst the Sydney was in Vung Tau Harbour. He was by then, Leading Steward, with 3 subordinates. He said that in his office below the water level he heard explosions, and he was not certain what they were. The Sydney, he said, could have been under attack. On the applicant's evidence, he was startled and anxious, in effect, when he first heard the random explosions, and he says that although he was assured by other personnel that the explosions were scare charges, he continued to be startled on subsequent occasions when the Sydney was anchored in Vung Tau Harbour.
28. I am satisfied on the evidence, that the scare charges incident was not of such a nature as to evoke feelings of substantial distress similar to the examples outlined in the definition of "severe psychosocial stressor" in the Anxiety Disorder SoP, nor was it of such a nature that it might evoke intense fear, helplessness or horror, similar to the examples quoted in the definition of a "severe stressor" in the Alcohol Abuse SoP. I am satisfied on the evidence, in addition, that the applicant's reaction to the alleged stressor was not such as to be consistent with reacting to a "severe stressor" or a "severe psychosocial stressor" as defined in the respective Statements of Principles.
29. In relation to the final alleged stressor (the weapon fire incident), the applicant gave evidence that whilst the Sydney was anchored in Vung Tau Harbour on the second or third trip, he was walking across the upper deck when he heard gun fire and shells, which he assumed was coming from the mainland, almost 1 mile away. He said that he walked across the deck and looked towards the land. He says that he was scared and went below deck. He had not expected to hear gun fire. He said that on subsequent visits to Vung Tau Harbour he did not go on deck, as he had heard gun fire on the previous occasion, and it was of no interest to him; and in any event, by 1968, he was too busy with his duties as Acting Petty Officer Steward in charge of the ward room, and supervisor of the dining room, to bother to go on deck. He was promoted to Petty Officer in late 1968.
30. I am satisfied on the evidence that the weapon fire incident was not of such a nature as to evoke feelings of substantial distress similar to the examples outlined in the definition of "severe psychosocial stressor" in the Anxiety Disorder SoP, nor was it of such a nature that it "might evoke intense fear, helplessness or horror", similar to the examples quoted in the definition of a "severe stressor" in the Alcohol Abuse SoP. I am satisfied on the evidence, in addition, that the applicant's reaction to the alleged stressor was not of such a nature as to satisfy the definitions outlined in the respective Statements of Principles.
31. Dr Ewer outlined in his final report, and in his oral evidence, his opinion that the applicant's anxiety disorder is attributable to his Malayan service. He understood that it became apparent within 2 years of that service (ie by May 1965) and 2 years before his service in Vietnam. The alcohol disorder, which arose after the first or second trip to Vietnam, is in turn, attributable to the anxiety disorder, and this in turn, is attributable to the Malayan service. Dr Ewer said in evidence that the applicant told him that he drank in moderation before Vietnam, but aboard the Sydney he became intoxicated most nights in order to forget his war experiences. This pattern continued for many years. Dr Ewer said that he was not aware that the applicant's post service duties at the Bank were that of a messenger/steward, he understood that the applicant was involved in clerical duties.
32. It is clear that the chain of causation outlined by Dr Ewer, requires that the applicant's anxiety disorder arose within 2 years of his Malayan service, ie by May 1965. The alleged stressors of Vietnam service would in Dr Ewer's view, be exacerbating of the condition, but not causative thereof. A perusal of the applicant's service documents discloses no record of him experiencing any stress-related conditions or requiring treatment for any such disorders either during his operational service in Malaya, immediately after Malaya, nor between Malaya and Vietnam. There is no record of his experiencing any stress related conditions subsequent to his Vietnam service, and before he left the Navy in April 1969, nearly 6 years after the completion of his operational service in Malaya.
33. On the evidence, the applicant consulted his treating General Practitioner for the first time in relation to a stress related condition, in October 1996, following the death of his brother. In August 1997, the month following his retrenchment after 27 years with the Bank, his General Practitioner prescribed anti-depressant medication. When he lodged his claim with the Commission in July 1997, he stated he first became aware of his disability in 1996, the year his brother died. In his later claim in May 2000, he stated that he became aware of his disability in 1974, some 5 years after his discharge from the Navy, and 6 years after his last trip to Vietnam.
34. On my view of the applicant, and upon an examination of the whole of the evidence, I am satisfied on the evidence, and find as a fact, that the applicant's anxiety disorder did not arise within 2 years of his Malayan service, nor within 2 years of his Vietnam service. Factor 5a(ii) of the Anxiety Disorder SoP is not satisfied therefore, nor are Factors 5(a) or (b) of the Alcohol Abuse SoP.
35. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the applicant's conditions of anxiety disorder and alcohol dependence or alcohol abuse with the circumstances of the particular service rendered by the applicant. I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's conditions were war-caused.
36. Turning to the applicant's skin cancer condition; it is not in dispute that he suffers from non melanotic malignant neoplasm of the skin. The applicant contends that during his operational service, between August 1961 and March 1963, there was a persistent problem which was not appropriately monitored or treated; the condition became so critical, that the malignancy developed, and had the skin cancer condition been diagnosed earlier, it would not have required the extreme surgical treatment which was undertaken in 1964.
37. The appropriate Statement of Principles for non melanotic malignant neoplasm of the skin is Instrument No 45 of 1998 (the Skin Cancer SoP). The applicant contends that Factor 5(a)(v) or 5(h) of the Statement of Principles is satisfied:
"(a)(v) suffering from chronic cutaneous ulceration of the affected site at the time of the clinical onset of non melanotic malignant neoplasm of the skin;
...
(h) inability to obtain appropriate clinical management for non melanotic malignant neoplasm of the skin."
"Non melanotic malignant neoplasm of the skin" is defined as:
"... a primary malignant neoplasm of the skin, including squamous cell carcinoma, basal cell carcinoma and Merkel cell carcinoma, but excluding melanoma, soft tissue sarcoma, lymphoma or Paget's disease of the skin, attracting ICD-9-CM code 173."
Chronic cutaneous ulceration is defined as:
"... the persistence of a localised defect or excavation of the skin produced by sloughing of inflammatory necrotic tissue."
Paragraph 6 reads:
"Factors that apply only to material contribution or aggravation
6. Paragraph 5(h) applies only to material contribution to, or aggravation of, non melanotic malignant neoplasm of the skin where the person's non melanotic malignant neoplasm of the skin was suffered or contracted before or during (but not arising out of) the person's relevant service; ..."
38. The Commission contends that the applicant's cutaneous ulceration was present prior to his operational service. It is not related therefore to his relevant service, and Factor 5(a)(v) is not satisfied. The Commission maintains also, that for Factor 5(h) to be satisfied, the applicant's non melanotic malignant neoplasm of the skin must have been present prior to the end of his operational service, and he must have been unable to obtain appropriate treatment. It contends that the skin cancer condition was not diagnosed until 1964, one year after the conclusion of the applicant's operational service. It is mere speculation, that the skin cancer condition was present during his operational service. The skin cancer condition was not contributed to or aggravated by his operational service, and appropriate clinical management was available at all times from the medical practitioner, Dr Ritson, aboard the Yarra.. The Commission submits that Factor 5(h) of the Skin Cancer SoP is not satisfied.
39. A perusal of the applicant's service records discloses that on 20 February 1961, he was examined by Dr Waterfield, in relation to his complaint of a small ulcer on the left lower lip, which was noted as having been present for the last 2 months. He was referred to Dr Kelly, Surgeon, who examined the applicant at his Collins Streets rooms on 22 February 1961, and noted "Rounded shallow ulcer 9 mm diameter on left side of lower lip. No induration, no enlargement of associated lymph nodes. For biopsy ...". Dr Kelly's note of 27 February 1961 reads:
"Biopsy taken from lip.
Myciguent ointment prescribed for application to the area four times daily.
He states that he never suffers from cold sores on the lips.
Suggest dark ground exam and Wasserman reaction although there is no history to suggest any possibility of lues.
May I see this patient on my next visit to flinders Naval Hospital." [S4/15]
The biopsy report of 21 March 1961 reads as follows:
"Biopsy Report:
Microscopic section is that of granulation tissue in which no evidence can be found of associated or underlying malignancy." [S4/19]
On 16 August 1961 he was admitted to hospital with a diagnosis of cheilitis of the lower lip, and after treatment with antibiotics, he was released for duty, on 25 August 1961.
40. In my view, it is clear on the evidence, that the applicant had suffered from an ulceration of the lip well before commencement of his operational service in June 1962. I am satisfied on the evidence, that Factor 5(a)(v) of the Skin Cancer SoP is not satisfied.
41. In relation to the applicant's alternative assertion that Factor 5(h) of the Skin Cancer SoP is satisfied, he asserts that he was unable to obtain appropriate treatment, not for the ulceration, but for the non melanotic malignant neoplasm of the skin, which must have been present prior to the end of his operational service in Malaya, ie before 19 May 1963.
42. The applicant's service records disclose that on 14 March 1963 Dr Ritson noted, on examination, that the applicant suffered from a chronic ulcer on the lower lip which had been present intermittently for 2 years. He prescribed Neohydrosone ointment [S4/22]. On review, on 4 April 1963, Dr Ritson noted that the ulceration was much improved, that the applicant had stopped using the ointment 2 weeks ago, and was to continue using Cortril. On 9 September 1963 Dr Ritson noted that multiple ointments had been ineffective, and referred the applicant to Dr Florance, Consultant Dermatologist, who was of the opinion, on 18 September 1963, that treatment of the condition was likely to give a poor result, as it was resistant to treatment.
43. On 2 December 1963, Dr Carney noted that the applicant had a lesion on the lower lip for 2½ years. He described it as a "chronic eruption with crusting and cracking" [S4/27] and referred the applicant again, to Dr Kelly, who on 24 January 1964 diagnosed chronic cheilitis, and after reviewing the applicant on a monthly basis, noted on 17 April 1964:
"No improvement with frequent applications of Drenison and Neomycin ointment. For further biopsy. I think a trial of intralesional injection of hydrocortisone to an area worthwhile and will arrange to do this on May 15th. ...." [S4/30]
He noted further on 6 May 1964:
"The crusted area persists on the lip. No submental glands were detected but some upper cervical glands are present on both sides.
This condition has been persistent over a number of years and I think the possibility of malignant change supervening must be considered. Biopsy has been taken.
It is recommended that the patient be referred to Mr. R. Newing re excision of this area." [S4/31]
44. The applicant was examined by Dr Newing on 14 May 1964, and on 3 June 1964 surgery was undertaken for excision of basal cell carcinoma. The summary of the clinical notes reads as follows:
"For three years has had chronic sore on left lower lip. Investigated one year ago - non specific granulation tissue. W.R. negative; D.G.I. negative.
Treated with various topical applications (see A.F.Med 4.)
Over last two or three months there has been rapid entension of lesion over lower lip.
Recent biopsy showed infiltrating tumour cells of the prickle cell variety.
Admitted for excision basal cell carcinoma.
Excision basal cell carcinoma under general anaesthetic performed by Mr. Newing, who reported:-
"Radical excision of lower lip to half way down to sulcus - and including some skin - especially on left side.
Suture skin to mucosa.
Will probably be best reconstructed by flap from undersurface of tongue."
Post Operative Progress:
Wound healed well.
Operative specimen section report:- (Dr. B. Wadham.)
"The specimen is the major portion of lower lip. Section of the centre portion (which bears the proliferating, partly ulcerated lesion) shows a basal cell carcinoma of `basi-squamous' type. Some of the tumour islands show irregular keratinixation and there is general hyperkeratosis and parakeratosis. There is a very intense inflammatory reaction at the base. The lesion reaches to - but does not apparently, invade the underlying muscle.
Sections cut from the extreme ends of the specimen and from its inferior margins appear to be free of tumour."
Reviewed by Mr. Newing, who reported:-
"Sutures removed - satisfactory. Fit for sick leave. Lanoline massaged into lip daily. I would like to review him in 3-4 weeks please. In the absence of recurrence, repair of cosmetic defect in one year." [S4/36]
45. The applicant said in evidence that whilst he was aboard the Yarra between August 1961 and March 1963, he sought treatment from the sick bay attendant as there was no doctor on board, and was given Nyal cream and zinc cream. The ulceration, he says, was always present; and he was constantly applying creams. In the course of his evidence however, his attention was drawn to his service records which disclosed that at all times during his operational service, Dr Ritson was the medical officer aboard the Yarra.. The records disclosed also, that on various occasions between 1961 and 1963 the applicant sought treatment from Dr Ritson for various conditions such as an infected sore on his left leg, a steam scald to the left wrist, and boils on the right buttock. The applicant agreed, in evidence, that he did not at any time during that period of operational service consult Dr Ritson in connection with his ulcerated lip. His first consultation with Dr Ritson was on 14 March 1963, when his second period of operational service had been completed. He said in evidence also, that he had not told his treating dermatologist, Dr Reid, that there was, at all times, a medical practitioner on board the Yarra.
46. The applicant called Dr Reid as a witness. Dr Reid, who has been treating the applicant since 1993, and has excised at least half a dozen of his skin cancers, had provided written reports in relation to her view that the applicant's Navy service had contributed to his skin problems. She said in evidence that the biopsy report of 1961 showed no evidence of malignancy. The applicant had told her that his lip problem persisted, and she considered that because of the nature of the lip and the rich blood supply, the index of suspicion was high, and a biopsy should be taken early. She understood that there was no doctor aboard the Yarra, and that the applicant was unable to obtain specialist attention between 1961 and 1963, during which period the skin cancer had developed. In the course of her cross-examination however, Dr Reid stated that on the history noted by Dr Ritson on 14 March 1963, of the "chronic ulcer present intermittently for 2 years" it was unlikely that it was a cancerous condition at that stage because cancers "do not come and go", they are not intermittent, but are persistent. Dr Reid said that pre-malignant change could have been present in March 1963, which subsequently developed into skin cancer some time before the biopsy in May 1964. In the course of her evidence, Dr Reid was informed that Dr Ritson was the medical practitioner aboard the Yarra.. She said in evidence that if the ulcer was chronic, and if it worried him over the 2 year period from 1961 to 1963, she would have thought that the applicant would have sought treatment from Dr Ritson.
47. On the applicant's own evidence he did not seek treatment from Dr Ritson during his operational service. On Dr Reid's evidence, the skin cancer condition would have developed some time between March 1963 and May 1964. In my view it is mere speculation as to when the lip ulceration developed into skin cancer. I am not satisfied, on the evidence, that the skin cancer condition had developed prior to the completion of the applicant's operational service. But in any event, I am satisfied on the evidence, that appropriate medical treatment was available to the applicant at all times during his operational service; it could not be said that he was unable to obtain appropriate management for his skin cancer condition. I am satisfied on the evidence, that Factor 5(h) of the Skin Cancer SoP is not satisfied.
48. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the applicant's condition of non melanotic malignant neoplasm of the skin with the circumstances of the particular service rendered by the applicant. I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's skin cancer condition was war-caused.
49. For these reasons, the Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
Associate
Date/s of Hearing 8/9 October 2002
Date of Decision October 2002
Counsel for the Applicant Mr T White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/708.html