|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 3 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
) | |
|
|
Re |
PHILIP PARR |
|
|
And |
REPATRIATION COMMISSION |
Tribunal |
Ms N Bell |
Decision
[SGD] Member
CATCHWORDS
VETERANS' AFFAIRS - whether the applicant suffers from the conditions of generalised anxiety disorder and alcohol abuse - whether these conditions are war-caused - decision under review set aside
Veterans' Entitlements Act 1986 - ss 9, 120, 120A
Statement of Principles Instrument No.1 of 2000 - Revocation of Statements of Principles concerning Generalised Anxiety Disorder and Anxiety Disorder Due to a General Medical Condition and Determination of Statement of Principles concerning Anxiety Disorder
Statement of Principles Instrument No. 76 of 1998 - Revocation of Statement of Principles concerning Psychoactive Substance Abuse or Dependence and Determination of Statement of Principles concerning Alcohol Dependence or Alcohol Abuse
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Bull v Repatriation Commission (2001) 66 ALD 271
3 February 2003 |
Ms N Bell |
|
1. This is an application by Mr Philip Parr ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 27 October 2000 to refuse the Applicant's claim for post traumatic stress disorder as being war caused. The Respondent's decision was affirmed by the Veterans' Review Board on 13 November 2001 and the Applicant lodged an application for review with this Tribunal on 28 November 2001.
2. At the hearing before the Tribunal the Applicant was represented by Mr Brian Winship and the Respondent was represented by Mr Stephen Modder. The Applicant gave oral evidence to the Tribunal as did Dr Anthony Dinnen. The following documentary evidence was before the Tribunal:
Exhibit |
Description |
Date |
TD1 |
T1-T16 |
|
A1 |
Applicant's Statement of Facts and Contentions |
26 July 2002 |
A2 |
Report of Dr A Dinnen |
19 April 2002 |
R1 |
Respondent's Statement of Facts and Contentions |
19 November 2002 |
R3 |
Report of Dr R Haik |
5 September 2002 |
R4 |
Clinical Notes from Dr Calverley |
|
BACKGROUND
3. It is not in dispute that the Applicant, now aged 59, entered the Royal Australian Navy on 5 January 1959 and was discharged on 30 December 1971. He had two periods of operational service, on the HMAS Yarra, from 25 April 1966 to 9 May 1966 and from 26 May 1966 to 9 June 1966 (T3).
4. It is also not in dispute that the Applicant began his naval training at HMAS Nerimba, a shore station near Blacktown and, as a fully trained fitter and turner/engine room artificer (ERA) he was posted to HMAS Anzac in 1963. After 18 months he was promoted to be in charge of the engine room. In 1966 the Applicant was posted to HMAS Yarra which sailed twice to Vietnam, escorting the HMAS Sydney. There were no attacks on the HMAS Yarra on these trips. Scare charges were used. After his operational service the Applicant volunteered for submarine service and in 1967 was sent to the United Kingdom ("UK") for training and returned to Australia, still on submarines, in 1969.
5. As a new recruit, the Applicant was medically examined and found fit (T3A). On 12 January 1971 he saw Dr J McGeorge, a psychiatrist, having applied for a transfer from submarines on the basis of insomnia and tension (T3D).. He was diagnosed as having phobic anxiety disorder and his transfer from submarines was recommended (T3F). His next posting was in 1972 to HMAS Waterhen, a shore depot. He was discharged that year.
ISSUES
6. The Applicant contends that he suffers from generalised anxiety disorder and alcohol abuse and contends that these conditions date from his two trips to Vietnam, in that he experienced, on those trips, a severe psychosocial stressor.
7. The diagnosis of generalised anxiety disorder is not conceded by the Respondent and so it is necessary for the Tribunal to reach a conclusion, on the basis of the evidence before it, to the standard of reasonable satisfaction, as to the condition suffered by the Applicant.
8. The parties agree that the relevant Statements of Principles (SoPs), concerning generalised anxiety disorder and alcohol abuse, are SoP No. 1 of 2000 and SoP No. 76 of 1998 respectively. The Applicant does not press a diagnosis of post traumatic stress disorder, as originally claimed.
9. As to the issue of war causation of the condition or conditions suffered by the Applicant, the Tribunal must consider whether the relevant SoP or SoPs uphold the Applicant's hypothesis of the causation of the condition or conditions.
LEGISLATION
10. The relevant legislation in this application is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 9, 120 and 120A.
11. Section 9(1) of the Act provides:
" 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;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise."
12. Sections 120 and 120A are set out later in this statement of reasons together with relevant extracts from the pertinent SoPs.
APPLICANT'S EVIDENCE
13. The Applicant told the Tribunal that he was 15 years and 10 months old when he joined the RAN under pressure from his stepfather.
14. He said that when he was on the HMAS Anzac it was a very unhappy and uncomfortable ship. He described an incident when the Anzac was at the Barrier Reef and three or four midshipmen were lost on a whaler. Two of the midshipmen were found and their bodies were brought on board and kept on deck near the fan intakes with the result that the odour from the bodies permeated the engine room.
15. The Applicant said that the Yarra, to which he was posted as a petty officer in 1966, was a happy ship with good food, good accommodation and air conditioning. However, he was not told that he would be going to Vietnam.
16. He described going through the Borneo Straits in April 1966 on radio silence because of some conflict in Indonesia. By that time he knew he was going to Vietnam. He had never been trained for conflict and was only 23 years old. He didn't know what a war zone was like.
17. The Applicant said it took about 12 to 24 hours to get through the Borneo Straits and then the first stop was Singapore. They were escorting the HMAS Sydney. They then escorted the Sydney, HMAS Vampire and HMAS Supply to Vietnam. He said that at the time it hadn't dawned on him that he was going to a war zone. He said that when they came in to Vung Tau Harbour he was in the engine room and came up to see lots of US warships, bombers and fighters in the sky. He said he felt very apprehensive.
18. The humidity meant that the engine room remained very active with screws having to be turned over every three minutes. They remained on instant notice for steam and ready to sheer the anchor chain and leave the anchor and chain behind.
19. The Applicant said that scare charges were being thrown over the side by a Senior Petty Officer randomly at approximately five to ten minute intervals. Accommodation was below the water line and it was like "living in a drum".. He said he felt very apprehensive and nervous and often thought there might be a limpet mine on the ship and it might have been detonated. He said that scare charges were used mainly during the dark hours and consequently he got very little sleep. He said that made him very irritable and more apprehensive.
20. The Applicant said that the second day of his first visit to Vung Tau Harbour was much the same. He said that he had started smoking when he went to sea on the Anzac but only five or six per day. However, when he first reached Vietnam his smoking increased to about 30 cigarettes per day and remained at that level. He said smoking calmed him and gave him some relief.
21. The Applicant said that no alcohol was allowed on his first trip to Vietnam but when the Yarra left for Hong Kong, which was a safe port, he got shore leave and got drunk. He said that after his first trip to Vietnam he began heavy drinking, wanting to "wipe thought out".. He said he knew he was going back to Vietnam and every time he went ashore (at about 4 pm) he would drink until about 9 or 10 pm. He said he would drink about one dozen schooners and finish with three or four brandy, lime and sodas. He said that when he went back on duty he would be hungover but would "work it off".
22. The Yarra escorted the Sydney back to Vung Tau Harbour after exercises at sea. During these exercises no alcohol was available but the Applicant continued to smoke about 30 cigarettes per day. The Applicant said the scene was the same as when he first arrived with patrol boats and aircraft. He said that on coming into the harbour he was extremely stressed and while there he experienced lack of sleep and extreme apprehension. He said he kept four-hour shifts followed by a four or eight hour break. During breaks at night he went to his bunk and during the day went to the mess. He said it was a continuous seven-day shift. He said circumstances, including scare charges, were the same as on his first trip to Vung Tau.
23. The Applicant said that he had a fear of death in Vietnam and was "living on his nerves". He said he could imagine mines on the side of the ship and never got used to the scare charges which all sounded the same but he never knew whether the noise was from a scare charge, a mine or a bomb.
24. The Applicant said that on the way back to Australia after the second trip to Vietnam he went to Singapore for "R and R" and drank very heavily to a level similar to that in Hong Kong. He said the Yarra then went to Melbourne to refit and he heard that the Sydney was going back to Vietnam. He said he was "desperate" not to go back to Vietnam and so he volunteered for submarine service. He said that his only alternative was to desert.
25. The Applicant then described some incidents he had experienced during his training in the UK, including hitting the bottom of the English Channel and moving under the ice in the Arctic which involved an attempt to surface which broke the periscope. He said that on these occasions he was very scared and although he was not in a war zone he felt a different type of fear.
26. The Applicant said he completed the training course and returned to Australia where he served on the HMAS Owens. He said he was "not in a good state" and was sent to see Dr McGeorge. Following that consultation he was posted to shore Depot Waterhen, a recovery vessel. The Applicant reported that his brother-in-law, to whom he was close, said that he saw a difference in the Applicant when he came back from Vietnam, in that he was a less happy person and was drinking, fighting, on edge and had severe mood swings. The Applicant said he agreed he had changed and that his wife said that he was drinking too much and was abusive. His marriage broke down. He said that his daughter now will not speak to him.
27. The Applicant said that he began to have about one fistfight per week at the pub and this continued until about ten years ago when he was divorced.
28. He said he now works as a boiler inspector, self employed, for an average of 30 hours per week. He said he does not work any longer than that because he has lost interest and cannot concentrate. He said he currently drinks about a carton of beer every two days and two bottles of spirits and two bottles of wine per week. He said that when he is working he tapers off his drinking. He said he still gets verbally abusive, worries about everything, drinks more and more and gets headaches.
29. In cross-examination, the Applicant said that he had been in about 30 to 35 fistfights following his discharge from the RAN. They took place at pubs, clubs and at barbeques. He said he was never charged with assault because he never did anyone much harm and he had never been injured badly enough to go to hospital.
30. The Applicant agreed that in Vietnam his duties had been in the boiler room or the engine room and that he was familiar with those duties. He also agreed that he was in no actual danger when he was in Vietnam and agreed that the tension he felt at the time was worse than the scare charges. However, he maintained that his life had been in danger when going through the Straits of Borneo. He also agreed that the scare charges didn't interfere with him carrying out his duties and that he managed to control his worry. He said he had heard of scare charges but had never experienced them and had received no training for "Operation Awkward" in Australia.
31. The Applicant was directed to an outpatient record entry by Dr McGeorge dated 12 January 1971 (T3D) and he described Dr McGeorge as having sat behind a desk and said very little to him. He said he did not ask him about Vietnam and that although Vietnam was troubling him in 1971, it was not enough for him to complain to Dr McGeorge about. The Applicant said that the "tension of living in submarines had got to him" and he was experiencing fatigue and insomnia.
32. The Applicant said that he no longer suffers from insomnia because alcohol makes him sleep. He said he does not drink when he is "on the road" travelling for a job, but would ordinarily drink about 12 stubbies and some spirits per day. He said he would normally stay at the club until about 7 pm. and then continue his drinking at home.
33. The Applicant said he had started drinking when he was about 18 or 19 years old and had been drunk about six times before he went to Vietnam. He also said that when working on submarines in the United Kingdom he had been disciplined for drinking. He said he had never sought treatment for his drinking and that Dr Calverley, his general practitioner, had suggested treatment once and he had refused. He said he had also told Dr Foster, the psychiatrist to whom he had been referred by Dr Calverley, about his drinking but Dr Foster did not seem to be concerned about it.
34. The Applicant said he had never had any work related accidents arising out of his drinking. He said that his current partner drinks moderately and is more tolerant of his drinking than was his former wife. However, he said that he is sometimes verbally abusive to his partner.
MEDICAL EVIDENCE
35. Dr Anthony Dinnen, Consultant Psychiatrist, examined the Applicant and in his report of 19 April 2002 (Exhibit A2) gave the following opinion:
"The history and presentation is more in accord with the overall diagnosis of generalised anxiety disorder and alcohol abuse than with the specific diagnosis of the subtype of anxiety disorder known as post traumatic stress disorder. The consistency of the patient's account suggests very strongly that his exposure to the dead midshipmen on the Barrier Reef in 1964, the loss of a colleague on board the Voyager, and the subsequent experiences on submarines in the Royal Navy all left an imprint of traumatic service experience on his psyche apart from the stress of being in Vietnam. Nonetheless, he appears to have symptoms that are predominantly those of an anxiety disorder.
The history clearly indicates that the condition began during service and has been long associated with alcohol abuse.
...
It should be clearly understood that my views are very much in keeping with those of the other two psychiatrists who had examined this patient and whose reports are on record, and I believe we are all of one mind in attributing the patient's chronic anxiety disorder and its associated alcohol abuse to service events. In my view the report of Dr McGeorge in 1970 - 71 quite clearly establishes the condition as having been present from that time, and almost certainly as dating, according to the patient's history, from his two trips to Vietnam three or four years earlier, aggravated by his submarine service in the UK."
36. Dr Dinnen gave oral evidence to the Tribunal and in the course of his evidence he was provided with a copy of the report of Dr George Foster dated 5 July 1999 (Exhibit R4 at page 20). He said that Dr Foster's report shows significant disturbance. He also said that Dr McGeorge's opinion (T3D) was also very indicative of anxiety disorder at the time and for at least one year previously. Dr Dinnen said that the fact that the Applicant tried to change his branch of the Navy to that of submarines rather than to go back to Vietnam is indicative of anxiety disorder.
37. Dr Dinnen said that according to the history that was given to him by the Applicant, he suffered a range of traumatic experiences in the Navy, prior to operational service, during his time in Vietnam and later on submarines. He said there is a pattern of accumulation of stressful events, all or each of which is capable of producing post traumatic stress disorder.
38. Dr Dinnen canvassed the diagnostic criteria in SoP No.1 of 2000, concerning generalised anxiety disorder. Those criteria are as follows:
"A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:
(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C.
above) cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder;
..."
39. Dr Dinnen said that, in his opinion, all of the above symptoms are present in the Applicant. In particular, he said that the Applicant's difficulty with controlling worry is modified by heavy, longstanding use of alcohol and that he has had trouble sleeping since his return from Vietnam.
40. As to whether the Applicant experienced a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder, Dr Dinnen said that being on instant notice for steam, experiencing scare charges, being in the presence of fighters, helicopters and bombers is very stressful and satisfies the definition of "severe psychosocial stressor" in the SoP. He said that he considered that direct risk is not necessary in order for a person to be apprehensive.
41. In relation to alcohol abuse, Dr Dinnen said that he considered the Applicant to meet the diagnostic criteria for alcohol abuse. Those criteria are set out in SoP No. 76 of 1998 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.
42. In particular, Dr Dinnen said that the Applicant had failed to fulfil his obligations at home, as evidenced by the breakdown of his marriage and his estrangement from his daughter. He also said the Applicant continued to drink notwithstanding recurrent social or interpersonal problems, for example, fighting in social situations.
43. In cross-examination Dr Dinnen maintained that it is not necessary for there to be just "one particular incident" that constitutes a severe psychosocial stressor. He gave as examples the items used in the SoP as examples of severe psychosocial stressors including the loss of a job, major illness, experiencing a loss. He also maintained that the context in which the stressor took place is relevant to its effect. Dr Dinnen agreed that objectively scare charges pose no threat to those on board but maintained that they can still be interpreted by a person as a threat and were so interpreted by the Applicant.
44. Dr Dinnen also maintained that the Applicant's symptoms of anxiety disorder are clinically significant notwithstanding that he appears to function well in some areas, including his work. He denied that any problems experienced by the Applicant are the result of old age.
45. Dr Dinnen said that the Applicant's background of a strict stepfather after the loss of his father, his having known a casualty on the Voyager and his experience of the midshipmen on the Barrier Reef was the stage set, or context, in which he went to Vietnam and play an important part in his reaction to Vietnam and therefore the incidents he experienced there.
46. Dr George Foster, Consultant Psychiatrist, reported on 5 July 1999 (Exhibit R4, page 20) that the Applicant:
"...complained of ongoing anxiety particularly following his experiences in Vietnam and more recently has also had increasing `moodiness' and irritability with a lack of interest, fear of taking on new tasks and increased alcohol consumption. His concentration has been poor and his appetite decreased with a weight loss of some two stone. He described being depressed for one and a half days out of every two weeks.
He has flashbacks of his naval experiences and has an increased startle response with some tremor. He avoids shopping centres and crowded places and described some episodes, which I would take to be panic attacks. I believe that Mr Parr is suffering from a Generalised Anxiety Disorder with Agoraphobia and Panic Attacks and also has symptoms of a Post-Traumatic Stress Disorder with Secondary Depression."
47. Dr Anthony Hordern, Consultant Psychiatrist, reported on 30 August 2000 (T8), the following diagnosis:
"Psychiatrically Mr Parr is suffering from a chronic, severe Post Traumatic Stress Disorder (PTSD) resulting from the stresses he experienced whilst serving in the Royal Australian Navy and in the Royal Navy between 1954 and 1972. In association with his PTSD he also suffers from Alcohol Dependence with Physiological Dependence."
48. Relevant to this diagnosis, Dr Hordern noted the following history:
"It is noteworthy that Mr Parr had an unsettled childhood because, though he had an affectionate mother, he had to adapt to a self-centred, arrogant, heavy-drinking, unaffectionate ex Royal Navy stepfather and, at age 5, to emigration from England to Australia. In this country he was sent to four different primary schools and then to a secondary school for a year before his stepfather pressured him to join the Royal Australian Navy at the age of 15 in January 1959. Mr Parr stood up to all this quite well, but he was badly shaken in 1964 when, whilst serving on HMAS Anzac, he came into contact with the dead, bloated, evil-smelling bodies of the two trainee officers who had gone sailing in a whaler and who, with two or three companions, had lost their lives.
In 1966, whilst serving on HMAS Yarra as a Petty Officer in the engine room, Mr Parr twice voyaged to Vietnam and was subjected to stress when the Yarra was anchored in Vung Tao Harbour. Scare charges were dropped every few minutes, he got little rest, and the Yarra was on instant notice to sail. After he returned to Australia Roger Riley, his brother-in-law, noticed that he had changed, in that he was tense, nervy and moody. In order to avoid further voyages to Vietnam Mr Parr joined the submarine service, but he had two stressful experiences whilst serving in northern waters on HMS Olympus, a British Oberon class submarine. Olympus damaged its periscope and its fin when it surfaced into a hole in the ice north of Scotland in or about 1968 and three or four months later, due to a miscalculated overloading of six torpedoes each weighing a ton, the vessel bounced heavily onto and off the seabed. Dr J McGeorge, a psychiatrist who saw Mr Parr on 12.4.71, does not appear to have elicited any of his relevant history...."
49. Dr P Empson, Psychiatrist, reported to the Respondent on 27 September 1999 (T5) that:
"Philip Parr is a 56 year old man who was seen for assessment on 15th July 1999. He was in the navy for 13 years from June 1959 until December 1972. He worked in the Engine room. Since working in the Navy he worked as a refinery operator for 7 or 8 years and in boiler servicing for 2 or 3 years. He is currently a self-employed boiler and pressure vessel inspector. He was a fitter and turner by training.
He was just under 16 years old when he joined the Navy and he didn't smoke or drink. His father was killed in the war in the Navy and his grandfather had been in the Navy. He says he had good times and bad times in the Navy. Three incidents he remembered were they were nearly run over by an aircraft carrier coming back from Vietnam, they hit the bottom on another time and they hit some ice near the north pole. He did a 4 year apprenticeship, he was on the destroyer HMAS Anzac at one stage, and then another which went to Vietnam and he then went to submarines for 3 years in UK and then another 18 months on submarines in Australia.
He had a previous psychiatric consult in 1971 or 1972 as his nerves were affected by the submarines. He is presently seeing the psychiatrist, Dr George Foster, and he had been seeing him for a couple of months. His local doctor referred him to Dr Foster and he is currently on the antidepressant Cipramil. He said it was making him very tired, he was unsure why he was on the Cipramil but he thought it was for anxiety. He said he was very nervy, he gets neck aches and headaches. He says he has been like it since being in the Navy. He says when he was a youth he could handle it but as he got older his nerves have deteriorated and `they are getting worse". He said he paces a lot. He has been married and divorced. He said that it was due to his crankiness and nerves that his marriage split up. He is currently in a de facto relationship.
He said he is a very heavy binge drinker, he drinks every second night, he drinks 3 bottles of spirits and 3 cartons of beer a week. He drank in the Navy when he went ashore, and he started to drink more after the Navy. In the Navy, he said you couldn't drink at sea. The drinking got heavier and heavier. He said Dr Foster said that Alcoholics Anonymous may be worthwhile thinking about. He said he gets depressed at times for a day or so but no longer than this. He says Dr McGeorge put him on Valium for a couple of months but it made him too drowsy.
There is no known family history of psychiatric illness, his father died when he was
2 ½ weeks old.
His MENTAL STATE revealed a man who looked his stated age with grey hair and glasses and he had a florid complexion. He walked with a slight limp. He looked tense but he was pleasant and co-operative. His thought was normal in form and content. He said his memory was alright.
On testing his short term memory, he could remember 4 items at 5 minutes' recall. He knew the time, day, date, month, year and Prime Minister but not the Premier. He knew 4 items of recent news. His concentration was reasonable as he could subtract 7 from 100 without error in less than 2 minutes. He said that crowded areas and closed-in areas make him pretty panicky. He said he won't go to places like Miranda Fair and he can catch trains but he doesn't like crowded trains. He says he had the symptoms in the Navy but he could handle it better. He said in submarines it was very crowded and very claustrophobic.
His physical health had not been good. He said he had a bad knee and in his right knee he had had the cartilage removed. Both of his hips ache. He says he gets lots of aches and pains. He says he gets burning in his shoulders and headaches in the back of his head. He says he belongs to the RSL but he rarely goes, he usually only goes on Anzac Day. He said his sleep is often restless and he tosses and turns a lot.
He has a couple of recurring dreams but not nightmares. He says he has lost his self-confidence. He took up smoking in the Navy and he still smokes. He previously smoked 1 packet a day but now he smokes 2 packets a week on average.
Physical examination revealed he had a minor tremor which was slightly more noticeable in his right hand. His blood pressure was 130/90 and his pulse was 64 and regular in time and amplitude. His cranial nerves were intact, he did have nystagmus, he had palmar erythema. He had a scar on his abdomen from a hernia operation 12 months previously.
He said his nerves were affected in Vietnam. He didn't like the War situation and so he volunteered for submarines to get away from it. He said it was a different way of life and that it was scary at times. He says he couldn't do it now. "It definitely made me more anxious." He says it made him more cranky and he drinks to relax and to get away from it all.
He agreed that I could ring Dr Foster and his local doctor if I wanted to. He said his current defacto says he is hard to live with. It is difficult to be too precise, however I believe that Philip Parr has a generalized Anxiety Disorder of mild to moderate severity, with occasional panic attacks.
He also drinks excessively to cope. His condition is Service related."
50. Dr Robert Haik, Psychiatrist, reported on 5 September 2002 (Exhibit R3) that:
" In summary, Mr Parr does not suffer Posttraumatic Stress Disorder when his alleged stressors or symptoms are considered from the perspective of the Statement of Principles.
5.4 Psychosocial stressor: It would have been unpleasant seeing and smelling dead and bloated bodies; it would have been natural to be concerned while on alert in Vietnamese waters for several days; it would have engendered apprehension when the submarine was damaged by the ice and when it jarringly hit the seabed but none of these experiences would meet Factor 5 criteria that would raise a reasonable hypothesis for Anxiety Disorder.
In other words, these experiences could not be regarded as a severe psychosocial stressor during his period of eligible service. It must be emphasised that when Mr Parr had the temerity to consult Dr McGeorge in 1971 he did not report, at that time, any problem with his 1994 (sic) HMAS Anzac experience or during his 1966 Vietnam experience on HMAS Yarra. As mentioned, it was more likely to be his recent marriage rather than his apprehension of diving in submarines that led Mr Parr to complain of `tension' after 4 years on submarines.
Mr Parr left the Navy in 1971 and he has worked assiduously and effectively since then (para 2.1). He was understandably overwhelmed by his wife's declaration that she was leaving him in about 1991 when he `didn't know there was any problem with the marriage'. However, he didn't seek psychiatric attention for this- not until he spoke to ex-Navy mates at a reunion in the late-1990s. After several years of the distress of being unattached, Mr Parr began a fulfilling relationship with his current partner and this intimate association continues without problems (para 2.6).
It is difficult to find historical information that would suggest or support the notion that Mr Parr suffers from Anxiety Disorder, generalised or otherwise. The key feature of Anxiety Disorder is that a patient must suffer from `excessive anxiety or worry' on more days than not, for at least 6 months. This is NOT Mr Parr. He relates well to his de facto partner. He performs very effectively in his own responsible business and he has no interest or desire to retire - `I'll work `til I lose my mental faculties or physically I can't do it' (para 2.1). He maintains social relationships with others in the community in which he has lived for most of his life. He has not used psychoactive medication and he didn't take the Cipramil, prescribed by Dr Foster in 1999, for long. These realities point to a reasonably well balanced and effective individual.
5.5 The only potential medical concern about Mr Parr's lifestyle is his penchant for alcohol (para 2.7). He suggested to me that drinking was almost a way of life in the Navy and a norm amongst his community at Kurnell. He told Dr Dinnen (p.3, April 2002) that he had drunk alcohol heavily since serving on HMAS Anzac and now drank 10 stubbies of beer daily. He told Dr Empson (1999) he was a binge drinker and drank each second night, some 3 cartons of beer and 3 bottles of spirits a week. He told Dr Hordern (2000) he drank 8-10 schooners of beer a day. He told me he drank 6 stubbies (=schooners) of beer a day plus 2 bottles of spirits a week. Doctors have suggested he drinks too much but nothing active has been done about it.
However, as a result of his use of alcohol, Mr Parr has not suffered from physical or mental ill-health, he has not had legal or police problems, or occupational or social problems even though from a medical point of view he would be regarded as drinking too much alcohol. Gout is not necessarily related to alcohol use. The breakdown in his 20 year marriage cannot be clearly attributed to alcohol.
The SoP for Alcohol Dependence requires that there be, in the previous 12 months, 3 of 7 criteria: alcoholic tolerance, withdrawal features, larger amounts required, unsuccessful attempts to cut down, extensive time spent obtaining, using, or recovering from alcohol, given up occupational/recreational activities because of it, and continued use of alcohol despite physical/psychological problems. By definition, Mr Parr does NOT conform to a diagnosis of Alcohol Dependence.
The SoP for Alcohol Abuse requires that there be, in the previous 12 months, one of 4 criteria: Alcohol leads to failure to fulfil work or home obligations; or alcohol is used in situations that are physically hazardous; or presence of recurrent alcohol related legal problems, or continual alcohol use despite recurrent social or interpersonal problems caused by it. By definition, Mr Parr does NOT conform to a diagnosis of Alcohol Abuse.
OTHER EVIDENCE
51. The report provided by H A Josephs (Captain RAN Rtd) dated 10 June 2002 describes, among other things, the program of defensive measures taken to defend a ship against the possibility of underwater attack whilst in harbour. The program is called Operation Awkward State 2 and, according to the report, was the state adopted by ships in Vung Tau Harbour. The report describes "Awkward State 2" as follows:
"...
* Armed sentries were posted on the upper deck to watch for signs of any suspicious activity such as air bubbles or suspicious debris.
* Ship's boats patrolled in the vicinity of the ship towing "home made" anti-swimmer devices constructed from grappling hooks, barbed wire and similar items.
* Ship's divers searched the anchor cable and the ship's hull from time to time.
* Scare charges were thrown overboard from the ship and/or the patrolling boat/s at irregular intervals, except when ship's divers were in the water.
* The ship remained at short notice to get under way, and main engines were turned from time to time to increase the wash under the hull.
* Medium range sonar (if fitted) was operated occasionally to disorientate any swimmers in the vicinity.
* The anchor cable as broken and the outboard end secured to a slip, so that it could be released immediately if the ship needed to get under way. A buoy was secured to the cable to facilitate later recovery of the cable and anchor.
* The ship remained in Damage Control State 3, Condition Y, a high state of watertight integrity.
..."
52. The report gave the following description of scare charges and their uses and effects:
"9. The scare charge in 1966 was a 1lb (450 gram) demolition charge usually fitted with a percussion fuse. Thrown overboard from a ship such as YARRA a scare charge would explode at a depth of approximately 6 metres. They exploded a little deeper when thrown from ship's boats. They were and are a major deterrent, as a scare charge explosion causes death or serious injury to divers in the near vicinity and disorientation at much greater ranges. On board a ship the sound of a scare charge explosion is typically a loud thud but it varies with, among other things, distance from the ship, depth of water, depth of explosion and characteristics of the sea bed. The sound is much sharper, and louder, in compartments below the waterline. The instructions for throwing scare charges stipulated that they were to be thrown "well clear of the ship" but, if they were dropped close alongside as sometimes occurred, the noise could be frighteningly loud, particularly on or below the waterline.
10. The threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau harbour. The tidal range was about 10 feet, the tidal stream ran at about 4 - 6 knots and the outflow of the local river system contained a lot of debris, including vegetation, during the wet season from April to November. The tidal stream made the task of free-swimming divers very difficult, just as it made it difficult for ship's divers to search the ship's bottom, except during periods of slack water. These threats did not materialise over the years RAN ships visited Vung Tau but they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored."
53. Under the heading "Possible Effects on Mr Parr" the report provides as follows:
"11. There is no record of the number of scare charges which may have been thrown from YARRA and her patrolling boats during the 48 hours in Vung Tau, but it may have averaged about 3 per hour when the ship's own divers were not in the water. The record for the number of scare charges deployed during a 48-hour visit to Vung Tau was possibly the 175 recorded by HMAS VENDETTA, a Daring Class destroyer, in September 1965. A broadcast warning on board before each scare charge deployment was not possible, but previous training, briefings and announcements in Daily Orders should have acquainted everyone with the likelihood of such explosions.
12. It was customary for all ships to exercise Operation Awkward periodically during training periods in Australia, and highly likely that Mr PARR would have experienced such exercises during his earlier service in the training ship, HMAS ANZAC. Briefings would have been held in all departments of HMAS YARRA before the visit to Vung Tau and, as a senior sailor in the Engineering Department, Mr PARR would have been expected to be familiar with the requirements of Operation Awkward and provide instruction and support to his juniors.
Discussion among other senior sailors could be expected to heighten the awareness of the ship's cadre to this important defensive procedure.
13. All of the RAN ships involved in Operation Hardihood went to Defence Stations, a heightened state of operational readiness, on 30 April and remained in that state until clear of Vung Tau on departure. By the time of their arrival in Vung Tau everyone on board should have been in the appropriate operational state of mind, and well prepared for the two day visit. Most of the ship's company would have recognised the procedures of Operation Awkward as an encouraging acknowledgment that every operational precaution was being undertaken to ensure their safety and, although perhaps not conducent to sound sleep, scare charge explosions a reassurance of their security.
..."
54. The report also noted that both of the Applicant's trips to Vietnam were "without incident"..
CONSIDERATION
55. The first issue for the Tribunal to consider is the nature and diagnosis of the condition or conditions suffered by the Applicant. The Tribunal notes the following diagnoses in the medical evidence before it:
§ Dr Dinnen generalised anxiety disorder and alcohol abuse
§ Dr Foster generalised anxiety disorder with secondary depression
§ Dr Hordern post traumatic stress disorder and alcohol dependence
§ Dr Empson generalised anxiety disorder with excessive drinking
§ Dr Haik no psychiatric or alcohol related condition
56. The Tribunal notes, in the above diagnoses, the prevalence of generalised anxiety disorder and an alcohol related condition.
57. The Tribunal is also mindful of the diagnostic criteria in SoPs No.1 of 2000 and No.76 of 1998, concerning generalised anxiety disorder and alcohol abuse respectively, and of the particular and detailed evidence of Dr Dinnen in relation to those diagnostic criteria together with the Applicant's evidence of the symptoms he has experienced. Dr Haik's report appears to be somewhat out of step with the other medical evidence, including medical evidence obtained by the Respondent, and the Applicant's history, as reported by other medical experts, appears to be more consistent with the Applicant's own evidence to the Tribunal. On this basis, the Tribunal is reasonably satisfied that the Applicant suffers from generalised anxiety disorder and alcohol abuse.
58. The question remains whether those conditions are war caused. Sections 120 and 120A of the Act provide for the basis on which it can be concluded that a condition is war - caused:
"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.
...
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;
...
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) 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.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
59. The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, held that there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused.
60. The first step is to consider whether the material before the Tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant.
61. The second step is to ascertain whether there is a relevant SoP in force.
62. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the Applicant's service.
63. Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 31 AAR 270 at 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that `one of the disputed facts happens also to be a component of an SoP'.
38. In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
39. Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) `acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an `acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
40. The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility ... point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."
64. In Arnott v Repatriation Commission (2001) 32 AAR 445 at 452-453 the Full Federal Court, at paragraph 27, said:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the `particular claim' fits the `template' laid down in the SoP. As was stated by the Full Court ... in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."
65. As the Tribunal understands it, its obligation at step three is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the Applicant, in the opinion of the Tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
66. It is difficult not to engage in a fact finding exercise in step three of Deledio (supra). However, the Tribunal takes the correct approach to be to have regard to all of the material before it and consider whether the hypothesis as raised is fanciful, impossible, incredible, too remote or too tenuous. In the Full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271 (at pages 276, 277, 282 and 283) Emmett and Allsop JJ said:
"18. It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. ...
...
21. There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
22. The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. ...
...
41. However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
`A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'
..."
67. Moving on to consider step four of Deledio (supra), the Tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the Respondent come into play. The Tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the Tribunal beyond reasonable doubt that the Applicant's condition was not war-caused.
68. The hypothesis put forward by the Applicant, in relation to his generalised anxiety disorder is that his experience of being on the HMAS Yarra, in Vung Tau Harbour, in Operation Awkward State 2, in a war zone, amounted to a stressor sufficient to give rise to anxiety disorder. In relation to the Applicant's alcohol abuse, the hypothesis is put forward that alcohol abuse arose out of the Applicant's war- caused anxiety disorder or, in the alternative, that it arose out of the stressor experienced by the Applicant at Vung Tau.
69. It has already been established, and it is agreed between the parties, that the relevant SoPs, in relation to generalised anxiety disorder and alcohol abuse are SoPs No. 1 of 2000 and No. 76 of 1998 respectively. SoP No. 1 of 2000, concerning generalised anxiety disorder provides that the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the Applicant's service:
5 (a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
(i) being a prisoner of war before the clinical onset of anxiety
disorder; or
(ii) experiencing a severe psychosocial stressor within the two
years immediately before the clinical onset of anxiety
disorder; or
(iii) having a clinically significant psychiatric condition within
the two years immediately before the clinical onset of
anxiety disorder; or
(iv) having a major illness or injury within the two years
immediately before the clinical onset of anxiety disorder;
or
(v) experiencing a severe psychosocial stressor within the two
years immediately before the clinical worsening of anxiety
disorder; or
(vi) having a major illness or injury within the two years
immediately before the clinical worsening of anxiety
disorder; or
(vii) having a clinically significant psychiatric condition within
the two years immediately before the clinical worsening of
anxiety disorder; or
(b) for anxiety disorder due to a generalised medical condition only,
having an endocrine, cardiovascular, respiratory, metabolic or
neurological disorder, where the disorder is a direct physiological
cause of the anxiety at the time of the clinical onset of the anxiety
disorder; or
(c) inability to obtain appropriate clinical management for anxiety
disorder.
70. The term "severe psychosocial stressor" is defined in SoP No. 1 of 2000 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;"
71. The Tribunal must therefore consider whether there is material before it that points to the Applicant having experienced, on operational service in Vietnam, a severe psychosocial stressor, within the meaning of the SoP. If so, the Tribunal must also consider whether there is material before it which points to the clinical onset of the Applicant's anxiety disorder having taken place within two years after the Applicant's experience of that stressor.
72. The Applicant's evidence was that, in Vung Tau Harbour, he felt a high level of apprehension, fear of death, nervousness and irritability and suffered from insomnia. He said that he could imagine mines on the side of the ship and never knew whether the sound of the scare charges was from a scare charge, a mine or a bomb. He described coming in to Vung Tau Harbour and seeing a war zone with bombers and fighter planes and helicopters above and war ships in the harbour. The Applicant's evidence of being "desperate" not to go back to Vietnam points to the depth of his response to his experience in Vung Tau. The Tribunal is satisfied that there is material before it which points to the Applicant having had feelings of "substantial distress" within the terms of the SoP.
73. It was suggested by the Respondent that the Applicant's experience over two trips to Vung Tau does not amount to an "identifiable occurrence" in that it is not a single or individual occurrence at a particular instant. The Tribunal rejects this suggestion given that the examples given in the SoP of "identifiable occurrence(s)" include such things as major illness and major financial problems, both of which could occur over a period of time rather than instantaneously.
74. It was also suggested by the Respondent that the Applicant's experiences in Vung Tau posed no real threat and Mr Modder referred to the historical report (Exhibit R2) to the effect that both of the Applicant's trips to Vung Tau were without incident. The Tribunal notes, however, that the report also states that "(t)he threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau Harbour" and that although "these threats did not materialise over the years RAN ships visited Vung Tau ... they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored".. The Tribunal also notes the report advises that "(a) broadcast warning on board before each scare charge deployment was not possible...". The Tribunal considers that "previous training, briefings and announcements in Daily Orders" would not prevent fear and apprehension of the kind attested to by the Applicant in the face of unannounced scare charges which were, according to the report, "frighteningly loud". The Tribunal is therefore satisfied that the Applicant's experiences of entering Vung Tau and immediately assuming Operation Awkward State 2, with all that that entailed, including scare charges, amounts to an "identifiable occurrence that evokes feelings of substantial distress" within the meaning of the SoP.
75. The Tribunal is also mindful of the material before it which goes to the Applicant's experiences leading up to his trips to Vung Tau, including his experience of the dead midshipmen on the Barrier Reef and his passage through the Borneo Straits. While this material does not go to the nature of the relevant "severe psychosocial stressor", it does go to the nature and extent of the Applicant's response to the stressor.
76. As to the date of clinical onset of the Applicant's anxiety disorder, the Tribunal notes the Applicant's evidence that it was on his first trip to Vung Tau that he began to suffer insomnia, increased his smoking fivefold to give him "some relief" and began to drink with a view to "wiping thought out". He described a high level of stress and apprehension at this time. Dr Dinnen's evidence was that the clinical onset of the Applicant's anxiety disorder is evidenced by the Applicant's desire to transfer to submarines rather than to return to Vietnam. On this basis, the Tribunal is satisfied that there is before it material pointing to the clinical onset of the Applicant's anxiety disorder being within two years immediately after the stressor experienced by him on operational service in Vung Tau.
77. On this basis, the Tribunal considers that the Applicant's hypothesis of war causation in relation to his anxiety disorder is in conformity with and upheld by SoP No. 1 of 2000. It follows that the hypothesis is reasonable.
78. In relation to the Applicant's alcohol abuse, SoP No. 76 of 1998, concerning alcohol abuse, provides that the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol abuse with the Applicant's service:
"(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;
or
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or
(e) inability to obtain appropriate clinical management for alcohol
dependence or alcohol abuse."
79. SoP No. 76 of 1998 defines "experiencing a severe stressor" as:
"experiencing a severe stressor" means, 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.
In the setting of service in the Defence Forces, or other service where the
Veterans' Entitlements Act applies, events that qualify as severe stressors
include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
80. The Tribunal considers that the evidence in the historical report (Exhibit R2) that "(t)he threat of attack by swimming saboteurs or floating mines was the primary security concern of ships in Vung Tau Harbour" and that although "these threats did not materialise over the years RAN ships visited Vung Tau ... they were always taken very seriously, and ships assumed Operation Awkward State 2 as soon as they anchored", points to the existence of a threat of serious injury or death. It follows that there is material before the Tribunal which points to the Applicant having experienced a severe stressor within the meaning of the SoP.
81. As to whether the clinical onset of the Applicant's alcohol abuse was within two years of the severe stressor, the Applicant's evidence was that he was disciplined in the United Kingdom for drinking. This occurred within two years after his trips to Vung Tau.
82. Alternatively, the Tribunal has already concluded that there is material before it that points to the Applicant having developed anxiety disorder from the time of his trips to Vung Tau. It follows that there is material before the Tribunal that points to the Applicant suffering from a psychiatric disorder at the time of the clinical onset of alcohol abuse. There is no material before the Tribunal to suggest that the Applicant's alcohol abuse was present before his trips to Vung Tau.
83. On this basis, the Tribunal considers that the Applicant's hypothesis of war causation in relation to his alcohol abuse is in conformity with and upheld by SoP No. 76 of 1998. It follows that the hypothesis is reasonable.
84. Turning to the fourth step set down in Deledio (supra), the Tribunal concludes, after considering all of the material before it, that there is no evidence to satisfy it, beyond a reasonable doubt, that the Applicant's incapacity is not war-caused.
CONCLUSION
85. The Tribunal concludes that the Applicant suffers from the conditions of generalised anxiety disorder and alcohol abuse and that those conditions are war-caused.
86. The date of effect of the decision is 15 June 2000, the Applicant's claim having been lodged on 15 September 2000.
DECISION
87. The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant suffers from generalised anxiety disorder and alcohol abuse which are war-caused. The date of effect of the decision is 15 June 2000.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed: .......................................................................................
Associate
Date of Hearing 10 December 2002
Date of Decision 3 February 2003
Solicitor for the Applicant Mr B Winship
Solicitor for the Respondent Mr S Modder
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/93.html