Bolton and Repatriation Commission
[2001] AATA 584
•26 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 584
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. N1999/1809 N1999/1810 N1999/1811
VETERANS' APPEALS DIVISION )
Re Warwick John BOLTON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Date26 June 2001
PlaceSydney
Decision The Tribunal affirms the decisions under review.
..............................................
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – reasonable hypothesis – Statements of Principles applied - whether Applicant suffered from "generalised anxiety disorder" - whether Applicant experienced stressful event not more than 2 years prior to clinical onset of "generalised anxiety disorder" – Applicant suffers from war-caused pyschoactive substance abuse – whether hypothesis disproved beyond reasonable doubt
Diagnosis - standard of proof – whether credibility of Applicant goes to question of diagnosis and disproof of hypothesis beyond reasonable doubt
Veterans' Entitlements Act 1986: ss 4, 31, 120(1), 120(3), 120A
Statement of Principles, Instrument No.48 of 1994 (Generalised Anxiety Disorder)
Statement of Principles, Instrument No.5 of 1994 (Psychoactive Substance Abuse or Dependence)
Benjamin v Repatriation Commission [2001] FCA 522
Budworth v Repatriation Commission [2001] FCA 317
Dixon v Repatriation Commission [1999] FCA 582
Meehan v Repatriation Commission [2001] FCA 597
Re Hill and Repatriation Commission [2000] AATA 1011
Re Kelly and Repatriation Commission [2001] AATA 254
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1999) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is a review of two decisions of delegates of the Repatriation Commission ("the Respondent"). The first is that part of a decision dated 6 February 1997 that refused a claim made by Warwick John Bolton ("the Applicant") for "PTSD and Alcohol" which was diagnosed as "generalised anxiety disorder with alcohol dependency". The second is a decision of the Respondent dated 2 October 1998, pursuant to s31 of the Veterans' Entitlements Act 1986, that revoked an earlier determination dated 6 February 1997 in respect of chronic airflow limitation and ischaemic heart disease, and determined that those conditions were not due to war service and that disability pension be reduced to ten percent of the General Rate with effect from 22 October 1998. The Tribunal was advised at the hearing that the Applicant did not wish to pursue that part of his application in respect of chronic airflow limitation and ischaemic heart disease and therefore that part of the Respondent's decision dated 2 October 1998 in respect of those conditions is affirmed. The only other condition accepted by the Respondent as war-caused is bilateral sensorineural hearing loss.
On 11 March 1997, the Applicant lodged an application for review by the Veterans' Review Board ("the VRB") in respect of the first decision. His application for review by the VRB of the second decision dated 2 October 1998 was lodged on 16 October 1998. On 30 July 1999 the VRB affirmed both decisions under review, and the Applicant sought review by this Tribunal on 21 September 1999.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, including supplementary s37 documents, comprising, in all, 138 pages. The following documents were tendered as evidence on behalf of the Applicant –
Statement of the Applicant undated and unsigned (with paragraphs 3 and 4 deleted) (exhibit A)
Minutes of a Board of Inquiry on board HMAS Melbourne on 29 April, 1966 (exhibit B)
Report of Dr A Dinnen, psychiatrist, dated 13 March 2000 (exhibit C)
Statement of R L Hobson dated 19 January 2001 (exhibit D)
7 photographs produced by Commodore J R Da Costa, RAN (exhibit E)
The following documents were tendered on behalf of the Respondent –
Reports of Dr L Lee, psychiatrist, dated 1 March 2000 (exhibit 1) and 25 October 2000 (exhibit 2)
Report of Associate Professor R P Mattick, clinical psychologist, dated 28 February 2000 (exhibit 3)
Reports of Dr T Anderson dated 2 March 2000 (exhibit 4) and 3 April 2000 (exhibit 5)
Transcript of VRB hearing on 30 July 1999 (exhibit 6)
Letter from Commodore J R Da Costa, RAN (Rtd) dated 23 January 2001 (exhibit 7)
Historical report from Mr J Tilbrook, dated 18 May 2000 (exhibit 8)
Clinical notes of Dr Ewer (exhibit 9)
Letter from Ms Carolyne Carter to Respondent dated 16 March 2001 (exhibit 10)
Report of Mr Brendan O'Keefe, historian, dated 14 May 2001 (exhibit 11)
Statement of Captain Richard R M Lea, RAN (Rtd) with attachment (exhibit 12)
Report of Commodore P M Mulcare, RAN (Rtd), with attachments (exhibit 13)
Hearing Impairment worksheet dated 5 June 2001 with attached audiogram by Dr Michael Jay, dated 30 May 2001 (exhibit 14).
At the hearing oral evidence was given by the Applicant, and by Commodore J R Da Costa, RAN (Rtd) and Captain Lea, RAN (Rtd) who were called by the Respondent.
The Applicant was born on 2 August 1948. He served in the Royal Australian Navy from 28 August 1965 until his discharge on 18 July 1972. He had three periods of operational service -
25 April 1966 to 6 May 1966, in HMAS Melbourne;
30 May 1966 to 9 June 1966, in HMAS Melbourne; and
18 November 1968 to 25 November 1968, in HMAS Duchess.
legislation and statement of principles
As the Applicant has had operational service his claim falls for determination pursuant to ss120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act"), which requires the Tribunal to determine, with respect to the periods of his operational service, that his condition of generalised anxiety disorder with alcohol dependence was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Applicant's service.
Pursuant to s120A of the Act, the Tribunal is also required to apply the relevant Statements of Principles in determining this matter. At least one of the factors in each of those Statements of Principles must exist before it can be said that a reasonable hypothesis exists connecting the condition to the circumstances of service.
The Applicant sought to rely on his accrued right to have this matter determined in accordance with the Statement of Principles in place at the time the primary decision was made: Repatriation Commission v Keeley (2000) 98 FCR 108. In particular, the Applicant relied on factor 1(b) of Instrument No.48 of 1994 for Generalised Anxiety Disorder, viz.
Experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;
"Stressful event" is defined in the Instrument as –an occurrence which evokes feelings of anxiety or stress.
"Generalised anxiety disorder" is defined in the Instrument as –
a psychiatric disorder that is a generalised anxiety disorder attracting ICD code 300.02, and which meets the following description (derived from DSM-IV):
(a)excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i)the person finds difficult to control; and
(ii)which is associated with three or more of the following six symptoms, at least some of which are present for more days than not for the previous six months;:
(A)restlessness or feeling keyed up or on edge;
(B)being easily fatigued;
(C)concentration difficulties or mind going blank;
(D)irritability;
(E)muscle tension;
(F)sleep disturbance (difficulty falling or staying asleep, or restless unsatisfying sleep); and
(iii)the focus of which is not confined to features of an Axis I disorder, for example, it is not about:
(A)having a Panic Attack (as in Panic Disorder); or
(B)being embarrassed in public (as in Social Phobia); or
(C)being contaminated (as in Obsessive-Compulsive Disorder); or
(D)being away from home or close relatives (as in Separation Anxiety Disorder); or
(E)gaining weight (as in Anorexia Nervosa); or
(F)having multiple physical complaints (as in Somatization Disorder); or
(G)having a serious illness (as in Hypochondriasis); and
(iv)it does not occur exclusively during Post-Traumatic Stress Disorder; and
(v)either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
(b)which is not due to the direct physiological effects of:
(i)a drug of abuse; or
(ii)a medication; or
(iii)a general medical condition (such as hyperthyroidism); and
(c)which does not occur exclusively during a Mood Disorder, a Psychotic Disorder, or a Pervasive Developmental Disorder.
The other condition relevant to this claim is psychoactive substance abuse and the Respondent does not dispute that the Applicant meets the diagnostic criteria for psychoactive substance abuse or dependence. The Applicant relied on Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence in respect of that condition. In particular, the Applicant relied on factors 1(a) and (b) of that Instrument, viz.
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence;
"Stressful event" is defined in the Statement of Principles as –
an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
evidence
The Applicant
The Applicant enlisted in the Navy at the age of 17 years. He served from 28 August 1965 to 18 July 1972. After three months' recruit training at HMAS Cerberus he was posted to HMAS Melbourne. His first trip was to Singapore and then to Vietnam. He was deployed on gun crew and at one stage he was in a "crash boat". He also painted the ship, scraped rust, and cleaned toilets. He said he did not spend any time as a cook until after the left the Melbourne and returned to Cerberus.
The evidence before the Tribunal included a transcript of the Applicant's evidence before the VRB (exhibit 6). At the hearing before the VRB, the Applicant was asked whether there was any particular matter that came to his mind that he was very anxious about at the time of his service on board HMAS Melbourne in Vietnam waters. The following evidence was then given –
Mr Bolton: There was an incident where the guy was killed on Melbourne, we watched and then the guy died which wasn't real pleasant.
Mr Young: Could you just – what was that about, can you just go into a bit more detail.
Mr Bolton: A …. Crashed into the carrier deck in the ocean and the pilot and the co-pilot was unable to, he consequently drowned. The pilot tried to get him out by punching the canopy and he was punching it from the inside I'm afraid to no avail and as a consequence that pilot walked off the wing and the plane went down with the co-pilot on board.
Mr Young: So can you tell us what you actually witnessed or saw of that incident?
Mr Bolton: I watched the pilot banging the canopy and also the pilot trying to punch the canopy open which they couldn't do because it was jammed for some reason I don't know and then the co-pilot actually saluted the guy and he just walked off the wing and the plane went down and he went with it. It wasn't real pleasant.
Mr Young: The pilot wasn't able to eject at all.
Mr Bolton: No, the eject …. of the carrier went straight over the side.
Mr Young: you were on deck and actually saw that did you?
Mr Bolton: We were actually standing on the upper deck. We weren't on the flight deck, we were on the upper deck just by the carrier deck, the flight deck. That's just one thing. Mainly the fact that they lock down the ship which wasn't real great especially at our age now, I've only cooked … it's no fun.
Mr Young: What did you understand by being locked down, what did that mean?
Mr Bolton: Well, we were complete action stations were … When the ship's locked down it means all the pargets are locked down and they have what they call the emergency gates unlocked – or whether they're not locked they're pulled down so that if the ship is attacked or whatever it takes its time at sinking
Mr Young: Are you saying that you can't get out – you can get out, can you, through an emergency hatch?
Mr Bolton: Well, yeah, but it still takes time if you're in an area where you can't actually get …. in a hurry, it's no fun.
Mr Young: Were you aware of scare charges, was that something that you experienced?
Mr Bolton: Oh yes. ….
Mr Young: Did you know when scare charges were being dropped or?
Mr Bolton: No, all we knew was the day.
……..
Mr Carwardine: Just going back to "locked down", my understanding is that in fact nothing is actually locked, it's just that all the hatches are dogged down and the doors are shut and that's as you said and as your advocate said to increase the water tight integrity of the ship.
Mr Bolton: That's correct.
Mr Carwardine: But nonetheless, in a emergency, you can open those doors and hatches, they're not actually locked.
Mr Bolton: Those doors are dogged down, as you say, but in an emergency they will not be opened and the only thing that's open is the small tiny hatch which is on top of them. I understand what you're saying, I filled the stat dec out stating the fact about how I felt about the whole thing.
Mr Carwardine: I just wanted to make the point the doors are not actually locked.
Mr Bolton: I don't think I'd like to be the person to open one.
……
Ms Campbell: When you were on the Melbourne you were off the coast of Vietnam, is that correct or … did you actually go into the harbour.
Mr Bolton: I was off the coast of Vietnam.
…….
Ms Campbell: Could you actually see the coast …. Could you see land?
Mr Bolton: I'm not sure
The first incident involving the Sea Venom
In his oral evidence to the Tribunal, the Applicant noted that HMAS Melbourne was an aircraft carrier, and it had decks below the carrier deck. He said that at the time of an incident on the Melbourne on 28 April 1966, at about 3pm, he was standing with others on the port side on the upper deck near one of the boats on 3 deck. He said he heard "a hell of a commotion and a big bang in the water" and "one chute going off, not two". He said he recalled his evidence to the VRB that he thought he saw the pilot or the observer punch the canopy, and then added –
… but I have been corrected since then because of the fact I did witness another crash – we didn't actually witness a crash but we were called upon to help clean up the mess where the plane had actually hung over the side of the ship.
The Applicant said, in respect of the incident on 28 April, that there was one ejection from the 'plane, and as far as he knew that was Lieutenant Da Costa. He said that the observer was Lieutenant Kennell, who "never got out of the plane". The Applicant then said of Lieutenant Kennell -
he did float free of the plane and he did die but whether he died when the plane hit the water or he drowned I can't tell you.
The Applicant estimated that the aeroplane –
…hit probably port side anywhere from up to 50 metres off, maybe 40 degrees out from the bow off to the left. But just there was a big splash, one chute went up in the air. Then as the plane came past Lieutenant Kennell's body was in the water. Then of course the rest of it, it's gone.
… By this time the ship had gone past and they were - - -
The Applicant was then asked how he felt when he saw that, and he replied –
It's not nice. At the stage we were only kids. There was talk for a long time on board.
The Applicant was asked how the incident affected him, and he said –
I think of it even today. Like I am not the only one that witnessed that thing, that happen. I have got friends that I am still friends with today after 35 years who witnessed it with me and seen what happened and they feel the same way I do. It's upsetting. It's not nice to see somebody drown in any form or die.
The second incident involving the Sea Gannet
The Applicant was then asked to describe the "other plane crash that you say you saw…". He said –
It was around the same time as the Venom crash, a little bit after it. A Gannet came in to land and he hooked on the arrester wire and he thought he hadn't hooked up and as he tried to take-off again the plane just hung over the side and the observer in that particular plane climbed out across the wing and climbed back onto the ship. But the pilot couldn't because of the angle of the plane. It was hanging straight down and the other guy could climb out onto the wing and climb back. This guy couldn't, he had to go out and this is where my confusion happened. For some reason, I don't know why it happened that way. But he actually jumped into the water, the crash boat came around and picked him up and then they cut away the hook and the plane just fell into the water and it was our job to clean all the mess up on the upper deck. That is why we were actually there. We never actually seen the plane come over the deck but we were called up to clean the mess up after it was done and the pilot was still in the plane and he jumped out of the cockpit into the water. But the observer, I think it was the observer himself actually climbed out onto the wing and got on board. That was a mistake on my part at the VRB because I got things confused over the years.
In cross examination the Applicant agreed that his evidence to the VRB where he said the pilot tried to get the co-pilot out by punching the canopy, and that the pilot walked off the wing and the plane went down with the co-pilot, was not true. When asked if he lied to the VRB he said –
I didn't lie, I had a confusion which I think I tried to make clear earlier on. Where I made a mistake was yes, we did see the guy die which was a shame. But where my confusion came into it is when the Gannet hung over the side and the guy walked off the wing and the other guy kicked … to get out and jump into the water. Now, I know I made a mistake in what I have said and I admit it. I apologise for saying what I have said but it still doesn't take away we have seen what we have seen. For people to turn around and tell me that that guy ejected from an aeroplane when he didn't - - -
….
I have made a mistake in the way I have put things down. I am not a liar, never have been, never will be. Now, I did make a mistake and I have tried to correct that mistake but not by lying, but by trying to get my facts in my head correct through the help of my friends that were with me who witnessed the same thing that I did.The Applicant said he sought information after reading in the report of the historian (exhibit 8) that the observer ejected from the 'plane, because "I knew he didn't". He was then asked "There was no saluting, was there?". The Applicant said:
Apparently there wasn't, by your evidence. You are right in what you say. He did not salute him and walk off the wing but where I am confused and where I have been confused for a long time is with this other aeroplane crash.
The Applicant denied having lied to the VRB. He said he had spoken to a friend who had served with him. He said –
When the plane hit the water there was one ejection from the plane which as far as to my knowledge was Lieutenant Da Costa. When the plane settled there was a person in the plane. His body did float out of it at some stage as the carrier went past. I am trying to remember the best I can. I got confused with two absolute separate incidents which apparently I have been confused with for quite a number of years until it was brought to my attention by one of my friends that was with us at the stage. He says you are confusing the two incidents. He said when these guys walked out off the wing, he said that was the one that was hanging over the side. When the one hit the water, that's a different one. Then he said and I was confused for a long time as well.
In answer to a number of questions from the Tribunal, the Applicant said he was on the port side on the upper deck (3 deck) when he "heard the bang". He looked over as the 'plane hit the water. He said he could still remember the ejection that was vivid in his mind – more vivid than anything else except for "the guy in the 'plane couldn't get out". He said the man was –
Inside the plane and then other people have said that his body floated free and he didn't have his Mae West on; it wasn't inflated. I can't remember that. I can remember looking and seeing the guy in the plane.
He said at that time the 'plane was at "the front of the ship", "basically half-submerged". He recalled that Lieutenant Kennell "was still visible inside the cockpit. The cockpit was not below the waterline". He also said "everything happened so quick it was gone fairly quickly". He estimated that the ship had gone past the 'plane in 15 or 20 seconds. He was sure that he saw Lieutenant Kennell's arm move, but was not sure whether that was involuntary, because of the movement of the water. He said that his memory of a person standing on the wing saluting was in relation to the Gannet.
The Applicant was referred to the reference in Dr Pohlen's report (T14) to the Applicant serving in HMAS Duchess in 1968 and 1969 when he was exposed to the risk of fire on deck and he witnessed a helicopter crash and a "Venom" crash. His evidence to the Tribunal was that he had never witnessed a helicopter crash.
The Applicant said he worked as a cook on the Duchess, and he did one trip to Vietnam during his service on that ship. He said he "did not like being in a war zone to start off with", but also because the kitchen was hot, "everything is closed down, you have got guards on doors, you can't move throughout the ship freely. It's just not nice". He agreed with the report of the historian (exhibit 8) that the Duchess sailed into the inner harbour at Vung Tau. He recalled scare charges being dropped but he said he was never told "exactly when they were going to do it. He said it was "no fun" to have scare charges going off on the hull right next to the kitchen just below the water. He said that on two occasions he ran out of the kitchen because he did not know what had happened, but he was then told "it was only scare charges" and he could go back.
The Applicant swore a Statutory Declaration dated 9 October 1997 (T20) in which he said –
During my trips to Vietnam I was always below decks in a locked down ship whilst in Vung Tau Harbour. On all visits it was normal practice to drop scare charges, have divers over the side and sentry's (sic) on constant watch for signs of enemy divers eg. air bubbles. This was obversly (sic) done because this was a real threat of the enemy trying to mine Australian ships. When below decks the sound of scare charges echoed through out the ship and we could never be sure whether the explosives were scare charges or enemy activity. When in Vung Tau Harbour I was in constant fear for my life. Because of the ship being locked down there was a very real danger that if the enemy did mine the ship that I could be traped (sic) below decks and drowned. I find it extremly (sic) difficult to understand how people who have never experienced being locked down can claim to have any understanding of how frighting (sic) this is. I increased my smoking and drinking as a direct result of these eposodes (sic) in Vung Tau Harbour. My fear of drowning if we were mined was exacerbated by the knowledge that so many lives were lost on Voyager because the ship was locked down and these men had no avenue of escape.
In cross-examination the Applicant could not explain why he had not made any reference to the Sea Venom incident in his Statutory Declaration, nor could he explain why he had not identified it as a stressful incident when making a statement associated with his application for review by the VRB. It was put to the Applicant that despite not having referred to the Sea Venom incident in this Statutory Declaration in 1997, two years later at the VRB hearing he provided details of the incident in his oral evidence. He said "yes, it was never out of my mind. … I never brought it up, no. There was a lot of things I never brought up".
The Applicant was discharged from the Navy in 1972 on the basis that his service was no longer required. He said "it probably had a lot to do with alcohol. I had one attempt at suicide". He attempted suicide in 1971. Later in his evidence he acknowledged that his attempted suicide was in May 1972 and he took an overdose of Codeine. At that time he was at HMAS Nerimbah. He said he was not offered any further treatment after that incident.
He said he was drinking a lot of alcohol before his discharge and "was pretty spaced out". He said he did not have much chance to drink during the first few months of his service, but "we used to go and have a few drinks but not to excess…". He indicated that he started drinking more "probably not long after we got from Sydney off Melbourne". In cross-examination he agreed that he commenced drinking in 1965 but denied it was while he was at Cerberus.
The Applicant was posted to the Melbourne in late 1965. He agreed that when he was in Singapore he went ashore and drank with friends. He said he "got pretty drunk", and this was the first time he was drunk. He also agreed that this was before the "Sea Venom" incident. He said the next time he was drunk was probably in Hong Kong, about a week after the incident. It appears that he revisited Hong Kong and Singapore on leave on a number of occasions. He said "when we got ashore we played up". He said he followed what his mates did and he "had a lot of fun". He also said that when he returned to Sydney he did not drink as often, but "I still had my few drinks".
The Applicant said that over the years his drinking became worse. He considered it was worst after he came off the Duchess. He was married mid 1969, at about the time he came off the Duchess, and his drinking was "pretty heavy" by the time he married. He drank every day after work, usually at a club. He also said at weekends, "when I wasn't on duty and even when I was on duty we used to drink". He was drinking with friends. He had "no idea" why he was drinking. Referring to his drinking, he said the last two to three years before his discharge was "pretty nasty".
The Applicant said that just after his discharge from the Navy his wife left him and she moved to Queensland with their children. He said "I drank pretty consistently for two to three years after that. I didn't do a lot of anything for a long time". In cross-examination the Applicant agreed that he did not know why he was drinking.
The Applicant said that after he met the person who later became his second wife "I came out of it for a long time but I still drank heavily after we got married". They have been married for 25 years. After he married his second wife he obtained work cooking at various clubs. He also said he has been driving cabs for 20 years. However he has not driven "for quite a while now" because his taxi licence was cancelled because of his heart condition.
In an Alcohol Questionnaire dated 18 September 1996 (T5, p39) the Applicant said he began to consume alcohol on a regular basis in 1965 because of "peer pressure". He drank two to three times a week then, drinking 5 to 6 middies of beer and 2 to 3 nips of scotch on each occasion. He said he increased his drinking in South Vietnam "considerably, due to stress". He then drank 10 to 12 stubbies, 7 to 8 nips of scotch and 4 to 5 nips of rum. He said he has continued to drink beer every day, on average 7 schooners.
In his oral evidence the Applicant said that he was still drinking "pretty heavy". He drinks at the club "at least four to five days a week" and "I spend a few hours there". He said he drinks "up to 10 schooners a day". He said he has been told to reduce his drinking because of his heart condition and he has tried to do that. He said that in August/September 2000 he stopped drinking for three or four months because of surgery.
The Applicant said that in relation to his psychiatric symptoms he does not feel any different now from 25 or 30 years ago. He is anxious and easily upset. He has only a small circle of friends with whom he served in the Navy. He has no contact with his children from his first marriage, and has seen his daughter once in 28 years. He has three children from his second marriage, and he said at the time of the hearing they "aren't talking to me" but he still has contact with them. He said this often happens. One is an alcohol and drug user. They are now adult.
The Applicant said he has consulted Dr Martin Ewer, a psychiatrist in Adelaide, on two or three occasions, and his local doctor has now prescribed Aurorix for his psychiatric condition. The Tribunal notes from Dr Ewer's clinical notes (exhibit 9) that he saw the Applicant on one occasion only and that appeared to relate to an assessment in respect of these proceedings. The Applicant signed an authorisation for Dr Ewer to release his "medical details" to his Vietnam Veterans' Association advocate. A letter was sent to the Applicant's general practitioner recommending medication. Dr Ewer diagnosed "PTSD or a generalised anxiety disorder" and "alcohol abuse." Dr Ewer also noted that the Applicant had been treated by Dr Pohlan. The Tribunal notes from Dr Pohlan's reports (T9 and T26) that there appears to have been consultations on 19 November and 5 December 1996, relating to a request from the Department of Veterans' Affairs to provide a diagnosis. Dr Pohlan refers (T26, p93) to the Applicant having "continuing periodic supportive psychiatric management as an outpatient…" but details of this are not provided.
The Applicant said he is at present somewhat disabled from a cyst in his ankle following a fracture some three years ago. He said when his leg is not a problem, apart from going to the club four or five days a week he does not do anything else. He used to go fishing but he has not been able to do that for a while. He also spends some time every night on the internet - "I just talk to other people, send e-mails to friends".
Evidence from service medical records (T4)The Applicant commenced drinking prior to the first period of operational service. He had a significant drinking problem by the end of his Naval service that caused his superiors to refer him for specialist assessment. As a result of his drinking his driver's licence had been suspended for five years, and it was having a significant deleterious effect on his marriage that broke down completely soon after his discharge.
In respect of the Applicant's anxiety condition, although he had a firmly established drinking pattern during his service, he was described by his Commanding Officer in a referral to a psychiatrist in February 1972 (three years after his operational service on the Duchess and more than six years after the "Sea Venom" incident), as "a week (sic) character with a cheerful disposition …". He also noted the Applicant was having domestic problems and had already tried, unsuccessfully, for discharge from the Navy because of his wife's nervous condition. At the same time his wife described him as a "compulsive lier (sic)" and the psychiatrist noted that he was fairly impulsive as a child and had been used to getting his own way. The psychiatrist considered the Applicant had an "impulsive personality" and that he was "probably lying over alcohol intake". There is no reference to any symptoms of anxiety or stress. Apart from his drinking, the only acknowledgment made by the Applicant was that he was "stuck with a temper" that the Navy should "cure". The major concern was that he was extremely aggressive after drinking and he had been drinking 20 schooners a day. He was discharged from the Navy on 18 July 1972 as being "unsuitable". In cross-examination the Applicant's attention was drawn to the referral to Dr Gill. The Applicant said this referred to his "womanising".
In February 1967, during the Applicant's operational service on the Melbourne, he complained of a pain in his throat after drinking. No physical cause was found for his complaint and a diagnosis of "anxiety" was made. A few weeks later he was involved in a car accident, he had fallen from a balcony, and had also fallen in the galley sustaining a minor head injury, all in separate incidents. Two months later he was seen again by a doctor because of sleep walking when he also micturated. It was noted that he had been drinking heavily that night and that he "states he has no worries or problems". A diagnosis of "? Anxiety" was made. In his oral evidence he said he thought he had "a couple of incidents of sleep walking".
The Applicant had another motor vehicle accident in June 1968 (before his operational service on the Duchess). Then in October 1968, again before his last period of operational service, he fell in the galley, having felt dizzy previously, and he recovered after taking salt tablets. This episode was diagnosed as "vasovagal – salt depletion".
In December 1970, two years after his service on the Duchess, he was medically examined, having complained of feeling agitated, vomiting and having a marked tremor. He was worried and having sleepless nights because of enquiries into a shooting incident at HMAS Nirimba. Anxiety state was diagnosed. The Applicant told Professor Mattick that "an idiot firing a gun nearby on purpose" had upset him. The gun was not fired at him, but he had been nearby when it had been discharged (exhibit 3).
In May 1972, not long before his discharge from the Navy, he took an overdose of codeine and was admitted to hospital. In his oral evidence he referred to this as an "attempt at suicide". The Tribunal notes that he told Professor Mattick that he had been "as pissed as a cricket" and had taken the codeine because of a headache (exhibit 3).
In his oral evidence the Applicant recalled seeing Dr Gill about psychological problems he had while on service, but he said "nothing was ever done about it". He did not recall being told that he might have suffered from anxiety. He recalled seeing doctors when he was at HMAS Albatross in early 1967 because of sleep walking. He could not recall receiving any treatment arising from those consultations.
Commodore Da CostaThe Tribunal had the unique advantage of hearing oral evidence from Commodore Da Costa, the pilot of the Sea Venom that crashed. He was an impressive witness who gave his evidence in a clear and dispassionate manner. Lieutenant Da Costa, as he then was, made a statement as part of an A25 Accident Report, required to be rendered for any aircraft accident, and it was quite separate from any Board of Inquiry. Nonetheless it was attached to the Board of Inquiry minutes in relation to an Inquiry that was held on 29 April 1966, the day after the crash. Commodore Da Costa identified that statement at exhibit B, p25. He said he made this statement, which is undated, very shortly after the accident. In that report he stated, inter alia –
I realised that I did not have flying speed so called "Eject" "Eject". As I attempted to level the wings, the Observer jettisoned the canopy and I had the impression that he ejected immediately afterwards. By this time I had succeeded in levelling the wings and ejected myself. I felt that the aircraft was just about to or had just struck the water as I ejected.
….
At no time after ejection did I sight Lieutenant Kennell.
Commodore Da Costa also gave evidence to the Board of Inquiry, similar in substance to his accident report. However, when asked "are you sure or do you have a doubt that Lieutenant Kennell ejected?" he answered –
I now have a doubt, at the time although my memory is not clear on this point, after having said "eject" the observer went through the motions of the ejection procedure, ejecting the canopy, and at the time something told me that he had gone. Whether it was the blast of his seat going or the noise I do not know but I was quite happy that he had ejected.
Commodore Da Costa added, in his evidence to the Tribunal, that nothing he has heard or read since that time would lead him to come to any other conclusion than he came to at the time of the Inquiry in relation to the ejection. However, in cross-examination when he was asked "You don't know whether he was ejected from the aircraft?" he answered "No". He added "I do not know whether he cleared the aircraft or not but I say that the evidence of other witnesses is that he was seen to be clear of the aircraft but not very far". He conceded the possibility that Lt. Kennell became clear of the aircraft after it hit the water, but he added "but it is contrary to my own recollection at the time…". He disagreed that the equipment malfunctioned, but considered that the ejection may not have been successful because of the circumstances of the aircraft at the time that Lt. Kennell initiated the ejection.
Commodore DaCosta considered, given the nature of the aircraft and that he had put the engine to full thrust before he ejected, that the cockpit would have collapsed fairly quickly after it hit the water. He thought it would be extraordinarily difficult for a person to extricate himself from the cockpit in those circumstances. If Lt. Kennell had not attempted ejection or if it failed, he would still have been strapped into the cockpit with his harness. He would have had his separate parachute harness attached to him. Assuming no incapacity, Commodore Da Costa said that such a manoeuvre would have taken some time. He also noted the evidence of Lt. Commander Hillier and Lt. Bessell-Brown, that Lt. Kennell was seen within seconds of the crash to be face down in the water, apparently free of any ejection seat or parachute. That caused Commodore DaCosta to conclude that Lt. Kennell had initiated ejection because of all the things that happen automatically with an ejection.
He noted that the Applicant's evidence that Lt Kennell was still in the cockpit after the aircraft hit the water was "fairly incompatible" with the evidence of the other witnesses of the crash. He found it difficult to see how it could have happened in the way described by the Applicant. He noted that there was only one canopy cockpit through which they would both have ejected. It was necessary for the canopy to be jettisoned before either crew could eject. Commodore DaCosta was aware that he did not jettison the canopy himself. He did not recall hearing the noise of his own ejection at all, but he recalled hearing something alongside him at the time that led him to believe that Lt Kennell had initiated an ejection. Despite wearing a tight-fitting helmet, he expected that the noise driving the ejection would be quite significant. All the automatic activities could well have started and released Lt. Kennell even though he was not high enough in the air for the parachute to deploy and arrest his descent.
Commodore Da Costa said that if Lt Kennell had not manually removed the harness and parachute and if he had not activated ejection then the equipment would have been a significant restraint preventing him from getting out of the cockpit after it hit the water.
The following question from the Tribunal and response from Commodore DaCosta was put to test the Applicant's hypothesis in the context of the case law to determine whether an hypothesis is reasonable –
Q. So as a result of this myriad of questions … what do you say now to the possibility not too tenuous, but a mere possibility of him being seen in the cockpit at the time he hit the water and then to have been floating face down and disappearing into the ocean prior to you being picked up in the helicopter some three minutes later?
A. I have difficulty in conceptualising the sequence of events which could lead to that. If he was still in the cockpit when the aircraft hit the water then I – and given the descriptions that I have read of what happened to the aircraft, it sort of spinning around and spray everywhere, that he could have in the time scale got out, become unconscious, face down, not moving. It's pretty hard to imagine what could have happened that would have led to that. If he was sitting in the cockpit shortly after the aircraft crashed I would have expected him to never have left the cockpit.Commodore DaCosta noted that there was a sequence marked on the photographs he provided (exhibit E) and he agreed that if Lt. Kennell had the full benefit from his ejection seat, it was reasonable that he would have been picked up by at least the photograph prior to the one showing Commodore DaCosta in midair. He said that if his ejection seat had come above the level of the flight deck it was reasonable to expect that it would have been photographed. He disagreed, however, that it could be presumed that Lt. Kennell would have cleared the flight deck.
An SAR helicopter was positioned, as normal, in readiness at the stern port side of the Melbourne. The pilot of the SAR helicopter, Lieutenant Commander Hillier, stated (exhibit B, p26) that –
the canopy left the aircraft just before it hit the water and the Aircrew ejected, as the aircraft started to break up on impact. There was a very slight time difference between ejections but I forget which was first. One did not get as high as the other. As I reached the wreckage it was passing down the ships side. There were lots of small pieces and I saw one Aircrew (Lt. DaCosta) floating upright and in apparent difficulties. As I closed him for winching I noticed the other Aircrew (Lt.Kennell) floating inverted and vertical amongst the wreckage with his parachute deployed. He was not moving and I closed him rapidly. At this stage he started to sink so I told the U/C to jump in. Unfortunately by the time he hit the water the body was sinking rapidly without a struggle and the UC could not see him…
The observer in the SAR helicopter, Lieutenant Bessell-Brown, stated (exhibit B, p27) –
The canopy ejected when the aircraft was about half way down the ship's side and one seat fired just prior to entry into the water. The second seat appeared to fire at about the same time as the major impact although it could have been fractionally sooner. The first seat to fire rose about 45' – 50' in the air and the parachute deployed and almost completely filled landing close ahead of the ship on the port bow. The second seat only rose about fifteen feet and I had the impression the parachute deployed but only partly filled. My recollection is not really clear but I believe the occupant landed in or in line with the splash made by the aircraft. The aircraft hit the water almost horizontal about 15 degree tail down with the nose pointing approximately thirty degrees starboard of the ship's head. I am not really sure which seat fired first but I think it was the Pilot's. The tail appeared to strike first and skidded along the water a short way before the major impact and break up and I believe the wing section tumbled at least once after impact.
… During the run in I temporarily lost sight of the crew but as we commenced to come to the hover I saw one, (Lt. DaCosta) floating with an inflated Mae West. I could see Lt. Kennell floating face down in the water, out of his seat, legs almost straight with his feet about eighteen inches apart. His parachute, was submerged behind him and was open. As we came to the hover Lt. Kennell started to sink head first. …My last sight of him was sinking rapidly about fifteen to twenty feet below the surface. …. At this stage his helmet rose to the surface …While other witness statements and evidence were taken by the Board of Inquiry, no other witnesses reported seeing two ejections.
Commodore DaCosta noted that the Board of Inquiry found that Lt. Kennell did not eject. Subsequently the Navy Office conducted an investigation and concluded that he could have attempted to eject but that it was not successful. Commodore DaCosta also noted that Lt. Bessell-Brown was the only witness who concluded that his ejection seat left the aircraft before Lt. Kennell's.
Commodore DaCosta provided to the Tribunal all the photographs in his possession that were taken at the time of the accident (exhibit E). He was aware that a cine-film had been made of the incident also, but he had not seen it. He noted that every landing on the Melbourne was filmed with still photography and cine-film in case of accident. He did not consider the cine-film would have shown much more than the still photographs did, because the aircraft crashed very close to the side of the ship and most of the view would be obscured by the flight deck that was some 60 feet above the water.
Captain Lea
At the time of the Venom crash Captain Lea was a staff officer of the Director of Naval Aviation Policy in Canberra. His duty was to process aircraft accident files and review findings of accident investigations that included analysis of photographs and calculations of velocities, angles of aircraft attitude and time sequences. In a statement dated 11 May 2001 (exhibit 12) he said –As is common with aircraft accidents, eye witness accounts led to some confusion as to the sequence of events in the few seconds between the aircraft breaking free from the arrestor wire and the subsequent crash into the sea. However, investigations which I coordinated which, in particular, involved the detailed study and evaluation of a sequence of photographs taken from cine film established the following:
a.Kennell ejected first as the aircraft was descending rapidly from flight deck level to the sea.
b.Because of the downward component of velocity, his resultant vertical velocity was reduced and his trajectory was such that he did not gain sufficient height for full separation or parachute deployment. The seat (and Kennell) hit the water at an angle of approximately 30 degrees.
c.DaCosta ejected after Kennell but at the time he ejected, the aircraft had hit the water in a level attitude and its downward component of velocity had been arrested. Accordingly, his trajectory was much higher than Kennell's and his parachute streamed and filled just as he hit the water.
Captain Lea gave oral evidence at the hearing by conference telephone. He has had extensive experience as a Navy pilot. He noted that his analysis of the evidence had included viewing the cinefilm. He noted that their investigations came to a different conclusion from the Board of Inquiry regarding the ejection of the Lieutenant Kennell, and he considered that was because they had time to analyse all the evidence without time constraints and undertake complex calculations. While Captain Lea did not now have access to the technical details he recalled the generalised facts.
Captain Lea said that the barometric timing mechanism on the ejector seat must have worked for Lieutenant Kennell's headrest to be found floating in the water as it was. Photographs from the cinefilm were taken and enlarged and from these they "could see quite clearly that he did eject" and then speared straight into the water. Because of the attitude of the aircraft when he ejected there was no time for his parachute to fill. He said that at no time during Lieutenant Kennell ejection would he have risen above deck level. He would have been 40 feet below flight deck level when he left the aircraft. That was shown on the cinefilm.
Captain Lea said the Venom crashed "roughly level with the bow of the ship" and he calculated that it would have been no more than ten seconds before the Melbourne would have moved past where the aircraft hit the sea. He said that when the aircraft impacted there was a huge splash that came above the flight deck level, obscuring vision of the "aircraft exploding virtually and breaking up as it hit the water". Lieutenant Kennell's body was sighted in the water by the helicopter crew after the ship had moved past, but by this time the ship would have been about a quarter of a mile ahead.
Captain Lea said he knew nothing of the Applicant's case before the Tribunal.
The Tribunal notes that apart from the report of the Board of Inquiry, all files in respect of this incident, including the cinefilm, have been missing for many years.
medical evidenceThe Applicant was examined by Dr Smith at Wyong on 17 December 1996 in respect of this claim (T8). Dr Smith noted that the Applicant was being treated for PTSD by Dr Pohlen, psychiatrist". No reference was made to the Applicant's operational or Navy service, but he noted "severe problems with eldest daughter".
Dr Pohlen, psychiatrist, interviewed the Applicant on 19 November and 5 December 1996, and provided a report to the Respondent dated 6 December 1996 (T9). He had been referred by a general practitioner for –
evaluation and management of the emotional and behavioural residuum of his exposure to conditions of operational Navy service including his tours aboard HMAS Melbourne in 1965 and 1966 and aboard HMAS Duchess in 1968 and 1969 when he was exposed to the risk of fire on deck and to the witness of one helicopter crash and one "Venom" crash against the background of his knowledge of the Melbourne-Voyager collision in 1964 and the Melbourne-Frank E Evans disaster in 1968.
Dr Pohlen's report to the Respondent indicated that the Respondent had requested Dr Pohlen to provide a diagnosis. In effect, Dr Pohlen diagnosed generalised anxiety disorder, with a long list of sequelae including alcohol dependence.
Dr Pohlen referred to the Applicant having had an "anxiety-related vasovagal attack" whereas the service records show that this occurred because of "salt depletion". He referred to a "nightmare disorder", which Professor Mattick explored further and found that the nightmares were of his "daughter hung in the air" and of the Applicant smashing objects in the house. Dr Pohlen referred to a psychotic disorder with hallucinations whereas the Applicant's evidence was that he denied to Dr Pohlen that he suffered hallucinations. Dr Pohlen referred to overwhelming episodes of panic, whereas Professor Mattick obtained a history that the Applicant had 10 or 12 episodes of panic related to sleep apnoea. Dr Pohlen referred to agoraphobia whereas the Applicant denied this to Professor Mattick but complained that he had a dislike of public transport.
Significantly, Dr Pohlen diagnosed generalised anxiety disorder, but Professor Mattick said that the Applicant "denied excessive worry or anxiety occurring more days than not for at least six months about a number of different events or activities". Rather, Professor Mattick said the Applicant worried about the wellbeing of his grandson or other day to day events two or three times a month for one or two days. In the Applicant's cross-examination he could not recall denying to Professor Mattick that he had "excessive worry or anxiety more days than not…".
The Tribunal notes that the consultations with Dr Pohlen occurred soon after the Applicant lodged his claim for "PTSD and alcohol abuse" on 24 September 1996 because of "traumatic events in Vietnam". Dr Pohlen provided no detail about the specific history given to him about the circumstances of the Applicant's service. Therefore it is difficult to give weight to his conclusion, that stands merely as an assertion, that the Applicant's emotional and behavioural problems arose out of his operational service. The Respondent's advocate noted, in respect of Dr Pohlen's report, the Melbourne/Frank E Evans disaster occurred on 3 June 1969, after the conclusion of the Applicant's operational service in the Duchess and the Melbourne.
Associate Professor Mattick, clinical psychologist, examined the Applicant at the request of the Respondent and provided a report dated 28 February 2000 (exhibit 3). Professor Mattick obtained a detailed history of the Applicant's drinking and the circumstances of his operational service. In addition to the extracts from his report previously noted, the following extracts from his report are noted in particular –
Analysis: Mr Bolton claimed that he drank before he was 18 years of age in Hong Kong in early 1966 but increased his consumption after the death of observer in a Sea Venom aircraft which crashed from the deck of the HMAS Melbourne into the water. He claims that he drank on the night of the crash (this is contrary to the history recorded earlier in his report where he noted the Applicant did not drink that night as he was still on station after the 'plane crashed) and at the next beer ration consumed three or four 26 fluid ounce cans, claiming that two came from a beer ration and he purchased one or two from other sailors. I note that he was 17 years of age and, by his own admission, he could not have received a beer ration. He claims that subsequent to that, in Hong Kong he drank consistently consuming six to ten or more stubbies of Tiger beer. He claims that subsequent to this on the HMAS Melbourne he had two large cans of beer per night, illegally as he was still under 18 years of age, although he did not know the frequency with which he drank in that fashion. Subsequent to that time, he drank lightly when he was undergoing a cook's course but on going to Melbourne claims that he drank 10 to 12 middies of beer on Friday and Saturday nights for two years. On HMAS Albatross, he would drink six to ten schooners if he were playing darts or pool and six schooners on Friday and Saturday nights. On the HMAS Duchess, he claims that he "hated being in action stations and hated being locked down". He claims that he drank scotch and much brandy and beer. He told me that he only had 34 days of eligible service. Subsequent to that time, at the HMAS Platypus he drank 10 to 15 schooners and five or six nips of brandy, five out of seven days each week and he has continued drinking heavily to date.
He has not met criteria for alcohol dependence, based on his report to me today. He has, however, met criteria for alcohol abuse under the DSM-IV. It is difficult to place the time of onset of this alcohol abuse, given that he is a rather poor historian but based on the documents which I have read, I suspect that his alcohol abuse had an onset during his service and was certainly present soon after eligible service. It is unclear whether it was present prior to eligible service.
He may have suffered some anxiety on service given the daily medical records and the entry on 06.02.67which states that his symptoms happened on a number of occasions after drinking. I believe that his anxiety was most likely related to his drinking rather than to other events. His reported "anxiety state" when he was on the HMAS Nirimba was because another sailor fired a gun nearby him and this caused his agitation and tremor. I note that "anxiety state" is referred to on 18.07.72 in a Medical Statement On Discharge, but this reference is to the shooting event rather than anything related to eligible service. (Tribunal's emphasis)In relation to the incident with the Sea Venom, the history recorded by Professor Mattick was that –
A pilot was killed on the HMAS Melbourne. He said that a Sea Venom fighter crashed into the deck and slid off the deck into the water. He said the pilot could not get out and the plane sank. He explained that the plane had missed the arrest wires and gone into the sea and the pilot was unable to open the canopy. … "we actually watched him go down and I was able to see the pilot". He said that he was on the upper deck looking at the plane as it sank. He drew me a diagram indicating that he was positioned approximately one third of the way along the flight deck with the plane near the very end of the flight deck and some distance out in the water.
Professor Mattick also noted in his report that, having described the Sea Venom crash, the Applicant said "after that I started to drink". On the first occasion he drank after the crash (but not on the day of the crash) he said "I had a few" and added "I don't know why". He also said that when next in harbour, three or four days later, in Hong Kong, he "drank consistently" for seven days. He was ashore for five days with two duty watches and he drank until he became drunk, although he was unsure of the amounts. He also said that when he returned to HMAS Cerberus after the Melbourne "I was still not a heavy drinker" but he drank heavily at weekends when on leave. He then went to HMAS Albatross for 2 years where he drank each night, 6 to 10 schooners. After he married he did not drink every night, but once or twice a week he drank 8 to 10 schooners. While on shore during his service on HMAS Duchess he said he drank "very, very heavy". He did not know why.
Professor Mattick noted the Applicant's history that while on the Duchess he was in Vietnamese waters on two occasions overnight, and that he had "34 days of eligible service". The Tribunal notes that this is incorrect. His total operational service, on the most generous calculation, was 31 days, and his service on the Duchess was at most 8 days. There is no evidence that he was in Action Stations while in Vietnam waters other than when he was in Vung Tau Harbour, and that was for a total of 6 hours. The Applicant acknowledged in his oral evidence that he made only one trip to Vietnam while on the Duchess.
The Tribunal notes the reports of Dr Anderson, occupational physician (exhibits 4 and 5). The Tribunal does not propose to deal with this evidence in detail insofar as it goes primarily to assessment and the prior hurdle for the Applicant is that of entitlement. The Tribunal is concerned, however, that there are errors or lack of precision in the reports that cause one to doubt the care given to providing the report. Moreover, Dr Anderson made, and also acknowledged, numerous assumptions, that the Tribunal considers were more appropriate to check with the Applicant whilst taking the history. Dr Anderson said –
Mr Bolton indicated that he started drinking to excess when one of the ships on which he was serving was in Hong Kong. This would have been in the late 1960's and was probably HMAS Duchess…
He described that he had been on board HMAS Melbourne in 1956 and had witnessed the crash of a Sea Venom into the sea. He described that one of the airmen was trying to get the other out of the aircraft but was unable to remove the canopy. He described the airmen as standing on the wing of the aircraft saluting and then jumping clear as the aircraft with the other airman sank below the waves. (It is already on record that Mr Bolton may not have actually witnessed this condition since he could have been below deck at the time.) This issue was not addressed in any great detail with Mr Bolton since it is hardly medical and is more "investigative".If indeed the Applicant gave this history to Dr Anderson precisely as recorded, it is yet another version of the Applicant's observations of the Sea Venom disaster. However he was not on the Melbourne in "1956" and Dr Anderson acknowledged he did not address the issue in "any great detail". It is obvious that he had read the internal Departmental file note (at T22) that incorrectly noted the Applicant was a cook and therefore he "would probably have been below deck and almost certainly would not have observed the incident". It is not clear whether he had read the Applicant's evidence to the VRB in the documents sent to him rather than obtaining the detail recorded in his report from the Applicant himself. Moreover, Dr Anderson's assumptions about the Applicant "never even" having seen the land [Vietnam] when he was on board, and as a cook being in the part of the ship that was least likely to be damaged by mines or torpedoes, does not assist the Tribunal. It certainly does not incline the Tribunal to accept his opinion.
The issue of whether the Applicant actually observed the "Sea Venom" disaster is central to his credit. There are many aspects of this case where he appears to be changing his evidence from one time to the next. The Tribunal therefore considers it important not to lumber his case with the assumptions made by Dr Anderson in his report.
Dr Dinnen, psychiatrist, provided a report sought on behalf of the Applicant (exhibit C). Dr Dinnen recorded a history that the Applicant had "no idea" why he had his nervous condition. However, he also told Dr Dinnen "they say it's due to Vietnam". He said he hated being "locked down in the ship when it was at action stations". He was always frightened about what might happen if they "got a hit" and could not get out. He noted the history that the Applicant "was always in trouble for being drunk" when he was in the Navy. The Applicant described an incident to Dr Dinnen when he –
"watched a man die" while he was serving on the Melbourne. He was watching the aircraft land, and the Venom missed the deck and landed in the water. They watched the copilot get out of the twin canopies but the pilot couldn't get his canopy opened. As the aircraft was sinking below the water they saw the pilot salute the copilot before the plane went down.
Dr Dinnen also noted that –
Drinking was a bad problem in the Navy. He said this was because "I was so young I was scared. I hated being locked down in that ship". He recalled that feeling twice when they were in Vung Tau Harbour and also when on exercises at sea. This was on HMAS Duchess.
The Tribunal notes that this history is now acknowledged by the Applicant not to be correct. He was in Vung Tau Harbour only once, for six hours. There is no evidence that any other 'action stations' exercises were related to his operational service. It is not clear what Dr Dinnen understands the Applicant's term "locked down" to mean, and in particular that it did not mean that he was literally locked below deck.
Dr Dinnen asked the Applicant whether he had any nervous problem in the Navy and was told about the sleep walking. The Tribunal notes from the service documents that this coincided with heavy drinking and micturition. In response to Dr Dinnen's question the Applicant also said –
"there was a lot of stress when that bloke died. I can't think watching somebody die is a pleasant thing". The patient said he is still friendly with a couple of mates from the Melbourne and they have the same thoughts as him about the death of the pilot.
The Tribunal also notes that Dr Dinnen described panic attacks involving the Applicant not being able to get his breath, and that one occasion was when he was very ill with pneumonia. Dr Dinnen does not note the history of sleep apnoea, reported by Professor Mattick, that Professor Mattick considered was associated with his panic attacks.
Dr Dinnen was asked to relate his assessment to the Statements of Principles for Generalised Anxiety Disorder and Psychoactive Substance Abuse. He said –
… the definition according to section No.4 seemed to me to apply from the time of his service. There is ample evidence of excessive anxiety and worry during service, according to the medical documentation, and the history is of long standing symptoms of anxiety and worry. These were associated with restlessness, difficulty concentrating, irritability, sleep disturbance and the use of alcohol in excessive amounts.
With regard to the relationship to service, criterion 1(b) seems to apply. There was some anxiety present in February 1967, after service on the Melbourne (subsequent to its collision with the Voyager …). The anxiety state noted in 1970 and the overdose of Codeine the following year led to psychiatric consultation in February 1972. By that stage the patient was having serious marital problems and his heavy drinking was well documented.
The Statement of Principles for psychoactive substance abuse, instrument No.76 of 1998 also flows from stressful service, and the maladaptive pattern of the patient's alcohol use dating from well within his period of service is evident in the suspension of his driving license for five years by 1972 … the breakdown of his first marriage and the fact that he continues to drink very heavily in spite of medical advice to the contrary.Dr Dinnen diagnosed generalised anxiety disorder and psychoactive substance abuse.
Dr Lee, psychiatrist, provided reports dated 1 March 2000 (exhibit 1) and 25 October 2000 (exhibit 2) at the request of the Respondent, having examined the Applicant on 28 February 2000. Dr Lee noted that the Applicant tended to worry about most things, money, his children and grandchildren, but it was not clear whether his worry was irrational, which would be required to make a diagnosis of a psychiatric disorder. Dr Lee considered that the Applicant could be seen to fulfil the DSM-IV criteria for generalised anxiety disorder, although he noted there was no clinical objective evidence of anxiety in his presentation. The Applicant told Dr Lee that his "anxiety" was caused by war service – gunfire, scare charges and witnessing a plane crash.
The Applicant complained to Dr Lee that he felt "claustrophobic" when the ship was frequently under action stations, and he was scared by the noise of the scare charges that were dropped over the sides. He said he was constantly fearful. The Applicant told Dr Lee about the "Sea Venom" crash. Dr Lee said –
He was standing on the upper deck, which is just below the flight deck. He saw the plane crash in the water from about 60 metres away. A co-pilot, he says, evicted, but he saw the pilot unable to leave the canopy and apparently salute as he drowned.
Asked about the effects on him, he told me, "Not real good." He felt sick in his stomach. He says that he can still recall the incident, which he described as "senseless." He said that everybody on board the ship was upset.In relation to the Applicant's drinking, Dr Lee said –
He told me that he "began drinking" in 1967 and when asked why, he initially said, "I don't know why." He then went on to say that he used to get very scared and he drank to cope with it. He used to go on binges. He never sought treatment because he did not think that he had a problem.
In respect of the Applicant's active service, Dr Lee was told –
He saw 34 days on active service in a war zone around Vietnam. He said, "I never thought I was being shot at," which contradicts his earlier statement about the scare charges.
He said he thought he was in a lot of danger of being fired upon, although it never occurred. He said he did not like being locked under battle stations for days on end, up to three days at a time. He could still however "cope".
He told me he consulted no psychiatrists or psychologists, but saw a number of medical officers whom he said were "not too keen" on treating him. He told me he was frequently in trouble for drunkenness and being late returning to duty.Dr Lee considered that primarily the Applicant has a personality difficulty but not, from a clinical perspective, a personality disorder. He considered he might meet the Statement of Principles for Generalised Anxiety Disorder because it was impossible to rule out that the anxiety syndrome of which the Applicant complains being caused by alcohol abuse. He "suspected" that the Applicant's alcohol abuse was primary rather than secondary to a war-related anxiety condition, but "it is impossible to be dogmatic in this area".
The clinical notes of Dr Ewer, psychiatrist, were obtained during the course of these proceedings (exhibit 9). The Tribunal notes that the Applicant was referred to Dr Ewer on 7 October 1999 from Dr McClarty at the Minlaton Medical Centre in South Australia, noting that the Applicant was having a problem with "anxiety/stress disorder" and that he was "seeking to up grade Vets. Disability to TPI". Dr Ewer, in his letter to Dr McClarty dated 16 November 1999, referred to the Applicant "suffering from either a Post-Traumatic Stress Disorder or a Generalized Anxiety Disorder" and that he also suffered from alcohol abuse. In his clinical notes Dr Ewer recorded a version of the Applicant's history to which the Applicant now does not hold. Dr Ewer noted that –
A plane crashed on carrier deck. P [patient] saw it went into water. P could see pilot punching canopy. 1 pilot got out. Tried to get pilots canopy out – couldn't – saluted him + swam away. P watched plane sink + pilot died. Below decks in galley – hear "explosion" – later told it was scare charges - ? enemy divers. Locked in compartment.
submissions
It was submitted for the Applicant that in respect of the Applicant's generalised anxiety disorder a reasonable hypothesis has been raised that fits the Statement of Principles. The Applicant relied on the incidents of the scare charges in Vung Tau Harbour in the Duchess – he was young, he was scared, he was locked down in the ship, and the incident involving the crash of the "Sea Venom". He also relied on the experience of being in the Melbourne with the knowledge of the Voyager/Melbourne disaster, and being in the Duchess, a similar ship to the Voyager. The hypothesis related to his general knowledge of the disaster and not feeling safe in the Melbourne. The only evidence on this is the Applicant's history to Dr Dinnen. Counsel for the Applicant was unable to clarify whether the Applicant had given any history to Dr Dinnen on this issue, or whether Dr Dinnen had become aware of it from the Applicant's Statutory Declaration at T20 where he said so many lives were lost on the Voyager because the ship was "locked down and these men had no avenue of escape". On the issue of the Applicant's anxiety arising from knowledge he had gained about the Melbourne/Voyager disaster, the Applicant relied on the Tribunal's decision Re Kelly and Repatriation Commission [2001] AATA 254.
It was submitted that a reasonable hypothesis has been raised, and this matter falls for determination squarely within s.120(1) and step 4 of the Deledio test: Repatriation Commission v Deledio (1999) 83 FCR 82.
It was submitted for the Respondent that the Applicant's brief period of operational service (30 days) must be considered in the context of his non-operational Naval service of seven years. He was posted to the Melbourne in late 1965, four months before his first period of operational service. It was submitted that the Applicant would have heard about the Voyager/Melbourne disaster well before the commencement of his operational service. He served in the Melbourne for six months.
It was submitted for the Respondent that, in effect, there was a plethora of evidence that pointed to the Applicant's lack of credibility. The unreliability of his evidence and history to the doctors in so many instances were reasons why their opinions and diagnoses should not be accepted by the Tribunal. Moreover the lack of any reference to the Sea Venom incident being relevant to his claim until the VRB hearing is a factor that must go against the Applicant's credit.
The Respondent's advocate noted a decision of the Tribunal Re Hill and Repatriation Commission [2000] AATA 1011 where similar evidence was given to that of the Applicant, viz. that the aircraft was suspended by the arrester hook and "was just hanging", that the hook snapped and the aircraft plummeted into the water, the ship was stopped and for some minutes he saw the aircraft floating and a person in it trying to punch his way out through the canopy. It was submitted for the Respondent that the Tribunal in the matter now before it might have a sense of déjà vu. In reply, it was submitted that none of this was put to the Applicant in cross-examination and it is an "extraordinary extrapolation" that the Tribunal should reject.
It was the Respondent's case that there is an issue in respect of diagnosis in this matter, both because of the conflicting medical evidence and the "contaminated or tainted" history from the Applicant, on which the diagnosis was based.
It was submitted, in respect of Dr Pohlen's opinion, that there is no identification of the stressful event required to underpin the diagnosis, and his report was "riddled with inaccuracies" that the Respondent's advocate proceeded to identify. It was submitted that neither Dr Pohlen nor Dr Dinnen refers to the record that referred to the Applicant as a "compulsive liar". Dr Dinnen diagnosed "generalised anxiety disorder", and considered "psychoactive substance abuse" was secondary to "generalised anxiety disorder". It was submitted that Dr Dinnen's diagnosis is "contaminated" by an incorrect history and in particular a "dramatised account" of the Sea Venom crash. It was submitted that the version of events given to Dr Dinnen was not true and the Applicant has concocted it for the purpose of this claim.
It was the Respondent's case that the Applicant knew of the incident at the time it occurred, but he had not witnessed anything. It was submitted that if he did see anything of the incident he would not have come up with the story he did originally which he later changed only when challenged by more accurate historical evidence. Having claimed as he has, untruthfully, that he saw the incident, he cannot now say that it was stressful just knowing of it. That casts doubt on his credibility in general, such as to preclude the Tribunal from finding in his favour and it would enable the Tribunal to be satisfied beyond reasonable doubt that there are insufficient grounds for finding that the condition was war-caused.
Dr Dinnen noted that the Applicant was stressed in Vung Tau Harbour because he was "locked down in the ship". It was submitted that the term "locked down" used by the Applicant in giving his history, is significantly different from the Naval term "closed up". The Applicant acknowledged in his evidence that the doors were not locked and it was incorrect to say that the ship was some form of coffin. Dr Dinnen identified the scare charges as one of three stressful events. It was submitted for the Respondent that the Applicant was not locked down as he described.
It was submitted that it is now not clear whether Dr Dinnen would still hold to his diagnosis of generalised anxiety disorder based on the remaining stressful events of being "locked down" and dropping scare charges. It was submitted that there is insufficient evidence before the Tribunal to establish a diagnosis of generalised anxiety disorder on the balance of probabilities. The Respondent relied on the decision of the Federal Court in Benjamin v Repatriation Commission [2001] FCA 522. The decision in Benjamin disagreed with two other Federal Court decisions in Budworth v Repatriation Commission [2001] FCA 317 and Meehan v Repatriation Commission [2001] FCA 597 in the interpretation made in those two decisions about the ratio in the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307.
It was submitted that Dr Dinnen did not distinguish between the Applicant's operational and non-operational service in giving his opinion. In respect of the diagnosis of generalised anxiety disorder, it was submitted that none of Dr Dinnen's reference to symptoms of anxiety relates to the Applicant's operational service.
The Respondent's advocate noted that the Applicant appears to be relying on the diagnosis of generalised anxiety disorder notwithstanding the opinion given by Dr Ewer that it was either post traumatic stress disorder or generalised anxiety disorder. It was submitted, however, that Dr Ewer's diagnosis is also contaminated by the history given to him by the Applicant.
It was submitted that Dr Lee was unable to conclude that the Applicant suffered from generalised anxiety disorder. He merely referred to the "possible presence of generalised anxiety disorder" applying "a very liberal reasonable hypothesis test to that diagnosis". It was submitted that the "wrong standard" had been used in coming to that diagnosis, and indeed Dr Lee subsequently opined that the Applicant did not suffer from generalised anxiety disorder but from "personality problems" and psychoactive substance abuse. Dr Lee noted that the diagnosis hinged on the Applicant being an accurate historian. On the basis of the historical evidence rather than the Applicant's account of the Sea Venom crash, Dr Lee opined that the Applicant did not meet the diagnostic criteria for generalised anxiety disorder.
It was submitted for the Applicant in reply that Dr Lee's evidence has been contaminated by the Respondent by providing to him documents that included a series of internal minutes with some assumptions that were quite erroneous. It was submitted that he has relied on that contaminated evidence to base his diagnosis and his opinion. Similarly Mr Tilbrook has used some of this erroneous evidence, eg that the Applicant served as a cook in the Melbourne, in providing his opinion.
In the alternative, it was submitted for the Respondent that if the Tribunal found that a diagnosis of generalised anxiety disorder could be made on the evidence, then the condition could not be attributed to his operational service because the major stressful event did not happen as described by the Applicant and his credibility is so much in question that the Tribunal could be satisfied beyond reasonable doubt that there are insufficient grounds for granting his claim.
The Respondent accepts that the diagnosis of psychoactive substance abuse is made out, but submitted that this condition was not war-caused. It was submitted for the Respondent that the Applicant relies on having a pre-existing psychiatric condition prior to the clinical onset of psychoactive substance abuse, or in the alternative of having experienced a "stressful event". It was submitted that the Applicant's hearing of the scare charges did not meet the definition of "stressful event" and that the stressful event must be of an order of similar severity to combat. It was noted that apart from Dr Dinnen the other psychiatrists did not refer to the scare charges, and it was submitted that the scare charges appeared to have assumed secondary importance.
It was submitted for the Applicant in reply that it was the Respondent's failure to investigate the scare charges allegation that caused it to be "put by the wayside" by the Respondent. It was not the Applicant's case that they were of secondary importance. The Applicant relied on the decision of the Federal Court in Repatriation Commission v Binding [1999] FCA 974, for the fact that the "stressful event" does not need to be of a nature or severity of combat in order to meet the definition. It was acknowledged, however, that that decision related to the Statement of Principles for Post Traumatic Stress Disorder.
It was submitted for the Respondent that the Applicant's evidence in his alcohol questionnaire was that he was drinking on a regular basis in 1965 prior to his eligible service. It was submitted that the reference in 1967 to episodes of anxiety made no reference to a stressful event. His sleepwalking in 1967 was associated with heavy drinking the previous night. The shooting incident on the Nirimba and the codeine overdose in 1972 were related to his non-eligible period of service. In 1972 Dr Gill's opinion was that the Applicant's anxiety related to his marriage. In reply, it was submitted for the Applicant that just because these medical consultations occurred during his non-operational period of service does not mean that his anxiety reactions manifested at those times did not arise from his operational service. The Applicant relied on the decision of the Tribunal Re Kelly and Repatriation Commission [2001] AATA 254 that found there could be a number of factors contributing to the development of the condition, and if one of those factors related to the relevant service that was sufficient as long as it was more than de minimus.
It was submitted for the Respondent that neither Dr Lee nor Associate Professor Mattick considered that the Applicant's alcohol dependence was war-caused.
In respect of the Applicant's poor credit on so many issues, the Tribunal was referred by the Respondent to the Federal Court decision of Dixonv Repatriation Commission [1999] FCA 582 in which it was held that it was open to the Tribunal to find, in relation to step 4 of the Deledio test (supra), that there was a difficulty with the Applicant's credibility.
consideration of evidence and findings of fact
DiagnosisThe Tribunal notes the present state of the case law in relation to the standard of proof to be applied in considering the issue of diagnosis. Appeals before the Full Court of the Federal Court are still proceeding. Therefore, the Tribunal considers it appropriate in this matter to apply both standards of proof, in the alternative.
In order to consider the issue of diagnosis it is necessary in this matter to make findings in respect of the Applicant's credibility insofar as that affects the diagnosis made. Moreover, issues of credibility arise in respect of s120(1) as well, if indeed one gets that far. The Tribunal's attention was drawn by the Respondent to the decision of the Federal Court in Dixon (supra). It is clear from that decision that Wilcox J. considered that in the context of s120(1) it is open to the Tribunal to find against the veteran based on its assessment of his credibility. Wilcox J said (at para. 24) –
If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s120(1) and dismissing his appeal.
That is precisely the approach that the Tribunal is intending to take in this matter also.
The Tribunal notes the Respondent's concession that the Applicant suffers from psychoactive substance abuse, and finds that this is a concession properly made on the evidence before the Tribunal.
Generalised Anxiety DisorderThe Tribunal finds that the Applicant is not credible, and little or no reliance can be placed on his evidence or the medical evidence on which his erroneous history was based. Although there is evidence of some anxiety during the Applicant's Naval service, it was associated with his marital problems that in turn were negatively affected by his drinking. The Applicant had a number of medical and psychiatric consultations during the period of his Naval service, and none produced any history of the Applicant being concerned about the factors that have now been produced as stressors from his operational service. There is no reference to the "Sea Venom" incident, there is no reference to the Applicant's concern about the scare charges or being "locked down" while on board the Duchess, and there is no reference to any generalised anxiety arising from his knowledge of the Melbourne/Voyager disaster and the fact that subsequently he was required to serve on the Melbourne or the Duchess. The Tribunal notes that none of these concerns have been raised in any context whatsoever by the Applicant until 1996 when he was preparing to lodge this claim. The Tribunal is satisfied beyond reasonable doubt, in all the circumstances of this case, that the Applicant's evidence and that of various experts are based upon fiction, deliberately contrived for the purpose of having his conditions accepted as being war-caused.
In light of these findings the Tribunal is not reasonably satisfied that the Applicant suffers from generalised anxiety disorder as defined in the Statement of Principles. Moreover, the Tribunal is reasonably satisfied that there is no evidence of a diagnosable psychiatric condition, other than psychoactive substance abuse. . All the medical evidence on which that diagnosis of generalised anxiety disorder is based is reliant on the Applicant's contrived history.
Moreover, the Tribunal is reasonably satisfied the Applicant does not suffer from any other disease as defined in the definition of "disease" in s4 of the Act, viz
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
In the alternative, if the Applicant does suffer from an anxiety condition, then it arises from his psychoactive alcohol abuse.
Having found that the Applicant does not suffer from generalised anxiety disorder, it is not necessary to proceed further to the question of whether a reasonable hypothesis has been raised that connects the circumstances of his war service to his condition, and whether this hypothesis can be disproved beyond reasonable doubt. His claim in respect of generalised anxiety disorder is therefore unsuccessful.
However, in the alternative, if in fact the Applicant does suffer from generalised anxiety disorder, or if he does suffer from a disease, then in applying factor 1(b) of the Statement of Principles for Generalised Anxiety Disorder, and assuming that the evidence in his Navy records is evidence of an anxiety disorder, the Tribunal is satisfied beyond reasonable doubt (for reasons following below) that that condition had nothing to do with the very short period of his operational service.
The Tribunal finds that the Applicant did not witness the aftermath of the Sea Venom crash, although there is no doubt that as he was serving in the Melbourne, and quite possibly was on deck at the time, he could have seen the aircraft plunge into the sea followed by a huge splash. That is the most he could have witnessed. By the time anything was visible in the turbulent water after the splash the ship had travelled a significant distance past the aircraft and debris. The rest of the Applicant's story is what he has tried to piece together, unsuccessfully, in order to make his case before this Tribunal. The Tribunal is satisfied beyond reasonable that this was not a "stressful event" for the Applicant. The Applicant is not credible and there is no evidence acceptable to the Tribunal to support it.
The Applicant's six hour service in Vung Tau Harbour when he experienced intermittent scare charges after having been forewarned of their occurrence, does not meet the definition of a "stressful event", particularly as there is no supportive evidence anywhere in the documents until 1996 (when he was grooming his claim by a consultation with Dr Pohlen) that they were in fact stressful.
Likewise there is no evidence to support the Applicant's claim that he found it stressful when the ship was in a 'closed up' state. He had clear knowledge that it was not "locked" as such. Additionally, there is no evidence to support his claim that he found it stressful, until he started to groom his claim.
Similarly, there is no supportive evidence, until Dr Pohlen's consultation in 1996, that serving in the Melbourne and the Duchess during the 30 days of his operational service in a total of seven years' Naval service, was a "stressful event" that evoked feelings of anxiety or stress because of his prior knowledge of the Voyager/Melbourne disaster.
The Tribunal is satisfied beyond reasonable doubt, given the Applicant's lack of credibility and the dearth of any supportive evidence, that he did not suffer a "stressful event" arising from his war-service.
Moreover, the Tribunal is satisfied beyond reasonable doubt that the Applicant did not suffer the clinical onset of generalised anxiety disorder within two years of his operational service. Therefore, even if he experienced a stressful event on service (which the Tribunal does not find), and even if he suffers from generalised anxiety disorder (which the Tribunal also does not find), the condition did not occur within two years of the stressful event, as required by factor 1(b) of the Statement of Principles. The Applicant served in the Navy for another 2½ years after the end of his operational service, and while there was certainly evidence of his heavy drinking during that time there was no evidence to support that he was suffering from an anxiety disorder. Salt depletion was the reason for his vasovagal attack, his "sleep walking" followed a night of heavy drinking and a need to micturate, and his codeine overdose was, on his own evidence, following heavy drinking when he was trying to relieve a headache. His only other anxiety arose from his deteriorating marital relationship resulting from his heavy drinking.
Psychoactive Substance AbuseTurning now to the psychoactive substance abuse claim, the Tribunal notes that the Applicant commenced drinking on a regular basis in 1965 because of peer pressure (alcohol questionnaire, T5). The raised facts are that he increased his drinking because of the stress of his operational service, and that his drinking gradually became heavier thereafter and has continued to the present time. These raised facts meet factor 1(a) of the Statement of Principles for Psychoactive Substance Abuse, and thus a reasonable hypothesis has been raised. At this stage there is no assessment by the Tribunal of whether indeed a stressful event relating to his operational service actually occurred. All that is necessary at this stage is the Applicant's allegation that one or more "stressful events" did occur. Factors 1(a) and 1(b) can be considered in the alternative and therefore there is no point in pursuing factor 1(b). However the Tribunal notes that had factor 1(a) not been established, the relevant Statement of Principles would not have been met. This is on the basis that the Tribunal has already found that the Applicant did not suffer from a "psychiatric condition prior to the clinical onset of psychoactive substance abuse" [factor 1(b)].
Moving now to s120(1) of the Act, although the Applicant said in the alcohol questionnaire that he increased his drinking considerably in Vietnam due to stress, his evidence to the Tribunal was that he did not know why he was drinking. Indeed, he also admitted to Professor Mattick that he did not know why he drinks. The evidence before the Tribunal is that when he was in Vietnam he was under the legal drinking age and therefore he was not entitled to the alcohol ration while at sea. Of course, he could have obtained alcohol illegally from his peers, but the supply would have been limited because rations were provided only from time to time. He was in Vung Tau Harbour for six hours and did not leave the ship. Professor Mattick's careful analysis of the history does not support any other evidence of the Applicant that he increased his drinking in Vietnam because of stress.
The Tribunal is satisfied beyond reasonable doubt that the Applicant's operational service had no effect on his drinking habit. It was already established prior to that service, and it developed considerably after that service without any relationship to the operational service per se. Moreover, the Tribunal is satisfied beyond reasonable doubt that the Applicant's operational service was not stressful and therefore could not have been a factor in the worsening of his drinking habit.
The Tribunal is therefore satisfied beyond reasonable doubt that the Applicant's psychoactive substance abuse was not war-caused.
The Tribunal will therefore affirm those parts of the decision under review in respect of psychoactive substance abuse and generalised anxiety disorder.
The Tribunal notes that the issue of assessment is also open for review. Both parties agree that on the basis of a recent assessment of the Applicant's war-caused bilateral sensorineural hearing loss (exhibit 14). There has been no change from the previous assessment and the assessment for that condition alone should continue to be ten percent. The Tribunal agrees with the parties' analysis. Therefore the Tribunal affirms that part of the decision under review of 2 October 1998 that assessed the Applicant's entitlement to receive pension at ten percent of the General Rate with effect from 22 October 1998.
I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 29 January 2001 & 6 June 2001
Date of Decision 26 June 2001
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant R L Whyburn & Associates
Solicitor for the Respondent Mr J Marsh, Dept of Veterans' Affairs
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