Bracken and Repatriation Commission - [2001] AATA 976

DECISION AND REASONS FOR DECISION [2001] AATA 976

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/907

)

VETERANS' APPEALS DIVISION     )
         Re      THOMAS A BRACKEN
  Applicant
         And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Mr A Limbury Member

Date 30 November 2001

PlaceSydney

Decision The Administrative Appeals Tribunal ("the Tribunal") sets aside that part of the decision of the Repatriation Commission dated 26 June 1999 as affirmed by the Veterans' Review Board on 14 March 2000, rejecting the Applicant, Mr Thomas Bracken's claims that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that the Applicant's condition of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. By agreement of the parties the decision of the Repatriation Commission in relation to Mr Bracken's condition of chronic solar skin damage is affirmed. The Applicant is entitled to be paid pension at the EDA rate on and from 18 November 1998.

Ms G Ettinger
Senior Member
CATCHWORDS
Veteran's Appeals - operational service - whether smoking increased in stressful situation in posting in Malaya - whether Veteran meets requirements of the SoPs – depressive disease and alcohol dependence, ischaemic heart disease, gastro-oesophageal reflux disease war-caused – chronic solar skin damage affirmed by consent - pension awarded at EDA rate.

LEGISLATION
Veterans' Entitlements Act 1986 sections9, 23, 120(1), 120(3), 120(4) and 120A
Guide to the Assessment of Rates of Veterans' Pensions ("GARP")

STATEMENTS OF PRINCIPLES
Repatriation Medical Authority Statement of Principles No. 58 of 1998 Concerning Depressive Disorder
Repatriation Medical Authority Statement of Principles No.62 of 1999 Concerning Gastro-Oesophageal Reflux Disease as amended by Instrument No.123 of 1999.
Repatriation Medical Authority Statement of Principles No.38 of 1999 Concerning Ischaemic Heart Disease
Repatriation Medical Authority Statement of Principles No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse

CASES
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commissionv Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission (1997) 47 ALD 261,
Dixon v Repatriation Commission [1999] FCA 582
Davenport v Repatriation Commission [1997] FCA 918
Repatriation Commission v Gorton [2001] FCA 1194
Benjamin and Repatriation Commission [2000] AATA 680
Repatriation Commission v Gosewinckel [1999] FCA 1273
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Williams [2001] FCA 1195

REASONS FOR DECISION

30 November 2001 Ms G Ettinger Senior Member
Mr A Limbury Member

The matter before the Administrative Appeals Tribunal ("the Tribunal") was the application of Mr Thomas Bracken ("the Applicant") to review those parts of the decision of the delegate of the Repatriation Commission ("the Respondent") dated 26 June 1999 (T16), which refused his claim that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). This had been affirmed by the decision of the Veterans' Review Board ("VRB") on 14 March 2000 (T25).
The parties agreed, and the Tribunal accepted that the decisions of the Respondent regarding the Applicant's condition of chronic solar skin damage be affirmed. The Tribunal did not therefore further consider the Applicant's claim for chronic solar skin damage.
At the hearing before the Tribunal, the Applicant, Mr Thomas Bracken, was represented by Mr R Sherlock of the Legal Aid Commission, and the Respondent by advocates Ms S Breuer and Ms T McConnell.
ISSUES BEFORE THE TRIBUNAL
The issues to be decided were:

· Whether the Applicant's depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986;
· Whether pension was payable at the Extreme Disablement Adjustment ("EDA") rate pursuant to section 22 of the Act.

LEGISLATIVE FRAMEWORK

The relevant legislation is the Veterans' Entitlements Act 1986, in particular sections 9, 23, 120(1), 120(3) and 120A. Section 9 provides that:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"

As Mr Bracken had performed operational service in the country then known as Malaya, from 21 September 1956 to 12 October 1956, the standard of proof applicable to assess whether his conditions of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused, was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
…"
Section 120A of the Act also applied because Mr Bracken's application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)     the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)     the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:       See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
The relevant SoPs to be applied taking into account the principles enunciated in Repatriation Commission v Keeley (2000) 98 FCR 108, Repatriation Commission v Gorton [2001] FCA 1194, and Repatriation Commission v Williams [2001] FCA 1195 regarding gastro-oesophageal reflux were No.62 of 1999 as amended by No.123 of 1999, submitted by the Applicant to be more beneficial. The Tribunal agreed with the submissions of the Applicant, noting however that Instrument No.121 of 1995 was the relevant SoP which had been applied at the time of the Respondent's decision. The Respondent did not make submissions on this point.
There was no disagreement between the parties, and the Tribunal accepted, that Instrument No.58 of 1998 was the correct SoP to be applied in Mr Bracken's case with regard to his condition of depressive disorder.
On the basis of the decision of the Full Court of the Federal Court in Keeley (supra), Gorton (supra) and Williams (supra), the relevant SoP to be considered in relation to whether Mr Bracken's ischaemic heart disease was war-caused, was Instrument No.38 of 1999.
The Tribunal considered that the correct SoP for Alcohol Dependence or Alcohol Abuse was Instrument No.76 of 1998.
The eligibility for general rate of pension and Extreme Disablement Adjustment is conditional upon meeting the requirements of section 22 of the Act.
"General rate of pension and extreme disablement adjustment
(1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)For the purposes of this section, the maximum rate per fortnight is $216.90 per fortnight.
(4)       Where:
  (a)       either:
(i)the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii)a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b)       the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans' Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is increased by 50% of the maximum rate set out in subsection (3).
(5)       For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b)amounts are being deducted from the pension under section 79, 30P or 205; or
(c)       the pension has been suspended under subsection 31(6)."
The standard of proof with regards to assessment of Mr Bracken's pension was to the reasonable satisfaction of the Tribunal, applying section 120(4) of the Act. As relevant it follows:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
Note: This subsection is affected by section 120B.
The parties submitted and the Tribunal agreed that the earliest date of effect in regard to eligibility for pension, in this matter, was 18 November 1998.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents"), and the following additional exhibits:
ITEM DATE NAME
Report of Dr R Macauley    21 July 2000 Exhibit A1
Report of Dr R Macauley    8 August 2000         Exhibit A2
Report of Dr A Dinnen       19 October 2000     Exhibit A3
Statement of Mr T Bracken 1 October 2000       Exhibit A4
Lifestyle Statement – T Bracken   5 July 2001    Exhibit A5
Amended Facts and Contentions of the Applicant       30 October 2000     Exhibit A6
Comments on the Respondent's Amended Statement of Facts and Contentions   24 November 2000   Exhibit A7
T-Documents – T1-T36, pp 1-189 Exhibit R1
Amended Facts and Contentions of the Respondent   7 November 2000    Exhibit R2
Letter of the Respondent to Dr J Carne referring the Applicant for examination     18 September 2000   Exhibit R3
Report of Dr J Carne          23 October 2000     Exhibit R4
Mr J Tilbrook – Curriculum Vitae Received 15 December 2000       Exhibit R5
Report of historian Mr J Tilbrook   5 September 2000   Exhibit R6
Amended report of historian Mr J Tilbrook         24 October 2000     Exhibit R7
Report of Dr M Burns         28 August 2000       Exhibit R8
Alcohol and Smoking Questionnaire       30 July 1997 Exhibit R9
Clinical Notes of Sutherland Hospital Covering Letter dated 8 August 2000 Exhibit R10
Specific pages of Clinical Notes of Sutherland Hospital Exhibit R11

Mr Bracken gave oral evidence before the Tribunal. He was cross-examined by Ms Breuer with regard to his claims that his conditions were war-caused, and by Ms McConnell, with regard to his life-style ratings.
EVIDENCE OF THE APPLICANT - MR THOMAS BRACKEN
Mr Bracken, whose date of birth was 28 February 1933, enlisted in the Royal Australian Navy ("the Navy") on 23 November 1950, at the age of 17 and a half. His statement dated 1 October 2000, was before the Tribunal as Exhibit A4. It was written in reply to the statements of Mr J Tilbrook CSM, RFD, of Write Way Research Service whose reports were before the Tribunal as Exhibits R6 and R7.
Mr Bracken gave oral evidence that it was part of his family tradition to join the Navy, and that he enjoyed the Navy before his operational service commenced in 1956. He said that after training, he was posted on HMAS Australia as a stoker. He said that he enjoyed the camaraderie and travelled to England and to Italy.
Mr Bracken said that the atmosphere and the routine on the ship on which he was posted changed when he came to the Far East Strategic Reserve ("FESR"). He said that from then on, there was a hierarchy on the ship, and communications to the staff were unsatisfactory. There was an air of secrecy regarding what was going on, and more than usual "readiness" [for war]. Previously, everybody had been getting on well, he said.
The Applicant said that he was distressed by the military activity. He said that the men worked long hours; they were not told why, and there was tension, stress and anxiety. He said that he was frightened, frightened that he may be involved in war, and die.
Mr Bracken told the Tribunal that when he arrived at Singapore, there was a feeling of hostility against the British, and he had never before experienced that. Ms Breuer asked Mr Bracken if his shore visits had been voluntary, ascertaining that in fact there were two visits and that both had been voluntary. Mr Bracken recalled when questioned by Ms Breuer, that HMAS Melbourne had been open to visitors in Singapore, and that a party of school children had visited on 1 October 1956.
Mr Bracken said that he also went to Hong Kong where the civil unrest he experienced was even worse. He said he was frightened there. He said that whilst on the ferry near Kowloon, he heard a burst of gunfire. He said that he hit the deck and thought his life was in danger.
Ms Breuer cross-examined Mr Bracken with regard to his anxieties. He acknowledged that his colleague Mr Bradbury had died, and was buried at sea as a result of complications from an infected appendix. Mr Bracken agreed that for an 18 year old as he was at the time, it was a "pretty daunting experience".
Ms Breuer also questioned Mr Bracken about his experiences aboard HMAS Vengeance, an aircraft carrier where he served for three years, and where he had been posted in the engine room. The Veteran described flying exercises taking place daily when the ship was at sea. He said that he was also posted on HMAS Melbourne, an aircraft carrier, where he was partly on the flight deck, and partly in the engine room. He said that there was an atmosphere of fear because the crew were not told whether the planes were simply carrying out flying exercises, or whether they were being attacked.
Mr Bracken recalled that his friend Henry Lys, known as "Moose", died of heat exhaustion during the time on HMAS Melbourne, and the serious devastation he felt as a result. He said that prior to his operational service there had also been an aircraft crash resulting in the death of two pilots, which had made him sad.
Mr Bracken agreed with Ms Breuer when she put to him that the four deaths he had experienced prior to operational service had caused in him a fear of losing his life. Mr Bracken said however, that he tried to put that to the back of his mind, and that his early days in the Navy were happy ones.
Mr Bracken did not agree with Ms Breuer who put to him a proposition that he did not face danger during his operational service. He agreed that he was not in a position where he was attacked, but said that he suffered fear, and that his life was in danger due to civil unrest (as described above), when he went ashore.
Ms Breuer referred Mr Bracken to Attachment 3 of historian, Mr J Tilbrook's report (Exhibit R6). She referred in particular to paragraphs 21, 22, 24 and 27 which indicated that the ships on which Mr Bracken served were involved in exercises rather than warfare. Mr Bracken said: "They never told us the truth about what went on in South East Asia." He acknowledged he had not seen anyone killed in combat, but told the Tribunal that aircraft carriers worked 40 miles out to sea, and one simply did not see what was going on. He said however there was a great amount of tension and "state of readiness".

Mr Bracken told the Tribunal that the service in South East Asia had not been recognised as operational service until recently.
Mr Bracken said in relation to the guilt he expressed when interviewed by Dr Dinnen, that the attitude of the people towards him and his colleagues was such that he felt he and the Navy must have been guilty of something. He said that eight or nine years after Vietnam he was still worrying about Malaya.
Mr Bracken was referred to the alcohol and smoking questionnaires he had completed (Exhibit R9). When questioned about his smoking, Mr Bracken said that he commenced smoking in December 1950, increasing the number to approximately 20-25 cigarettes a day before operational service. He said that this doubled in September/October 1956, (during the FESR period, to 50–60 a day) due to nervous tension and long hours of work. Mr Bracken described the activities as working in a compressor room, a lot of waiting around, and with everybody chain smoking. He said that he continued smoking at that level, but that by 1987/88 he suffered from bronchitis, and accordingly, reduced his smoking. Mr Bracken said that by the early 1990s he had a bowel reconstruction and then removal, and cigarettes made him feel sick. He said that accordingly, he stopped smoking in 1990.
Ms Breuer referred Mr Bracken to the clinical notes of Sutherland Hospital (Exhibit R10 & R11) for an admission in 1977 where the admission notes recorded that he smoked 10 cigarettes for a period of 30 years. Mr Bracken said that he always gave such information to doctors and hospitals because he knew that if he told doctors how much he smoked, he would have been asked to give it up.
When questioned about his drinking habits, Mr Bracken said that on joining the Navy, he was an average drinker. "There weren't too many sailors who didn't have a few beers," he said. Mr Bracken said that after Hong Kong he was confused most of the trip home, and then stewed over it in Sydney. He said that he had gone "over the fence at Garden Island … got on the booze", and was absent for a few days wandering around in December 1956.
Mr Bracken said that for the next thirty years he drank every day, even at work, attended a club every evening, and drank at home, so much so on weekends that he could not even quantify it for the Tribunal. Mr Bracken said however, that with his present disabilities, his chronic reflux and after having his bowel removed, a large amount of alcohol, now, would kill him.
The Tribunal noted some differences between what was recorded at Exhibit R9 and Mr Bracken's oral evidence, noting his evidence that the questionnaires had been completed with the assistance of an advocate of the RSL, and Mrs Bracken. The Tribunal accepted Mr Bracken as a witness of truth and, where there were minor inconsistencies, was satisfied with his oral evidence in clarification.
LIFESTYLE
When questioned about Exhibit A5, Mr Bracken said that it was an accurate description of his lifestyle. Ms McConnell asked Mr Bracken about his marriage. He told the Tribunal he had been married for 41 years, that the relationship with his wife was tense at times, and that he was irritable. He said that he was not sociable but would go to the doctor with his wife, out in the car with his wife, or to her sister's place for lunch once every couple of weeks. Mr Bracken said that when Mrs Bracken went out shopping, he would watch sport on television. He said that he had his own television set, and led a solitary life, although he sometimes watched the news with his wife. He said that he did not see his daughters often, and just nodded to his neighbours. Mr Bracken said that one or two of his friends telephoned him occasionally.
As to mobility; Mr Bracken said that he used a walking stick, and had undergone physiotherapy for a time. He said that he presently would walk half way round the block about twice a week, depending on how he felt.
As to using public transport; Mr Bracken said that his wife helped him with getting on the bus, which was close to their home, for the purpose of visiting doctors. Mr Bracken said that he did not use trains because stations had steps and he could not manage them, unless stations had lifts perhaps. The Veteran said that he gave up driving at the end of 2000 because of a loss of confidence.
Mr Bracken said that he had no railings at home, and one step only at the back door. He said that his physical condition had deteriorated in the past 12 months.
As to recreation; Mr Bracken said that he would watch a children's game of football occasionally, sitting in the car near the grounds. He mentioned his sister coming to lunch, said he did not go to the Club, went to church on Sundays, and otherwise left the house once or twice a week. Mr Bracken said that the attendance at church was a solemn occasion, not a recreational activity.
As to domestic duties; Mr Bracken said because he had been on shift work, he had had spare time, and had therefore in past times, contributed to the tasks of washing and shopping. He said that as to household duties, presently he could do no more than stack the dishwasher. He could, however, shower and dress himself, and make a cup of tea.
MEDICAL EVIDENCE BEFORE THE TRIBUNAL
The medical evidence consisted of, amongst others, the reports of Dr M Burns, Occupational Physician, Dr R Macauley, Cardiologist and Consultant Physician, Dr A Dinnen, Consultant Psychiatrist, and Dr J Carne, Consultant Forensic Psychiatrist. Their opinions and examination findings are discussed in the sections of these reasons which follow. The Tribunal was mindful that Ms Breuer accepted on behalf of the Respondent, that Mr Bracken suffers depressive disorder and alcohol dependence, ischaemic heart disease and gastro-oesophageal reflux disease. The question for the Tribunal was the timing of the onset of the conditions, and whether they were war-caused pursuant to section 9 of the Act. In addition, the Tribunal had to decide whether the Applicant was eligible for pension at the EDA rate.
report of dr r macauley – cardiologist and consultant physician
Dr Macauley's reports of 21 July 2000 and 8 August 2000 were before the Tribunal as Exhibits A1 and A2. He recorded that Mr Bracken had reported retrosternal chest pain over the last twenty years, noting that some of the chest discomfort had been attributed to reflux. Dr Macauley opined that Mr Bracken had "class one angina pectoris with an abnormal exercise test at moderate workload." (Exhibit A1)
report of dr p empson – psychiatrist
The report of Dr Empson dated 11 March 1999 was before the Tribunal at T10. He examined Mr Bracken on behalf of the Department of Veterans' Affairs and made a number of findings, including the fact Mr Bracken had been retired from his positions at a refinery due to ill health and an alcohol problem. He too took a history regarding Mr Bracken's drinking, smoking and the anxieties Mr Bracken suffered during his operational service. He said that:
"With respect to his alcohol he used to get the shakes of a morning and he had many alcoholic blackouts. He used to get drunk in the Navy on one occasion after his time in the Service, he jumped out of a train and he landed on the platform while drunk and he ended up in RPA hospital. When he was working he often had to be brought home by someone after drinking….
It is difficult to be too precise however I believe that he does have PANIC ATTACKS and ALCOHOL DEPENDENCE and that these are due to his time in the Service….
The prognosis appears to be poor in view of the chronicity."

report of dr a dinnen – psychiatrist

Dr Dinnen's report of 19 October 2000 was before the Tribunal as Exhibit A3. Dr Dinnen reported Mr Bracken telling him that he suffered panic attacks, generally felt fatigued, and did not have a great deal of energy. He also noted that Mr Bracken "feels still strongly about his experiences on HMAS Melbourne, and has continued to feel through the years 'that they told me lies'."
Dr Dinnen reviewed the reports relating to Mr Bracken, and stated that there was only one psychiatric report, that of Dr Empson. Dr Dinnen reported Dr Empson's conclusions as follows:
"… that the patient does have panic attacks and alcohol dependence and 'that these are due to his time in the service', noted a likelihood of some dependent traits and 'he may have a chronic dysthymia which is not service related.'"
Of the report Dr Dinnen stated:
"Dr Empson's findings are very much in accord with mine, but I have a somewhat different view of the nature of the patient's condition, which leads me to a reasonable hypothesis as to its relationship to service."
Dr Dinnen referred specifically to Factor 5(a) in Instrument No.59 of 1998, opining that he believed the Veteran experienced:
"a severe psychosocial stressor within one year immediately before the clinical onset of depressive disorder. His episode of absence without leave and heavy drinking was the beginning of his chronic depressive illness … The prevailing feature of his condition is that of depression, although the accompanying symptoms of anxiety and alcohol abuse are a reflection of this condition and are not separate to it."
In Dr Dinnen's opinion, the Veteran: "has suffered from depressive disorder as a consequence of his service with the Far East Strategic Reserve."
report of dr j carne – consultant forensic psychiatrist
Dr Carne's report of 23 October 2000 was before the Tribunal as Exhibit R4, and the letter to him from the Respondent inviting him to examine the Veteran was admitted into evidence as Exhibit R3.
Dr Carne also reviewed various reports in the course of preparation of his report. The Tribunal noted that he wrote that Mr Bracken had no history of psychiatric illness prior to joining the Navy. Dr Carne also observed that the Veteran commenced smoking and drinking in the Navy. He recorded Mr Bracken's view as also corroborated in Mr Bracken's oral evidence, that the Veteran loved the Navy, and that prior to operational service, he was extremely happy in his job.
Dr Carne stated that at the time he examined Mr Bracken, he found no evidence of panic disorder, but added that the Veteran may have been in an anxious state during the period of active service and for a considerable period afterwards. Dr Carne added that it seemed to him that Mr Bracken fulfilled, for a period, the conditions in Instrument No.9 of 1999 for panic disorder. Dr Carne opined that from Mr Bracken's account of events, the onset of panic disorder was during the period of active service, that is 21 September to 12 October 1956. He stated that this arose from a perceived feeling of fear and tension felt by Mr Bracken, who believed (whether or not it actually was the case), that his ship was on active service, with its planes engaging the enemy. Dr Carne stated that a stressor was a subjective experience, and Mr Bracken's experience came within that definition. Dr Carne stated that:
"From the account given to me by Mr Bracken, his experiences during active service led to a permanent change in his behaviour which led from panic attacks to alcohol abuse… The fact that Mr Bracken remained in regular employment until 1992 suggests that his psychiatric illness came under control. This is not inconsistent with his history of regular psychiatric treatment between 1960 and the mid 1980's."
As to gastro-oesophageal disease; Dr Carne stated that this was beyond his area of expertise. However Dr Carne added that from the history of alcohol consumption as given to him, the "manner of consumption did not fulfil the psychological behavioural criteria required for a definition of alcohol Dependence or Abuse."
report of dr m burns - occupational physician
Dr Burns produced a report dated 28 August 2000 which was before the Tribunal as Exhibit R8. Dr Burns commented on a number of conditions which were not under review before this Tribunal, and those comments have therefore not been included here.
As to gastro-oesophageal reflux; Dr Burns mentioned Mr Bracken's treatment by Dr N Talley, Gastro-Enterologist, and the history of smoking as given by Mr Bracken, that is the increase from 20-25 cigarettes per day before Malaya to 40-50 cigarettes by 1988, with a cessation due to significant diverticular disease after that period.
As to ischaemic heart disease; Dr Burns stated that he had reviewed the reports of Dr Macauley, adding that he believed Mr Bracken's smoking would be regarded a significant risk factor.
As to panic disorder and alcohol dependence; Dr Burns reported that Mr Bracken became "extremely agitated", when discussing this condition, and attributed it to the overseas service in 1956. Dr Burns reported Mr Bracken telling him that it was the fear of the unknown, the civil unrest in Singapore, the death of two pilots and the aircraft flying off from HMAS Melbourne which distressed him most. Dr Burns reported that Mr Bracken had told him that his drinking commenced after he joined the Navy.
Dr Burns concluded that he could see no reason why Mr Bracken's smoking would not be the cause of his ischaemic heart disease and the gastro-oesophageal reflux. He did not however find that the panic disorder and alcohol dependence were associated with the Applicant's 21 days of operational service.
dr m burns on lifestyle assessment
Dr Burns stated in his report that in giving a lifestyle rating, he took into account Mr Bracken's accepted disabilities, but also ischaemic heart disease, panic disorder and alcohol dependence.
Dr Burns opined that for his accepted disabilities alone, an impairment rating of 45 points and a lifestyle rating of three from the shaded area would give Mr Bracken an incapacity rating of 80 percent. With ischaemic heart disease and gastro-oesophageal reflux included, the combined impairment rating would rise to 60 points and with a lifestyle rating of four, and give Mr Bracken an incapacity rating of 100 percent he said.
REPORT OF MR J TILBROOK - HISTORIAN
Mr Tilbrook's curriculum vitae was Exhibit R5, and his report of 5 September 2000 was Exhibit R6 before the Tribunal. His brief from the Respondent was to provide "responses to the 'stressors' claimed to have been experienced by Mr Bracken during his naval service." His amended report of 24 October 2000 which was prepared in response to a statement by Mr Bracken was before the Tribunal as Exhibit R7.
Mr Tilbrook provided details of Mr Bracken's service which were consistent with Mr Bracken's evidence. He discussed the traumatic incidents described by Mr Bracken.

Death of crew member on board HMAS Australia: Mr Tilbrook's research confirmed the death of a crew member who died of cardiac failure during an operation, and was buried at sea. He commented that witnessing such an event would have had some emotional effect on an 18 year old such as Mr Bracken then was, but added that Mr Bracken joined the ship less than a month before the event, and that it was unclear how well he knew the deceased.
Death of young stoker, friend, aboard HMAS Australia: The Tribunal noted the report of the death of ERA A B Bradbury aboard HMAS Australia on 4 July 1951. Mr Tilbrook was unable to report on whether Mr Bracken was on board the same ship as the heat exhaustion victim, although it was conceded he may have known him. The Tribunal accepted Mr Bracken's evidence that he was on board at the time. The Tribunal noted that the death of Henry Lys aboard HMAS Melbourne on 11 April 1956, also occurred at a time when Mr Bracken was on board. The Tribunal was mindful that although these were stressful experiences for Mr Bracken, neither occurred during the period of his operational service.
Fear regarding what the aircraft were doing during the Far East Strategic Reserve ("FESR") period of three weeks: Mr Tilbrook's research indicated that for the period Mr Bracken was on HMAS Melbourne (21 September to 12 October 1956), there were naval training deployment and exercises carried out, but that HMAS Melbourne did not take part in any offensive operations against any land based enemy targets during the time Mr Bracken served with the FESR on HMAS Melbourne. Mr Tilbrook confirmed however from records he had researched, that on 9 August 1956, the pilot and observer/navigator of an aircraft from HMAS Melbourne crashed, and that the officers were lost at sea. The Tribunal was mindful that this was immediately before the period of Mr Bracken's operational service which commenced on 21 September 1956.
Mr Bracken in stoker and flight deck duties; comparing the 1956 conflict in Malaya to Vietnam: Mr Tilbrook stated in his report that by the time he was posted to the FESR on HMAS Melbourne, Mr Bracken had already served several years in naval carriers, and would therefore have been familiar with shipboard routine, and day and night flying operations. Mr Tilbrook also wrote that HMAS Melbourne did not take part in any offensive operations against any land based enemy targets during the time Mr Bracken served with the FESR on HMAS Melbourne. He further stated that the conflict in Malaya was at a much lower level than that in Vietnam, and could not be compared to it.

Mr Tilbrook wrote at paragraph 18 of Exhibit R7 as follows:
"The Researcher has also consulted with a former RAN warrant officer who had served aboard HMAS MELBOURNE during its 'peacetime' role regarding the general contentions now put by the Veteran … The independent view … was that any burial at sea of a known comrade, or the loss of any other members of the ship's company at sea was indeed a somber occasion; and was sorely felt by all members of the ship's crew. Such occasions served to remind all young RAN sailors of their own mortality and the over-riding power and mystery of the sea that dominated their daily lives."

SUBMISSIONS AND CONCLUSIONS

In determining whether Mr Bracken's depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Act, the Tribunal had to take into account the evidence, submissions, case law, and relevant SoPs to make the correct and preferable decision.
As Mr Bracken had served on operational service from 21 September 1956 to 12 October 1956, it was appropriate in considering whether his claimed conditions of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal was mindful of the Respondent's concession that Mr Bracken suffered all three of the above-named conditions. The Tribunal had however to determine the date of onset, whether Mr Bracken met the requirements as set out in the relevant SoPs, and whether the conditions were war-caused pursuant to the legislation.
The Tribunal had also to consider assessment of service pension for Mr Bracken, and was mindful that, in this regard, the standard of proof was for the Tribunal to be convinced to its reasonable satisfaction, that is applying section 120(4) of the Act. The Guide to the Assessment of Rates of Veterans' Pensions ("GARP") was used to assess Mr Bracken's pension entitlements.
The Tribunal noted that Mr Bracken's accepted disabilities were:

Pompholyx
Bilateral sensorineural hearing loss
Bilateral tinnitus
Malignant neoplasm of the larynx

The non-accepted disabilities were:

Diverticular disease of the colon
Bronchitis
Panic disorder and alcohol dependence
Heart trouble
Gastro-oesophageal reflux disease
Chronic solar skin damage

The Tribunal puts on record its acceptance of Mr Bracken's evidence. It found him to be a witness of truth.
the statements of principle to be applied in mr bracken's case
Before the Tribunal could consider whether Mr Bracken's conditions as claimed were war-caused, it had to decide which SoPs were to be applied. The Tribunal was bound by the decision in Keeley (supra), where a priori, it was held that the SoP to be applied was that SoP which was in place at the time of the primary decision by the Repatriation Commission. Keeley (supra) is of course good law, the leave to appeal to the High Court having been refused on 28 November 2000.

The Tribunal was mindful of the views of their Honours Lee and Cooper JJ at paragraphs 44-46 in Keeley (supra) where they stated as follows:
"44 The terms of s 120A(2) show a clear intention by Parliament that such a Statement is to "affect" the accrued right obtained by the lodgment of a claim under the Act to have the claim decided by the Commission. It is plain that by postponing a right to have a claim decided until a Statement has been determined, Parliament intended that the decision, and therefore the right to have a decision made, may be affected by a Statement determined under s 196B and that a pending claim is to be decided by application of the Statement when determined.
45 However, that circumstance does not apply after a claim has been determined and the right that has accrued under the Act is a right to have the determination reviewed. The Act is silent about the effect upon such an accrued right of the revocation of a Statement and determination of another Statement under s 196B(8)(c). It is significant that there is no provision equivalent to s 120A(2) where the Authority is carrying out an investigation under s 196B(7) preparatory to deciding whether to revoke a Statement and determine another Statement under s 196B(8).
46 Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood. (See: Esber per Mason CJ, Deane, Toohey, Gaudron JJ at 440 - 441.)"
In addition, the decisions of the Full Court of the Federal Court ("the Full Federal Court") in Gorton (supra) and Williams (supra) which have clarified the situation regarding the application of SoPs, had been handed down at the time of this decision.
Mr Sherlock submitted that pursuant to Gorton (supra), Williams (supra),and Keeley (supra), Mr Bracken could choose either to rely on the SoP in force at the time of the Repatriation Commission decision, or on the current SoP. He submitted that in relation to Mr Bracken's gastro-oesophageal reflux, the current SoP Instrument No.62 of 1999 as amended by No.123 of 1999 was more favourable to Mr Bracken, and asked the Tribunal to apply it rather than Instrument No.121 of 1995, in force at the time of the Repatriation Commission determination. Ms Breuer did not make any submissions on this matter and the Tribunal, relying on the case law, accepted those of Mr Sherlock. It therefore chose to apply Instrument No.62 of 1999 as amended by No.123 of 1999 in this case.
As to depressive disorder; there was no disagreement, and the Tribunal accepted that Instrument No.58 of 1998 was the correct SoP to be applied in Mr Bracken's case.
The Tribunal also decided that Instrument No.38 of 1999 applied for consideration of whether Mr Bracken's ischaemic heart disease was war-caused.
The Tribunal considered that in relation to alcohol dependence, Instrument No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse was the appropriate SoP to be applied.
application of principles in repatriation commission v deledio(1998) 83 FCR 82
The Tribunal was bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio ("Deledio")(supra) which held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

With respect to determining when a hypothesis is reasonable, the Tribunal noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
"Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt."

The Tribunal turned then to decide whether, applying the principles set out in Deledio (supra), the material before it raised an hypothesis connecting Mr Bracken's conditions of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease with his war service. Ms Breuer conceded on behalf of the Respondent that Mr Bracken suffered the above-named conditions. It was their onset, conformity with the relevant SoPs, and the decision whether they were war-caused pursuant to the legislation which were in issue.
whether mr bracken's depressive illness and alcohol dependence was war-caused pursuant to the legislation
As a preliminary matter, the Tribunal noted that the VRB (T25) had decided as follows in relation to "panic disorder", on 14 March 2000:
"Vary the diagnosis from panic disorder with alcohol dependence to panic disorder and alcohol dependence …"
The Tribunal noted at the hearing, Ms Breuer's statement that the Respondent had accepted that Mr Bracken suffered depressive disorder. The Tribunal had however, to decide the date of onset, and whether the depressive disorder and alcohol dependence were war-caused pursuant to the legislation.
In applying Deledio (supra), and considering whether a hypothesis could be raised linking Mr Bracken's condition of depressive disorder and alcohol dependence to his war service, the Tribunal noted Mr Bracken's evidence regarding the increase in his level of smoking, which arose due to anxiety, boredom and long hours of work during his operational service.
The Tribunal was mindful of Mr Bracken's evidence that he smoked 20–25 cigarettes a day when he first joined the Navy, and in the years before 1956. He described to the Tribunal that when his ship came to be in the FESR, in what he described as conditions substantially different from how he had previously experienced them, he started smoking 50–60 cigarettes a day. He explained that this was due to the long hours on duty, the boredom of waiting around for aircraft to take off and land, and the stress and fear he suffered. He explained to the Tribunal how in contrast to previously, where the officers had explained activities to the men, at that time there was an air of tension, and secrecy surrounding the activities. He recounted experiencing what he had considered were combat missions flown by aircraft from his ship. Mr Bracken said that the increase in smoking occurred amongst the men generally.
The Tribunal noted that Mr Bracken continued smoking heavily until the late 1980s, when he reduced the amount he smoked due to bronchitis, and that he finally ceased in 1990 because he could not tolerate cigarettes after a bowel reconstruction. The anxiety Mr Bracken reported he suffered on the aircraft carrier during his operational service, is discussed below in the context of the SoP. There was no claim made that the smoking had a causal relationship to Mr Bracken's depressive disorder and alcohol dependence. However the tribunal accepted Mr Bracken's evidence regarding the increase in smoking which occurred during his operational service and as a result of the anxiety suffered during that time.
Mr Bracken also gave evidence before the Tribunal regarding an increase in drinking alcohol which he claimed continued for many years after the Navy service, until he ceased drinking due to his later physical medical conditions. He eventually ceased drinking in 1990 due to a bowel reconstruction, and the fact he could no longer tolerate alcohol. Mr Bracken claimed the increase in drinking and smoking had been due to the anxiety causing events experienced during his operational service (for example, Hong Kong, Singapore, and the aircraft taking off as described elsewhere in these reasons). He described in particular the leave without permission from the base, associated with his drinking binge in December 1956.
The Tribunal was also mindful of the evidence regarding panic attacks and anxiety the Veteran suffered, and the accounts of these he gave to various doctors. On the basis of the information available, and the diagnosis of depressive disorder (as accepted by the Respondent) the Tribunal found that a hypothesis could be raised linking Mr Bracken's depressive disorder and alcohol dependence to his operational service.
The Tribunal then moved to consider Step 2 of Deledio (supra), which concerned whether there was a SoP available which could be applied. The factors raised in the SoPs are, of course, those that must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting Mr Bracken's depressive disorder and alcohol dependence with the circumstances of his service. The question for the Tribunal was whether the hypothesis linking Mr Bracken's depressive disorder and alcohol dependence to his operational service was reasonable. The Tribunal noted that it was agreed by the parties that Instrument No.58 of 1998 and in particular Factor 5(b), applied, and agreed that No.58 of 1998 was the appropriate SoP to be applied.
Factor 5(b) was considered to be the relevant factor and follows:
"(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
…"
Severe psychosocial stressor is defined in the SoP as follows:
""severe psychosocial stressor" means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;"
Depressive disorder is defined in the SoP as:
"(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii)dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii)depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSM-IV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311."
The Tribunal was mindful that Mr Sherlock submitted Mr Bracken's illness fell into category (iii) as described above, that is "depression not otherwise specified …" The Tribunal was also mindful that the Respondent had conceded that Mr Bracken suffered depressive illness, and accepted that, noting the psychiatric evidence in that regard.
The Tribunal was mindful also that the Applicant was adamant he had experienced what he regarded as severe psychosocial stressors during his operational service. The incidents, in Mr Sherlock's submission, which were stressors, and which affected the Applicant and caused deep distress and profound and permanent effects, were as follows:

a fear Mr Bracken experienced that he was in the presence of hostile persons and in danger when he went ashore in Singapore and Hong Kong;
an incident when a gunshot was heard in Hong Kong and all present dived for cover;
the change in atmosphere from HMAS Melbourne carrying out exercises to being in a war zone during Mr Bracken's period of operational service;
Mr Bracken's feelings of guilt as described by him in evidence and to his doctors, and that he felt he had been part of a terrible event where innocent people had been killed.

The Tribunal considered the above also when applying the SoP in relation to alcohol dependence. The Tribunal, relying on Keeley (supra), Williams (supra) and Gorton (supra), applied Instrument No.76 of 1998, concerning Alcohol Dependence or Alcohol Abuse. The factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse to the circumstances of Mr Bracken's service were, in particular, Factor 5(b) which reads as follows:
"5.
…
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…"
"Alcohol dependence" is defined in the SoP as:
"…the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour."
"Alcohol abuse" is defined in the SoP as:
"…the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent."
"Experiencing a severe stressor" is defined in the SoP as:
" … the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror."
Events which qualified as severe stressors were amongst others, a threat to the person's or other people's physical integrity which event or events might evoke intense fear, helplessness or horror.
The Tribunal then considered the definitions of alcohol dependence and alcohol abuse and accepted from Mr Bracken's evidence that he suffered alcohol abuse, commencing with an increase in alcohol consumption during his operational service on board ship, and taking into account the event on his return when he went on leave without permission, and on a drinking binge. The Tribunal accepted from the medical evidence and that of Mr Bracken that he suffered both depressive disorder and alcohol dependence.
The Tribunal accepted Mr Bracken's evidence that although he drank before he joined the service, the level of alcohol consumption increased during his operational service.
Ms Breuer submitted however, that Mr Bracken could not meet the tests of having experienced a severe psychosocial stressor. She submitted that the evidence regarding at least two of the four deaths which Mr Bracken claimed had affected him, were not within the period of his operational service. The Tribunal agreed that the historical evidence indicated that the deaths of the two pilots in a crash took place during Mr Bracken's time on HMAS Melbourne, in August 1956, but were outside the period of operational service, which commenced shortly afterwards on 21 September 1956.
Ms Breuer also submitted that the Governments of Hong Kong and Singapore were friendly to Australia. She submitted that the records showed that some 3,000 people including a party of 100 children had visited the ship in Singapore when it was open for such visits, and that this indicated there could not have been hostile feelings between the people of Singapore and Australia. The Tribunal was mindful also from paragraph 26 of Attachment 4 to Mr Tilbrook's report at Exhibit R6, as follows:
"Because of the recent civil disturbances in the colony leave was granted to the Hong Kong side only, a strict curfew being in force on the KOWLOON SIDE; sporting fixtures and several social events were cancelled for the same reason…."
Referring to Mr Bracken's evidence of having suffered fear regarding the hostilities he felt from the local population when he disembarked in Singapore and Hong Kong, Ms Breuer submitted that Mr Bracken went ashore because he chose to. It was shore leave, and he had not been compelled to go she submitted. Ms Breuer also submitted that the aircraft taking off from the carrier in Hong Kong and Singapore were simply on exercises, and not in combat. The Tribunal noted that Mr Bracken did not accept the official history and evidence about that.
The Tribunal accepted from the reports and relevant attachments prepared by Mr Tilbrook, that Mr Bracken suffered from a mistaken belief that HMAS Melbourne was at war during its time in Singapore and Hong Kong. The Tribunal accepted also that he felt profound guilt all his life, (as recounted to various doctors), believing he had been part of a terrible event where innocent people had been killed. The Tribunal considered the issues regarding stress, and the subjective perceptions of what constituted "experiencing a severe psychosocial stressor" as discussed in Benjamin and Repatriation Commission [2000] AATA 680. The Tribunal accepted Mr Sherlock's submission that the term "experiencing a severe psychosocial stressor" incorporated both the objective event and subjective experience of it. The Tribunal noted that in Benjamin (supra), the Senior Member canvassed several judgments dealing with this issue. Having considered these, the Tribunal found that Mr Bracken's perceptions of his experiences, even though the facts showed that HMAS Melbourne aircraft were in fact on training exercises, met the definition of severe psychosocial stressor in the SoP.

The Tribunal was satisfied from the above that Mr Bracken had been subjected to severe psychosocial stressors as detailed above, in particular during his time on HMAS Melbourne, and that this was so even though he suffered from a mistaken belief that the ship was on active duty against the enemy at the time.
The Tribunal was mindful of the two year test in the SoP for development of depressive illness, and found from the evidence, that it was not fanciful or too remote or tenuous, and not contrary to proven or known scientific facts to find a reasonable hypothesis could be established to link Mr Bracken's depressive disorder with what he perceived to have been the severe psychosocial stressors he experienced aboard HMAS Melbourne. The Tribunal was therefore satisfied that a reasonable hypothesis could be found linking his depressive disorder and alcohol dependence with his war service, as the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
Having decided that, the Tribunal moved to consider the next steps as set out in Deledio (supra), in order to decide whether Mr Bracken's depressive disorder and alcohol dependence could be found to be war-caused pursuant to the Act. In applying sections 120(1) and 120(3) of the Act, the Tribunal considered whether it could be satisfied beyond reasonable doubt that Mr Bracken's depressive disorder and alcohol dependence did not arise from his relevant war service.
Mr Sherlock submitted that Mr Bracken's onset of heavy drinking occurred when he went on leave without permission on a bender after the Olympic Games in 1956, and that the clinical onset of depressive disorder could be dated to within a year of the severe psychosocial stressor. He submitted that the events relating to the loss of life; the aircraft taking off to unknown destinations from HMAS Melbourne where Mr Bracken served at the relevant time; the fears that he was in danger of his life in Hong Kong (gunshots), and in Singapore; and his long hours of duties and the lack of communication to the men from their officers; all contributed to being severe psychosocial stressors culminating in Mr Bracken's depressive disorder.
The Tribunal considered the evidence, including the medical evidence before it. The Tribunal noted that Dr Dinnen referred to Mr Bracken's episode of leave of absence without permission and bout of heavy drinking in 1956, opining that this was the beginning of his chronic depressive illness, and opining that the depressive disorder was a consequence of the service with the FESR. Dr Carne opined that Mr Bracken's "experiences during active service led to a permanent change in his behaviour which led from panic attacks to alcohol abuse…" He also dated the onset of panic disorder to the period of active service between 21 September and 12 October 1956, opining further that:
"Mr Bracken perceived a feeling of fear and tension on the ship and, whether or not it was actually the case, Mr Bracken believed his ship was on active service with the planes engaging with the enemy.
A stressor is a subjective experience. Research work in post traumatic stress disorder demonstrates that it is the subjective perception of the experience that is critical in the precipitation and symptoms of post traumatic stress disorder. From Mr Bracken's account of events, he felt he was under extreme stress during a period of service prior to the onset of the panic disorder. …"
Ms Breuer submitted that Dr Dinnen was the only doctor who diagnosed depressive disorder, and she submitted that there was no evidence indicating that he had gone through the necessary diagnostic criteria. She referred the Tribunal to RepatriationCommission v Gosewinckel [1999] FCA 1273, submitting that on the authority of that case, (and referring particularly to paragraphs 67 and 69 of the decision), and notwithstanding Dr Dinnen's opinion, the Tribunal needed to satisfy itself of the diagnostic criteria in regard to Mr Bracken.
Ms Breuer submitted that Dr Carne had only addressed panic disorder and not depressive disorder. The Tribunal was mindful of Ms Breuer's submission and noted from Exhibit R3, the letter inviting Dr Carne to examine the Applicant, that Dr Carne was requested to "confirm the diagnosis of Panic Disorder and Alcohol Dependence, and to establish whether such conditions are causally related to Mr Bracken's service. …".
The Tribunal noted from Ms Breuer's comments at the hearing that the Respondent had conceded Mr Bracken suffered depressive disorder. The Tribunal was mindful also of Mr Sherlock's submissions that Dr Carne's comments in his report provided evidence of Mr Bracken's depressive symptomatology, further that Mr Bracken's original diagnosis was "Chronic anxiety. Started drinking during naval service and also heavy alcohol intake." (T7/31).
Relying on Exhibit R6, and Mr Tilbrook's evidence, Ms Breuer submitted further that the gunshot event in Hong Kong on 12 October 1956 referred to by Mr Bracken, was not within the period of operational service. Mr Sherlock, relying on the same report, drew the attention of the Tribunal to paragraphs 24 and 27 of Attachment 3, submitting that the event took place within the operational service period. The Tribunal accepted Mr Sherlock's submission on the basis that the issue related to a question of the exact time, a matter of some minutes or hours, and was very borderline. The Tribunal took into account the beneficial nature of the legislation to accept the event had occurred during Mr Bracken's operational service. The Tribunal was mindful also that the Hong Kong event was one of several mentioned above, claimed to have been relevant to psychosocial stressors submitted to have contributed to the development of Mr Bracken's depressive disorder and alcohol dependence.
Ms Breuer submitted similarly that the reports by Mr Bracken of aircraft taking off at the time he was in Malaya and Singapore dated to a period before operational service. Ms Breuer emphasised Mr Bracken had been in the Navy some years before his operational service, and therefore had experience of everything he had described going on in Malaya, so that he should have been accustomed, and not unduly disturbed by it. She also drew attention to Dr Carne's report where he had recorded in Exhibit R4 under the heading:
"Psychological functioning
Mr Bracken told me that he loved the Navy and camaraderie. Prior to his period of operational service he was extremely happy in his job."
Ms Breuer emphasised that Mr Bracken's experiences did not meet the definition of stressor in that his visits ashore in Singapore were voluntary. It was known that there were good relations between the people there and the Navy, she submitted, and indeed the ship had been open for visits and had hosted 100 children on one occasion.
She emphasised that there was no evidence HMAS Melbourne had been involved in shooting, bombing or harming anyone.
Applying sections 120(1) and 120(3) then, the Tribunal accepted Mr Bracken's claims that psychosocial stressors such as occurred on HMAS Melbourne during his operational service had contributed causally to the development of his depressive disorder and alcoholism. The Tribunal noted that Mr Bracken did not dispute that the ship was open for inspection, but accepted that he feared for his life in events which took place in Hong Kong, and was disturbed by the feelings of hostility he sensed in both Singapore and Hong Kong. The Tribunal accepted that the anxieties which caused Mr Bracken to smoke and drink in far greater quantities than previously, were related to the long hours of duty on HMAS Melbourne, and the fear regarding where the aircraft which took off from the ship were heading. The Tribunal preferred the evidence and submissions of the Applicant and his doctors, and the Tribunal could not therefore be convinced beyond reasonable doubt that Mr Bracken's depressive disorder and alcohol dependence were not war-caused within the terms of the legislation.
The Tribunal was therefore satisfied that Mr Bracken's depressive disorder and alcohol dependence were war-caused in satisfaction of section 9 of the legislation, and that his claim should succeed in this regard.
statement of principles for alcohol dependence or alcohol abuse - instrument no.76 of 1998
As the consumption of alcohol was relevant both in consideration of Mr Bracken's depressive disease and his physical conditions, the Tribunal noted that the relevant SoPs for Psychoactive Substance Abuse or Dependence and Alcohol Dependence or Alcohol Abuse were Factor 5(b) of Instrument No.76 of 1998.
Factor 5(b) of Instrument No.76 or 1998 reads as follows:
"(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…"
The Tribunal has already stated above that it accepted Mr Bracken experienced a severe stressor within the two years immediately before the clinical onset of alcohol abuse in satisfaction of Factor 5 (b) of the above-mentioned SoP.
whether mr bracken's ischaemic heart disease was war-caused pursuant to the legislation
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting Mr Bracken's ischaemic heart disease with his war service, was laid down in Deledio (supra) as a four step process.
As a preliminary matter, the Tribunal noted that the VRB (T25) had decided as follows on 14 March 2000:
"Without a diagnosis, the Board is unable to determine which Statement of Principles, if any, applies to the condition claimed. This is a threshold issue before any contentions made by the veteran, or other evidence, can be considered."
By the time of the Tribunal hearing, however, Ms Breuer had accepted on the behalf of the Respondent, that Mr Bracken suffered ischaemic heart disease. The Tribunal accepted that, and had to ascertain whether the Applicant met the first step in Deledio (supra) in regard to his ischaemic heart disease, and consider:
"… that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Mr Sherlock submitted that the evidence before the Tribunal indicated that the amount Mr Bracken smoked during his operational service had doubled, and resulted in him suffering ischaemic heart disease.
The Tribunal was mindful of Mr Bracken's evidence that he smoked 20–25 cigarettes a day when he first joined the Navy, and in the years before 1956. He described to the Tribunal that when his ship came to be in the FESR, in what he described as conditions substantially different from how he had previously experienced them, he started smoking 50–60 cigarettes a day. He explained that this was due to the long hours on duty, the boredom of waiting around for aircraft to take off and land, and the stress and fear he suffered. He explained to the Tribunal how in contrast to previously, where the officers had explained activities to the men, at that time there was an air of tension, and secrecy surrounding the activities. He recounted experiencing what he had considered were combat missions flown by aircraft from his ship. Mr Bracken said that the increase in smoking occurred amongst the men generally.
The Tribunal accepted that a dramatic increase in cigarette consumption occurred during Mr Bracken's operational service, and that the habit continued for many years after the war. The Tribunal was mindful that Mr Bracken did not cease smoking until approximately 1990 because from that time he could not tolerate the smoking due to his bowel surgery. The Tribunal was therefore satisfied that the material regarding the Veteran's smoking pointed to an hypothesis connecting his ischaemic heart disease, with his war service.
Pursuant to Deledio (supra), the Tribunal was then required to consider whether there was an appropriate SoP which could be applied to consider whether Mr Bracken's ischaemic heart disease was war-caused. On the basis of the decision of the Full Court of the Federal Court in Gorton (supra) and Williams (supra), the Tribunal considered that the relevant SoP to be applied was Instrument No.38 of 1999. The Tribunal had then to decide whether the hypothesis was reasonable by considering whether the development of the Applicant's ischaemic heart disease was consistent with the template in the SoP.
It should be noted that the factors raised in the SoPs are, of course, those that must exist as a minimum, before it can be said that a reasonable hypothesis has been raised connecting Mr Bracken's condition of ischaemic heart disease with the circumstances of his service. The minimum factors are outlined in Factor 5 (e) and (f) of the SoP. As relevant they follow:
"5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
. . .
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and he clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
…
(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or
…"

Ms Breuer referred the Tribunal to Connors v Repatriation Commission [2000] FCA 783, with regard to considering the clinical onset of Mr Bracken's ischaemic heart disease. Ms Breuer also commented that if the Tribunal accepted that Mr Bracken's smoking had been related to feeling stressed and to smoking during long hours of inactivity on board the aircraft carrier during his period of operational service, then a reasonable hypothesis might be raised due to the temporal connection. She submitted however, relying on Dixon v Repatriation Commission [1999] FCA 582 and Davenport v Repatriation Commission [1997] FCA 918, that the Tribunal could not be satisfied when applying sections 120(1) and 120(3) of the Act that Mr Bracken's disease was war-caused within the terms of the legislation. The latter are of course the standards of proof required to be applied in the last stage of the Deledio process. The Tribunal noted Ms Breuer's submissions with regard to Dixon (supra) and Davenport (supra), and whilst aware of Mr Bracken's short period of operational service, had to take into account what had occurred to him over that period.
The Tribunal moved then to consider Step 3 in the Deledio process, that is whether it could form the opinion that the hypothesis raised was a reasonable one.
The Tribunal accepted that the increase in Mr Bracken's smoking from 25-30 cigarettes a day to 50-60 a day during the period of the FESR had arisen out of feeling stressed during long hours of inactivity on board the aircraft carrier, and the fear that he and his colleagues were under attack. The oral evidence of Mr Bracken before the Tribunal which it accepted, was that, (notwithstanding what he had told various medical personnel and what they had recorded on various documents before the Tribunal), Mr Bracken's smoking continued at the 40-50 cigarettes a day level until he quit smoking in approximately 1988, due to his bowel disease. As to ischaemic heart disease; Dr Burns stated that he had reviewed the reports of Dr Macauley, and that he believed Mr Bracken's smoking would be regarded a significant risk factor. Dr Macauley in turn had noted the Veteran's history of retrosternal chest pain over 20 years, and diagnosed him with Class one angina pectoris.
The Tribunal was therefore satisfied that a reasonable hypothesis had been raised linking Mr Bracken's smoking and consequent ischaemic heart disease to his operational service. The Tribunal was satisfied on consideration of the whole of the material before it, and as detailed above, that Mr Bracken met the tests in the template in SoP Instrument No.38 of 1999 as he was smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease and had not ceased prior to the clinical onset of ischaemic heart disease. Specifically he ceased many years later in approximately 1990, because due to his gastro-oesophageal reflux and bowel operations he could no longer tolerate smoking, or drinking for that matter.
Therefore the Tribunal found that a reasonable hypothesis could be raised linking Mr Bracken's ischaemic heart disease with his war service, as the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
The Tribunal moved then to consider the application of sections 120(1) and 120(3) of the Act. In doing so, the Tribunal was mindful that unless it was satisfied beyond reasonable doubt that Mr Bracken's ischaemic heart disease, did not arise as a result of his war-caused smoking, the claim must succeed .
The Tribunal has already stated that notwithstanding innuendo from the Respondent regarding Mr Bracken's account of his level of smoking and drinking as reported to his doctors over the years, when compared with the information recorded in Exhibit R9, (the questionnaires on smoking and drinking), and his oral evidence, the Tribunal found Mr Bracken to be a witness of truth.
The Tribunal was mindful of discrepancies emphasised by Ms Breuer in the documents extracted from clinical records pertaining to Mr Bracken at Exhibits R10, and R11 before the Tribunal. Those indicated to the Tribunal that at the time of medical appointments or hospitalisations, Mr Bracken had frequently given his medical advisors information regarding his smoking and drinking habits which did not accord with what he told the Tribunal. For example, in clinical notes dated 27 September 1980, (Exhibit R11), the medical officer in connection with a consultation for abdominal pain, had recorded that Mr Bracken: smoked "Cigs 8/day Alco 4/day". On another visit, smoking had been recorded as 12-15 a day. In Exhibit R11 there was a record made on admission of Mr Bracken, that he had been smoking ten cigarettes a day for thirty years, and drinking 3-4 schooners of beer.
Ms Breuer submitted that Mr Bracken was already addicted to cigarettes when he joined the Navy. She emphasised he had agreed that he had been smoking 20-25 cigarettes for the previous six years. She submitted that Mr Bracken's evidence regarding the increase in smoking was not credible, given his very short period operational service of 21 days. She also commented that there had been no corroborative evidence - from Mrs Bracken, for example.
The Tribunal accepted Mr Bracken's evidence that he always "lied" about his intake of tobacco and alcohol, because he was constantly afraid his doctors would instruct him to stop smoking and drinking, and he was not prepared to do that. He told the Tribunal that he reduced his smoking after a serious bowel operation in 1988, and finally stopped in 1990 or 1991.
The Tribunal accepted Mr Bracken's explanations that he understated his consumption to his doctors and others because he was afraid of being required to cease smoking and drinking. The Tribunal accepted Mr Bracken's oral evidence and his explanations regarding his level of alcohol and tobacco consumption, even though the oral evidence was somewhat inconsistent with the information recorded in Exhibits R10 and 11. The Tribunal was mindful of the deficiencies in the evidence, but that did not mean that it could be satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Bracken's ischaemic heart disease was war caused.

The Tribunal then turned to the medical reports. The Tribunal was satisfied with the opinion of Dr Macauley, who is a cardiologist and consultant physician, and had stated in his reports dated 21 July 2000 and 8 August 2000 which were before the Tribunal as Exhibits A1 and A2, that Mr Bracken had reported retrosternal chest pain over the last twenty years, noting that some of the chest discomfort had been attributed to reflux. Dr Macauley opined that Mr Bracken had "class one angina pectoris with an abnormal exercise test at moderate workload."
The Tribunal accepted from Dr Macauley's evidence that clinical onset of ischaemic heart disease was more likely than not to have been in approximately 1980, and that Mr Bracken smoked a far greater number of cigarettes than the number stipulated as minimum levels in Factor 5(f) of Instrument No. 38 of 1999, continuing at that level until he eased off in the late 1980s, and ceased smoking in approximately 1990.
Dr Carne noted that the Veteran commenced smoking and drinking in the Navy. He recorded that Mr Bracken's view was also corroborated in Mr Bracken's oral evidence that the Veteran loved the Navy, and that prior to the problem and the operational service, he was extremely happy in his job.
As to ischaemic heart disease; Dr Burns had reviewed the reports of Dr Macauley, adding that he believed Mr Bracken's smoking would be regarded as a significant risk factor. Dr Burns concluded that he could see no reason why Mr Bracken's smoking would not be a cause of his ischaemic heart disease and the gastro-oesophageal reflux.
In applying sections 120(3) and 120(1) of the Act, the Tribunal considered whether it could be satisfied beyond reasonable doubt that Mr Bracken's ischaemic heart disease did not arise from his relevant war service. The Tribunal found that it could not be convinced beyond reasonable doubt that the evidence regarding smoking as described above was not the cause of Mr Bracken's ischaemic heart disease in satisfaction of Factor 5(f) of the relevant SoP.
The Tribunal was therefore satisfied that Mr Bracken's ischaemic heart disease was war-caused in satisfaction of section 9 of the legislation, and that his claim should succeed in this regard.
whether mr bracken's gastro-oesophageal reflux disease was war-caused pursuant to the legislation
As the period of operational service and other matters of evidence have been stated in detail above in relation to Mr Bracken's claims for ischaemic heart disease and depressive disorder, the Tribunal has decided to confine the discussion here to matters relevant to Mr Bracken's claim that his gastro-oesophageal reflux disease was war-caused, so as not to make the decision excessively repetitious.
The Tribunal noted that the VRB accepted the onset of gastro-oesophageal reflux disease as 1976, based on the report of gastroenterologist, Dr N Talley. Ms Breuer did not resile from that. The Tribunal noted that the Board held:
"His smoking habit, if it constituted an addiction, a matter upon which the Board had no evidence, started in 1950, according to his 1957 questionnaire, six years before his eligible service. There is also no evidence that the circumstances of his short period of eligible service, aggravated his existing smoking habit.
In these circumstances, where no factor in the Statement of Principles is met, the veteran's claim cannot succeed for the claimed condition, on the evidence before the Board." (T 25/126)
The Tribunal had then to establish from the evidence before it, whether there was a hypothesis connecting Mr Bracken's gastro-oesophageal reflux disease with his war service, applying the principles as enunciated in Deledio (supra).
The Tribunal has already accepted, as noted above, Mr Bracken's evidence that the increase in his smoking habit occurred during his operational service, and as a result of tensions, boredom and fear as he expressed it. The Tribunal turned then to consider whether a hypothesis could be raised relating Mr Bracken's smoking or alcohol to his gastro-oesophageal reflux disease.
Turning to Mr Bracken's evidence regarding his drinking, the Tribunal accepted that he had been an average drinker before joining the Navy, but that the stress and fear he suffered on board ship, and on shore, particularly in Hong Kong and Singapore, where he perceived hostility towards himself and his colleagues, had caused him to drink more. He had recounted during the course of his evidence of how he went "over the fence at Garden Island … got on the booze" , and how he had been absent from duty without permission for some days, wandering around, in December 1956. Mr Bracken's evidence regarding his drinking, which the Tribunal accepted, was that for the thirty years which followed his return home, he drank every day, even at work, attended a club every evening and drank a large amount of alcohol at home as well.
The Tribunal noted that there were some inconsistencies between Mr Bracken's oral evidence and the information at Exhibit R9, the smoking and alcohol questionnaire dated 30 July 1997, but accepted Mr Bracken's explanation (as detailed above), for that. The Tribunal was mindful also that Mr Bracken reduced both alcohol and cigarette intake due to bowel disease and chronic gastro-oesophageal reflux disease by the late 1980s and ceased drinking and smoking altogether, some time later in approximately 1990.
The Tribunal considered that on the basis of the material before it, a hypothesis was raised connecting Mr Bracken's smoking and his drinking with his condition of gastro-oesophageal reflux disease which, it was accepted, had its onset, in 1976.
Pursuant to Deledio (supra), the Tribunal was then required to consider whether there was an appropriate SoP which could be applied in this situation. The SoP which was current at the time of the Repatriation Commission decision in June 1999 was SoP No.121 of 1995 in which Factor 5(j) would have been the relevant factor to consider in Mr Bracken's case. As relevant, Factor 5(j) follows:
"(j)smoking cigarettes or other tobacco products as an addiction before, and until the clinical onset of gastro-oesophageal reflux disease; or
…"
In the circumstances, the relevant SoP to be considered is Instrument No.62 of 1999 as amended by No.123 of 1999. The Tribunal had also to decide whether the hypothesis raised was reasonable, by considering whether the development of the Applicant's gastro-oesophageal reflux disease was consistent with the template in the SoP.
The minimum factors to relate Mr Bracken's gastro-oesophageal reflux disease with his war service were outlined in Factor 5 (f) or (g) of the SoP. As relevant they follow:
"(f)smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical onset of gastro-oesophageal reflux disease; or
(g)suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of onset of gastro-oesophageal reflux disease; or
…"
The Tribunal referred itself to findings made above in regard to Mr Bracken's cigarette smoking habit, and found that the level of his smoking satisfied the amounts stipulated to meet the requirements of Factor 5(f) of the relevant SoP. The Tribunal accepted that Mr Bracken smoked at the 50-60 cigarette per day level at the time of clinical onset of his gastro-oesophageal disease in 1976, and in fact until he reduced his intake in the late 1980s, finally ceasing smoking in 1990. He therefore met the tests for Factor 5(f) of the SoP and a reasonable hypothesis was raised linking Mr Bracken's gastro-oesophageal disease to his war service.
The Tribunal moved then to consider the application of sections 120(1) and 120(3) of the Act. In doing so, the Tribunal was mindful that, unless it could be satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Bracken's gastro-oesophageal reflux disease was war-caused, on consideration of the whole of the material before it, then his claim had to succeed.
Ms Breuer submitted that Mr Bracken was already addicted to cigarettes when he joined the Navy. She emphasised he had agreed that he had been smoking 20-25 cigarettes for the previous six years. She submitted that Mr Bracken's evidence regarding his increase in smoking was not credible, given his very short period operational service of 21 days. She also commented that there had been no corroborative evidence, from Mrs Bracken, for example. Ms Breuer also drew to the attention of the Tribunal the differences between the document at Exhibit R9 regarding cigarette and alcohol consumption, and Mr Bracken's oral evidence. The Tribunal referred itself to the findings made above regarding Mr Bracken's level of cigarette smoking which it accepted increased to 50-60 cigarettes per day during his operational service.
Dr Burns opined that he could see no reason why Mr Bracken's smoking would not have been a cause of his ischaemic heart disease and gastro-oesophageal reflux.
Dr Burns also mentioned Mr Bracken's treatment by Dr N Talley, Gastro-Enterologist, and the history of smoking as given by Mr Bracken, corroborated by Mr Bracken in his oral evidence, and accepted by the Tribunal.
The Tribunal was satisfied on consideration of the whole of the material before it, and as detailed above, that Mr Bracken met the tests in the template in SoP Instrument No.62 of 1999 as amended by No.123 of 1999. Therefore a reasonable hypothesis could be found linking his gastro-oesophageal disease with his war service, as the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
The Tribunal was therefore satisfied that Mr Bracken's gastro-oesophageal disease was war-caused in satisfaction of section 9 of the legislation, and that his claim should succeed in this regard.
WHETHER MR BRACKEN'S PENSION SHOULD BE PAID AT THE LEVEL OF EXTREME DISABLEMENT ADJUSTMENT PURSUANT TO SECTION 22 OF THE ACT AS CLAIMED
lifestyle
The parties also made submissions with regard to Mr Bracken in the application of the tests in Chapter 22 of GARP regarding "Lifestyle Effects". The Tribunal noted that these are determined by reference to: 1) personal relationships; 2) mobility; 3) recreational and community activities; and 4) employment and domestic activities.
The Tribunal considered these in connection with its acceptance of Mr Bracken's conditions of depressive illness and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux.
lifestyle effects
table 22.1 - personal relationships
In considering Mr Bracken' personal relationships, the Tribunal noted that Mr Bracken had been married 41 years, but said that the relationship with his wife was tense at times, and that he did not see his daughters often. He said that he nodded to his neighbours, and that one or two of his friends telephoned occasionally. He rated himself at five for this table.
Dr Burns in his report of 28 August 2000 (Exhibit R8), reported that Mr Bracken had told him he "gets on very well with his family but is otherwise socially isolated". He rated Mr Bracken at three for personal relationships.
Ms Breuer noting that Mr Bracken's evidence that he could manage alone even when his wife was away for half a day at a time, submitted that a rating of five or six was appropriate to describe Mr Bracken's level within Table 22.1.
The relevant sections of Table 22.1 are reproduced below.
"NIL                ….
          ….
TWOMildly affected personal and social relationships. Social contacts and activities are reduced, veteran's participation in the accustomed range of activities is restricted.
THREEModerately affected personal and social relationships. Relationships usually confined to family, close friends, colleagues and neighbours. Unable to relate to casual acquaintances.
FOURMarkedly affected relationships. Most relations are unsatisfying, maintenance of usual relations with relatives, friends, neighbours and colleagues is difficult. Much less time is spent socialising than was the case formerly.
FIVESeverely affected relationships. Able to relate only to particular, or few people, eg spouse or children. These remaining relationships are strained and of low quality.
SIX                Extreme difficulty in relating to anyone, for example:
- difficulties in relating because of psychosis; or
- social interaction limited to carer(s) due to confinement; or
- ability to communicate is restricted due to stroke or other effect of accepted conditions.
…."
The Tribunal was mindful that Mr Bracken's relationships are severely affected, and that he is only able to relate to few people, primarily his wife. The Tribunal accepted that even the relationship with his wife is strained, and therefore accepted a rating of five for Mr Bracken pursuant to Table 22.1.
table 22.2 - mobility
Mr Sherlock submitted that Mr Bracken could not travel on public transport on his own, but that he was able with his wife's assistance to get onto a "hydraulic" bus which they boarded to attend his doctors. Mr Bracken told the Tribunal that he could not catch a train because stations had steps, and he could not manage these. He acknowledged some stations had lifts. The Veteran told the Tribunal he had ceased driving at the end of 2000 because of a loss of confidence. Mr Bracken said that he was only able to take short walks on his own, and with the assistance of a walking stick. He said that he would walk half way round the block about twice a week. He said that he had no railings at home and one step at the back door but that things had deteriorated physically in the past twelve months. He rated himself at six for this table.
Dr Burns gave a rating of four to Mr Bracken in this category.
Ms Breuer emphasised that Mr Bracken could catch a bus, and that he could walk; she noted he had no railings in his bathroom. She submitted that a rating of five was appropriate in regard to this table.
The Tribunal noted that the ratings in Table 22.2 were as follows:
"NIL               No or minimal restrictions of mobility, ie full mobility.
….
FOUR           Markedly reduced mobility:
- assistance is needed to cope with public or private transport;
- there is considerable difficulty in travelling from home to destination;
- restricted in the use of at least two forms of public transport.
FIVE              Major impediments to mobility:
- dependent upon others, or mechanical devices such as wheelchairs;
- unable to use most forms of transport;
- able to drive a car only in a situation of emergency and then only for a short distance.
…."
The Tribunal accepted the evidence of the Applicant regarding the level of his mobility, noting that he was dependent on his wife for transport and assistance, and rated him at five.
table 22.3 – recreational and community activities
Mr Bracken said that he would occasionally watch a game of children's football sitting in the car near the grounds. He said that he occasionally had lunch with his sister and only left the house once or twice a week. He did not attend the local club and considered his attendance at church on Sundays as a solemn, and not a social, occasion. The Tribunal noted his evidence that he often watched television alone on his own set. Mr Bracken rated himself at six in this table.
Dr Burns noted that Mr Bracken was a keen follower of football and had no interest in any other outside activities. He rated him at five.
Ms Breuer characterised church as a community activity, and noted that Mr Bracken did watch his grandson's football matches. She submitted he be rated at five or six for Table 22.3.
The ratings in Table 22.3 were as follows:
"NIL ….
….
THREEUnable to continue some accustomed recreational pursuits and community activities, for example:
- competition sporting activities (golf, tennis, bowls etc)but is still able to enjoy most other activities (camping out, hobbies, going visiting, watching sport etc);
- unable to perform some community or voluntary activities involving physical activity (eg working bees) but is still able to participate in most other activities including welfare work, fund raising work etc.
FOURUnable to take part in formerly favoured recreational pursuits, leisure and community activities, but less physical activities are possible, for example:
- restricted to generally non-active interests (eg music, art, stamp or coin collecting, attending clubs, etc); and
- unable to participate in accustomed activities (eg camping, going for long walks, fishing, voluntary activities such as meals on wheels).
FIVEGreater reduction in the number and kind of recreational activities which can be undertaken; some assistance is needed to undertake those which are still possible, for example:
- can only visit or go out if taken to and from destination;
- finds doing a hobby or relaxing (for example, stamp collecting, art & crafts, playing or listening to music, playing cards, etc.) difficult to enjoy due to pain, suffering, or loss of dexterity.
SIXAble to engage in only a very few satisfying recreational activities. Restricted to a few passive activities such as watching TV, listening to radio, reading or receiving visitors.
….."
The Tribunal found from the evidence that Mr Bracken was able to engage in very few satisfying recreational activities which were basically passive, and accepted that attending a church service was, for him, not a social activity. The Tribunal found that the appropriate rating in this category was six for Mr Bracken.
table 22.4 – domestic activities
The evidence of Mr Bracken was that, although in the past he had contributed to the washing and shopping chores, he could now do no more than stack the dishwasher or make a cup of tea. He could attend to personal hygiene and shower and dress himself. Mr Sherlock submitted that without his wife to assist, Mr Bracken would have to be institutionalised, and that he should be rated at seven for Table 22.4. Mr Bracken rated himself at seven for this table.
Dr Burns's rating for domestic activities was five.
Ms Breuer submitted that five would be the appropriate rating in this category.
The ratings in Table 22.4 were as follows:
"NIL ….
….
TWOAble to carry out accustomed tasks, but has difficulty with some heavier tasks, for example:
- has difficulty with heavy gardening activities such as digging, pruning trees etc.
THREEUnable to perform heavy activities, but able to carry out lighter household tasks, taking breaks during sustained activity, for example:
- mowing the lawn
- washing the car;
- performing light maintenance or gardening activities if working at own pace, taking breaks as necessary.
FOURUnable to carry out a full range of normal household activities, particularly some moderate tasks which require exertion. Needs assistance with some activities, for example:
- vacuuming carpets, cleaning floors, or mowing lawns;
- home repairs and maintenance, etc.
FIVELimitation of household activity to a small range of light tasks, for example:
- watering the garden but has difficulty in weeding or pruning;
- able to do some light household activities but has difficulty bending to make beds, or in putting out the rubbish bin;
requires assistance with grocery shopping
SIXAble to carry out only very limited domestic activities, usually a restricted range of indoor activities. May require supervision in carrying out such activities, for example:
able to do very light tidying, dusting but unable to cook or prepare meals;
has difficulty standing to set table or wash dishes;
…"

The Tribunal accepted that Mr Bracken was only able to carry out very limited domestic duties and rated him at six in relation to Table 22.4.
table 22.5 – employment activities

It was clear from the evidence that Mr Bracken was not in employment because he would be unable to do paid work due to his disabilities. The rating is five.
closing
Mr Sherlock drew to the attention of the Tribunal Dr Burns' assessment of Mr Bracken being a total of 76 impairment points providing all of his disabilities were recognised as war-caused. Mr Sherlock submitted that in relation to Table 22.4, domestic activities, Mr Bracken rated seven because he was totally dependent on his wife and would have to be institutionalised were she not there to look after him.
In closing, Ms Breuer submitted that the Respondent accepted that Mr Bracken rated a total of 21 points which gave him a rating of 5.25, that is short of EDA, and that the Respondent agreed he should receive a rating of 100 percent of the general rate of pension.
The Tribunal was mindful that on a self-assessment, (Exhibit A5), Mr Bracken rated himself at five for personal relationships, six for mobility, six for recreational and community activities, and seven for employment and domestic activities.
The Tribunal was satisfied to the requisite standard that Mr Bracken rated as follows: Table 22.1 (five); Table 22.2 (five); Table 22.3 (six); Table 22.4 (six); and Table 22.5 (five). His lifestyle rating was therefore, 5.5 which rounded up makes 6. He is therefore eligible for pension at the EDA rate.
DECISION
The Administrative Appeals Tribunal sets aside that part of the decision of the Repatriation Commission dated 26 June 1999 as affirmed by the Veterans' Review Board on 14 March 2000, rejecting the Applicant, Mr Thomas Bracken's claims that his panic disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that the Applicant's condition of depressive disorder and alcohol dependence, ischaemic heart disease, and gastro-oesophageal reflux disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
By agreement of the parties the decision of the Respondent in relation to Mr Bracken's condition of chronic solar skin damage is affirmed.
The Applicant is entitled to be paid pension at the EDA rate on and from 18 November 1998.

I certify that the 189 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ettinger and Mr Alan Limbury, Member.
Signed: R Savage    .....................................................................................
  Associate
Date/s of Hearing  2 August 2000

Date of Decision 30 November 2001
Solicitor for the Applicant Mr R Sherlock
Advocate for the Respondent Ms S Breuer/Ms T McConnell