Briscoe and Repatriation Commission - [2001] AATA 605

DECISION AND REASONS FOR DECISION [2001] AATA 605

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1903

VETERANS' APPEALS DIVISION       )
           Re      Kenneth BRISCOE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date29 June 2001
PlaceSydney

Decision      The Tribunal affirms that part of the decision of a delegate of the Repatriation Commission dated 23 July 1998 that determined that the conditions suffered by Kenneth Bruce Briscoe of chronic obstructive airways disease, lower lumbar disc spondylosis and alcohol dependence are not war-caused.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement – operational service – Statement of Principles applied - Applicant suffers from psychoactive substance abuse - whether reasonable hypothesis that pyschoactive substance abuse was war-caused – whether hypothesis disproved beyond reasonable doubt – diagnosis of condition - whether Applicant suffered from post traumatic stress disorder – whether Applicant "experienced a stressor" - whether Applicant suffered from an "adjustment disorder" within three months of the alleged "stressor" – whether Applicant suffered trauma to the lumbar spine before clinical onset of lumbar spondylosis – whether hypotheses disproved beyond reasonable doubt - credibility of Applicant

Veterans' Entitlements Act 1986: 120(1), 120(3)

Statement of Principles, Instrument No. 15 of 1994 (Post Traumatic Stress Disorder)
Statement of Principles, Instrument No. 5 of 1994 (Pyschoactive Substance Abuse or Dependence)
Statement of Principles, Instrument No. 57 of 1996 (Adjustment Disorder)
Statement of Principles, Instrument No 165 of 1996 (Lumber Spondylosis)

Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Binding [1999] FCA 974
Repatriation Commission v Deledio (1999) 83 FCR 82

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 23 July 1998 that refused a claim made by Kenneth Bruce Briscoe ("the Applicant") in respect of conditions diagnosed as chronic obstructive airways disease, lower lumbar disc spondylosis, and alcohol dependence. That part of the decision of the Respondent was affirmed by the Veterans' Review Board ("the VRB") on 22 September 1999. The Applicant then sought review by this Tribunal.
Counsel for the Applicant advised at the hearing that the Applicant did not wish to pursue that part of his claim in relation to chronic obstructive airways disease, and therefore that part of the decision under review is affirmed.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing, and Mr William Myers, a Vietnam Veterans' Association advocate also gave oral evidence, called by the Applicant. The following documents were tendered as evidence on behalf of the Applicant –

Report of Dr P E Giblin, orthopaedic surgeon, dated 29 June 2000 (exhibit A)
Report of Dr A M Nicholas, clinical psychologist, dated 5 August 1999 (exhibit B)
Report of Dr M Baz, occupational physician, dated 31 October 2000 (exhibit C)
Report of Dr L Darcy, psychiatrist, dated 12 July 2000 and GARP assessment dated 25 August 2000 (exhibit D)
Statement of A R Murray (undated) (exhibit E)
Extract from DSM-IV on Post Traumatic Stress Disorder (exhibit F)
Monograph entitled "Posttraumatic Stress Disorder (PTSD) and War-Related Stress", National Centre for War-Related PTSD, Melbourne, 1999 (exhibit G)
Sundry documents extracted from Applicant's Service Pension file (exhibit H)

The following documents were tendered as evidence on behalf of the Respondent –

Clinical notes from Toowoomba Hospital (exhibit 1)
Pension/Medical records from Centrelink (exhibit 2)
Service Medical Records from Department of Defence (exhibit 3)
Clinical notes from Lightning Ridge Health Service (exhibit 4)
Clinical notes from Walgett Hospital (exhibit 5)
Clinical notes from Dr Irwin (exhibit 6)
Report of Associate Professor R F Jones, rehabilitation specialist, dated 9 December 2000 (exhibit 7)
Transcript of VRB proceedings on 22 September 1999 (exhibit 8)
Report of Mr J Tilbrook, historian, dated 23 February 2000 and attachments (exhibit 9)
Clinical notes of Dr Vickery (exhibit 10).

the evidence
Applicant

The Applicant was born on 5 March 1952. He enlisted in the Royal Australian Navy on 5 July 1968 and was discharged on 14 March 1972. He had operational service from 17 November 1969 to 5 December 1969 going to and from Vietnam, and it is only that period of service that is relevant in determining this claim. He served in HMAS Sydney during his operational service.
Claim for back condition
The Applicant's evidence was that while in Vung Tau Harbour he sustained a back injury. He was part of a daisy chain moving stores. He had been performing this work for about an hour. In order to speed up the completion of the job they began moving cartons two at a time. He said that when he grabbed the cartons from one side and turned to the other he felt a click and sharp pain in his back, he fell down and could not stand up. He said he was taken to the sick bay where he was examined by a sick bay attendant and given Panadol, and then put on light duties.
The Applicant said the sick bay orderly's examination was by lifting up one leg and then the other, and he was then told "there's not much wrong with you". He said he was then put on light duties for the rest of his operational service.
In cross-examination he said when he fell his legs would not support him and he landed in the sitting position, and "the most immediate pain and sore spot I had was on my tail bone". He demonstrated that the pain he felt when lifting on the daisy chain was over the mid line and about six inches above his belt line. He said that the sharp pain lasted about five minutes and then became a dull ache that lasted until after he returned to Australia. When he arrived in Australia he eventually went on leave to Warwick to see his girlfriend and while there (in January 1970) he said he had X-rays taken of his back that revealed Scheuermann's disease. He said that was his first knowledge of having Scheuermann's disease. He said he had never had back pain prior to his service on the Sydney.
The Applicant said he did not seek any further treatment for his back while he was in the Navy, nor did he formally report any back injury at the time of his discharge. He said he told the doctor that he had a problem bending his back and was told that if he listed it formally it would delay his discharge; he chose not to do that. He also said he was not medically examined. He said he was anxious to be discharged because he "was getting into trouble a fair bit … because of alcohol" and he thought he would "change his life". Later in cross-examination he said he first started complaining about his back when he started the cook's course at Cerberus about April or May 1970. He said he went to the sick bay to see "the MO". He said he had to unload stores at the School of Cookery and he could not lift a 20 kilo. bag. The Tribunal notes that there is no evidence of this in the service documents.
After the alleged injury while working on the daisy chain, the Applicant said he was put on light duties while in Vung Tau Harbour and for the rest of his operational service. The light duties he was allocated after visiting the sick bay was fire watch in the starboard engine room where he did one four hour shift. He said that during that shift scare charges were dropped close to the engine room. He said he was so frightened that he soiled his pants. He said when he finished the watch he "tore up the passageway and up two gangways and up to the rails on 4 Deck "and then I urinated myself". The Tribunal notes that this activity when he "tore up the passageway and up two gangways" was some four hours after the Applicant had reported having injured his back. In a written statement provided by the Applicant to the VRB (T18) he provided detail of the scare charge incident, but he made no reference to defecation or urination; instead he said he was gripping the rail of the deck and crying. He also said he was given a rum and beer chaser to calm himself.
The Applicant said in cross-examination that he "knew nothing about" the plan to drop scare charges. He said because of the activity on shore, with aeroplanes and helicopters "rocketing" the "VC hill" he could not differentiate between incoming fire to the ship and outgoing fire. When he heard the scare charge explode he could not recognise it at the time. He said he did not ask anyone about the scare charges because "I don't think I could even talk". He did not see, and was not aware of, anyone being wounded by the scare charges.
The Applicant said that he heard gunfire while the Sydney was in Vung Tau Harbour. He said he heard explosions and a cloud. On being told of Mr Tilbrook's research that showed there was no gunfire in Phouc Tuy Province at the relevant time, he insisted that he heard it.
In cross-examination the Applicant denied knowing the meaning of the term "Operation Awkward". He was then provided with the report of Mr Tilbrook, historian (exhibit 9) which stated, inter alia –
In the interests of creating a worked up diving team for VUNG TAU, a night diving exercise was carried out on 10th November and daylight exercises carried out on the 11th, 12th and 14th November. A demonstration of 'Operation AWKWARD' was carried out for all divers. 'Operation AWKWARD' sentries and boats, and LCM crews were practiced on AM of 12 November. A semi-realistic daylight attack was carried out on PM 12th November by CDT 2 to exercise ship's divers and the Operation AWKWARD sentries.
In cross-examination, the Applicant admitted that in 1969, prior to his service in the Melbourne he was badly beaten up "coming back from the Flying Angel Club" to HMAS Leewin. He sustained a knife wound to the right leg, and two years later he complained of numbness and paraesthesia in the right leg above and below the scar. In answer to a specific question from the Tribunal he said there was no alcohol involved in this incident.
The service documents reveal that the Applicant was AWOL from September 1971 until March 1972 (exhibit 3, p25). The Applicant's evidence was that he went AWOL because he had been drafted for sea duty again and by then he "had developed a fear of … large bodies of water".
The Applicant admitted to having played football until 1983/84 and he also used to run a lot. He consulted a doctor at Toowoomba Hospital on 4 March 1988. The clinical notes for that consultation (exhibit 1) record that the Applicant had a "bad back for long time" and "never had injury to back". In cross-examination he denied that he said he had never had a back injury. On 5 April 1988 he attended an orthopaedic outpatient clinic. "Low back pain 4/12. … No injury" was recorded. On 8 April 1988 an entry in the physiotherapy records states "P [pain] began 20 yrs ago. No incident. Usually in winter time. Worse 6 mths ago ?. No incident". The Applicant said he was not interviewed by the physiotherapist but she treated his back. In a report from Dr Farguhar, orthopaedic surgeon, dated 11 October 1991 (exhibit 2, p85) he noted a history "first experienced lumbar back pain at age fifteen years and has not sustained any back injury". The Applicant's response in cross-examination to this entry was that he always said "it happened about 20 years ago … when I had hurt my back". A history recorded by Dr R J Gillespie, of Toowoomba, (exhibit 2, p124) in a report received by the Department of Social Security on 5 July 1989 was "Bad back from the age of 15 years with pain upper lumbar area with exertion. Had 4 years service in Navy without any particular problems". Dr Gillespie noted that investigations showed evidence of Scheurmann's disease.
The Applicant said he did not recall giving a copy of that report to Professor Jones. Professor Jones noted in his report of 9 December 2000 (exhibit 1) that the Applicant gave him a copy of that report at the time of his examination on 4 December 2000. It was apparently appended to Professor Jones' report to show that it was antithetical with the history provided to Professor Jones.
The Applicant's attention was drawn to his claim for his back condition, the subject of this review (T4, p36) in which he stated the cause to be "heavy lifting while on ship at sea". There was no reference to an injury. It was also noted that he first became aware of the condition in 1987. The Applicant said he did not complete the claim form but he did sign it.
Dr Stratton, orthopaedic surgeon, provided a report dated 26 November 1997 in respect of this claim (T5) in which he noted that the Applicant was –
… in the navy initially stationed at HMS (sic) Leewin in Western Australia where he spent 12 months. During this period of training he allegedly injured his back on two occasions, once whilst playing football and the other whilst vaulting on a hourse (sic) do gymnastics.

Dr Stratton also noted "he states that the shifting of stores late in 1969 on HMAS Sydney was a potent cause of continued back disability". The Applicant's response to this in cross-examination was that he told Dr Stratton that he injured his knee whilst on a vaulting horse, but his back injury occurred while on service in Vung Tau Harbour. In a report dated 15 May 1998 (T8) Dr Taylor, psychiatrist, noted a history of back injuries "which he claims to have experienced as a result of football games when he was in the Navy". The Applicant's explanation in his oral evidence was that he remembered "being dumped on my back playing football" but he said he was not taken to the sick bay because of this.

The Applicant said that he was discharged from the Navy because he was unsuitable. He had become unreliable because "I was just on the grog all the time". He recalled that he first drank alcohol while in the Sydney. He received a beer issue on it, and beer cost him 20 cents for a 26 oz. can. At that time he had not turned 18, but he said he was able to buy beer depending on who was distributing it.
The Applicant said that on a few occasions he "got into trouble" on service. On one occasion he could not afford to buy alcohol and he broke into the cooking store, and on another he attempted to break in to the wet canteen.
After discharge from the Navy the Applicant returned to Warwick and worked as a labourer for the City Council for about 11 months. He felt he should 'leave town" after having an argument with another man. He then returned some time later and returned to work for the Council for about a year, doing road maintenance.
The Applicant married in April 1970. That marriage broke up in 1978, by which time he had gone to a township near Mt Isa. He has three children by that marriage whom he now never sees. He divorced his first wife in 1980.
In 1978 the Applicant moved to Coffs Harbour where he worked for two years doing contract painting. He married his second wife while there and then moved to Gladstone. He worked for a steel company there, until he sustained an injury to his knee after working for about a year. He continued on as the workshop foreman as the manager was sympathetic to ex-servicemen. He did not have to do much work in that job. However, after a change in personnel, he had a "personality clash" with the new manager who did not like him having time off because of his knee injury. He left that job and then worked for a security company on an armoured van for about six months. He and his wife's brother-in-law then started their own security business installing security equipment. He said the firm went bankrupt because "I had a bit of a hard time with alcohol". He said he was unable to work and ceased work in 1987.
The Applicant then moved to Toowoomba and sought specialist treatment for his back. He said a specialist told him he would never work again because he was only able to perform unskilled work that he could not undertake because of his back. He then moved to a camp at Mountain Ridge in 1988 or 1989. He said that apart from his alcohol problem, he ceased work because of his back problem.
The Applicant said that he wakes about 1am, "wanders around" and then reads until daylight. After another hour's sleep he goes to the RSL club where he starts drinking about 8am. He said he does not remember how long he stays there drinking and does not remember getting home. Sometimes people he knows get a cab for him to go home and help him inside. He has someone to clean his house and do washing. He does not eat regular meals. He lives with another man who works as a shearer. He considered he got on well with other ex-servicemen.
The Applicant said that he now drinks about a carton of Mercury draft cider (5.2 percent alcohol) and a bottle of bourbon every few days. He said he has been drinking heavily since January 1970 when he was drafted to HMAS Cerberus to do a cook's course. He said beer was 20 cents a schooner in the wet canteen there.
The Applicant said that in early 2000 he spent time as an inpatient at Lingard Hospital undertaking a "PTSD course" and he stopped drinking at that time. However he resumed drinking on discharge, and three weeks later he was readmitted. He said at this time he started "playing Friday night games" with "a group of blokes out there", and "I knew I just had to get out of town". The "Friday night game" was Russian Roulette. He said –
When we'd meet on a Friday night everyone took their own, whatever spirits they wanted to drink, and we'd drink all the spirits down to the height of a cigarette box and then everyone had to take it in turns there. Every week one got the job of loading the cylinders up with one round and that was part of the trust thing we had with each other and our own pistols were placed in front of us then and then we all took it in turns, had a drink and just picked the pistol up and then pulled the trigger … to the side of the head.

He said that two of the group died in this process on different nights. That was why he left town and went to see Mr Phillip Carr at the Vietnam Veterans' Counselling Service. He was then readmitted to Lingard Hospital.

In cross-examination the Applicant said that he first became involved in Russian Roulette in 1990 in the opal fields some 25 kilometres from Lightning Ridge. He said that all his friends had revolvers, illegally. He said that the deaths of the two members of the group who were killed were not notified to the Police. They were "buried underground and nobody was to be the wiser". He said that their camps were cleared and their belongings were buried with them. He said he did not mention the deaths to his psychologist or psychiatrist, but he had spoken in detail to his psychologist and psychiatrist about this activity.
The Applicant said he takes medication for his psychiatric condition and prescription pain-killers. He said he feels "pretty depressed most of the time and highly sensitive and suicidal". He said he attempted suicide about three or four months before he went to the PTSD course. He reported what could only be a very serious and deliberate attempt to end his life that was foiled because the electricity generator ran out of fuel.
The Applicant said that his wife became an invalid five days after their son was born in 1992 because of a brain haemorrhage. He said that she left him in July 2000 with their four children, aged 16, 14, 10 and 8 years respectively, have gone to Gladstone where her mother now cares for her. Prior to her leaving he had been in receipt of a Carer Pension to provide care for his wife. He now receives a Service Pension on grounds of invalidity.

The Applicant said that he still has close and good relationships with his mother and his siblings. He felt his relationships with his parents when he was a child was "pretty good". His father is now in a "home".
The Applicant said he had been admonished from an "assault with intent" charge in Warwick when he assaulted a man and "smashed all his teeth out" because the man had bitten him on the arm while they were in a bar. Apparently that was when the Applicant felt he had to leave town. He had had drink driving charges in Victoria and New South Wales, and in Warwick (when he was found to have a blood alcohol level of .27), and "a couple" of charges relating to "creating a public disturbance". He was imprisoned for being "drunk and disorderly" in Western Queensland. He has lost his driver's licence "three or four times", but he then said he could not remember how many times that had happened.
William Myers
Mr Myers gave oral evidence at the hearing. He said he was known to the President of the Lightning Ridge RSL club, as the Applicant's advocate from the Vietnam Veterans Association, Newcastle and Hunter Region. He had been the Applicant's advocate for about twelve months. After the Applicant had completed the PTSD course Mr Myers had asked the Bar Manager at Lightning Ridge RSL club to "keep an eye" on the Applicant. Mr Myers explained that the Applicant is the President of the Lightning Ridge RSL club. He said he was telephoned by the bar manager of the club on two occasions. He was advised that the Applicant had purchased a pistol and was "back on the game", referring to Russian Roulette. On the second occasion he was advised that the Applicant was "drinking extremely heavily" and had purchased another pistol. He had assumed that the Police had been notified, but he did not know.
Mr Myers said he had been unable to contact the Applicant at the time the bar manager telephoned, but the Applicant came to see Mr Myers a few weeks later when he had also come to seek treatment from Dr Darcy and Dr Nicholas. The Applicant admitted to Mr Myers that the information he had been given was correct, and subsequently they both attended Dr Nicholas to discuss the issue. Mr Myers said the Applicant agreed that while this appeal was running he would stop playing Russian Roulette.
Mr Myers considered that the Applicant was very depressed after his wife left him. He felt he had failed as a person in respect of his wife and his children, and did not care too much about his own life. Mr Myers said he was aware of the Applicant's attempt to suicide by "wiring himself up" but he has not been aware of any discussion of suicide since then. Mr Myers understood that the Applicant's involvement in playing Russian Roulette was about not losing "face" when called on by others to play. He did not consider it had anything to do with suicidal thoughts.
medical evidence
Dr Taylor
Dr Taylor, psychiatrist, provided a report dated 15 May 1998 (T8) that was available for the Respondent when making the primary decision. Dr Taylor noted a history that the Applicant served on HMAS Sydney (in harbour in Vietnam) for approximately 48 hours. He was aware of tracer fire a long way from the ship. There were no direct threats on him, to the ship, or to any of his comrades. There was no reference in this report to the scare charge incident. However, the Applicant told Dr Taylor that his experience on HMAS Sydney "plays on my mind". He reported regular nightmares of "being locked up and not being able to get out if we were sinking". He had generalised low grade anxiety, worse when he saw TV programmes about the Navy. Startle response was normal but hypervigilance seemed to be present. He had occasional night sweats.
Dr Taylor said that there was no convincing history of major depression. He considered that the Applicant did not satisfy the DSM-IV diagnostic criteria for PTSD. He did not consider that the Applicant's naval experience was of sufficient severity to justify the diagnosis. Although the Applicant was considered by Dr Taylor to have some symptoms of PTSD, Dr Taylor thought these were more likely attributable to his dangerous alcohol intake. He met the DSM-IV diagnostic criteria for alcohol dependence. Dr Taylor noted that it was difficult to see a clear relationship between the Applicant's condition and his naval service.
Dr Taylor noted that the Applicant's history included "back injuries" which he claimed to have experienced as a result of football games in the Navy.
The Tribunal notes the Applicant's complaint that Dr Taylor gave very little time to taking a history of relevant issues. The Applicant denied telling Dr Taylor about the back injuries resulting from football games.
Dr Carne, Psychiatrist
Dr Carne provided a report dated 24 August 1999 (T15) that was tendered as evidence to the VRB hearing. Dr Carne noted that the Applicant was in the early stages of alcohol withdrawal at the time of interview. His history was "poor, long winded, tangential and rambling". He complained of nightmares that started 2½ years ago when he started thinking about his Vietnam war experiences when making this claim for entitlement. He acknowledged suicidal ideation from time to time but no suicide attempts. Dr Carne noted, paradoxically, that the Applicant said "otherwise he felt fine and enjoyed doing a bit of work around town, although he seems to spend most of his time drinking at the RSL Club".
Dr Carne noted that psychiatric symptoms appeared to stem from an experience on a troupe carrier during the Vietnam war when the Applicant was "in the bowels of the ship in a period when there were many explosions and an enormous amount of noise" and he became so frightened he fled to the deck of the ship and his mates gave him some alcohol to help his anxiety. This was the start of his drinking and alcohol problem. Dr Carne considered that the Applicant needed psychiatric assessment and detoxification. He opined that from the Applicant's history, he has never developed "a full hand of post traumatic stress disorder symptoms". He considered it likely that anxiety symptoms have been attenuated by his alcohol consumption.
Clinical Notes from Dr Vickery
Dr Vickery, psychiatrist, is the Director of Lingard Hospital where the Applicant was hospitalised for a period in February/May 2000. Dr Vickery diagnosed substance abuse, with adjustment disorder and insomnia as other diagnoses. The Tribunal interprets these to be secondary diagnoses and that the primary diagnosis is substance abuse. Symptoms of depression, sleeping difficulty, nightmares, flashbacks and anger were recorded. It was noted that the Applicant had no depression or anxiety.
Dr Vickery considered the Applicant had made an excellent response to treatment when discharged on 13 May 2000. The history recorded during hospitalisation included reference to the Applicant having a "tumultuous relationship with his father and now has no contact". He felt angry for years about his father's behaviour towards his mother and siblings and his reaction to the Applicant's return from Vietnam. The Tribunal notes that the Applicant's evidence at the hearing was that he had good relationships with his parents; no reference was made to relationship problems of long standing.
Dr Vickery opined that the Applicant had been treated for a number of "PTSD related symptoms" over the past decade including poor appetite, agitation, alcohol abuse, disturbed sleep, irritability, depressed mood, anxiety, lack of concentration, poor short term memory, stammering, social withdrawal and tremulousness. At the time of seeing Dr Vickery the Applicant's marital relationship was "fragile". The Tribunal notes that it broke down completely a few months later.
There was little helpful reference to symptoms relating to the Applicant's war service. On one occasion the Applicant became "very emotional during session when issues surrounding trauma raised". However, there was no reference to assist in identifying the trauma to which reference was made. There was reference to him speaking about his fear of the sea but he did not elaborate on that. On another occasion he referred to his fear relating to an "incident in Vietnam" but the incident was not disclosed. There was also reference to a distressing dream about a passageway that was filling with water and he was trying to run away. In another dream he was being locked into a cabin with no way of escape. It was noted that these dreams were occurring for many years but were "getting a little wierder" (sic).
Dr Vickery noted that the Applicant was admitted to the PTSD programme for his "dreams", irritability, alcohol abuse and anxiety symptoms. It was noted that he had suffered from symptoms of chronic pain syndrome for the past 15 years. He had difficulty sleeping. Dr Vickery also recorded that the Applicant has mining interests. The Applicant considered his claims to be particularly valuable and he was able to do "survey work on the ridge as well as mining his claim with two other partners".
The Tribunal also notes that in the clinical notes from Lightning Ridge Health Service (exhibit 5) the Applicant's occupation was noted to be opal miner, and on 18/4/2000 he attended the Lightning Ridge Health Service because of a lacerated finger. In the records from Centrelink (exhibit 2) the Applicant's Carer's Pension was suspended at one point because inquiry at his home led to the revelation that he was working his mine. Subsequently he denied that and Carer's Pension was restored. The Applicant's oral evidence to the Tribunal was that he left his wife for many hours at a time during the day, and that he had a mobile telephone so that she could telephone him if necessary. The inference in his evidence was that he left her to go to the RSL Club. The Applicant's evidence was silent about the fact that he was the President of the RSL Club, but nor was he asked about it.
On 29 June 2000 the Applicant made a claim for Service Pension on grounds of permanent unemployability and his local doctor certified that he was unable to work for eight hours per week because of "prominent anxiety symptoms" which had "persisted for at least three years". The doctor noted that the Applicant "has no other problems that would preclude him working". No reference was made to his back problem. The Tribunal assumes that this application was lodged after the Applicant lost his Carer's Pension following his wife leaving.
Dr Nicholas, clinical psychologist
Dr Nicholas provided a report dated 5 August 1999 (exhibit B) in which he noted that the Applicant was currently separated from his wife and children but he hoped he would achieve reconciliation shortly. The Tribunal notes that was twelve months prior to the separation that the Applicant advised the Tribunal about in his evidence (that being mid 2000).
Dr Nicholas considered that the Applicant had symptoms of PTSD associated with his experiences in the Navy in Vietnam. However, no further detail was provided with regard to the basis of the diagnosis.
Dr Darcy, Psychiatrist
Dr Darcy provided a report dated 12 July 2000 (exhibit D). He noted the Applicant's history that he was put on to light duties and sent to the engine room on fire watch. Dr Darcy wrote –
He told me "everything is locked up down there, they have an air lock. While I was down there they were dropping stun grenades over the side. I didn't know what they were and they frightened the shit out of me. I didn't know if it was us firing something or something being fired at us. A threat had been made that the Vietnamese were going to sink the Sydney. I had a couple of hours down there and when I was relieved I got out as quickly as I could. I went up to 4 deck and stood at the rail looking out. I lost the plot. I pissed myself. There was an old senior on board and he came and got me and I went off with him and had my first drink of rum. After that I don't remember much about the trip home. I remember Customs coming onto the ship. The rest is just gone." He hesitated a few times and then told me "There was only a days turn around there. I went back on to Australia and on leave. I got off the train and Mum and Dad came and picked me up. I got into a fair bit of trouble at home on leave, then went to HMAS Service. Alcohol ruled my life after that." …
…
In my opinion the dreams, withdrawal from people, his poor social competence despite reasonable intelligence are indicative of post traumatic stress disorder which arose out of his service and was caused by it. He told me his father, who was against the Vietnam War, had told him when he came back "You're only another drunken sailor." He has been an alcoholic since early in his service and I think this was probably caused by joining up so young, being exposed to high availability and use of alcohol at a formative stage and the experiences he had during his service and shortly after it.

Dr Giblin, Orthopaedic Surgeon

Dr Giblin provided a report dated 29 June 2000 (exhibit A). The history described was consistent with that given by the Applicant to the Tribunal about his back injury. Dr Giblin noted that the Applicant had pins and needles in his feet while in the Navy that occurred after he injured his back. He noted that these symptoms persisted and were aggravated by standing and walking. Dr Giblin noted from his perusal of the Toowoomba Hospital notes that these symptoms persisted in 1988. He noted there was no obvious evidence of muscle weakness or wasting.
Dr Giblin said it was his "proposition" that the Applicant's injury in 1969 was the initiating and causative factor for the progressive and premature degenerative changes in his back. He considered factors 5 (d) and (f) of the Statement of Principles for Lumbar Spondylosis had been met.
The Applicant admitted to Dr Giblin that he had several claims at Lightning Ridge. However, on examination of his hands Dr Giblin noted there was no sign of "usage". Dr Giblin made his assessment without seeing any x-rays.
Clinical Notes from Toowoomba Hospital (Exhibit 1)
The Tribunal notes the following entries in the clinical notes:

4 March 1988 bad back for long time.
11 March 1988 played regular football until 2-3 years ago. Used to run a lot. … Never had injury to back.
5 April 1988 low back pain 4/12. Occas. back of legs. No injury.
8 April 1988 x-rays – Scheuermann's Disease. … P [pain] began 20 years ago – no incident. Usually in winter time. Worse six months ago – no incident.
14 March 1988 x-ray lumbar spine. The vertebral alignment is normal with a normal lumbar lordosis. The vertebral bodies and disc spaces are preserved with the exception of the L5/S1 which is quite narrowed and shows some degenerative disease. No pedicle or pars defects are demonstrated. No boney injury is seen.
18 July 1988 chronic LBP [lower back pain] for about 10 years.

submissions

It was submitted for the Applicant that he was a relatively happy adolescent who survived training school when he was first in the Navy, who apparently had no psychological problems then, but who returned from his service in Vietnam as "a pretty dysfunctional young man". Within months there is evidence of him having drinking problems and by 1971 he went AWOL.
It was submitted for the Applicant that the medical evidence is that the Applicant has been diagnosed as having PTSD, and that the Tribunal could presume that diagnosis had been made in accordance with DSM-IV. It was submitted that the relevant factors in the definition for PTSD in the Statement of Principles did not have to be met in dealing with the diagnosis. It was submitted that that definition needed to be considered only in respect of causation.
It was submitted that the Applicant made no attempt to embellish his evidence and that he gave it in an open and honest manner. It was also submitted that the Applicant is now heavily medicated and has been "drunk for some decades", and this should be taken into account in considering the way he is now functioning.
It was submitted that the Applicant's various attendances while on service because of the problem of tenderness and numbness in his feet, was related to his back injury. This is evidence in support of the conclusion Dr Giblin has reached in his report. It was submitted that Dr Giblin considered the Applicant meets factor 5(f) of the Statement of Principles for Lumbar Spondylosis, namely, "suffering a trauma to the spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis", and that a reasonable hypothesis has been raised in respect of the Applicant's back condition.
In relation to the test in s120(1) of the Act it was submitted that the evidence in the clinical notes, where the Applicant was asked whether he had sustained a back injury, should be interpreted as a "recent injury" that would have caused an aggravation of his underlying condition. For the Tribunal to be satisfied beyond reasonable doubt, pursuant to the test in s120(1), that his condition is not war-caused, it would have to be convinced that the Applicant's oral evidence and the history he gave Dr Giblin is not acceptable in the context of this other evidence. It was submitted that the Tribunal would have to find beyond reasonable doubt that the Applicant did have a back injury at another time or that he did not have a back injury in the Navy.
In relation to the Applicant's psychiatric conditions, it was submitted that the conditions relate to a specific incident on service. In the first instance the Tribunal should look at the stresses to which the Applicant was subjected, and if the Tribunal fails to find that he was subjected to a stressor of the nature necessary for PTSD, then one of the other diagnoses offered in this case should be considered in the alternative. An issue in respect of the stressor is whether the incident of the scare charges is sufficient to meet the test of a stressor in any or all of the Statements of Principles. It was submitted that if the Tribunal finds that the scare charges were not a stressor for the purpose of the definition then the Tribunal must consider what is the appropriate label for the condition.
It was submitted that trauma is personal and that there is considerable variation from one person to another in how one experiences traumatic events. It was submitted that the Tribunal should take into account that the Applicant was 17 years old at the time and had spent his life living in the country. In any event, when the Applicant heard the scare charges when he was in the engine room he experienced that as a threatening event that caused him to respond. The Tribunal was referred to the decision of the Federal Court of Marshall J in Repatriation Commission v Binding [1999] FCA 974 that held that it was not the stressor itself but the response to the stressor. It was submitted that that decision is authority for the fact that scare charges meet factor (a) of the definition of "post traumatic stress disorder" in the Statement of Principles for Post Traumatic Stress Disorder.
It was submitted for the Applicant that he is currently in receipt of Service Pension and at exhibit H it can be seen that this was as a consequence of post traumatic stress disorder and lumbar spondylosis. Dr Darcy assessed in respect of post traumatic stress disorder and severe alcohol dependence, and Dr Baz assessed in respect of alcohol dependence and post traumatic stress disorder. It was also noted that the Medical Superintendent of the Toowoomba Hospital, in forwarding the clinical notes from that hospital to the Respondent for the purpose of these proceedings (exhibit 1, p34), noted that the Applicant's depressive illness was a component of the cause of his backache and inability to cope with pain.

It was submitted that the Applicant's business failed, not because of his back but because of his alcohol problems. While his back condition does preclude him from undertaking heavy physical work, it is not his main problem.
It was submitted for the Applicant that when he was aged just 18 years and 5 months, he was exhibiting a serious alcohol problem (exhibit 3, p13). At the age of 19 years he was imprisoned because he had been AWOL for five or six months (exhibit 3, p25).
It was noted for the Applicant that whereas his own doctor diagnosed PTSD as the primary condition and then alcohol abuse, Dr Vickery (exhibit 10) diagnosed substance abuse first and then adjustment disorder as a secondary condition followed by insomnia. It was open for the Tribunal to accept Dr Vickery. It was submitted that the Applicant probably met the clinical factors for adjustment disorder. However, it was the primary submission for the Applicant that he suffered PTSD as a primary diagnosis, and alcohol abuse. It was also submitted, however, that he met alcohol abuse as a primary condition with PTSD as a secondary condition consequential on alcoholism. Counsel for the Applicant relied on the Service Pension medical assessment in respect of that submission.
Respondent
It was submitted for the Respondent that the only psychiatric condition present is alcohol abuse.
It is common ground that the relevant Statement of Principles for the Applicant's back condition is Instrument No 165 of 1996 for Lumbar Spondylosis. The Applicant relies on factor (g), "suffering a trauma to the lumbar spine before clinical onset of lumbar spondylosis". It was submitted that the Applicant does not meet the definition. That submission was based on the Applicant's lack of credibility. It was submitted that there was no reasonable hypothesis of trauma on the basis that the Applicant has consistently denied it. Moreover, it was submitted that the evidence does not point to a history of trauma. However, if the Tribunal finds that the Applicant did suffer trauma, then it was trivial and it does not fit the Statement of Principles definition. It was not clear whether the Respondent was referring to the test under section 120(3) or (1) in making these submissions.
It was submitted for the Respondent that in multiple medical examinations the Applicant denied any history of previous trauma. In considering the reasonableness of the hypothesis, the Tribunal must consider the whole of the evidence and not just selective parts of it. It was submitted that there was not a scintilla of evidence of back injury in the service medical documents. The reference to pins and needles in the Applicant's feet are explicable entirely on the basis of other conditions. Even where there was a reference later to "heavy lifting while on ship at sea" there was no suggestion of an injury per se. It was a reference to activity rather than trauma. The Applicant's statement that symptoms in his back commenced in 1987 is consistent with the references from various hospitals and clinical notes and the notes from Centrelink. The Respondent submitted that Dr Stratten, orthopaedic surgeon, who examined the Applicant after he lodged his claim took a relevant history, despite the Applicant's disclaimer. It was submitted that this raises serious issues of credibility of the Applicant. It was submitted that after the Applicant first raised the allegation of injury to his back while service on HMAS Sydney, a variety of allegations at different points in time are then made about precisely what symptoms he experienced. It was submitted that Dr Giblin did not have the benefit of the service medical records and other relevant documents.
It was submitted that the definition of trauma in the Statement of Principles is not satisfied. Relying on the decision of Fynn J in the Federal Court in Harris v Repatriation Commission (2000) 31 AAR 270, all elements in the definition must be met in order to comply with the Statement of Principles. It was submitted that the evidence in this matter does not permit a finding that there was an injury, and if there was such an injury it was trivial or at least not a significant injury within the meaning of the definition in the Statement of Principles.
It was submitted that the activities of the Applicant after he allegedly commenced the fire watch were not consistent with someone who had just sustained a serious back injury. On his evidence he sat on a fire bucket for approximately four hours. Then he ran up the gangway to the deck. It was submitted that this is not consistent with the action of a man who is seriously disabled by a back condition.
It was submitted for the Respondent that the fact that the Applicant said in the first instance that HMAS Sydney did not have a doctor in the ship's complement, and then at a later point in his evidence he did not know whether there was a doctor on the ship or not, reinforces the position that the evidence does not permit a finding that the template of trauma in the Statement of Principles has been met.
In respect of the claim for the psychiatric conditions the first issue is one of diagnosis which, it was submitted, must be determined on the balance of probabilities. It was submitted for the Respondent that the appropriate diagnosis for the claimed conditions is alcohol abuse and that it should be determined in accordance with Instrument No.5 of 1994 for Psychoactive Substance Abuse or Dependence. It was submitted that the Tribunal should rely on the specialist medical evidence for diagnosis rather on the evidence of general practitioners who appeared to use provisional presumptive diagnoses.
It was submitted that Dr Taylor took a relevant history and opined that the Applicant did not satisfy the diagnostic criteria for post traumatic stress disorder. Dr Taylor considered that the Applicant had some symptoms of PTSD that he thought were more likely attributable to his dangerous alcohol intake. On the evidence of Dr Carne, psychiatrist, the Applicant has never developed "a full hand of post traumatic stress disorder symptoms". He considered that the Applicant's anxiety symptoms had been caused by his alcohol consumption.
It was submitted there was nothing in the evidence of Dr Carne, Dr Taylor, Dr Darcy or Dr Vickery to support that there was a clinical onset of adjustment disorder within three months of any event occurring in Vung Tau Harbour. The evidence of Dr Taylor and Dr Carne does not support a diagnosis of adjustment disorder as not all elements of the definition could be met.
It was submitted for the Respondent that the stressor needs to be of the magnitude of the examples of stressors given in the definition in the Statement of Principles.
In respect of whether or not the Applicant meets the Statement of Principles for PTSD, it was submitted that although Dr Darcy refers to the Applicant having dreams there is no reference to the content of those. In order to satisfy the elements of paragraph (b), the dreams must relate to the traumatic event. It was submitted that that in itself was fatal to the diagnosis of PTSD as it is an essential element of the diagnosis. Similarly it was submitted that paragraph (c) is not met. It was submitted that as the Applicant joined the Army Reserve after he left the Navy, that is not consistent with avoidance of a stimuli dealing with the traumatic event. It was submitted that his AWOL activity was not an avoidance of combat but an avoidance of the sea.
It was submitted that the Applicant's account of events in Vung Tau Harbour is simply not credible. On the objective historical evidence the events about which the Applicant spoke did not happen. There is no historical evidence of bomb explosions or gunfire in the immediate vicinity of Vung Tau Harbour. The explosions that were reported were 61 kilometres away in one instance and 33 kilometres away in another. The Sydney was in Vung Tau Harbour for only six hours, on the evidence of the historian. The Applicant's evidence was quite vague on this point. The Applicant could not remember any training associated with Operation Awkward, whereas such exercises were carried out on three occasions, viz 11, 12 and 14 November, before they left Sydney. It was submitted that the Tribunal should prefer the objective historical evidence to the evidence of the Applicant in respect of Operation Awkward and the scare charges. However, it was not the Respondent's submission that this disproved the hypothesis beyond reasonable doubt. Rather, it was part of the evidentiary picture in determining whether a reasonable hypothesis existed or was pointed to by all of the evidence. The Respondent relied on the decision of the Full bench of the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 for this submission.
In the alternative, it was submitted that if the Tribunal finds that there is a reasonable hypothesis, then in respect of the Applicant's difficulty with credibility the Tribunal can be satisfied beyond reasonable doubt that sufficient of the facts necessary to found the hypothesis do not exist.
consideration of evidence and findings of fact
There was some discussion initiated by the Tribunal at the hearing as to whether there was sufficient medical evidence before the Tribunal for it to make the correct or preferable decision. Having considered the medical evidence, the Tribunal is in a position to be able to make its decision without further evidence.
The Tribunal finds that the Applicant was not a creditable witness and that his evidence was inconsistent and contrived for the purpose of these proceedings. That is not to say that he does not have a serious drinking problem and chronic back pain.
Having made that finding on credibility, the Tribunal notes the decision of the Full Federal Court in Repatriation Commission v Deledio (1999) 83 FCR 82 where it is stated quite clearly that findings of facts and issues of credibility are to be considered under section 120(1) of the Act (step 4 of the Deledio test). Whether the Tribunal believes the Applicant's evidence or not is not at issue in identifying whether the raised facts meet the requirements of the Statement of Principles. In light of the clarity that the Full Federal Court in Deledio has provided in this regard it is surprising that the Respondent maintains the position that in effect permits issues of credibility to be determined at both section 120(3) and (1) stages.
Lumbar Spondylosis
The parties agree the relevant Statement of Principles is Instrument No.165 of 1996 for Lumbar Spondylosis. Dr Giblin provided an opinion to the effect that the Applicant meets factors 5(d) and (f) of the Statement of Principles which provide -
(d)having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis;
(f)suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis;

The Statement of Principles defines "trauma to the lumbar spine" to mean –

… an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. …

The Statement of Principles defines "trauma to the lumbar spine which has resulted in permanent ligamentous instability" to mean –

… abnormal mobility and instability of the lumbar spine due to ligamentous injury caused by the force of an extraneous physical or mechanical agent, and is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine.

On the evidence of Dr Giblin, who relied on a history from the Applicant consistent with that given to the Tribunal by the Applicant, the Tribunal finds that a reasonable hypothesis has been raised.
Turning now to section 120(1) of the Act, the Tribunal must determine that the Applicant's lumbar spondylosis was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal is concerned about many aspects of the Applicant's evidence in relation to his back condition. There is no record in any part of the service documents that support his evidence that he sustained a back injury or that he suffered from back pain. The Tribunal does not accept the consultations in respect of the Applicant's feet condition as indicative of sequelae of back injury. The Tribunal has no doubt that the consultations regarding the Applicant's feet were solely related to a condition regarding his feet and they had no relationship to any symptoms referred from his back. Dr Giblin has noted the way the Applicant has juxtaposed his alleged back injury and the pins and needles in his feet, but Dr Giblin has not explicated the relationship of these two findings. Moreover, it is apparent from Dr Giblin's report that he did not have access to the service documents when writing his report. Neither did he have access to x-rays when he was writing his report.
The Tribunal notes the slight variation in the Applicant's description of the circumstances of his back injury including in his oral evidence the fact that he fell, landing in a sitting position, and that after the initial sharp pain in his back his main concern was pain in his "tail bone". If the Applicant's evidence about his subsequent reaction to the scare charges is correct, and the Tribunal doubts it is, then if he sustained any significant injury to his back he would not have been able to "tear up" two gangways to the deck as he described some four hours after the incident. The Tribunal also finds that whereas the Applicant pointed to an area in his spine some six inches above his belt line where he felt the sharp pain, the X-ray evidence of degenerative change is at L5/S1 in the lower back, and he is now complaining of lower back pain.
The Tribunal does not accept the Applicant's evidence that there was no doctor on the Sydney, and indeed when he was challenged about this fact he became uncertain whether or not there was a doctor. That evidence itself causes the Tribunal to doubt whether he attended the Sick Bay at all. Even if he did experience pain in his back from the daisy chain activity and even if he did attend the Sick Bay, his evidence was that the Sick Bay Attendant said there was nothing much wrong with him. That being the case, the Tribunal is satisfied beyond reasonable doubt that such an injury, if indeed it happened, would not have been anywhere near sufficient to cause permanent ligamentous instability as defined in the Statement of Principles.
Moreover, turning to the definition of trauma to the lumbar spine, the Tribunal does not accept the Applicant's evidence that he had any continued symptoms in his back lasting at least one week, nor did he develop within 24 hours of the injury "acute symptoms of pain, tenderness, and altered mobility or range of movement of that part of the spine". Within four hours his mobility was such that he could "tear up" two gangways.
The most telling evidence against the Applicant is the number of separate instances in which he is recorded as having given a history to treating doctors in relation to his back, saying that he sustained no injury. His denial in his oral evidence that on so many occasions these different doctors "got it wrong" is beyond belief. The Tribunal is of the view that the Applicant's story about the daisy chain injury was concocted for the purpose of this claim. There is no history anywhere else in the huge volume of documents to support it.
The Tribunal is satisfied beyond reasonable doubt that the incident as described did not occur and that indeed there was no trauma to the Applicant's back during his operational service. Therefore the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that his lumbar spondylosis was war-caused.
Alcohol Dependence
There is agreement between the parties that the Applicant suffers from psychoactive substance dependence, and the Tribunal so finds.
Dr Darcy does not deal specifically with the Statement of Principles and the symptoms he identified as being indicative of post traumatic stress disorder are not consistent with the full range of symptoms identified in the Statement of Principles for Post Traumatic Stress Disorder Instrument No 15 of 1994. Dr Vickery, who treated the Applicant most recently for a number of months at Lingard Hospital, does not diagnose PTSD at all. Dr Taylor considered the Applicant did not satisfy the DSM-IV criteria for post traumatic stress disorder. Dr Nicholas diagnosed post traumatic stress disorder but it is impossible to identify from his short report how he came to that diagnosis and whether in fact it fits the definition in the Statement of Principles. Dr Carne considered that the Applicant has never had "a full hand" of post traumatic stress disorder symptoms.
On the evidence the Tribunal is not reasonably satisfied that the Applicant suffers from post traumatic stress disorder.
Dr Vickery considered the Applicant suffered from an adjustment disorder but that his primary condition was substance abuse. Factor 2A of the Statement of Principles for Adjustment Disorder, Instrument No 57 of 1996, provides –
A.The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).

The Tribunal finds that although the Applicant now demonstrates significant emotional and behavioural symptoms, the only abnormality occurring within three months of the alleged stressor was the Applicant's alcohol abuse. Factor 5(a) of Instrument No 57 of 1996 provides –

experiencing an identifiable psychosocial stressor or stressors within the three months immediately before the clinical onset of adjustment disorder;

The Statement of Principles defines "psychosocial stressor(s)" as –

… an injury, disease or occurrence that evokes in an individual feelings of substantial anxiety or stress (for example being shot at, being involved in a motor vehicle accident, experiencing a failure or loss such as divorce; or receiving a diagnosis of a disabling medical condition such as a malignancy or chronic cardiorespiratory disorder);

There is no evidence, either from the Applicant or from the medical documents, to the effect that the Applicant suffered from an adjustment disorder within three months of the alleged stressor. There is no evidence that the commencement of the Applicant's drinking habit was a behavioural symptom of an adjustment disorder. The only evidence in respect of adjustment disorder is from Dr Vickery that it is secondary to substance abuse. The Tribunal finds that the raised facts do not meet the Statement of Principles and therefore there is no reasonable hypothesis in respect of adjustment disorder.
The thrust of the evidence is that the Applicant's primary condition is psychoactive substance abuse and that his psychological problems are sequelae of his alcohol abuse. Turning to the Statement of Principles for Psychoactive Substance Abuse or Dependence Instrument No 5 of 1994, the Tribunal finds that the Applicant meets the definition in the Statement of Principles for that condition, and that is not at issue. Factor 1(a) of that Statement of Principles provides –
… experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service;

The Statement of Principles defines "stressful event" to mean –

an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.

The Tribunal does not accept the Respondent's submission that the example of combat given in that definition is indicative of the level of severity of the external stimuli. The Statement of Principles is a legislative instrument and it is not appropriate for the Tribunal, or indeed the Respondent, to put its own gloss on the definition. If the Respondent's submission was correct then the Repatriation Medical Authority should have made that clear in the words of the definition and not leave it to be inserted by interpretation. It is the Tribunal's view that on some occasions, for some people, the circumstances in which scare charges are dropped may constitute a "stressful event" for the purpose of meeting the Statement of Principles.
However, the Tribunal notes the evidence of Mr Tilbrook (exhibit 9) that there were considerable exercises undertaken by the Sydney relating to Operation Awkward at the commencement of the journey to Vietnam. Noting that, and taking into account the Applicant's poor credibility, the Tribunal is satisfied beyond reasonable doubt that the Applicant was quite familiar with the Operation Awkward procedures prior to the incident he described in Vung Tau Harbour. The Tribunal is satisfied beyond reasonable doubt that the Applicant would have been aware that scare charges would be dropped during the six hours they were in harbour although he would not have been aware of precisely when they would have been dropped. The difficulty the Tribunal has, relying solely on the Applicant's evidence, is whether in fact he was doing fire watch in the engine room at all. As the Applicant is not found to be credible, no reliance can be placed on his description of the scare charge incident and his reaction to it.
The insurmountable difficulty for the Applicant is, arising from his poor credibility, there is no other psychiatric evidence prior to the lodging of his claim that indicates an independent identification of the stressful events that have affected him. The Tribunal has sifted through Dr Vickery's clinical notes carefully and there is insufficient indication therein to undermine the conclusion that the Tribunal is satisfied beyond reasonable doubt that the Applicant's very limited operational service did not contribute even to a small degree to his chronic alcohol problem.
Considering this evidence in the context of the Act, the Tribunal finds in respect of psychoactive substance abuse that a reasonable hypothesis has been raised that the condition was related to his war service, but that this has been dispelled beyond reasonable doubt. The Tribunal notes the Applicant was suffering from alcohol abuse within a few months of completing his service on the Sydney. However, the Tribunal does not accept the Applicant commenced drinking during operational service. Given the Applicant's poor credibility and his overall drinking pattern, the Tribunal does not believe that the incident while he was at HMAS Leewin when he was beaten up after coming back from Flying Angel Club was an event where he was not drinking alcohol, despite his denial that alcohol was involved. Certainly he was not 18 years of age at that stage, but neither was he 18 years of age at the time after his operational service when he was known to have been drinking heavily. Under age drinking did not appear to bother him.
The Tribunal is satisfied beyond reasonable doubt that the Applicant's psychoactive substance abuse is not war-caused.
That part of the decision under review that relates to lower lumbar disc spondylosis and alcohol dependence is therefore affirmed.
I certify that the 103 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing   31 January 2001
Date of Decision   29 June 2001
Counsel for the Applicant         Mr N Dawson
Solicitor for the Applicant          R L Whyburn & Associates
Advocate for the Respondent     Mr J Marsh, Dept. of Veterans' Affairs