Brzeski and Repatriation Commission
[2003] AATA 847
•29 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 847
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/116
VETERANS' APPEALS DIVISION ) Re RICHARD VINCENT BRZESKI Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date29 August 2003
PlaceHobart
Decision The Tribunal sets aside the decision of the Veterans’ Review Board dated 4 July 2002 and in substitution thereof finds that:
(i) tobacco use disorder and alcohol dependence were war-caused, as defined in s9 of the Veterans’ Entitlements Act 1986.
(ii) the Commonwealth of Australia is liable pursuant to s13 of the Act to pay pension for any incapacity arising from that condition from and including 19 December 1998; and
(iii) the matter is to be remitted to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Entitlements - operational service - Vietnam - disability pension - reasonable hypothesis - Statement of Principle (SoP) - onset of condition - Veterans' Review Board - tobacco use disorder - alcohol dependence or abuse.
Legislation
Veterans' Entitlements Act 1986 and Amendments, ss120(1) and (3), 120A, 175
Authorities
Repatriation Commission v Deledio [1998] 83 FCR 82
Bushell v Repatriation Commission [1992] 109 ALR 30; 175 CLR 408
Byrnes v Repatriation Commission [1993] 116 ALR 210
Repatriation Commission v Hill [2002] FCA 192
Repatriation Commission v Gorton [2001] 110 FCR 321
Bramwell v Repatriation Commission [1998] FCA 1351
Stoddart v Repatriation Commission [2003] FCA 334
Re Fisher and Repatriation Commission (2003) AATA 828Parrotte and Repatriation Commission (2003) AATA 735
REASONS FOR DECISION
29 August 2003 Associate Professor B W Davis AM (Part-time Member) The Application
1. This is an appeal against a decision of the Repatriation Commission dated the 8 September 2002, subsequently varied by a decision of the Veterans’ Review Board (VRB) dated 4 July 2002, whereby the applicant’s claims to have tobacco use disorder accepted as being war-caused was accepted and his claim to have alcohol dependence accepted was refused.
Date of Effect
2. As all steps in this matter were taken within the prescribed time limits, should this appeal succeed the earliest date of effect would be 19 December 1998, being three months prior to lodgment of the claim.
Issue
3. The issue for determination by the Tribunal is whether the applicant’s claimed condition of alcohol dependence was caused or contributed to by his service in the Royal Australian Navy between 17 November 1969 and 5 December 1969.
4. As the applicant rendered operational service, the standard of proof is that contained in s120(1) and (3) of the Veterans’ Entitlements Act 1986 (“the Act”).
5. As the applicant’s claim was lodged after 1 June 1994, s120A of the Act applies. The relevant Statement of Principle in respect of alcohol dependence or alcohol abuse is No 76 of 1998.
Background
6. The applicant, Richard Vincent Brzeski served in the Royal Australian Navy from 7 July 1968 until 23 October 1972. His eligible war service (which is also operational service) was from 17 November 1969 to 5 December 1969 as a stoker on board HMAS Sydney in South Vietnamese waters.
7. Mr Brzeski states he was only 17 years of age when the Sydney departed for Vung Tau Harbour and throughout the voyage he was exposed to “war stories” and rumours of being shadowed by a Russian submarine and of possible mine attack when at port in Vietnam. The more experienced sailors considered it amusing to frighten younger crew members this way.
8. While he was in the engine room of HMAS Sydney, when it was stationed in the outer roads of Vung Tau Harbour, he heard a muffled explosion and assumed the ship was under attack and would sink and he would drown. In reality scare charges had been dropped nearby, but he claims not to have been advised of this practice.
9. Mr Brseski says he was so nervous he wet his pants and felt thoroughly humiliated. He was then assigned to watch in the very constricted gland spaces which run each side of the ships propeller shafts. These areas were narrow, partly awash, there were rats and the smell of the bilge areas was nauseating. There he suffered claustrophobic feelings. During the return journey to Australia he hid on the ship on several occasions until the troops were unloaded in Fremantle.
10. He states that it was during his shore leave period he commenced heavy drinking and decided to go AWOL (absent without leave), to avoid another trip to Vietnam. During the ensuing AWOL period of two years and nine months he engaged in binge drinking and felt extreme anxiety and shame. He eventually decided to surrender to the Naval authorities when the Vietnam conflict was nearly over. He chose a discharge from the Navy rather than undergo a three month period in Holdsworthy Military Prison.
11. He is currently in a second marriage relationship and had a succession of jobs until July 1997, when he was retrenched. His heavy smoking and drinking pattern has continued without interruption, apart from a brief period in hospital for alcohol detoxification. He is very depressed and has lost interest in life. He still dreams of the Vietnam trip, recalling with horror images of being trapped in a confined space with the ship sinking. He is aware his fears are excessive, but is unable to do anything about them.
12. Mr Brzeski considers his heavy drinking and smoking are a result of operational service. When the Repatriation Commission on 8 September 1999 rejected his maladies as not-war-caused he decided to appeal to the Veterans’ Review Board, his application being dated 17 September 1999.
The VRB Hearing
13. At the VRB hearing conducted in Launceston on 4 July 2002, the veteran, his wife, Mr R Fitz of the RSL as representative and Mr J Westerhof as observer were present.
Following the hearing, Dr E V R Ratcliff appeared before the VRB in the presence of the advocate and gave evidence. There was no appearance on behalf of the Repatriation Commission.
14. The Tribunal noted details of Mr Brzeski’s service history and account of events, as well as perusing all relevant medical records. When asked which of his stressful experiences had been the worst, the veteran stated it was when the first scare charge was detonated, causing him panic and stress. He added that the time spent in the claustrophobic gland space areas only increased his fears.
15. While admitting to small quantities of alcoholic intake early in his naval career, serious alcohol consumption commenced while on Christmas leave in December 1969, continuing and increasing while absent without leave. Mr Brzeski’s advocate claimed this tallied with Factor 5(b) of the Statement of Principle for Alcohol Dependence, the veteran having undergone a severe stressor within two years immediately before the clinical onset of alcohol abuse.
16. With regard to cigarette smoking, he indicated he smoked only 4 or 5 cigarettes on joining the Navy and this rate was maintained until bound for Vietnam, when it increased to about a packet a day. The veteran told the VRB this smoking habit further increased in intensity to about 50 cigarettes per day during the period he was AWOL. He had now managed to reduce the habit to 35 to 40 cigarettes per day, but his wife continued to hate him smoking.
17. The VRB decided to consider the issue of tobacco use disorder first, noting reports by Doctors Ballantyne and Ratcliff. The Board agreed the diagnosis of tobacco use disorder applied, but in the absence of an appropriate Statements of Principles covering this condition, relied upon ss120(1) and 120(3) of the Act and Byrnes v Repatriation Commission (1993) 116 ALR 210 to see whether all or some of the facts raised by the material gave rise to a reasonable hypothesis connecting the claimed condition or death with war service. The VRB decided an hypothesis did exist and having considered all evidence before it, determined it was not satisfied beyond reasonable doubt, for the purposes of sub-section 120(1) that there was no sufficient ground for determining that the veteran’s tobacco use disorder was war-caused. In other words the VRB determined that tobacco use disorder was war-caused as defined in s9 of the Veterans’ Entitlements Act 1986 (“the Act”).
18. The VRB then considered the situation with respect to alcohol dependence or alcohol abuse. For Mr Brzeski’s claim to succeed the VRB would have to find that one or more factors in the relevant SoP (Statement of Principles) had been met and that the claimed condition was causally linked to the specific circumstances of the veteran’s eligible service under the Act, thus raising a reasonable hypothesis, which in turn, must then be supported by the facts of the case.
19. The VRB accepted Mr Brzeski’s claim that he was suffering from alcohol dependence, but was less convinced about his advocate’s claim that his client met conditions specified in Factor 5(b) of the SoP concerning alcohol dependence and alcohol abuse, No 76 of 1998, namely “having experienced a severe stressor within two years of the clinical onset of alcohol dependence”.
20. The VRB noted that the phrase “… experiencing a severe stressor” was defined as meaning: “…the person experienced, witnessed or was confronted by or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to a person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror”.
21. In the setting of service in the Defence Forces, or other service where the Act applies, events that qualify as severe stressors include:
(i)threats of serious injury or death; or
(ii)engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.
22. The VRB did not consider Mr Brzeski’s circumstances met these criteria, hence they did not believe the material raised a reasonable hypothesis within the meaning of subsection 120(3) of the Act. In other words, the VRB determined Mr Brzeski’s alcohol dependence was not war-caused and they therefore affirmed that part of the decision under review.
Facts and Contentions
23. Prior to the AAT hearing the respondent submitted a statement of issues, but not a detailed statement of contentions. The applicant submitted an amended statement of facts and contentions, relying upon paragraph 5(b) of the Statement of Principle for Alcohol Abuse, but adding the following claim:
“… (a)the applicant experienced a `severe stressor’ within the meaning of paragraph 5(b) of the Statement of Principles;
(b)the severe stressor occurred whilst the applicant experienced scare charges whilst on operational service on board the HMAS Sydney, and perceived that the ship was under attack.”
24. Counsel also claimed the applicant suffered from a psychiatric disorder, “anxiety disorder with claustrophobia”, referred to in a report by Dr Ratcliff dated 22 January 2003.
The AAT Hearing
25. The AAT hearing was conducted in Hobart on 31 July 2003. Mr Brzeski was represented by Ms Olivia McTaggart of Ogilvie Jennings and the respondent (Repatriation Commission) by Mr Michael Castle.
26. Ms Taggart outlined Mr Brzeski’s case, detailing incidents aboard HMAS Sydney in Vung Tau Harbour and subsequent events leading to alcohol dependence of the applicant. She admitted Mr Brzeski’ had not suffered any objective threat in Vietnamese waters, but nonetheless had undergone a substantial stressor due to fear, claustrophobia and humiliation.
27. Mr Brzeski was sworn and submitted a statement of his case, similar to evidence already provided at the VRB hearing. Under questioning he stated he was never informed by the Naval authorities about scare charges and could not recall receiving instruction about action stations, damage control and the like, but admitted he now suffered memory problems. Crew member stories during the voyage had created fear, hence his reaction to the muffled explosion was probably excessive. He had turned to alcohol and tobacco dependence at a time when his life was in turmoil and had followed this pattern since.
28. Mr E V Ratcliff was then called and affirmed, giving evidence by phone and referring to a series of diagnostic reports on Mr Brzeski dated 9 July 1999, 1 July 2002 and 22 January 2003. When questioned as to whether events of the kind described by Mr Brzeski could have induced fear and horror he answered “yes”, in his opinion they could be triggering events which induced anxiety, perhaps some specific claustrophobia and other problems, such as panic. They could also lead to some kinds of dependence, such as alcohol or tobacco.
29. As to the question of whether Mr Brzeski was suffering from some psychiatric disorder, it was arguable that at the time of clinical onset of alcohol dependence, he was undergoing panic attacks and some specific phobia arising from humiliation, fear and anxiety, and it was attempted self-treatment of this, which led to alcohol dependence. It was not possible to prove panic disorder so long after the event, but this condition is recognised by the psychiatric profession and may have been present in Brzeski’s case.
30. In closing submissions Ms McTaggart for the applicant argued that a reasonable hypothesis existed, Mr Brzeski’s alcohol dependency was war-caused, given his major reaction to assumed attack and the prospect of the vessel sinking.
31. Mr Castle for the respondent said most of the “incidents” claimed by Mr Brzeski were merely naval routine and he had never been in a situation of genuine danger. In Stoddart v Repatriation Commission (2003) FCA 334, the issue of “stressors” and possible linkage to alcohol dependence had been tested and the Tribunal might find this of some assistance. The real issue was whether Mr Brzeski had ever really suffered a genuine threat to life during the period spent on board HMAS Sydney in Vung Tau Harbour.
Analysis
32. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any relevant judicial determinations.
33. The relevant legislation is the Veterans’ Entitlements Act 1986, in particular ss9, 13(1), 120(1), 120(3) and 120A. Sections 9 and 13(1) define “war-caused injuries or diseases” and “eligibility for pension”, but the standard of proof for veterans with operational service is that of a reasonable hypothesis, applying ss120(1) and 120(3) of the Act. This in turn is affected by s120A. Here the decision-maker shall determine that the injury 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 the determination.
34. As Mr Brzeski has operational service application of the law must follow the procedure enunciated by the Full Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82, which held that:
“1. The 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.
2. If 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.
3. If 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.
4. The 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.”
35. With respect to determining when an 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.”
36. In the case of Mr Brzeski the relevant Statement of Principle concerning Alcohol Dependence or Alcohol Abuse is No 76 of 1998.
37. Turning more directly to evidence presented at the AAT hearing, it is agreed by the parties that Mr Brzeski is suffering from alcohol dependence and has been in this situation since at least early 1970. It is also uncontested that he attributes this disability to incidents during a voyage to South Vietnam on HMAS Sydney in late 1969. But in order for his claim to succeed it must be demonstrated that the alcohol dependence is causally related to operational service.
38. Following provisions of ss120(1) and (3) and s120A of the Act and noting procedures outlined in Repatriation Commission and Deledio (1998), the Tribunal must determine whether the material before it gives rise to a plausible hypothesis connecting injury, disease or death of the veteran to the particular circumstances of his/her operational service. No question of fact finding arises at this stage.
39. Having considered all evidence and documentation before it, including medical reports, the Tribunal considers that in Mr Brzeski’s case, a reasonable hypothesis could be claimed that events on HMAS Sydney in Vung Tau Harbour might have induced fear and other reactions which subsequently led to alcohol dependence.
40. The next matter to be determined is whether an appropriate Statement of Principles (SoP) exists, determined by the authority under s196B(2) or (ii) of the Act, dealing with alcohol dependence. In the current case the relevant SoP is Instrument No 76 of 1998, concerning alcohol dependence or alcohol abuse.
41. Given that an SoP is in force, the Tribunal must now consider whether the hypothesis raised is consistent with the “template”, in other words whether one or more factors exist, related to the veteran’s service, as required by subsection s 196B(2)(d) and (e). In Mr Brzeski’s case, counsel for the applicant has claimed that he underwent a “severe stressor” within the meaning of paragraph 5 of the SoP, i.e. “a severe stressor” within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
42. Having considered the evidence before it, the Tribunal does not find this quite so easy to determine. The Tribunal notes that paragraph 8 of the SoP defines “experiencing a severe stressor” as a situation where the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury … which events might evoke intense fear, helplessness or horror. Events that qualify as severe stressors include:
(i) threats of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty, atrocities or abusive violence.
But as counsel for the respondent accurately observed, Mr Brzeski was never in objective danger or under attack; he himself admitting his reactions were excessive.
43. As against this perspective, the evidence of Dr E Ratcliff, consultant psychiatrist, who examined Mr Brzeski on three separate occasions, concluded that the veteran could have reacted with fear and horror to triggering events such as scare charges or being on duty in confined spaces. In Dr Ratcliff’s opinion Mr Brzeski may have suffered from more than anxiety or fear, perhaps some specific claustrophobia or panic attacks, leading to use of alcohol and ultimately to alcohol dependence. It was not possible to prove this after the event, but the profession recognised such situations occurred and Mr Brzeski appears to fit such a template.
44. In further investigating this matter, the Tribunal has noted two recent cases, both involving visits to Vietnamese waters aboard HMAS Sydney, in circumstances somewhat similar to Mr Brzeski. In Parrotte and Repatriation Commission (2003) AATA 735, the Tribunal found that the applicant’s claimed PTSD, chronic obstructive airways disease, hypertension, peripheral vascular disease and alcohol dependence or alcohol abuse were not war-caused. However this case varied from that of Mr Brzeski in that the veteran concerned had considerable and diverse naval service and some of the claimed disabilities had probably been initiated by circumstances other than those in Vung Tau Harbour, principally arising from the “Voyager” disaster, which did not occur during operational service.
45. In passing, the Tribunal in the Parrotte case rejected the notion scare charges could constitute a threat to the individual, quoting a view in Stoddart v Repatriation Commission (2003) FCA 334, that to “experience a severe stressor” involved a genuine and explicit threat of danger or injury. In the Stoddart case the Tribunal tried to distinguish between objective and subjective elements of stressors, but as this decision is currently under appeal to the Full Federal Court, it does not provide much assistance here.
46. This matter was further considered in Fisher and Repatriation Commission (2003) AATA 828, where the Tribunal rejected an argument that the applicant had suffered post traumatic stress disorder (PTSD) because of scare charges and other events while HMAS Sydney was in Vung Tau Harbour in February 1970. This case turned on detailed and partially conflicting medical evidence, with the Tribunal ultimately decided that criteria enunciated in the SoP had not been met. In this matter the issue of alcohol dependence did not arise, but doubts about the impact of scare charges on individuals were aired.
47. Having considered the foregoing material and all available evidence in the case, the Tribunal is now required to determine under s120(1) of the Act whether it is satisfied beyond reasonable doubt that the incapacity of the veteran (alcohol dependence) was not war-caused, otherwise the claim will succeed. While the Tribunal has some doubts scare charges constitute a “severe stressor” in naval service, the medical evidence is persuasive that in Mr Brzeski’s case it did act in this way, triggering fear, anxiety and perhaps claustrophobic and panic reactions, sufficient to trigger substance abuse or dependence in the form of tobacco usage and alcohol dependence. In this sense the Tribunal accepts that Mr Brzeski’s alcohol dependence is war-caused.
Decision
48. The Tribunal sets aside the decision of the Veterans’ Review Board dated 4 July 2002 and in substitution thereof finds that:
(i)tobacco use disorder and alcohol dependence were war-caused, as defined in s9 of the Veterans’ Entitlements Act 1986.
(ii)the Commonwealth of Australia is liable pursuant to s13 of the Act to pay pension for any incapacity arising from that condition from and including 19 December 1988; and
(iii)the matter is to be remitted to the Repatriation Commission for assessment at the rate (if any) at which pension is to be paid.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 31 July 2003
Date of Decision 29 August 2003
Counsel for the Applicant Ms Olivia McTaggart
Solicitor for the Applicant Ogilvie Jennings
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Repatriation Commission
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