BUTTON AND REPATRIATION COMMISSION

[2010] AATA 860

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 860

ADMINISTRATIVE APPEALS TRIBUNAL     )

)         No 2009/2975

VETERANS' APPEALS  DIVISION		)
Re		KERRY JOHN BUTTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal The Hon R J Groom AO (Deputy President)

Date3 November 2010

PlaceHobart

Decision The decision under review is affirmed.

[Sgd Hon R J Groom]

Deputy President

CATCHWORDS

VETERANS' AFFAIRS - disability pension  - operational service in Royal Australian Navy - alcohol dependence/abuse - whether disease caused, contributed to or aggravated by operational service - stressors - inability to obtain appropriate management - disease not war-caused

Veterans' Entitlements Act 1986, ss 7(1)(a), 9(1)(a),(e), 120, 120A

Statement of Principle concerning Alcohol Dependence and Alcohol Abuse Instrument Number. 1 of 2009

Statement of Principle concerning Alcohol Dependence and Alcohol Abuse Instrument Number 76 of 1998

Benjamin v Repatriation Commission (2001) 70 ALD 622

Brook v Repatriation Commission (1986) 10 ALD 112

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Keeley (2000) 60 ALD 401

Repatriation Commission v Gorton (2001) 65 ALD 609

Re Boyes and Repatriation Commission [2004] AATA 17

Repatriation Commission v Stoddart (2003) 134 FCR 392

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

3 November 2010 The Hon R J Groom AO (Deputy President)

introduction

1.      The applicant, Mr Button, has claimed a disability pension under the Veterans' Entitlements Act 1986 ("the Act").

2.      He contends that the alcohol abuse or alcohol dependence from which he now suffers is war-caused in that it was caused by or contributed to or aggravated by the operational service he rendered whilst serving in the Royal Australian Navy.

3.      The Repatriation Commission rejected his claim on the 30 November 2007.  On the 26 March 2009 the Veterans' Review Board ("VRB") affirmed the Commission's decision.  Mr Button now asks this Tribunal to review the VRB decision.

4.      It is not in dispute between the parties, and I so find, that Mr Button rendered "operational service" on HMAS Sydney when that ship was undertaking voyages to and from Vietnam or when it was in Vung Tau Harbour in Vietnam in the following periods:

20 December 1967 to 3 January 1968  17 January 1968 to 16 February 1968  27 March 1968 to 26 April 1968  21 May 1968 to 13 June 1968  13 November 1968 to 28 November 1968  8 February 1969 to 25 February 1969

"Operational service" is deemed to be eligible war service. (See section 7(1)(a) of the Act).

If a veteran suffers a disease and it is caused by his operational service or is contributed to in a material degree or aggravated by that service it is deemed by the Act to be a war-caused disease. (See section 9(1)(a) and (e) of the Act).

background facts

5.      The applicant was born on 1 January 1950.  He is therefore now 60 years of age.

6.      Mr Button's early life was spent on the North-West Coast of Tasmania.  He believes his childhood was "reasonably happy" although he did suffer many distressing experiences at home as a young person.  His father drank alcohol to excess, was "moody" and at times physically abused Mr Button's mother. 

7.      Mr Button did well at school and in particular excelled at sport including Australian Rules Football and athletics.  He was captain of a school underage football team and was a school sports champion.  He completed Grade 9.

8.      He enlisted in the navy in July 1965 when only 15 1/2 years of age.  He was initially posted as a recruit to the naval training base HMAS Leeuwin in Western Australia. 

9.      It is alleged by Mr Button, and the Tribunal accepts the allegations as truthful and accurate, that as a young recruit as Leeuwin he was subjected to episodes of "bastardisation", harsh treatment and neglect.  The Tribunal is also satisfied that there existed at Leeuwin a culture of excessive alcohol consumption by the recruits, especially at weekends.  Mr Button described this culture in the following terms:

"I left my home in Tasmania a clear thinking promising boy.  The day I walked through the gates of HMAS Leeuwin I was no longer a boy, I was a man in the navy's eye and as such, you were treated accordingly.  My weekends were spent drinking alcohol for one and one reason only, to get drunk because, as men, as sailors, we believed that that's what was expected of us.  If a civilian looked sideways at you, you did what we believed was expected of us, you fought him.  If you didn't do these things now, you sure as hell would when you got into the fleet.

As boys, we were robbed of our youth.  The service was nothing more than derelict in its responsibility to us and our parents.  My attitude was home grown at Leeuwin, where the only choice was hit or, be hit, where your right to be treated with respect as a human being was only achievable by coerciveness.   I walked out of those gates at 16 years of age with an outlook way beyond my years and pointing in the wrong directions.  All that was needed to push my button was alcohol".

10.    Mr Button completed his initial training at Leeuwin and was then posted to HMAS Melbourne (July 1966 to January 1968).  Drinking was rationed whilst aboard, as it was on other navy ships, but when "ashore" Mr Button was frequently involved in heavy drinking sessions with other ratings.  He was later posted to HMAS Cerberus (January 1967 to November 1967).  Again heavy drinking continued while off duty.  He then served on HMAS Sydney (November 1967 to March 1969).  This was when he undertook his operational service.  Again there was heavy drinking when on shore leave but whilst on board the ship there was a limited daily beer issue, although sometimes sailors would allow others to drink their issue.

11.    Mr Button was later posted to HMAS Harman (March 1969 to 13 April 1970), a naval base situated in Canberra.  Again he was drinking heavily at HMAS Harman when he was off duty.  Mr Button was involved in a number of incidents at HMAS Harman.   The evidence is that he was then not enjoying navy life and was involved in incidents of deliberate misconduct in attempts to obtain a discharge.  After one serious incident a court martial found him guilty of using violence to the Captain at the base and also to a Lieutenant Commander.  He was sentenced to four months imprisonment.  He spent a considerable period in custody before his sentence was formally remitted.  Mr Button was finally discharged from the navy on 6 July 1970. 

12.    After leaving the navy Mr Button worked at the paper mill at Burnie in Tasmania for nine months and then for a company distributing dairy and frozen foods for about five years.  He worked for two television stations selling advertising for a total of some 17 years.  Later he and his wife ran a newsagency and mixed business for a total of approximately three years, although there were periods when he was not working in that business.  Mr Button suffered cancer in 1989 but following surgery and chemotherapy has made a good recovery.  He became involved in a business importing dietary supplements from the United States but difficulties occurred with his partner and also with the supplier of the supplements.  This resulted in Mr Button becoming bankrupt in 2000.  Since then he has undertaken some rural work but has also been unemployed at times.  More recently Mr Button has been teaching "English As A Second Language" to students in China and also in the Middle East. 

the disability pension claim is based on mr button's operational service

13.    As has been mentioned Mr Button joined the navy at 15 1/2 years of age.  He served for a period of just under five years in total in the navy and was discharged at the age of 20 years.  It is stressed that the period directly relevant to his claim for a disability pension is his period of operational service totalling less than 20 weeks when he was serving on HMAS Sydney travelling to and from Vietnam or on the ship at Vung Tau.

14. For Mr Button's claim to succeed it is necessary for the Tribunal to be satisfied, according to the mechanism for linking disease to service and the relevant standard of proof as set out in ss.120 and 120A of the Act, that alcohol dependence or alcohol abuse, or a contribution to or aggravation of that disease, was caused by his "operational service".

15.    The necessary causative factors must therefore have occurred during his less than 20 weeks of operational service and not during his approximately 56 months of non-operational service or during the other 55 years or so of his life experiences outside of the navy. 

the issues

16.    The principal issues to be determined by the Tribunal are as follows:

(a)     Does Mr Button suffer from alcohol abuse, alcohol dependence or   some other disease, and if so what?

(b)     Was any disease suffered by Mr Button caused, contributed to in a material degree or aggravated by his operational service?

The Tribunal will now consider each of those principal issues.

does mr button suffer from alcohol abuse, alcohol dependence or some other disease?

17.    The Tribunal will now consider whether the correct diagnosis of his condition is alcohol abuse or alcohol dependence and also whether he is suffering from some other relevant disease.

18.    Dr White, an experienced consultant psychiatrist, was very definite in his oral evidence that the correct diagnosis of Mr Button's condition was "alcohol dependence".  He referred to a number of the criteria in DSM IV and expressed the view that "... it ticks about every criteria for alcohol dependence".  He explained that an individual moves from social drinking to heavy drinking and then sometimes to alcohol abuse and then "finally to alcohol dependence".  (Transcript pages 60 and 61).

19.    

It was acknowledged by Dr White that Mr Button was drinking heavily as a young man in the navy.  He described this as binge drinking.  He said "there's a many a young man who binge drinks without meeting the criteria".

(Transcript page 61).

20.    Dr White was aware of the view expressed by Dr Ratcliff that the proper diagnosis was alcohol abuse.    Dr White however held very firmly to his opinion that the correct diagnosis in all the circumstances was alcohol dependence.  When asked whether Mr Button's condition goes beyond alcohol abuse Dr White said "absolutely".  (Transcript page 84)

21.    In Dr White's opinion there were a number of likely causes of the applicant's alcohol dependence.  When asked what was the cause of Mr Button's psychiatric condition he said in his report at page seven:

"It is difficult to say.  Likely contributing factors include a family history of alcohol problems (thus raising the issue of genes and modelling), peer and cultural issues in the Navy, personality traits, relationship and occupational issues in later life, an increasing contraction of his social life in later years, increasing demoralisation and existential grief, and a cyclical relationship between depressive symptoms and drinking in later life. 

There is no evidence for significant traumatic service experiences, pre-existing psychiatric disorder, or debilitating childhood abuse prior to the onset of heavy drinking".

22.    Dr Ratcliff in his report to the Department of Veterans' Affairs dated 26 November 2007 said as follows:

"DISCUSSION

Mr Button presents a history of an intelligent, but very disappointed man.  He suffered an unhappy childhood, which he attributed to his father's alcohol abuse and violence to his mother.  He did well and achieved some status at school.  He began underaged drinking as a boy recruit in the Navy, and continued heavy opportunistic drinking during his time in the Navy, having some disciplinary problems, and some trouble with the civil law ashore.  He decided to get out of the Navy in order to break the pattern of his lifestyle.  An overdose did not result in his medical discharge, and he eventually assaulted a superior officer resulting in a Court Martial and a dishonourable discharge.  His pattern of habitual excessive nonaddicted drinking continued after he left the Navy, and was exacerbated in some occupations.  His drinking would appear to have contributed to his employment instability and to the breakdown of his marriage.  A personal bankruptcy confirmed his disappointment with his life.

The onset of habitual excessive drinking would appear to have been early in his Naval career, encouraged by peer pressure, and has continued ever since, so that the diagnosis of any underlying psychological disorder for which alcohol was used as symptomatic treatment is now impossible. 

OPINION

In my opinion the appropriate diagnosis in Mr Button's case is Alcohol Abuse as defined in DSM IV, and hence the SOP concerning Alcohol Dependence or Alcohol Abuse (Instrument No. 76 of 1998).  His condition meets Criterion A(1), (3), (4) and Criterion B.

The condition undoubtedly had its onset due to Naval service.  He does not appear to have suffered from a pre-existing psychiatric disorder, and he does not claim to have experienced a severe stressor in connection with eligible service.

In my opinion he meets the requirements of Factor 5(e) "inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse" in that the Navy failed to recognise and appropriate address a potentially serious drinking problem in a young recruit.  He therefore in my opinion meets the requirements of Instrument No. 77 of 1998".

23.    The diagnosis of the disease suffered by Mr Button is to be determined to the Tribunal's "reasonable satisfaction" which is the ordinary civil standard of proof.  (See Benjamin v Repatriation Commission (2001) 70 ALD 622)

24.    In addition to his written report of 27 April 2010, the Tribunal had the benefit of further information and explanations provided by Dr White in his oral evidence.  Dr Ratcliff said in his relatively brief but succinct 2007 report that he was of the view that the appropriate diagnosis was alcohol abuse.  However Dr Ratcliff was not called as a witness and there was therefore no opportunity to seek clarification of the reasons for his opinion.  In all of the circumstances and after examining the reasoning provided by the two psychiatrists, Dr White and Dr Ratcliff, the Tribunal in this case prefers the opinion expressed by Dr White. 

25.    After considering all of the evidence before it the Tribunal is persuaded that the correct diagnosis of the disease now suffered by Mr Button is alcohol dependence. 

26.    It is noted that Mr Button's original claim was for incapacity from a psychiatric disorder that was later diagnosed as "alcohol abuse".  That was the medical condition considered by the VRB.  It was likely to have been based upon the views expressed by Dr Ratcliff.  Part of the investigative role of the Repatriation Commission is to establish the correct diagnosis of the claimed condition.  This Tribunal can amend an earlier diagnosis on the basis of the evidence before it.   (See Brook v Repatriation Commission (1986) 10 ALD 112).

27.    There is the further question as to whether Mr Button is suffering any psychiatric condition other than alcohol dependence.  Dr Ratcliff expressed the opinion in his written report that Mr Button had not suffered from "... a pre-existing psychiatric disorder ..."   (Paragraph 4 of the report).   Dr White said in his report that Mr Button suffered the psychiatric condition of alcohol dependence but also said:

"At times he has experienced depressive symptoms that have very likely been significantly secondary to his Alcohol Dependence".   (Paragraph 6 of the report).

28.    In oral evidence Dr White confirmed his opinion that the only medical condition now suffered by Mr Button was alcohol dependence although he did acknowledge that he had also suffered "... what I call "small-d depression".  (Transcript page 80). He added when questioned by Mr Button "I don't deny you've suffered from feeling sad".

29.    Dr White also referred in his report and in oral evidence (page 63 of Transcript) to personality traits.  He said in his report at page 6:

"There have been a number of dysfunctional personality traits that may have contributed to his drinking habits, and which in turn were probably reinforced by his drinking habits and their consequences.  In particular, there has been assaultive behaviour whilst drinking.  There is a tendency to blame others, it would appear, both from mental state examination at interview and from his written notes, as well as the service records". 

30.    Various opinions were expressed by psychiatrists and psychologists during his naval service particularly after he had been involved in incidents and offences.  Dr Arnaud Reid, consultant psychiatrist with the navy, said he believed Mr Button had a "psychopathic personality".  It is noted that this diagnosis was a factor leading to the remission of Mr Button's sentence of imprisonment.  Dr White said this trait is now known as an "antisocial personality disorder".  He did not suggest it was a psychiatric disease.  In clinical notes signed by the "Surgeon Commander ARN" it is stated "no psychiatric disability".   In a report by J Farrelly, psychologist, dated 20 April 1970 it is said that Mr Button's personality:

"... involves traits such as low frustration tolerance, emotional instability, and immaturity in general".  (Exhibit R7 page 134)

31.    Dr Ross Kirk, consultant psychiatrist, in his report of 5 January 2009 gave consideration as to whether Mr Button had bipolar disorder.  He concludes:

"I don't think he has formal bipolar disorder.  His moods swings are brief and in reaction to either negative thinking or events".   (Exhibit R7 page 57)

32.    The other recent expert medical opinion before the Tribunal is the written report of Mr Martin Jackson, consultant clinical neuropsychologist dated 17 March 2010.   Mr Jackson indicates that Mr Button is a highly intelligent man but with some neuropsychological deficit which Mr Jackson believes is caused by a history of excessive alcohol consumption.  Mr Jackson does not express a view on the correct diagnosis of Mr Button's alcohol-related medical condition.  He does however provide the following comments and advice on pages 13 and 14 of his report.

"Mr Button has insight into the fact that he had "the potential" to achieve much more than he has in his life.  He said that he always regretted not going to university and now mulls over what could have been and what he is not.  People may have viewed this as being somewhat narcissistic or grandiose in the past, however the current assessment clearly indicates that he was in fact a man of superior to very superior cognitive abilities and he is not being vain or arrogant when stating that he could have achieved much more than he has in life, specially from a cognitive point of view.

In terms of neuropsychological prognosis, I would strongly recommend that Mr Button reduce his alcohol consumption to under what is considered the safe level for males (4 standard drinks or less per day with two alcohol free days per week). This would be a particularly difficult thing for him to do because he has drunk at least 12 drinks per day for over 40 years and also uses alcohol to self medicate his mood problems.  He himself reported that his best moods are when he is drinking.  However, it is possible that if he reduced his alcohol consumption there may be some improvement in cognitive function.

Also, I recommend that Mr Button receive counselling/therapy for his mood difficulties.  If some of his cognitive functions are impaired due to ongoing mood problems, then alleviation of his mood problems may result in some improvement in cognitive functioning.  It does appear that his mood problems are mainly related to his worry about cancer and the way his life has turned out and therefore, could be referred to as adjustment issues". 

33.    After considering the material before it the Tribunal concludes that although Mr Button exhibits various personality traits and has suffered periods of "small-d depression" as described by Dr White he is not suffering from any psychiatric disorder or disease other than alcohol dependence. 

was mr button's alcohol dependence caused, contributed to or aggravated by his operational service?

34.    The next issue to be considered is whether there is present in this case the necessary link between Mr Button's psychiatric condition of alcohol dependence and his operational service in the Navy. 

35.    In order to decide Mr Button's claim it is necessary to consider the four step process identified by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

36.    The first step in the Deledio process requires the Tribunal to consider all the material before it and to decide whether that material points to an hypothesis connecting the disease suffered by Mr Button with the circumstances of his operational service.

37.    The hypotheses advanced by Mr Button are that;

a)       Several extremely stressful incidents occurred whilst he was rendering     operational service         on HMAS Sydney;

i)        The sighting of what he believed to be dried blood on damaged                vehicles loaded onto HMAS Sydney for return to Australia.

ii)       Seeing black Vietcong pyjamas with a hole in the back of the   shirt and surrounding stains.   Returning  soldiers offered to sell him                  them, as well as "handguns and other war trophies".

iii)      Observing aircraft involved in hostile action over the hills near                   Vung Tau.

iv)      Becoming  aware of injuries suffered by an Australian soldier   who fell on the sights of an SLR rifle during a voyage to Vietnam. 

v)       "Atrocious"    behaviour   on    HMAS  Sydney  by  Lieutenant   Commander Smith and Lieutenant Johnston

(b)     Mr Button was unable to obtain appropriate clinical management of his     disease as explained by Dr Ratcliff in his report of 26 November 2007.

Mr Button alleges that those factors caused, contributed to or aggravated his medical condition.

38.    As explained in Deledio no question of fact finding arises at this stage of the process.  After considering the material before it the Tribunal is satisfied that it does point to an hypothesis connecting the medical condition suffered by Mr Button to the operational service he rendered. 

39.    The next step is to determine whether or not there is in force a Statement of Principles ("SOP") for alcohol dependence.  There are two relevant SOP's for alcohol dependence.  They are: 

Alcohol Dependence and Alcohol Abuse No. 1 of 2009 and No. 76 of 1998.

Factor 6(b)of No.1 of 2009 refers to "experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse".  Factor 6(c) refers to a "category 1B stressor".

"a category 1A stressor" means one or more of the following severe traumatic events:

(a)      experiencing a life-threatening event;

(b)      being subject to a serious physical attack or assault including rape   and sexual molestation; or
  (c)      being threatened with a weapon, being held captive, being   kidnapped, or being tortured;

"a category 1B stressor" means one of the following severe traumatic events:

(a)      being an eyewitness to a person being killed or critically injured;

(b)      viewing corpses or critically injured casualties as an eyewitness;
  (c)      being an eyewitness to atrocities inflicted on another person or   persons;
  (d)      killing or maiming a person; or
  (e)      being an eyewitness to or participating in, the clearance of   critically injured casualties

Factor 5(b) of SOP No.76 of 1998 refers to "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse".

“experiencing a severe stressor” means, the person experienced,
           witnessed or was confronted with, an event or events that involved actual
           or threat of death or serious injury, or a threat to the person’s or other
           people’s physical integrity, which event or events might evoke intense
           fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
           include:
  (i) threat of serious injury or death; or
  (ii) engagement with the enemy; or
  (iii) witnessing casualties or participation in or observation of casualty
  clearance, atrocities or abusive violence

Factor 6(m) in SOP 1/2009 and 5(e) in SOP 76 of 1998 refer to "inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse".

40.    As there are two SOP's of relevance to Mr Button's claim the claim is to be considered in accordance with the SOP which is most beneficial to the applicant's claim.  (See Repatriation Commission v Keeley (2000) 60 ALD 401 and Repatriation Commission v Gorton (2001) 65 ALD 609).

41.    The third step in the Deledio process is described by the Full Court as follows:

"If an SoP is in force, the tribunal must then form the opinion whether the hypotheses 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 s 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".

42.    The material before the Tribunal raises several hypotheses which it is claimed connect Mr Button's medical condition to his operational service.  There is evidence of certain events or occurrences which Mr Button has said caused him severe trauma and were causative factors leading to his current disease or which have contributed to it or aggravated it.  The Tribunal also has before it the written report of Dr Ratcliff which includes an opinion that prior to his operational service Mr Button was suffering "a potentially serious drinking problem" and that during his service he was unable to obtain appropriate clinical management for it.

43.    At stage 3 of the Deledio process the Tribunal is considering whether each of the claimed hypotheses is consistent with the "template" in the SOP's and therefore reasonable.  It is not involved at this point in weighing evidence and finding facts. 

44.    The Tribunal will now consider each of the hypotheses advanced by Mr Button in order to determine whether they fit the template found in the two relevant SOP's.

The Stressors

45.    Mr Button says he saw blood on a damaged vehicle which had been loaded on board HMAS Sydney for return to Australia.  There is some dispute on the evidence as to whether the stain on the vehicle was in fact blood.  It was stated that, for quarantine purposes, all vehicles being returned to Australia were thoroughly cleaned.  However accepting Mr Button's evidence on this issue the Tribunal nevertheless concludes that it is not sufficiently serious to satisfy any of the stressors mentioned in SOP 1 of 2009 or SOP 76 of 1998 and therefore does not fit the template.

46.    It is said that a soldier showed Mr Button some black pyjamas which he believed were Vietcong pyjamas.  He saw a hole in the back of the shirt which be felt was a bullet hole.  Again accepting Mr Button's account this occurrence falls far short of the category 1A or category 1B stressor in SOP 1 of 2009 or "severe stressor" in SOP 76 of 1998.  He said he was offered war trophies by returning diggers.  This also does not satisfy the test in the SOP's.

47.    Mr Button said he suffered a further stressful event within the meaning of the SOP's when he witnessed seeing aircraft involved in hostile action against the enemy near Vung Tau.   Commodore Mulcahy said in his oral evidence that official records indicate that the nearest aircraft action at the time was some 42 kilometres from HMAS Sydney.  Mr Button accepted the accuracy of those records.  The Tribunal concludes that it would be most difficult to see aircraft action from that distance.  This incident is certainly not a stressor of the kind envisaged by either of the two SOP's.

48.    Mr Button referred to an incident where an Australian soldier fell on the scope of an SLR rifle and was injured.  He had to be flown off HMAS Sydney for treatment.  Mr Button did not witness this incident but only heard about it.  He did not see the injured soldier or observe his injuries.  This clearly does not satisfy any of the stressors in the two SOP's. 

49.      There is a further claim that Mr Button was subject to a stressor in witnessing certain conduct by Lieutenant Commander Smith and Lieutenant Johnston.  Lt Commander Smith was said to be dogmatic and would "berate" Mr Button in a most unfair and unreasonable manner and treat him with disdain.  Mr Button said Lt Johnston would drink to excess and his appearance was "ugly" and he was "a mess".  Mr Button submitted that he had suffered an "atrocity" when experiencing the behaviour of Smith and Johnston because he considered that behaviour to be atrocious. 

50.      The term witnessing "atrocities" in the SOP plainly does not include witnessing conduct of this kind even though Mr Button believed that conduct to be "atrocious".

An understanding of the true meaning of the word "atrocity" as it appears in the SOP's is assisted by considering the overall context as indicated by other words and terms including the definition of the qualifying stressful events.

The SOP's refer, for example, to "being killed" or "critically injured", "viewing corpses", "killing or maiming".  The reference to "atrocities" obviously means witnessing some heinous cruel or horrible act perpetrated on another person.  The conduct of the two officers, accepting of course Mr Button's own evidence, may have been in Mr Button's view "atrocious" but certainly he did not witness an "atrocity" as intended by that word in the two relevant SOP's. 

51.    It is recognised that perceptions are relevant and that both subjective and objective elements must be considered.  (See Repatriation Commission v Stoddart (2003) 134 FCR 392). Also a person may not have to be physically present to suffer a stressor. (See Woodward v Repatriation Commission (2003) 131 FCR 483).

52.      Taking into account only Mr Button's version of these events the Tribunal is satisfied that none of the stressors relied upon by Mr Button satisfy the requirements of the various stressors referred to in the two SOP's and therefore do not fit the template in either SOP.  The hypotheses based upon the stressors referred to by Mr Button are therefore not reasonable. 

inability to obtain appropriate clinical management of the disease

53.    In his report of 26 November 2007 Dr Ratcliff said that Mr Button:

"Does not claim to have experienced a severe stressor in connection with eligible service"

but went on to say that:

"In my opinion he meets the requirements  of Factor 5(e) "inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse" in that the Navy failed to recognise and appropriately address a potentially serious drinking problem in a young recruit.  He therefore in my opinion meets the requirements of Instrument No. 77 of 1998".

54.    That evidence from Dr Ratcliff, though it is in his written report only and is not supported by any further explanation by Dr Ratcliff, raises an hypothesis which relates Mr Button's condition to his service in the navy and is consistent with a factor mentioned in both relevant SOP's.  This was the only factor relied upon by Mr Button at the VRB hearing.  He has indicated to this Tribunal that he maintains his contention that he was unable to obtain appropriate clinical management of his medical condition during his operational service. 

55.    This particular factor in the two SOP's is expressed in rather general terms and it is not possible, without weighing evidence and making findings of fact, to arrive at a reasoned conclusion about the merit of this particular claimed hypothesis.  The Tribunal concludes that this raised hypothesis does fit the template in the two SOP's and therefore finds that it is reasonable. 

is the tribunal satisfied beyond reasonable doubt that mr button's condition was not war-caused?

56.    It is now necessary for the Tribunal to proceed to stage 4 of the Deledio process. At this stage it is necessary for the Tribunal to consider under s.120(1) of the Act whether it is satisfied beyond reasonable doubt that the disease or any relevant contribution or aggravation of that disease was not war-caused. At this stage it is necessary to make findings of fact on the material before the Tribunal.

57.    The Tribunal will proceed to make a finding on the date of clinical onset of the disease of alcohol dependence as a decision about the date of clinical onset is essential to a consideration of Factors 6(m) of SOP 1 of 2009 and 5(3) of SOP 76 of 1998.

58.    It his written report Dr Ratcliff stated that Mr Button was suffering alcohol abuse and that "the condition undoubtedly had its onset due to naval service".  It is clear from his report that Dr Ratcliff believed that an alcohol related condition was present during Mr Button's service as he was of the opinion that the navy failed to:

"... recognise and appropriately address a potentially serious drinking problem in a young recruit". 

Dr Ratcliff does not specifically state a date of clinical onset for alcohol abuse.  He refers to a potentially serious drinking problem but does not expressly state that Mr Button suffered alcohol abuse when in the navy 

59.    Dr White was asked about the date of onset of Mr Button's alcohol dependence and he replied in his report as follows:

"Again this is difficult to say, but it is possible that (the) criteria for alcohol dependence was satisfied over the last 10 to 20 years".

No clinical examination or diagnosis was made at the time and, of course, unlike a physical injury the precise date the disease first occurred would be difficult to retrospectively determine with precision. 

60.    The Tribunal does however accept Dr White's view that the clinical onset of Mr  Button's condition of alcohol dependence did occur between approximately 10 and 20 years ago.  Dr White expressed that opinion in April 2010.  The Tribunal finds that the clinical onset of the accepted disease of alcohol dependence occurred between April 1990 and April 2000.  It should be noted that April 1990 is almost 20 years after Mr Button was discharged from the navy which occurred on 6 July 1970.

61.    Dr White explained in oral evidence that people with a drinking problem can move from social drinking to heavy drinking, to alcohol abuse and then to alcohol dependence (Transcript page 61).

He expressed the opinion that although Mr Button was involved in binge drinking whilst in the navy "... it was not necessarily alcohol abuse".

62.    After carefully considering all of the evidence of Mr Button's heavy drinking and conduct during his career in the navy, as well as the expert medical opinions of Dr White and Dr Ratcliff, the Tribunal concludes that at the time he left the navy in 1970 Mr Button was frequently involved in binge drinking when off duty but to that point in time there had not been a clinical onset of alcohol abuse or alcohol dependence.  Dr White acknowledged in oral evidence that when Mr Button was in the navy he drank heavily when not at sea.  When speaking of alcohol abuse he said:

"There's many a young man binge drinks without meeting the criteria"

Dr White said he believed that Mr Button did not suffer any psychiatric condition when in the navy.  This would obviously include both alcohol abuse and alcohol dependence. 

63.    A factor suggesting that Mr Button was not suffering the psychiatric condition of alcohol abuse when he was as young as 20, (the age he was when he was discharged from the navy) is that he was later involved in a successful 17 year career as a television advertising executive.  It was some time after that that he experienced very serious business, financial and family problems and it was probably in that phase of his life that he progressed to far more serious drinking and genuine dependence on alcohol.

64.    The Tribunal finds that Mr Button was drinking heavily quite frequently when off duty in the navy but that he developed the condition of alcohol abuse some years after leaving the navy.  He later became dependent on alcohol as indicated by Dr White.

65.    At this stage of the Deledio process the only contention advanced by Mr Button which remains under consideration is his claim that he was unable to obtain appropriate clinical management of his condition during the period of his operational service.

66.    An inability to obtain appropriate clinical management for a disease requires evidence that the condition existed during service.  Although the applicant was drinking to excess during his service in the navy and sometimes was involved in binge drinking when off duty and some incidents of misconduct he was not then suffering the recognised disease of alcohol abuse or alcohol dependence. 

67.    This factor in the SOP's is perhaps best understood when one considers, for example, a soldier engaged in active war-time service in a remote locality.  A pre-existing condition may be made much worse where the necessary expertise, drugs, equipment and facilities are not available.  In this case, of course, Mr Button was serving on a large navy warship and it is reasonable to infer that some medical assistance would have been available to him had his condition been known.

68.    There is no evidence to establish that in this case Mr Button or any doctor or indeed any other person actually knew Mr Button was suffering a disease that needed appropriate clinical management.  There is no evidence of any diagnosis that Mr Button had a serious alcohol problem prior to leaving the navy.  Certainly we now know that he was drinking to excess at weekends and when off duty for much of his career in the navy.  But, for example, Dr Ratcliff did not give his diagnosis of alcohol abuse until the 26 November 2007 and Dr White's diagnosis of alcohol dependence was provided on 27 April 2010.  This was many years after Mr Button left the navy. 

69.    In Re Boyes and Repatriation Commission [2004] AATA 17 it was held that there was no inability to obtain appropriate clinical management of an as yet diagnosed alcohol problem. The failure earlier to suggest appropriate tests or to be more observant was said not to amount to an inability to obtain clinical management.

70.    Although there is now some evidence to suggest that when in the navy Mr Button had personal awareness of the fact that he had an emerging problem with alcohol, there is very little contemporaneous evidence of such an awareness.  Alcohol problems do not feature in Mr Button's medical records produced by the Department of Defence.  There is no reference, for example, to any alcohol problems in the reports of navy psychiatrist Dr Arnaud Reid or psychologist J Farrelly.

71.    On the material before the Tribunal there was no awareness at the relevant time that Mr Button was suffering an alcohol related disease or indeed any serious alcohol related problems.  Mr Button did not make navy personnel aware of any problem he had with alcohol nor did he seek out any treatment or counselling.   It is, of course appreciated that he was a very young person at the time.

72.    The Tribunal concludes on the material before it that the factor "inability to obtain appropriate clinical management" for alcohol abuse or alcohol dependence in the two SOP's is disproved beyond reasonable doubt.

Conclusion

73.    Mr Button says, with feeling, that prior to his entry into the navy he was a young man with great promise and that the navy changed him into a "drunken, depressed frequent defaulter".   He said "... this harmful alteration ..." occurred because of his war service.

There can be no doubt that the culture of heavy drinking in the navy, to which Mr Button was unfortunately subjected to from his days as a young recruit at Leeuwin has played a part in the development of his drinking habits leading to his eventual addiction to alcohol.  By the time he commenced his operational service on HMAS Sydney he undoubtedly had a serious drinking problem.  However on the evidence before the Tribunal he was not then suffering the disease of alcohol abuse or alcohol dependence. 

The critical issue in this particular case is whether occurrences in the less than 20 week period of operational service, in an overall life experience now of more than 60 years, caused the alcohol related disease which he later suffered and sadly still suffers. 

74.    The Tribunal is satisfied beyond reasonable doubt that no significant occurrences or indeed any relevant omissions happened during Mr Button's operational service which caused his condition of alcohol dependence.  All of his operational service was on HMAS Sydney.  Whilst on that ship he was subjected to the discipline that normally attaches to operational service including very limited opportunities to consume alcohol.

75.    After considering all of the material before the Tribunal it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease suffered by the applicant is war-caused.

Decision

76.    The decision under review is affirmed.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)

Signed:  R Hunt (Administrative Assistant)

Date/s of Hearing  17 August and 6 September 2010
Date of Decision  3 November 2010
Solicitor for the Applicant         Applicant on his own behalf
Solicitor for the Respondent    Mr Ken Rudge, Repatriation Commission