Clark and Repatriation Commission - [2002] AATA 1165

DECISION AND REASONS FOR DECISION [2002] AATA 1165

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1503

VETERANS' APPEALS DIVISION       )
           Re      PETER ROSS CLARK
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member Dr P Lynch, Member Mr S Webb, Member

Date14 November 2002
PlaceSydney
DECISION The Tribunal determines that the decision under review pertaining to the Applicant, Mr Peter Ross Clark, is varied as follows: (1) By agreement of the parties, the Applicant's conditions of vitreous degeneration left eye and misaligned foveal receptors are war-caused disabilities within the terms of section 9 of the Veterans' Entitlements Act 1986, with the date of effect being 19 July 2000. (2) By agreement of the parties the diagnosis of post traumatic stress disorder with alcohol dependence is amended to gun phobia and alcohol dependence. (3) The Tribunal sets aside the decision of the Repatriation Commission dated 16 February 2001 as varied and affirmed by the Veterans' Review Board dated 13 August 2001 which found that the Applicant's conditions of gun phobia and alcohol dependence were not war-caused disabilities pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Clark's conditions of gun phobia and alcohol dependence were war-caused within the terms of section 9 of the Veterans Entitlements Act 1986 with date of effect being 22 May 2000. (4) The Tribunal notes that the Applicant did not pursue the claim for his condition of acquired cataracts to both eyes, and the Tribunal affirms the decision of the Repatriation Commission in that regard. (5) The matter is remitted to the Repatriation Commission for assessment of the correct rate of the Applicant's disability pension.

.............................................
Ms G Ettinger,
Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Disability Pension - Operational service – Reasonable hypothesis – Specific Phobia - Statement of Principles - Alcohol – Diagnosis -Decision varied

LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 119, 120, 120A
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998

AUTHORITIES
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Deledio (1998) 83 FCR 82
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Law (1981) 147 CLR 635
Kattenberg v Repatriation Commission (2002) 34 AAR 562
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Connors v Repatriation Commission (2000) 59 ALD 61
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

14 November 2002 Ms G Ettinger, Senior Member Dr P Lynch, Member Mr S Webb, Member

The application before the Administrative Appeals Tribunal ("the Tribunal") was that of Mr Peter Ross Clark ("the Applicant"), for review of a decision of the Veterans' Review Board ("the Board") (T14) made on 13 August 2001 which varied the decision of the Repatriation Commission in relation to the diagnosis of gun phobia and alcohol dependence to post traumatic stress disorder ("PTSD") with alcohol dependence, and otherwise affirmed the decision of the Repatriation Commission ("the Respondent"), dated 16 February 2001 (T10 and T11), to refuse as war-caused, the Applicant's claim for gun phobia, alcohol dependence, vitreous degeneration of left eye, misaligned foveal receptors and acquired cataracts both eyes.
The Tribunal convened a hearing in this matter on 19 September 2002 in Sydney. At the hearing the Applicant was represented by Ms J Buss of the Legal Aid Commission of New South Wales. The Respondent was represented by Mr J Marsh of the Advocacy Section of the Department of Veterans' Affairs.
At the hearing oral evidence was given by the Applicant and Dr A Dinnen.
The following documents were tendered and taken into evidence at the hearing:
Exhibit A1     Gunnery History Sheet for Mr Clark.
Exhibit A2     Further Statement of Peter Clark, dated 19 September 2002.
Exhibit A3     Letter from Dr P Beaumont, Opthalmic Surgeon, dated 12 February 2002.
Exhibit A4     Report from Dr A Dinnen, Consultant Psychiatrist, dated 20 February 2002.
Exhibit A5     Instrument for Determining Eligibility under the Veterans' Entitlement Act 1986, Section 6D, dated 26 November 1997.
Exhibit A6     Instrument for Determining Eligibility under the Veterans' Entitlement Act 1986, Malaya and Singapore 1 August 1960 to 27 May 1963, dated 28 December 2000.
Exhibit A7     Instrument for Allotment of Persons under the Veterans' Entitlement Act 1986, Malayan Emergency 1 September 1957 to 31 July 1960, Schedule 2 Item 3, dated 28 December 2000.
Exhibit A8     Supplementary "T documents": Royal Australian Navy/Royal Australian Air Force Record of Service for Mr Clark, dated 31 January 2002, marked 3A – 3D.
Exhibit R1     Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, T1 to T20, the "T documents".
Exhibit R2     Report from Dr R Lewin, Consultant Psychiatrist, dated 7 May 2002.
Exhibit R3     Clinical notes from Dr B Kermode regarding Peter Clark.
Exhibit R4     Supplementary report from Commodore P Mulcare, Writeway Research Service, dated 17 September 2002.

BACKGROUND

The following information was provided by way of background and not disputed.
The Applicant was born on 18 June 1942 (T3/9). He enlisted in the Royal Australian Navy at the age of 17 on 20 August 1959 (T3/3). He commenced training at HMAS Cerebus and joined HMAS Quiberon on 19 February 1960 to complete his Ordinary Seaman training. In August 1961, the Applicant was promoted to Able Seaman, and remained an Able Seaman until his discharge, after nine years of service, on 19 August 1968 (Exhibit R4).
While serving in the Navy, the Applicant was posted to the Far East Strategic Reserve ("FESR"), and was engaged on operational service during 1960 on HMAS Quiberon, and during 1962 on HMAS Parramatta (T3). The periods of Mr Clark's service accepted as operational service were 23 June 1960 to 8 July 1960 and 15 July 1960 to 31 July 1960 on HMAS Quiberon and from 21 June 1962 to 23 August 1962 and 10 September 1962 to 2 October 1962 on HMAS Parramatta. (Exhibits A5, A6, A7).
On 19 October 2000 the Applicant lodged a claim for Disability Pension pursuant to section 14 of the Veterans' Entitlements Act 1986 ("the Act"). On 16 February 2001, the Respondent refused the claim (T10 and T11). The claimed following conditions were not accepted as war-caused:

(1) Vitreous degeneration (left eye)
(2) Misaligned foveal receptors
(3) Acquired cataracts in both eyes
(4) Gun phobia
(5) Alcohol dependence

On 2 May 2001, the Applicant sought review of the decision by the Board (T12). On 10 May 2001, a Departmental Review Officer decided not to intervene in the appeal (T13). On 13 August 2001, the Board decided to:
(1) vary the decision under review in relation to gun phobia and alcohol dependence by substituting a diagnosis of post traumatic stress disorder with alcohol dependence, and affirm the decision under review as amended; and
(2) affirm the decisions under review in relation to vitreous degeneration left eye, misaligned foveal receptors and acquired cataracts in both eyes. (T14)
On 2 October 2001, the Applicant sought review by the Tribunal.
ISSUES
The issue the Tribunal had to decide was whether the Board's decisions to amend the diagnosis of gun phobia and alcohol dependence to post traumatic stress disorder with alcohol dependence, and to affirm the Respondent's decision to refuse these claims, were the correct and preferable decisions.
By agreement of the parties, Mr Clark's claim for vitreous degenerations left eye and misaligned foveal receptors was accepted as war-caused.
The Applicant did not pursue his claim in relation to the condition diagnosed as acquired cataracts in both eyes.
LEGISLATION
A decision in this matter requires consideration of relevant provisions under the Veterans' Entitlements Act 1986. The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly follows:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)      the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
(3) Paragraph (1)(a), (b), (c) or (d) does not apply to an injury suffered, or disease contracted, by a veteran if the injury or disease:
(a)      resulted from the veteran's serious default or wilful act; or
(b)      arose from:
(i)       a serious breach of discipline committed by the veteran; or
(ii) an occurrence that happened while the veteran was committing a serious breach of discipline.
(4) Subsections (1) and (2) do not apply to an injury suffered, or disease contracted, by a veteran if the incapacity of the veteran from that injury or disease resulted from the serious default or wilful act of the veteran that happened after the veteran ceased, or last ceased, to render eligible war service.
…"
Section 119 of the Act reflects that decision-makers, including this Tribunal, are not bound by technicalities and that decision-making under the Act is of an administrative rather than judicial nature. Section 119 allows decision-makers to take into account matters such as the effects of the passage of time, the absence of or deficiency in records and the diminution of a veteran's memory.
The standard of proof applying in the case of operational service is the reasonable hypothesis as provided by section 120 of the Act, which provides relevantly:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused   disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)       the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"

Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority ("the RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
...
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
  (b)       the kind of disease contracted by the person; or
  (c)       the kind of death met by the person;
as the case may be."

STATEMENTS OF PRINCIPLES

The relevant Statement of Principles for the condition of alcohol dependence is Instrument No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse. The relevant Statement of Principles for post traumatic stress disorder is Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, concerning Post Traumatic Stress Disorder.
The RMA has not determined a Statement of Principles in relation to the condition of gun phobia, and has not given notice, pursuant to section 196G of the Act that it intends to carry out an investigation in respect of this condition. The proper approach in such circumstances is for the Tribunal to apply the tests in subsections 120(1) and 120(3) of the Act, as enunciated in the High Court decisions of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
THE EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has noted the evidence regarding Mr Clark's eye conditions, (reports of Dr P Beaumont, ophthalmic surgeon for example), but has not detailed that evidence here or made comment upon it. As noted above, the Applicant was not pursuing his claim for acquired cataracts and his vitreous degeneration left eye, and misaligned foveal receptors had, at the time of the Hearing, been accepted by the Respondent as war-caused disabilities.
Mr Peter Ross Clark - Applicant
Mr Clark whose statement of 19 September 2002 (Exhibit A2), was before the Tribunal, also gave oral evidence. The statement he provided addressed points made in the report of Commodore Mulcare.
Mr Clark told the Tribunal that he had a sheltered but strict upbringing in rural New South Wales. His mother had died when he was a boy and his elder brother had been sent away to school. His father, who was a policeman in towns such as Broken Hill, had brought him up in and around police stations. He had some experience with guns on his father's farm, shooting kangaroos and rabbits. His evidence was that he had always been interested in the sea, and left to join the Navy when he was seventeen.
The Applicant explained that he wanted to be a clearance diver in the Navy, but this was only open to Able Seamen, so he did a gunnery course instead, at HMAS Cerberus, and became a Gunnery Rate. He said that while he was at HMAS Cerberus he did not drink, and would spend his weekends visiting relatives, being only seventeen. He joined HMAS Quiberon to complete training as an Ordinary Seaman. It was a happy ship and he wanted to be liked by his peers he said. Initially the ship travelled to Hobart and Adelaide, and returned to New South Wales waters before progressing to Singapore on assignment to the FESR.
He gave evidence that while "working up" off Sydney in 1960, a number of gun trials were conducted. The Applicant explained that HMAS Quiberon had one 4" gun, and his action station was on the gun crew for this gun. His duties were passing up ammunition and removing the cordite cases. The Applicant told the Tribunal that the gun was faulty. When it was fired manually, it operated correctly he said. However, when it was fired using the Close Range Blind Fire Director – CRBFD ("the Director"), the elevation would drop without warning, and the gun would then fire at random. The Applicant related one incident where this had occurred and part of the guard rail and the boom rail, which were to stop the ammunition cases from going over the side of the ship, had been blown off. The canteen had also been damaged in this incident he said, although he presumed that the damage was sufficiently minor not to warrant mention in the monthly operational report for HMAS Quiberon. He told the Tribunal that he recalled the incident clearly even though he was not able to recall the precise date, and thought it was off Sydney in June 1960.

The Applicant gave evidence that he became terrified of the gun firing erratically in the manner he had described, and said that he was always worried and thinking about the gun and gun practice. He said in evidence that he was not afraid that the gun would sink the ship. However, he stated that when the gun fired he would hide behind the air vent and cover his ears. Later, while serving on the HMAS Parramatta, he related that on hearing a rumour that the gun would be fired, he would hide in the paint shop where he could not hear any announcements, or the gun. He said that others in the gun crew shared his fear about the gun, but none were as affected and scared as he was. He claimed he was ribbed by others on the ship about this fear. He arranged to be transferred to the magazine below the gun deck, to get away from it. He said that this transfer was approved because it was recognised that he was not functioning well around the gun. He said that it was quiet working in the magazine, and he was able to cope better. The Applicant said that he tried many things to avoid the gun, including going to New Guinea and working in charge of a labour line.
Mr Clark said however, that he was not able to change his "rate" from gunnery. He attended gunnery training and qualified as a Seaman Gunner Quarters Armourer 2nd class at HMAS Cerberus, but was not recommended for further training. He said that he was only required to work on the gun crew whenever firing was required, on action stations or for training, which was infrequent. He said that when away from the gun he performed well, and enjoyed being in the Navy. The gun was fired more frequently during FESR operations than otherwise, but the Applicant could not recall the dates of these firings, or when the gun was fired using the Director, although he recalled the gun being faulty every time the Director was used.
The Applicant told the Tribunal that he started to drink in the Navy. He said that he drank only very occasionally while at HMAS Cerebus – he recalled having a few drinks at a Woolworths party and at a police ball. He said that he had never been drunk prior to service. He was very keen on sport in recruit school and did not really experience peer pressure to drink until joining the ship's company on the HMAS Quiberon. He said that on HMAS Quiberon he drank with his shipmates and to calm his nerves. He recalled that there had been a daily beer issue in tropical waters comprising one 26 ounce can of beer each day. This was opened at issue other than for those on watch. Mr Clark explained that as not every seaman drank, it was possible to stockpile beer in this way to drink at leisure. Despite this, it was most common to drink to excess while on shore leave. He recalled getting drunk on his first shore leave in Singapore, drinking with sailors who were older and more experienced. He also related being placed on a charge for being drunk in Hong Kong.
The Applicant related that his career in the Navy had been adversely affected by his gun phobia. He explained that his performance had been of a high standard, other than in relation to guns. He had served at HMAS Kuttabul, doing grounds duties, and had served on HMAS Supply, but had nothing to do with guns on that ship. He had not been promoted and he had declined the opportunity to travel to the United States as crew taking delivery of new Navy vessels, which was much sought after, because he wanted to avoid guns he said. The Applicant said that he had applied to do a diving course, but was advised that he would have to re-enlist for a further three years to do so, and if he failed the course he would remain a "gunnery rate". This prospect was untenable and he left the Navy, with some regrets.
The Applicant related that after leaving the Navy, he had only once been exposed to a gun, when he went shooting rabbits with his brother. He said that he had fired the rifle once, but never again. He told the Tribunal that he still dreamt of his experiences on HMAS Quiberon, and drank rum every night before going to bed to help him sleep. He explained that he had been doing this since leaving the Navy.
Dr A Dinnen - Psychiatrist
Dr Dinnen whose report of 20 February 2002 was before the Tribunal as Exhibit A4, gave oral evidence. He told the Tribunal that the Applicant's condition was a reaction to the malfunctioning gun, which persisted beyond a normal reaction and became pathological, and therefore phobic.
Dr Dinnen identified three key factors in the development of the phobia in the Applicant's case: the occasional malfunctioning of the gun, the fact that it had caused damage, and the length of time the Applicant was required to work with the gun. He expressed the view that one month was sufficient time in which to identify a psychiatric effect.
In his report at Exhibit A4, Dr Dinnen opined that Dr Keshava and Dr Empson had reported:
"a consistent account from the patient very much in accord with that which he provided to me. The history is unequivocal. He served in the Navy and was traumatised by his service on the guns, particularly because of his apprehension that the 4 inch gun which he worked on was likely to misfire. … the diagnosis of gun phobia is clearly substantiated. It developed on service and persists to the present day. … Because it is an anxiety disorder, and because many of the features are similar to those of post traumatic stress disorder, both Dr Empson and Dr Keshava are correct. For simplicity however I prefer the diagnosis of gun phobia."
Explaining such conditions, Dr Dinnen opined that most phobic conditions were able to be managed by avoidance of the stimulus for the phobia. In general terms, the more exposure to the object of the phobia, the more entrenched the phobia would become, he said. He explained that phobia involved a special relationship between the stimulus, providing a trigger, and the response. In this case the stimulus was the gun, he said. Dr Dinnen opined that in this case, in the first instance, there would have been an arousal of anxiety, which later became entrenched. Absent the stimulus, and the symptoms of the phobia would drop away over time, he said; however, the phobia persisted, albeit without causing recognisable dysfunction. Dr Dinnen attempted to explain the difference between a fear and a phobia by explaining that a person may be afraid of snakes, but that that was not a phobia – a person who had a snake phobia was not likely to be able to master their anxiety about snakes, and would be likely to experience unreasonable and excessive anxiety seeking to avoid snakes.
Dr Dinnen opined that in the Applicant's case, the Applicant's aversion was well established by the time that he sought to avoid the gun. However, the phobia was diagnosable only at the time when the Applicant actively sought to avoid the gun. Noting that the gun was only malfunctioning intermittently, Dr Dinnen thought that this would not change the phobia, rather, even when the gun was operating normally, having previously malfunctioned, this would be sufficient to activate the phobia. He noted that phobia did not accord to rationality or reason.
With regard to alcohol, Dr Dinnen expressed the view that the distinction between alcohol abuse and alcohol dependence was a matter of degree of dysfunction. In his report at Exhibit A4, Dr Dinnen opined:
"There is also no argument that the major disability suffered by the patient through the years is due to his chronic alcoholism, and the diagnosis of psychoactive substance dependence is the major and relevant one due to service. It appears to have been triggered by the gun phobia. It became habitual as is often the case. It satisfies the Statement of Principles and causes major impairment."

Dr P Empson – Psychiatrist

Dr Empson whose report of 25 September 2000 was before the Tribunal at T5, assessed the Applicant on 14 September 2000. Dr Empson took a history with which Dr Dinnen, (whose evidence is in the paragraphs above), accorded.
Of note were points he made which Mr Clark agreed to when they were put to him:

That Mr Clark only had an occasional drink before joining the Navy;
That drinking was a part of the Navy lifestyle "especially if you were younger and trying to keep up with older men."
And the statement about Mr Clark: "He says he spent the rest of the time in the Navy getting out of the gun crew and he succeeded in doing this quite well."

Dr Empson concluded that Mr Clark did not have post traumatic stress disorder, but a specific phobia, namely a gun phobia developed while he was in the Navy. He added: "He has alcohol dependence as well, though he says that this was due to the fact that he likes drinking rather than it being due to his nerves."
Dr B Keshava – Psychiatrist
Dr Keshava produced a report of 5 July 2001 which was at T14/134. He opined that:
"Mr Clark suffers from Post traumatic Stress Disorder with Alcohol Dependence. He has very low frustration tolerance and he loses his temper easily. … He gets anxious and agitated in crowded places and prefers to be on his own. He has late insomnia and difficulty staying asleep. His sleep is punctuated by frightening dreams and nightmares. He has been drinking heavily since he joined the navy and he has no insight into his alcohol problem…."

Dr R Lewin – Psychiatrist

Dr Lewin whose report of 7 May 2002 was before the Tribunal as Exhibit R2, opined as follows:
"Mr Clark describes the onset of an Anxiety Disorder in the context of his work in gunnery. He reports symptoms of phobic disturbance relating to working in close proximity to the four-inch guns on "HMAS Quibron." There was no history of any specific incident leading to the onset of these symptoms. …
Mr Clark describes beginning to drink during his period of naval service. He first began to drink heavily whilst serving in the Malaya Campaign. … He describes continuous almost daily drinking from that time to the present day. … Mr Clark has continued to drink despite very evident consequences in his personal and family life. …
The Anxiety Disorder appears to have preceded either the onset or a significant worsening in his drinking problem. Once again I noted that there was no history of a "severe stressor" within a two-year period prior to this worsening of his drinking."

Commodore Mulcare – Writeway Research Services

Commodore Mulcare had produced reports dated 27 January 2001 (T9) and 17 September 2002 (Exhibit R4) which were before the Tribunal.
In his report at T9, Commodore Mulcare reported in reply to questions from the Respondent that he could not find "any official record of any specific incidents involving QUIBRON'S 4" gun mount." He also interviewed several officers, including Mr A West, then an Acting Sub-Lieutenant and the Gunnery Officer, who was in charge of Mr Clark at the time. None could recall a gun malfunction. However, Mr West recalled a memoir produced for the HMAS Quiberon reunion in April 1988 which mentioned an incident with the 4" mounting (T9/52).
In his further report at Exhibit R4, Commodore Mulcare stated that between 15 July and 31 July 1960, HMAS Quiberon sailed for exercises in the Singapore area, and firings were recorded:

19 July A surface firing at a towed battle practice target (ROP paragraph 24)
21 July A throw off target firing (ROP paragraph 29)
22 July An AA firing (ROP paragraph 31)

The Tribunal was satisfied that these were references to the 4" gun being fired, and that the Director may have been engaged.
SUBMISSIONS AND CONCLUSIONS

The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Clark's conditions of gun phobia and alcohol dependence were war-caused within section 9 of the Act.
The Tribunal noted that the Applicant was not contesting the Board's decision as it related to acquired cataracts in both eyes. The Respondent accepted that the conditions of vitreous degeneration left eye and misaligned foveal receptors were war-caused, and the Tribunal so finds. The parties agreed that the correct date of effect for these claims was 19 July 2000, and the Tribunal so finds. Both parties agreed, and the Tribunal accepted that in relation to assessment of Mr Clark's entitlement for disability pension, the matter be remitted to the Respondent.
It was common ground that the diagnosis of post traumatic stress disorder was not correct. The parties agreed that the correct diagnosis was gun phobia, and the Tribunal accepted the diagnosis of Dr Dinnen who in fact opined as follows:
"The diagnosis of gun phobia is clearly substantiated. It developed on service and persists to the present day. It is found in the classificatory system of DSM IV amongst the anxiety disorders and is coded at 300.29, specific phobia.
Because it is an anxiety disorder, and because many of the features are similar to those of post traumatic stress disorder, both Dr Empson and Dr Keshava are correct. For simplicity however I prefer the diagnosis of gun phobia."
The Tribunal was mindful that Dr Lewin opined as follows:
"The Anxiety Disorder appears to have preceded either the onset or a significant worsening in his drinking problem. …
You asked further questions about the diagnosis of Post Traumatic Stress Disorder. I did not make that diagnosis in Mr Clark's case. He did not report typical symptoms of that condition nor was there evidence of a severe stressor in this case."
The Tribunal relying on the medical evidence finds, to its reasonable satisfaction (pursuant to section 120(4) of the Act and Repatriation Commission v Cooke (1998) 52 ALD 1 that the correct diagnosis of the Applicant's claimed conditions are gun phobia and alcohol dependence. The parties agreed that the correct date of effect for these claims should Mr Clark be successful, was 22 May 2000, and the Tribunal so finds.
The Tribunal puts on record that it found Mr Clark to be a witness of truth and accepted that due to the passage of time and his alcoholism, the Applicant had little recall of certain dates. The Tribunal was mindful also of the operation of section 119 of the Act in these circumstances, namely that it can take into account factors such as a deficiency in records of diminution of the Veteran's memory.
In considering whether the Applicant's claim that his gun phobia and alcohol abuse were war-caused within the terms of section 9 of the Act, The Tribunal was mindful of the appropriate standards of proof and established authorities. The process to be followed when there is no SoP in force as in the case of the specific gun phobia, employs the principles established by the High Court in Bushell (supra) and Byrnes (supra) and pursuant to tests in sections 120(1) and 120(3) of the Act. As relevant the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 states:
"(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis."
As the alcohol dependence claimed by the Applicant is dealt with by way of an SoP, specifically SoP Instrument No.76 of 1998, the approach adopted by the Full Court of the Federal Court in the case of Repatriation Commission v Deledio (1998) 83 FCR 82 and by way of application of the relevant SoP applied:
"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. If no such hypothesis arises, 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."
In Re Dell and Repatriation Commission (1986) 9 ALD 596 at p 615 the term "reasonable hypothesis" was given definition that has subsequently been approved of:
"A hypothesis may be conveniently defined as: "proposition made as basis for reasoning, without assumption of its truth; supposition made as starting-point for further investigation from known facts; groundless assumption"; The Concise Oxford Dictionary.
…
… to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material … it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis."

Gun Phobia
Applicant's Submissions

Ms Buss submitted that the material before the Tribunal pointed to an hypothesis connecting the Applicant's gun phobia with his operational service. She submitted that in 1960 an incident occurred on HMAS Quiberon, in which the 4" gun had misfired, blowing off the guard shields and damaging the canteen. The incident triggered an adverse reaction in the Applicant, she submitted, the persistence of which, exacerbated by repeated exposure to the gun on operational service, led to the pathological condition, gun phobia. Ms Buss contended that the repeat misfirings and gun malfunctions led to the Applicant's pathological condition, submitting that Dr Dinnen's evidence supported this contention. Ms Buss submitted that Dr Dinnen was eminent in his field, and that his evidence should lead the Tribunal to conclude that a hypothesis could be raised connecting the Applicant's injuries on service to his current conditions as claimed. Being thus pointed to by the material, Ms Buss submitted the Tribunal must find the hypothesis reasonable. The tests in Byrnes (supra) and Bushell (supra) were therefore satisfied she said.
Ms Buss conceded that the incident relied on by Mr Clark was not recorded in the Reports of Proceedings for HMAS Quiberon, and conceded that the Applicant could not recall the precise date on which it had occurred. However, she submitted this should not disturb the reasonableness of the hypothesis. Ms Buss submitted that the incident was clearly recalled by the Applicant, and was known to other members of the crew, evidence of which was to be found in a referential article "Memories of my Time on HMAS Quiberon" (Exhibit R1/56). Ms Buss pointed to evidence of contemporaneous faults with the gun's Director (Exhibit R1/60), and submitted that these were not remedied, causing subsequent misfirings of the gun whenever it was fired using the Director. The evidence pointed to the gun malfunctioning, she submitted, and there was therefore, insufficient evidence to support a finding, beyond reasonable doubt, that the gun was not malfunctioning during the FESR tour of duty in 1960.

Ms Buss put to the Tribunal that the service records established that the Applicant served 39 days on operational service in two tours of duty on HMAS Quiberon while attached to the FESR between June and July 1960. Referring to Repatriation Commission v Law (1981) 147 CLR 635 and Kattenberg v Repatriation Commission (2002) 34 AAR 562, Ms Buss submitted the Applicant was repeatedly exposed to the malfunctioning gun during these periods of operational service during firings and otherwise, reasoning that the periods of operational service, whilst not extensive, materially contributed, not de minimis, to the Applicant's gun phobia, whereby that specific phobia was thus causally linked to the Applicant's operational service. On this basis, Ms Buss submitted that it was not necessary to establish whether or not the original trigger event occurred on operational service, reasoning it was sufficient that the incident occurred on or before operational service, the operative factor being that the operational service materially contributed to the gun phobia.
Respondent's Submissions
Mr Marsh, for the Respondent, submitted the date of onset of both claimed conditions was crucial to the claim. With regard to the claim for gun phobia, Mr Marsh submitted that the material pointed to the "trigger" incident occurring in June 1960 off Sydney before the Applicant's operational service. Mr Marsh reasoned that in all likelihood, the Applicant's exposure to the malfunctioning gun during that period, in preparation for a tour of duty attached to the FESR caused the gun phobia, whereby that phobia was evident before operational service.
Thus, Mr Marsh submitted, the gun phobia was not caused by operational service, and there was no material to suggest the condition was aggravated or materially contributed to by the Applicant's brief period of operational service, being a total of 39 days out of 9 years total service. The operational records for HMAS Quiberon pointed to the 4" gun being defective "at times", when fired by the Director he submitted, and did not reveal any misfiring of the gun by the Director on operational service. Thus, he submitted, an element essential to the hypothesis was not pointed to by the material, as a result of which the hypothesis was not reasonable, and the claim must fail.
Mr Marsh conceded that specific phobia was considered to be an Axis 1 disorder pursuant to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), but challenged the currency of the diagnosis pursuant to the definition of "disease" in the Act. The medical evidence was such that the condition abated in the absence of the phobic stimulus Mr Marsh submitted, whereby the Applicant cannot be said to continue to suffer any symptoms or incapacity in relation to the phobic condition which he suffered on service.
Mr Marsh concluded that in any event, any hypothesis connecting the Applicant's gun phobia with his operational service was not made out as reasonable, and must therefore fail.
The Tribunal
The Tribunal considered the submissions of the parties, noting that it was put to the Tribunal that the Applicant's specific gun phobia was triggered by an incident in which the 4" gun on HMAS Quiberon misfired ("the trigger event") either on or before operational service. The Tribunal accepted the submission and the evidence of Dr Dinnen, that as a result of the trigger event, the Applicant suffered an adverse reaction which intensified with repeat exposure to that gun during operational service, to the extent that a pathological state, gun phobia, was established. The Tribunal agreed an hypothesis could accordingly be raised connecting the Applicant's gun phobia with his operational service.
When considering whether the hypothesis raised was reasonable, the Tribunal was mindful of the position stated by the Full Federal Court in East v Repatriation Commission (1987) 16 FCR 517 at p 533:
"A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
For the purpose of considering whether a reasonable hypothesis was pointed to by the material in the case, the Tribunal noted that the hypothesis must stand on two legs, the first being temporal, linking the occurrence of the Applicant's gun phobia with his operational service, and the second being causal, linking some event or occurrence on operational service with the development of Mr Clark's gun phobia.
The Tribunal was mindful of the Respondent's submissions that the material before the Tribunal did not support the temporal leg necessary to support the hypothesis. Mr Marsh submitted that the material pointed to the trigger event and subsequent repeat exposure to the phobic stimulus occurring before the periods of Mr Clark's operational service. Thus it was argued that the gun phobia was established prior to operational service. In that regard, the Tribunal also had to consider Ms Buss' submissions based on Dr Dinnen's evidence as noted above.
Mr Marsh argued that it was not open to the Tribunal to create facts where no facts were raised, and in the absence of raised facts pointing to the occurrence of the injury during a period of operational service, the hypothesis could not be considered reasonable, and the claim must fail.
The Tribunal was mindful that the Applicant could not recall the precise date when the trigger incident occurred, but that he thought it may have occurred off Sydney in June 1960. The operational records of HMAS Quiberon for June 1960 do not refer to any such incident, but do make reference to "CRBFD Trials" and other exercises in the period 6 to 9 June 1960 with the faults that identified as follows:
"11. The analysis of Gunnery shoots have been forwarded. Faults with 262, gyro gun sights and the Director, have occurred on almost all shoots. The crews are new and lack experience, but steady progress is being made.
12. Throughout the week the Engineering and Electrical Departments were hard pressed to cope with the continuous stream of faults that arose. Apart from faults in the C.R.B.F.D. for which dockyard assistance was required these were satisfactorily remedied" (Exhibit R1/ 60)."
The Tribunal was also mindful of a memoir produced for the HMAS Quiberon reunion in April 1988 which mentioned an incident with the 4" mounting (T9/56 and 57). Further the Tribunal was able to take into account the provisions of section 119 of the Act in relation to the paucity of records and Mr Clark's diminution of memory due to the lapse of time and his alcoholism.
The Tribunal noted that the medical evidence of Dr Dinnen, established that a pathological phobic disorder required a trigger event and repeat exposure to the phobic stimulus. The Tribunal accepted the Applicant's submission that the pathological disorder became established on operational service as a result of repeated exposure to the malfunction of the 4" gun. The operational records for HMAS Quiberon referred to firing exercises on 20 June 1960 and 14, 19, 21 and 22 July 1960, but did not reveal whether or not the Director was used on any of these occasions. However, the Tribunal accepted the evidence of Dr Dinnen that the fear and anticipation that the gun could malfunction was a factor in establishing the phobia. The Tribunal was mindful also of Mr Clark's evidence that he hid behind a post when the gun was fired, that on HMAS Parramatta he hid in the paint shop, and that he was later able to negotiate a transfer away from the gun firing area.
Applying Repatriation Commission v Bey (1997) 79 FCR 364, in the absence of any documentary record or other evidence concerning the precise date on which the Applicant's claimed injuries occurred, the Tribunal had to consider the whole of the material before it.
The Tribunal found that the material pointed to the trigger incident occurring prior to the Applicant's first period of eligible operational service during exercises off the New South Wales coast consistent with the raised hypothesis. However, the material also pointed to subsequent firing exercises with or without the use of the Director occurring within periods of operational service.
Accordingly the Tribunal found that it was not fanciful, impossible or untenable to hold that the hypothesis raised linking the development of Mr Clark's gun phobia with the intermittently defective 4" gun and his operational service was reasonable.
Turning then to consider the application of sections 120(3) and 120(1) of the Act, the Tribunal had to consider whether it could be convinced beyond reasonable doubt that there was no sufficient ground for deciding that Mr Clark's gun phobia was not war-caused.
The Tribunal noted that Dr Dinnen opined that pathological phobic disorder required a trigger event followed by repeat exposure to the phobic stimulus, in this case the 4" gun, and clear avoidance behaviour, which indeed the Applicant exhibited both at the time of operational service and since.
While the Applicant could not recall the precise dates on which the trigger incident or other firings occurred, he clearly recalled attempting to avoid duty on the 4" gun on operational service, giving the example of hiding behind an air vent, and later on HMAS Parramatta, in the paint room where he could not hear the gun. He also related, as part of his avoidance behaviour, requesting transfer from his duties as a sweeper on the gun to duties in the magazine below the gun.
The Tribunal was mindful of the submissions regarding Kattenberg (supra) and Law (supra), on de minimis contribution.
The Tribunal could not be satisfied beyond reasonable doubt pursuant to sections 120(3) and 120(1) of the Act that Mr Clark's gun phobia was not war-caused, and was accordingly satisfied that his gun phobia was war-caused within the terms of the legislation.
The Tribunal was mindful of Mr Clark's avoidance behaviour and found that provided he kept himself away from stimuli such as firearms which activated his gun phobia, the phobia was in remission. The Tribunal moved then to consider Mr Clark's alcohol abuse or dependence.
Alcohol Abuse or Dependence
The Tribunal turned then to consider the matter of alcohol dependence in relation to Mr Clark, noting that the Respondent had conceded that the Applicant indeed suffered that condition.
The Tribunal was mindful that as there was SoP No.76 of 1998 to be applied, the tests as set out in Deledio (supra) had to be applied in considering whether the condition was war-caused.
The Applicant's Submissions
Ms Buss submitted that the Applicant's alcohol dependence post-dated the onset of specific gun phobia. She submitted that the material before the Tribunal pointed to an hypothesis, whereby the Applicant's alcohol dependence arose from his alcohol abuse which was caused, in part, by his adverse reaction to the 4" gun on HMAS Quiberon, and the gun phobia thus caused.
Thus, Ms Buss submitted, in considering whether the hypothesis was reasonable pursuant to the SoP, it was noted that the Applicant suffered a psychiatric disorder at the time of the clinical onset or worsening of the alcohol abuse or dependence.
Ms Buss conceded that the date of onset or clinical worsening of alcohol abuse or alcohol dependence was not clear, submitting, on the balance of probabilities, that one or both of these events occurred after the onset of gun phobia. This being the case, Ms Buss reasoned the hypothesis must be found to be reasonable and, in absence of evidence sufficient to prove beyond reasonable doubt, that these events did not occur, the claim must succeed.
Respondent's Submissions
Mr Marsh submitted that the material pointed to the Applicant commencing to drink alcohol while serving on the HMAS Cerebus base, whereafter he drank for four months on HMAS Quiberon before commencing operational service. The Applicant, he contended, had stated in his evidence that he liked Navy life and enjoyed drinking with his mates within the Navy culture. Thus, Mr Marsh submitted, it could not be said that the Applicant drank as a result of his gun phobia. That being the case, Mr Marsh reasoned it was beyond credence, absent any stressor of significance, to suggest that the contribution made by 39 days operational service to the Applicant's alcohol problems out of a total service period of 9 years, was anything but de minimis.
Mr Marsh submitted that the Applicant failed at the first of the steps set out in Deledio (supra), whereby the hypothesis of connection raised by the Applicant relied upon the psychiatric condition being war-caused. Absent this essential link and the hypothesis cannot stand; Connors v Repatriation Commission (2000) 59 ALD 61.
Mr Marsh submitted that the claim for alcohol abuse or alcohol dependence relied upon the prior existence of the gun phobia such that this coincided with the clinical onset or clinical worsening of alcohol abuse or alcohol dependence. In the absence of evidence establishing dates for the clinical onset or worsening of alcohol abuse or dependence, the Tribunal had to consider all the material before it, he submitted. Mr Marsh submitted that the material pointed to the Applicant commencing to drink alcohol and abuse alcohol before his operational service, on which basis the template of the SoP was not satisfied. In the alternative, Mr Marsh submitted, the mere existence of gun phobia before the clinical onset or worsening of alcohol abuse or dependence was not sufficient. The phobia must be related to operational service and must have caused the alcohol abuse for the Applicant to succeed, he submitted.
The Tribunal
The Tribunal was mindful that the parties did not dispute that Mr Clark suffered alcohol dependence. The weight of the medical evidence supported this diagnosis, and the Tribunal accepted that the correct diagnosis of the Applicant's alcohol condition was alcohol dependence.
The Tribunal accepted the Applicant's submissions which raised an hypothesis of connection whereby the Applicant's alcohol dependence was caused by his abuse of alcohol which was either caused by or materially contributed to by the psychiatric disorder, gun phobia. The Tribunal accepted his accounts of the fear he felt, and avoidance of the faulty gun.
The Tribunal was mindful that alcohol abuse and dependence are covered by SoP Instrument No.76 of 1998 determined by the RMA under section 196B(2) of the Act. Thus, pursuant to section 120A of the Act, the Tribunal turned to considered whether or not the hypothesis linking Mr Clark's alcohol dependence was consistent with the template of the SoP (Deledio, (supra)), and was therefore reasonable.
Essentially, the hypothesis must connect the disease suffered by the Veteran with the circumstances of his service; McKenna v Repatriation Commission (1999) 86 FCR 144, Repatriation Commission v Hill [2002] FCAFC 192. Thus, in the case at hand, for Mr Clark to be successful, the hypothesis must point to a connection that starts with the alcohol dependence and ends with the Applicant's operational service, each of the links therein to be upheld by the SoP.
For the hypothesis to be found to be reasonable, one or more of the factors set out at Clause 5 of the Sop had to be satisfied. The Applicant's hypothesis relied upon Factor 5 (a) or, in the alternative, Factor 5 (c) of the SoP which follow as relevant:
"(a)suffering a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
…
(c)suffering a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or
…"
The Applicant's hypothesis of connection between alcohol dependence and operational service relied, essentially, on the psychiatric disorder, gun phobia being related to operational service. Ms Buss claimed that the relationships therein were causal and temporal, whereby the psychiatric disorder was caused or worsened by circumstances during the Applicant's operational service, and existed at the time of the clinical onset or worsening of the alcohol dependence or abuse. It is, however, necessary that there is material pointing to a causal relationship between the psychiatric disorder, the alcohol, and the circumstances of the Applicant's operational service, in the absence of which the hypothesis is not consistent with the requirements of the SoP and cannot, therefore, be considered reasonable.
Considering the whole of the material, the Tribunal was mindful that the Applicant claimed he started drinking heavily on HMAS Quiberon, and that this was consistent with histories recorded in the medical evidence. The Tribunal noted that Dr Lewin recorded:
"Mr Clark reports that he first began to drink alcohol when he joined the Navy. He reported that he drank moderately in recruit school, particularly because he enjoyed playing rugby and boxing. When the vessel was overseas, when Mr Clark was aged 18, he recalls drinking heavily. For example, he remembered drinking very heavily whilst on shore in Singapore." (Exhibit R2, p5)
In his report at Exhibit A4, Dr Dinnen opined:
"There is also no argument that the major disability suffered by the patient through the years is due to his chronic alcoholism, and the diagnosis of psychoactive substance dependence is the major and relevant one due to service. It appears to have been triggered by the gun phobia. It became habitual as is often the case. It satisfies the Statement of Principles and causes major impairment."
The Tribunal accepted that there was significant material which pointed to the Applicant sustaining a drinking habit which commenced early in his Navy service, extended to the operational service period, and persisted over the years to the present day. Mr Clark gave evidence of his fears regarding the faulty gun during his operational service, and although he said in evidence that he drank to keep up with older men, he also told the Tribunal that it was to calm his nerves and allay his fears. It was not possible to quantify the Applicant's drinking but the Tribunal noted his explanation that in addition to rations, it was possible to stockpile beer by arrangement with those who did not drink. The evidence was also that on shore leave he drank to excess.
The Tribunal finds from the evidence before it that Factor 5(c) of the SoP is satisfied in that Mr Clark was suffering a pathological phobic disorder, gun phobia, at the time of the clinical worsening of alcohol dependence. A reasonable hypothesis exists therefore to link Mr Clark's alcohol abuse to his operational service.
The Tribunal moved then to consider the application of sections 120(3) and 120(1) of the Act, noting that the claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
The Tribunal was satisfied from the evidence that Mr Clark's drinking habits increased during his operational service due to the fear he experienced as a result of his gun phobia. The Tribunal accepted his account of how he obtained beer in excess of his ration and whilst mindful of Mr Marsh's submissions that Mr Clark had told his doctors that he liked drinking, preferred the Applicant's evidence that he drank as a result of the apprehension of the faulty gun firing. In that regard the Tribunal also took into account the medical evidence.
Thus, the Tribunal could not be satisfied beyond reasonable doubt, that there was no sufficient ground for determining that the Applicant's alcohol dependence was not war-caused pursuant to sections 120(3) and 120(1) of the Act, and accordingly finds that Mr Clark's alcohol dependence was war-caused within the terms of the legislation.
DECISION

The Tribunal determines that the decision under review pertaining to the Applicant, Mr Peter Ross Clark, is varied as follows:
(1) By agreement of the parties, the Applicant's conditions of vitreous degeneration left eye and misaligned foveal receptors are war-caused disabilities within the terms of section 9 of the Veterans' Entitlements Act 1986, with the date of effect being 19 July 2000.
(2) By agreement of the parties the diagnosis of post traumatic stress disorder with alcohol dependence is amended to gun phobia and alcohol dependence.
(3) The Tribunal sets aside the decision of the Repatriation Commission dated 16 February 2001 as varied and affirmed by the Veterans' Review Board dated 13 August 2001 which found that the Applicant's conditions of gun phobia and alcohol dependence were not war-caused disabilities pursuant to section 9 of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Clark's conditions of gun phobia and alcohol dependence were war-caused within the terms of section 9 of the Veterans Entitlements Act 1986 with date of effect being 22 May 2000.
(4) The Tribunal notes that the Applicant did not pursue the claim for his condition of acquired cataracts to both eyes, and the Tribunal affirms the decision of the Repatriation Commission in that regard.
The matter is remitted to the Repatriation Commission for assessment of Mr Clark's entitlement to disability pension.

I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member G Ettinger, Dr P Lynch, Member and Mr S Webb, Member
Signed: H Sim         .....................................................................................
  Associate
Date of Hearing  19 September 2002
Date of Decision  14 November 2002
Solicitor for the Applicant         Ms J Buss, Legal Aid Commission
Advocate for the Respondent Mr J Marsh, Repatriation Commission