Demczuk and Repatriation Commission
[2003] AATA 303
•31 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 303
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/445
VETERANS' APPEALS DIVISION ) Re Victor Nicholas Demczuk Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal The Hon C R Wright QC., (Deputy President) Date31 March 2003
PlaceAdelaide
Decision 1. The decision under review is set aside in so far as it confirms the Commission delegate’s rejection of the applicant’s pension entitlement based upon alcohol abuse.
2. In lieu thereof it is determined that the applicant’s alcohol abuse was war-caused.
3. The decision under review confirmed in so far as it confirms the Commission delegate’s rejection of the applicant’s claim for pension entitlement based upon generalised anxiety disorder and alcohol dependence.
(The Hon C R Wright QC)
Deputy President
CATCHWORDS
Veterans' Affairs - disability support pension - whether applicant suffered from war-caused generalised anxiety disorder and/or alcohol dependence or alcohol abuse - whether applicant experienced relevant stressors as defined in Statements of Principles - whether there was a reasonable hypothesis within the meaning of s120(3) of the VE Act connecting the injury with the circumstances of the particular service rendered by the applicant.
R v War Pensions Appeal Tribunal (1933) 50 CLR 228
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Keeley (2000) FCA 522
Repatriation Commission v Gorton (2001) FCA 1194
O’Niel v Repatriation Commission (2001) FCA 1492
Veterans’ Entitlements Act 1986 – ss120(10, 93), 120A(3)
Veterans’ Entitlements Law – Creyke and Sutherland
Statements of Principles – No 1 of 2001, No 48 of 1994, No 76 of 1998
REASONS FOR DECISION
31 March 2003 The Hon C R Wright QC., (Deputy President) Background
1. The applicant is a 50 year old storeman living in Adelaide with his wife and son. He was born on 2 February 1953. At the age of 17 he joined the Royal Australian Navy and served from 22 August 1970 until 29 February 1972.
2. From 12 December 1970 to 11 October 1971 he had the rank of ordinary seaman aboard the HMAS Brisbane and during that period he had “operational service” within the meaning of the Veterans’ Entitlements Act (1986) (“the VE Act”) between 16 March 1971 and 11 October 1971.
3. HMAS Brisbane was a destroyer attached to the US 7th Fleet for duties on the gun-line off South Vietnam. The ship made 3 separate visits to serve on the gun-line off the Vietnam coast whilst the applicant was a crew member. Its main function appears to have been the long range shelling of Viet Cong units, positions or facilities from offshore. Whilst carrying out these duties HMAS Brisbane was usually beyond the range of enemy fire from land based positions. On occasions when coming into port the ship could be exposed to sniper fire.
4. HMAS Brisbane’s principle armaments consisted of two 5-inch 54 calibre gun mounts, one forward and one aft. The applicant’s duties included loading the various types of shells in the magazine of the forward gun. The magazine was situated directly beneath the gun turret and the driving mechanism. Further details of the applicant’s duties will be referred to later.
5. After returning to Australia from Vietnamese waters in October 1971, the crew members were dispersed to various postings. The applicant was sent to HMAS Cerberus, a land based facility at which he had done his basic training over a period of about 3 months before going on active service.
6. He soon tired of life at HMAS Cerberus and was discharged from the Navy after about 4 months in February 1972. He married the girl who had been his sweetheart before and during his tour of duty in Vietnam about one year later.
7. Details of his civilian employment are scant. In his report of 4 November 1999 an examining psychiatrist, Dr Ewer, says “After leaving school Mr Demczuk worked as a labourer until he joined the Navy. He returned to work as a labourer after discharge. He then drove a truck for eleven years. He has been a storeman with the same company for last fifteen years.” The applicant joined Bunzl Ltd, a local Adelaide company approximately 19 years ago and has remained with that company ever since. His employment has not been without incident due to his friction with other employees and the management. At one state he was warehouse manager but was demoted to storeman in July 1995. He has continued in that position ever since.
The Applicant’s Claim
8. On 24 May 1999 the applicant lodged a claim for a disability pension under Part II of the VE Act in respect of stress, anxiety and hearing difficulties. These were formulated as generalised anxiety disorder, alcohol dependence or alcohol abuse and bilateral conductive hearing loss.
9. On 17 November 1999, the Commission’s delegate determined that:
(a) The applicant was not suffering any anxiety disorder.
(b)The applicant was suffering alcohol abuse or dependence, but that condition was not caused by his war service.
(c)The claim for hearing loss should be accepted and his rate of pension in respect thereof was assessed at 30% of the General Rate.
10. On 31 October 2000, the applicant lodged an application to the Veterans’ Review Board (VRB) to review the Commission’s adverse determination in respect of anxiety disorder and alcohol dependence or abuse.
11. On 24 September 2001 the VRB varied the Commission’s determination by finding that the applicant was suffering an anxiety disorder, but the Commission’s determination rejecting the applicant’s claim for pension in respect of that disorder or for alcohol dependence or abuse, was affirmed.
12. On 3 December 2001 the applicant lodged an application for review of the VRB’s decision rejecting his pension claims, with the Administrative Appeals Tribunal.
13. A review hearing took place in Adelaide on 20 and 21 February 2003. At the hearing the applicant was represented by Mr Timothy White, Solicitor of Tindall Gask Bentley, Solicitors, Adelaide and the Commission was represented by Mr Crowe.
The Proceedings before the AAT
14. The documentary evidence consisted of:
(a) The section 37 documents (“T” documents) (Exhibit “A”).
(b) Letter from Bunzl Ltd to applicant dated 24.7.1995 (Exhibit “B”).
(c)Ditto dated 16.2.99 (Exhibit “C”).
(d)Report “HMAS Brisbane – 2nd Deployment 16 March 1971 – 15 October 1971” (Exhibit “D”).
(e)Medical report by Dr Marty Ewer dated 13 February 2002 (Exhibit “E”).
(f)Statement by applicant dated 6.8.02. (Exhibit “F”).
(g)Stated by Peter Werner dated 24.7.02 (Exhibit “G”).
(h)Letter from Write Way Research Service to Deputy Commissioner of Veterans’ Affairs dated 7 February 1003 (Exhibit “H”).
15. In addition oral evidence was given by the applicant, Peter Werner (by Phone), Dr Marty Ewer and, (by Phone) Philip Mulcare a Retired Commodore in the Royal Australian Navy.
16. The Tribunal did not hear from the applicant’s wife (although she had given evidence in the proceedings before the Veterans’ Review Board) or the applicant’s mother, father or sister. The absence of evidence from these sources is regrettable because of the causation issues which were the primary focus of the AAT hearing, and upon which the only direct evidence was that given by the applicant himself.
17. The applicant’s Statement of Issues, Facts and Contentions filed on 29 August 2002 alleges that during the applicant’s operational service in Vietnam.
“4. He was exposed to a number of stressful events … including the following:
(a)Being aboard the Brisbane when it came under sniper fire.
(b)Whilst on lookout duty being observing a possible mine or explosive object in the water.
(c)Being on the upper deck, observing other sailors firing at suspicious objects in the water, and also being required to fire at a mine in the water.
(d)Being required to carry bomb shells from the turret and drop them overboard.
(e)Being in the magazine room when bombs were dropped hitting the floor. Then required to dispose of them overboard.
(f)The Brisbane coming under mortar fire.
(g)The Brisbane pursuing boats up or near the Mekong Delta and being fired upon.”
It was further alleged that these experiences caused the applicant to become extremely stressed, anxious and worried.
The Statement of Facts, issues and Contentions continues:
“Subsequent to these incidents the applicant commenced drinking alcohol heavily. He used alcohol to try and relax and forget about the stressful incidents.
The applicant abused alcohol on board the Brisbane at ports and in Australia.
The applicant has experienced the clinic onset of generalised anxiety disorder within 2 years of one or more of the stressful events.”
18. It is also alleged that the applicant was suffering from an anxiety disorder at the time of the clinical onset of alcohol dependence or abuse. Alternatively, it is alleged that the clinical onset of alcohol dependence or abuse occurred within 2 years of experiencing severe stressors during operational service.
19. The relevance of these allegations will become obvious.
The Issues
(a) Section 119 of the Veterans’ Entitlements Act 1986.
20. In “Veterans’ Entitlements Law” Creyke and Sutherland (“Creyke”) at p.389 the authors make the following points:
Section 119 and 120 are the sections of the Act which most graphically reflect the general policy underlying veterans’ entitlements law, which is to deal generously with “those who served on the nation’s behalf and to whom the nation is indebted (Cook & Creyke 1984 at 264).
Section 119 is intended to do two things: to reflect the administrative rather than judicial nature of decision-making under the Act; and to underscore the difficulties of providing evidence to back up a claim for pension or other benefits.”
Section 119(1)(f) and (g) provide that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence; it is to act according to substantial justice and the substantial merits of the case without regard to legal from and technicalities. This is now a common provision in legislation of this kind, but the words of Evatt J in R v War Pensions Entitlement Appeal Tribunal: Exparte Bolt (1933) 50 CLR 228 must always be borne in mind when considering the effect of such altruistic formulations. He said at p.256:
“Some stress has been laid by the present respondents upon the provisions that the Tribunal is not, in hearing of appeals, “bound by any rules of evidence”. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”.”
21. These observations are of particular relevance in this case because a great deal of hearsay material was given in the course of the evidence of Commodore Mulcare which was plainly intended to bear directly and adversely upon the credibility of the applicant in describing his ship board experiences and, in particular, his involvement with the ammunition fired by the 5” guns on the HMAS Brisbane.
(b) Section 120(1) and (3) Veterans’ Entitlements Act 1986
22. Section 120(1) and (3) provide as follows:
“(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 sub-section (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
23. It will be seen that the Act effectively imposes an onus of disproof beyond reasonable doubt once a reasonable hypothesis for causation by war service is raised by the evidence.
(c) Section 120A(3) Veterans’ Entitlements Act 1986.
24. Section 120A (3) provides as follows:
“(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 b y the person is reasonable only if there is in force:
(a)a Statement of Principles determined under sub-section 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.”
25. Subsection 1 provides (inter alia) that s120A applies to Part II claims in respect of operational service by a veteran. It thus applies in respect of the applicant’s claim. In Bushell v Repatriation Commission (1992) 175 CLR 408 at 414, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
In order for the material to raise a reasonable hypothesis that material must be least point to the hypothesis. It is not sufficient that the material raise a mere possibility.”
See Creyke at 413 and cases discussed at 413 and following.
26. The applicant relied upon 3 Statements of Principle (SoP’s) to support his case. The first two relate to his claim in respect of generalised anxiety disorder and the third relates to his claim in respect of alcohol dependence or abuse. It was submitted by the solicitor for the applicant that if there had previously been an SoP more favourable to the applicant’s claim than an SoP subsequently promulgated and effective at the date of the Tribunal hearing, the applicant was entitled to the benefit of the earlier SoP.
27. Reliance for this proposition was placed upon Repatriation Commission v Keeley (2000) FCA 532 (Lee, Cooper and Kiefel JJ) and Repatriation Commission v Gorton (2001) FCA 1194 (Heerey, Emmett and Allsop JJ). The respondent’s advocate did not challenge this contention which, in my opinion, is clearly supported by the authorities referred to.
28. The three SoP’s mentioned above are:
(1)Statement of Principle concerning Anxiety Disorder Instrument No 1 of 2000 (28 January 2000) revoked Instrument No 48 of 1994 which was operative at the time the applicant lodged his claim. It also provided as follows (inter alia):
“Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting anxiety disorder or
death from anxiety disorder with the circumstances of a person’s
relevant service are:(a) for generalised anxiety disorder or anxiety disorder not otherwise
specified, only
(i) being a prisoner of war before the clinical onset of anxiety
disorder; or
(ii) experiencing a severe psychosocial stressor within the two
years immediately before the clinical onset of anxiety
disorder; or
(iii) having a clinically significant psychiatric condition within
the two years immediately before the clinical onset of
anxiety disorder; or
(iv) having a major illness or injury within the two years
immediately before the clinical onset of anxiety disorder;
or
(v) experiencing a severe psychosocial stressor within the two
years immediately before the clinical worsening of anxiety
disorder; or
(vi) having a major illness or injury within the two years
immediately before the clinical worsening of anxiety
disorder; or
(vii) having a clinically significant psychiatric condition within
the two years immediately before the clinical worsening of
anxiety disorder.”
“Generalised anxiety disorder” and “anxiety disorder not otherwise specified” are defined in the SoP as follows:
“generalised anxiety disorder” means a psychiatric disorder with the
following features:A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). Irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; and
E. important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder.”
The applicant claims to have a “generalised anxiety disorder”
“Severe psychosocial stressor” is also defined in the SoP.
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury of a close friend or relative, assault
(including sexual assault), major illness or injury, experiencing a loss such
as divorce or separation, loss of employment, major financial problems or
legal problems.”
(2) Statement of Principles concerning Generalised Anxiety Disorder, Instrument No 48 of 1994 (21 June 1995). Paragraph 1 of this SoP is in the following terms:
“1. Being of the view that there is sound medical-scientific evidence that
indicates that generalised anxiety disorder and death from generalised anxiety
disorder can be related to operational service rendered by veterans, peacekeeping
service rendered by members of Peacekeeping forces and hazardous service
rendered by members of the Forces, the Repatriation Medical Authority hereby
determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986,
that the factors that must as a minimum exist before it can be said that a reasonable
hypothesis has been raised connecting generalised anxiety disorder or death
from generalised anxiety disorder, with the circumstances of that service, are:(a) having been a prisoner of war; or
(b) experiencing a stressful event not more than two years before the
clinical onset of generalised anxiety disorder; or
(c) experiencing a stressful event not more than two years before the
clinical worsening of generalised anxiety disorder; or
(d) inability to obtain appropriate clinical management for generalised
anxiety disorder.”
The applicant seeks to rely only on paragraph 1(b); the other provisions in 1(a)(c) and (d) are obviously irrelevant to his case.
“Stressful event” is defined in this SoP as follows:
“`stressful event’ means an occurrence which evokes feelings of anxiety or stress”.
This is plainly a subjective test (see discussion in O’Niel v Repatriation Commission (2001) FCA 1492, North J).
(3)Statement of Principle concerning Alcohol Dependence or Alcohol Abuse, Instrument No 76 of 1998 (1-12 1998). Paragraph 5 provides as follows:
.
“Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting alcohol dependence or
alcohol abuse or death from alcohol dependence or alcohol abuse
with the circumstances of a person’s relevant service are:(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the two years immediately
before the clinical onset of alcohol dependence or alcohol abuse;
or
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the two years immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or
(e) inability to obtain appropriate clinical management for alcohol
dependence or alcohol abuse.”
The following definitions are also provided:
.
“alcohol dependence” means the presence of a constellation of
cognitive, behavioural and physiological symptoms indicating the
use of alcohol despite significant alcohol-related problems. The
pattern of repeated self administration may result in tolerance,
withdrawal and compulsive alcohol use behaviour.The diagnostic criteria for alcohol dependence are those specified
in DSM-IV, and are as follows:A maladaptive pattern of alcohol use, leading to clinically
significant impairment or distress, as manifested by three
(or more) of the following, occurring at any time in the
same 12-month period:(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of
alcohol to achieve intoxication or desired
effect
(b) markedly diminished effect with continued
use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for
alcohol
(b) the same (or closely related) substance is
taken to relieve or avoid withdrawal
symptoms
(3) alcohol is often taken in larger amounts or over a
longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to
cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to
obtain alcohol, use alcohol or recover from its
effects
(6) important social, occupational or recreational
activities are given up or reduced because of alcohol
use
(7) alcohol use is continued despite knowledge of having
a persistent or recurrent physical or psychological
problem that is likely to have been caused or
exacerbated by alcohol;
“alcohol abuse” means the presence of cognitive, behavioural or
physiological symptoms indicating the use of alcohol despite
significant alcohol-related problems, however these symptoms
have never met the criteria for alcohol dependence. Additionally,
signs of tolerance or withdrawal are absent.The diagnostic criteria for alcohol abuse are those specified in
DSM-IV, and are as followsA. A maladaptive pattern of alcohol use leading to
clinically significant impairment or distress, as manifested
by one (or more) of the following, occurring within a 12-
month period:(1) recurrent alcohol use resulting in a failure to fulfil
major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is
physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or
recurrent social or interpersonal problems caused or
exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude
acute alcohol intoxication in the absence 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.”
Instrument No 76 of 1998 is the only SoP upon which the applicant seeks to rely as a foundation for a “reasonable hypothesis” in relation to alcohol dependence and alcohol abuse.
Discussion and Evaluation of the Medical Evidence
29. On 2 September 1999, Dr Marty Ewer, a well qualified and experienced psychiatrist, was requested by the Department of Veterans’ Affairs to make a diagnosis and provide other information relevant to the applicant’s pension claim. (T6 page 47, Exhibit “A”).
30. On 4 November 1999, Dr Ewer furnished the first of three reports, which he made as to the applicant’s condition (T7 page 48-55 Exhibit “A”). He noted, in passing, that the applicant had not previously seen a psychiatrist and had not contacted the Vietnam Veterans’ Counselling Service. During his oral evidence Dr Ewer said that the applicant had been difficult to interview on the occasion of his first consultation, but had been more forthcoming with details of his life and circumstances on subsequent occasions. In the report of 4 November 1999 Dr Ewer made the following diagnosis:
“DIAGNOSIS
I suspect that Mr Demczuk suffered from Generalised Anxiety Disorder in the years after he returned to Australia. However, the symptoms of this condition have improved considerably and he does not currently meet the DSM-IV criteria for this condition.
Mr Demczuk continues to suffer from Alcohol Abuse and Dependence. He has suffered from this condition since he went to Vietnam.
Mr Demczuk has suffered from Nicotine Abuse for many years.”
The VRB in its decision of 24 September 2001 made the following comment about the diagnosis as it related to “generalised anxiety disorder”.
“The veteran has related to the Board and to Dr Ewer a number of incidents which he says he found stressful at the time. However, Dr Ewer has been equivocal in his diagnosis of generalised anxiety disorder. He wrote “I suspect (emphases added) that Mr Demczuk suffered from a generalised anxiety disorder in the years after he returned to Australia.” In our view, this simply amounts to a suspicion or a possibility that the veteran suffered generalised anxiety disorder at some stage after his war service. Dr Ewer does not detail the symptoms alleged to have been suffered by the veteran upon his return to Australia, nor, does he give any indication of when any symptoms could have led to a diagnosis of generalised anxiety disorder.
For these reasons, we are not of the view that there exists a reasonable hypothesis that the veteran suffered generalised anxiety disorder within two years following his period of operational service on board HMAS BRISBANE.”
31. Dr Ewer said that in preparing his second report of 1 December 2000 (T12, page 77, Exhibit “A”) he found the applicant more communicative and, in addition, the applicant provided to him several excerpts from letters which he had written to his girlfriend while he was on duty in Vietnam. (The respondent’s advocate does not challenge the authenticity of these documents, which were made available for his inspection prior to the AAT hearing). Taken at face value these letters tend to lend substantial support to the applicant’s account of allegedly stressful events in Vietnamese waters. However, there is good reason to think that much of what was written by him was highly coloured or exaggerated by his desire to impress his girlfriend.
32. At all events Dr Ewer formed the opinion, following his second consultation with the applicant, that the applicant was then suffering a generalised anxiety disorder and, indeed, had been so suffering when he first saw him in November 1999.
33. In his first report Dr Ewer had formulated the relationship of the applicant’s psychiatric condition to his war service in the following way:
“Mr Demczuk’s Generalised Anxiety Disorder was clearly and directly related to his experiences during his trips to Vietnam. Firstly, Mr Demczuk denied experiencing feelings of anxiety prior to going to Vietnam. Secondly, there is a temporal relationship between the stresses described and the development of his Anxiety Disorder in the sense that the latter came on directly after the former. Furthermore, Mr Demczuk’s symptoms of anxiety can be well understood in the context of the stresses I have described.
I also believe that Mr Demczuk’s Alcohol Abuse is related to his Naval service. Firstly, Mr Demczuk started to abuse alcohol in the Navy. Secondly, alcohol was cheap and readily available to sailors during the Vietnam War. Thirdly, Mr Demczuk gives a clear history of using alcohol to cope with the stress he was under during the Vietnam War. He also gives a history of using alcohol because of peer pressure. He continued this pattern of abuse upon returning to Australia.”
In his second report Dr Ewer said this:
“Mr Demczuk told me there is some dispute as to the validity of the stressors he identified. The extracts Mr Demczuk showed me from the letters he wrote to his wife would appear to confirm the majority of the stresses described in my previous report. I have no reason to doubt the history given to me by Mr Demczuk. Indeed he seemed a genuine historian who was no attempting to exaggerate his history. The excerpts from his letter seemed plausible descriptions of the events he endured. I note Mr Demczuk is willing to produce the original letters and this would certainly offer even more credibility to his history. I also think it is important to recall that Mr Demczuk was an eighteen year old adolescent when he wrote the letters. At that time he certainly would not have been mindful of compensation and legal issues. Consequently I would accept the original letters as reasonably accurate descriptions of his experiences.
In light of the above, I am still of the opinion that Mr Demczuk’s Generalised Anxiety Disorder and Alcohol Abuse and Dependence are directly related to his war service.”
34. I have already mentioned that the applicant’s wife did not give evidence during the AAT hearing. It should also be noted that Dr Ewer has not only provided the reports referred to, but has also treated the applicant on a number of occasions since December 2000 on reference from the applicant’s general practitioner. Yet Dr Ewer has never spoken with the applicant’s wife, parents or sister regarding the onset of his anxiety disorder or alcohol related conditions. Plainly some or all of these sources may have been helpful in establishing the date or approximate date of the onset of either or both of these conditions. Dr Ewer accepted the applicant as a truthful and reliable historian, but in my opinion there are real difficulties in accepting some aspects of his evidence. I will come to these shortly.
35. It is not disputed by the respondent that the applicant now suffers from generalised anxiety disorder and alcohol dependence or abuse. The essence of the respondent’s case is that there is no reasonable hypothesis raised by the material before the Tribunal connecting the applicant’s diseases with the circumstances of the war service which he rendered.
36. The applicant acknowledges that to establish such an hypothesis in relation to generalised anxiety disorder it must be known that
(a) the applicant experienced a “severe psychosocial stressor” within 2 years immediately before the clinical onset of anxiety disorder. Such stressor must consist of “an identifiable occurrence that evokes feelings of substantial distress in an individual”. (SoP No 1 of 2000)
or
(b)the applicant experienced a “stressful event” not more than 2 years before the clinical onset of generalised anxiety disorder. Such stressful event must consist of “an occurrence which evokes feelings of anxiety or stress”. (SoP No 48 of 1994)
37. The applicant also acknowledges that to establish the relevant hypothesis in relation to alcohol dependence and/or alcohol abuse it must be shown that
(a)the applicant suffered from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse. The only relevant psychiatric disorder suggested was the generalised anxiety disorder previously mentioned.
or
(b)the applicant experienced a severe stressor within the 2 years immediately before the clinical onset of alcohol dependence or alcohol abuse. To experience a severe stressor it must be shown that the applicant “witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the “applicant’s or other people’s physical integrity which event or events might evoke intense fear, helplessness or horror”.
The applicant, as a war veteran, could also rely upon engagement with the enemy and witnessing casualties or participating in or observing casualty clearance atrocities or abusive violence. It is not suggested, however, that these additional potential severe stressors are relevant in the applicant’s case. (SoP No 76 of 1998)
The Evidence of the Applicant and Peter Werner
38. The substance of the applicant’s evidence to the Tribunal was contained in Statement (Exhibit “F”). The contents of Exhibit “F” are as follows (for clarity I have placed a number alongside each allegedly stressful event although such numbers were not contained in the original document).
“I undertook operational service on the HMAS Brisbane in Vietnamese Waters between approximately March to October 1971.
There were a number of incidents that occurred during this time that distressed me greatly.
1.On one occasion an incident occurred where shells landed in the water near the Brisbane.
The Brisbane was off the coast of Vietnam at the time.
This resulted in water spraying up when the shells hit the ocean.
I assumed the shells were fired from the land.
I was with two other seaman, standing on an outside deck when we observed this.
I think we were having a smoke at the time.
I cannot now recall how close to the ship the shells landed into the ocean.
2.Another incident occurred when I was working in the magazine room.
This occurred when Brisbane was on the gun line off the coast of Vietnam, it occurred during day light hours.
The magazine room is about one deck down from the upper deck.
It is below the water line.
Part of my function was to load shells in the magazine room.
This involved loading cordites that contained gun powder if you like, and shells that contained the explosive portion of a bomb.
I am not sure how many shells could be loaded into a magazine.
Myself and another two individuals, I think, were told to get the shell to the upper deck and dispose of it overboard.
I recall when taking this shell to dispose of it overboard hearing it ticking.
Again it was thrown out of the rear of the ship.
3.On one occasion I was called up to the turret which is on the upper deck, and I had to carry a shell to the rear of the ship and throw it overboard.
Another person and myself were responsible for this.
I recall hearing the bomb ticking.
We were told not to drop it off the side but at the rear of the ship.
I think I may have carried more than one shell to the rear of the ship on this occasion.
The Brisbane was on the gun line when this occurred.
It occurred during day light hours.
4.I recall on an occasion being on sentry duty.
I recall seeing something floating towards the ship and I fired a number of SLR rounds into it.
The Brisbane was stationary at the time off the coast of Vietnam during the day.
I was told it was a possible mine or other explosive device hidden.
It did not actually explode.
5.There was another occasion when I was on lookout, this night was particularly dark.
I recall being on watch with another seaman called Brown.
We saw an item in the sea somewhat close to the ship that we thought initially could have been a mine.
We reported this to the bridge.
They eventually turned on the light to view the object.
6.Another incident occurred where the ship came under sniper fire.
There was an announcement over the ship regarding this.
I went up onto the upper deck, but was ordered to stay on one side of the ship.
On another occasion the Brisbane was in or near Vung Tau Harbour.
Again, there was sniper fires directed at the ship.
This was announced.
I later went up on the upper deck to see what was occurring.
7.We also pursued patrol boats up and around the Mekong Delta area generally.
I am fairly sure those were Vietnamese boats.
We were informed those were enemy patrol boats.
This was announced.”
The applicant gave supplementary evidence in chief and was cross-examined. He was in the witness box for the greater part of the first day. Evidence was also taken from Peter Werner by phone. His evidence in chief consisted of his statement (Exhibit “G”) which was supplemented by oral evidence. He was also cross-examined. Exhibit “G” is as follows.
“I served on the HMAS Brisbane, when it was on the gun line off Vietnam.
I know Victor Demczuk also served on the HMAS Brisbane.
I recall the Brisbane coming under sniper or machinegun fire around the Da Nang Harbour.
I recall that the ship had entered the harbour area generally.
I recall it was quite mountainous around this harbour.
I recall that the ship requested “spotter aircraft” in the area to try and spot where the gun sniper fire was coming from.
I was working on the upper deck I think at that time.
I worked as a weapons mechanic/under training.
I recall being told – then going for cover.
I recall the Brisbane returning fire on the sniper positions.
There may also have been fire on the sniper position from land troops.
This incident lasted over some fifteen to twenty minutes I think – secondary explosions.
We were going into the harbour because the doctor on our ship had to be transferred to a US ship to treat a US soldier.
I recall another incident where the Brisbane gave chase to three or four Vietnamese patrol boats.
I recall seeing these patrol boats.
They appeared to have engaged the Brisbane or were attempting to.
It was my impression they were armed and chasing but I am unclear of actual engagement.
I recall the Brisbane firing upon them.
I know they fled up the Mekon Delta area generally.
I recall we followed them for a period of time and then “gave up on the chase”.
I recall seeing this from I think the quarterdeck.
My duties involved, on occasions, loading shells from the magazine room.
This essentially required placing the cordite and projectile shell on the carrier.
It was then conveyed up to the turret by the carrier.
I understand the cordite shell weighed about 44 pounds and the projectile shell about 70 pounds.
I recall occasions when not all the shells that were lodged on the carrier were fired.
This meant that the shells on the carrier or up at the turret had to be manually returned to the magazine room.
This involved myself and other seaman carrying the shells back to the magazine room.
The cordite shell and projectile shells were carried separately.
However, the projectile shells had a loaded head secured on it as best that I recall.
This head was not uncapped until the shell was back at the magazine room as I recall.
The magazine room was some three or four levels down.
I think it was possible that armed shells were being thrown overboard.
The gun turret that I mainly worked from was at the front end of the ship.
I recall seeing individuals carrying shells towards the rear of the ship, which I understand were thrown overboard.
I know that discarded empty shells were regularly thrown overboard, I was involved with doing that.
39. My overall impression was that neither the applicant nor Mr Werner attempted to mislead the Tribunal, but their recollections were substantially distorted in some respects, probably by the passage of time. The matters they were speaking of occurred well over 30 years ago. There was also some inconsistency between them as to some events. For example, the applicant said that the sniper fire upon HMAS Brisbane occurred on the starboard side of the ship as it was entering port at Vung Tau. Mr Werner said these events occurred at Da Nang and the enemy fire was coming from the port side of the ship.
The Respondent’s Evidence
40. The respondent called evidence in the form of a report by Commodore Mulcare (Retd). His report dated 7 February 2003 was taken in without objection as Exhibit “H”. The contents of that report are as follows:
“1. Mr Demczuk joined the RAN on 22 August 1970 and after new entry training at HMAS CERBERUS, joined HMAS BRISBANE on 12 December 1970 as an Ordinary Seaman Weapons Mechanic for Common Sea Training (CST). At this stage he was not trained as a Weapons Mechanic – a gunnery specialisation – but it was his chosen branch and he was to be given experience in the branch as part of his CST. He had operational service in HMAS BRISBANE from 16 March 1971 to 11 October 1971 when the ship was attached to the US 7th Fleet for duties on the gunline off South Vietnam.
2. Ships on the gunline provided Naval Gunfire Support (NGFS) to allied land forces who were within range in the coastal regions of South Vietnam, and also undertook harassment firings into known or suspected Viet Cong areas. Most of the latter firings, mainly undertaken at night, were unspotted and the results were not known in the ship. BRISBANE also had a period as the Screen Commander of the destroyer screen around the carrier USS KITTY HAWK in Yankee Station, the aircraft carrier operating area off the coast of Vietnam.
3. The following paragraphs respond to the questions in the reference.
BRISBANE under fire
4. The veteran says he was able to see shells dropping into the sea near BRISBANE when the ship came under fire. He was told this was mortar fire. There is no record of BRISBANE coming under fire at any time during her deployment in 1971. Captain R T Derbidge MBE RAN Rtd, BRISBANE’s Gunnery Officer in 1971 has advised the ship “did not come under enemy fire (sniper, mortar or any other form of weaponry) during the 1971 Vietnam deployment”.
Dropped shells ticking
5. BRISBANE was fitted with 5-inch 54-calibre Mark 42 Mod 7 gun mounts, illustrated at Attachment 2. Projectiles and separate cordite charges were loaded into the drums of the hoists in the magazine, hoisted two decks to the carrier room, where they were transferred from fixed hoists to the revolving hoists of the gun mount. On arrival in the fun mount, the fuze on the projectile was made ready for firing, loaded together with a cordite charge into the gun and fired.. The fuze was not armed i.e. the projectile would not explode until after it had been fired. “Arming” required the shock of the firing, application of centrifugal force by the rifling in the gun barrel, plus a time delay of .8 of a second to ensure the projectile was about 2000 feet from the ship when it armed.
6. Progress from the magazine to the round being fired was automatic; the only time the projectile and charge were touched was when they were loaded into the drums in the magazine. The projectiles weighed 75 pounds, the charges 25 pounds and the gun had a rate of fire of up to 34 rounds per minute.
7. The magazines were busy places with a high machinery noise level. Projectiles were undoubtedly dropped on occasions, and if the ship was moving about, it would have been dangerous to have a projectile rolling about on the deck. However, they were robustly designed and would not have been damaged easily. If there were signs of damage, the projectile would have been put aside for disposal overboard at a later stage. I have been advised that it is highly unlikely that the fuze mechanism could be damaged sufficiently to start the clock mechanism (the first stage of making the fun ready for firing). In any case, it would have been difficult to hear the ticking of a projectile clock mechanism in a quiet room, with the aid of a stethoscope, let alone in a working magazine.
8. However, the veteran’s basic contention that shells were occasionally dropped in the magazine and were later dropped overboard is almost certainly correct.
Looking out for “mines”
9. BRISBANE would have assumed Operation Awkward whenever the ship was at anchor where there was a possibility of attack by enemy swimmers or by mines. There is no record of the ship coming under attack by swimmers, nor of any mines being sighted near the ship. There is no record of sentries firing at nearby debris in the belief that they were firing at mines, however, on occasion sentries may have been authorised to fire at debris near the ship for practice.
Cleaning up hydraulic oil “in the carrier room”..
10. The carrier room was the compartment two decks above the magazine, where shells were transferred from the magazine hoists to the gun mount hoists. Attachment 2 does not show a cage around the mechanism but I have been advised there was one. The veteran would not have been employed on the housekeeping task of cleaning up hydraulic spills if the ship was standing by to fire. This task was probably undertaken during or after maintenance, and the veteran would have been under supervision. I understand the equipment would almost certainly been turned off while he was in the cage.
A nun’s convent destroyed
11. Captain Derbidge has advised “HMAS BRISBANE did not knowingly fire at any nuns’ convent during the 1971 Vietnam deployment nor was there any damage report received to indicate that the ship had hit or destroyed such a structure”.
Sinking a VC ship
12. This incident is described in paragraph 32 and 33 of the ships’ Report of Proceedings for April 1971. A US Coast Guard Cutter had shadowed a suspect trawler for several days and when it turned to close the southern coast of South Vietnam, BRISBANE was ordered to proceed to give support. However, these orders were cancelled three hours later when it was reported that the trawler had been engaged and was sinking. BRISBANE was about 150 miles away at the time.
Other matters
13.BRISBANE’s complement was 20 officers and 313 sailors.
14. In the course of preparation of this Report, I have consulted the following officers for technical advice:
Commodore D G Walkington RAN Rtd A Weapons Electrical Engineer who served in HMAS PERTH in Vietnam
Captain R T Derbidge
Commander S J Youll RAN Rtd A Gunnery Officer who served in HMAS PERTH in Vietnam and in HMAS BRISBANE
WOET P R Oliver CSM RAN Rtd who served in all three DDGs and is a 5”/54 gun mount specialist.
15.Please let me know if you require any further information. I can be contacted on mobile o418 271 418 or facsimile 02 6295 8406.”
41. Whilst I am mindful of the unrestricted sources of information which are legitimately available in respect of a determination of the kind upon which I am now engaged, it must be noted that much of the Mulcare report consisted of hearsay, and, to some extent, speculation. On the other hand there is no reason whatsoever for disregarding the many reports by Captain R G Loosli to the Flag Officer Commanding the Australian Fleet covering HMAS Brisbane’s tour of duty to Vietnam during the applicant’s period on board (Attachments to Commodore Mulcare’s Report No 5 to 10 inclusive). A comparison of these reports with the applicant’s evidence tends to give a better overall picture of the role being performed by HMAS Brisbane in Vietnamese waters, but it is clear that the report was intended to lay a foundation for persuading me that the applicant was being untruthful about the particular stressful events upon which he has placed reliance.
42. It is obvious from what Commodore Mulcare told me during the course of oral evidence (per telephone) that he has no specialised knowledge of ship’s gunnery. For the information relating to gunnery issues contained in his report he referred to Captain Derbidge (who was the Gunnery Officer on the HMAS BRISBANE at all relevant times), Commander Youll and WOET Oliver whose extensive experience is referred to in the report.
43. These officers are undoubtedly valuable sources of information but it is apparent that all 3 of them were available to give viva voce evidence to the Tribunal, yet they were not called as witnesses. This is regrettable because, although I am satisfied that Commodore Mulcare did his best to answer all questions put to him on the gunnery issues, I am not confident that he was able to do so with precision.
44. The central gunnery issue related to whether or not the shells which the applicant and his colleagues were required to dump over the stern of HMAS BRISBANE were capable of audibly “ticking” as he described in his evidence. The applicant’s evidence as to this was neither supported nor contradicted by Mr Werner’s evidence. Other issues, such as whether the applicant was required to twist a grub screw in the 5” shells with a screwdriver to arm them, or to somehow prepare them for firing, were not satisfactorily resolved by Commodore Mulcare’s evidence, and were not explored during Mr Werner’s cross-examination. In the result I am left with a number of uncertainties. Although claiming that these incidents were stressful, I think that such stress as the applicant suffered resulted from his fear that the shells may explode if dropped or disposed of incorrectly. He made no inquiry to ascertain the significance of the “ticking” which he claims to have heard and he made no attempt to find out how imminent any explosion might be once the ticking had started. I find on the balance of probabilities that the applicant did not hear and was unable to hear the shells “ticking” as he described. On the other hand I think it more probable than not that some manual adjustment to the shell casing with a screwdriver was required before firing occurred.
45. Similarly, with the incident in which it is alleged that enemy mortar shells landed in the water near the Brisbane and described in paragraph 1 of Exhibit “F”.. A review of the excerpts from the applicant’s letters to his girlfriend indicates that this is the incident he referred to as follows:
“Suppose you know already HMAS Hobart is not relieving us in Vietnam. We are the last Australian ship up here. Last night we fired 450 shells another new record. The war is getting worse all the time. App 95 Americans were killed in the de militarised zone (DMZ) I.M.R. where we are. Also we were fired upon yesterday by mortar fire. We were out of range therefore they missed us by one mile. Heading for Subic Sunday to get 2 new barrels, the ones we’ve got have almost worn away, we wore off ½” on MT5I’s barrel just on last nights firing, in which they needed me for help, eight weeks until we hit Sydney. Sorry this is a short letter I’m awfully tired.”
46. The reports by Captain Loosli to the Flag Officer and the researches of Commodore Mulcare suggest that at no time during HMAS Brisbane’s deployment in 1971 did it come under enemy fire. What then is the explanation for the event recounted by the applicant and other events, such as the ship being fired on by snipers as it entered port either in Vung Tau or Da Nang? My conclusion is that the sniper incident was of little or no consequence for the personnel of the HMAS Brisbane and constituted no threat to them. This would explain why it was omitted from Captain Loosli’s report. It is significant to me that the applicant neither saw nor heard anything of the alleged attack. He did hear that some such incident had occurred, but was so unconcerned that he went on deck to see what was happening. Whether there was some ineffective fire or not, it is plain to me that it did not constitute a stressful event in respect of the applicant within the relevant definitions in the SoPs.
47. Returning however to other incidents referred to in Exhibit “F” I am satisfied that the event mentioned in paragraph 1 also fails to constitute a relevant stressful event. Despite the inference which I drew from the applicant’s evidence that the enemy shells landed close enough to the Brisbane to splash the ship, he clearly denies that this was so. He says he does not know how far away the shells hit the sea surface. In the letter extract he suggests about one mile away. I suspect it was considerably more.. If the shells constituted a “near miss” I am confident the incident would have been mentioned in Captain Loosli’s report. At all events I am far from satisfied that this constitutes an event which, in subjective terms, constituted a stressor to the applicant. I think it may have gained that status for him in retrospect with an understanding of the relevant issues which need to be established to give a foundation to his claim.
48. I am also very doubtful as to the incident described in paragraph 4 of Exhibit “F”.. The applicant was a good shot. He was asked to disable a mine. The inference is that shooting at the mine would cause it to explode. In difficult circumstances he hit the object with 3 of his 5 rounds. It did not explode. It was not a mine but an old fishing float. Like the last two incidents referred to I think that this incident has gained significance to the applicant only in retrospect and with an appreciation of the issues involved in his claim. This incident was referred to in one of the applicant’s letters to his girlfriend as follows:
I’ll give you the high lights of the cruise. Its shit house. Everybody is going chopo slowly but surely, mental fatigue, honest their going nuts. I was broken from fatigue by receiving you mail today thank god it came. One of the blokes went chopo. He climbed up the mast and threatened to jump off. His reason was, because he was being run in for disobeying and order. I was rivermud [sic] arkward [sic] state senty [sic] yesterday what you do is go around looking in the water for divers or mines. Yesterday morning about 7.15 there was a possible mine about 300yds ahead of our ship, and it couldn’t be identified. I was ordered to put 5 rounds into it, I got 3 in but it didn’t explode. It turned out to be a float about 2ft long 9” circumference, with nylon rope around it, and a peace emblem on it.
So far our ship has been through 26,400 can of beer, wow that’s a heck of a lot.
During our firings lately we’ve destroyed a lot of gear cant remember it all but it’s a lot.”
My finding is that this did not constitute a stressor or stressful event as defined in any of the relevant SoPs.
49. There were however several other incidents relied upon by the applicant. The first I will deal with is mentioned in paragraph 2 of Exhibit “F”.. I am left in no doubt that there were occasions when the applicant and his colleagues were required to carry faulty or suspect shells from the magazine or gun turret to the rear of the ship for disposal. Whilst I reject the claim that these shells or any of them were audibly "ticking", I am prepared to accept that each such event constituted a stressful event for the applicant. He was, at the time, only 18 years old. He was not well educated and he was unaware of the exact significance of the requirement that the shells be discarded. He believed they had the potential to explode - a reasonable conclusion in the circumstances. The fact that it was required that they be disposed of over the ship’s stern, rather than over the side would tend to reinforce this belief. I am satisfied that each such occasion (and there were, I think, several) was capable of constituting and did constitute a relevant stressor or stressful event as provided in the SoPs. Plainly if a shell exploded it would kill the person who was carrying it.
50. As to the incident described in paragraph 5 of Exhibit “F”.. Although the object in the water turned out to be mere flotsam and not a mine, it was near to the ship. How near was not specified. I can accept that it may have been of some concern to the applicant having regard particularly to his watch keeping duties and the reluctance, which he described and which I accept, of the senior officer to illuminate the object. This incident had the capacity to be a stressor and in my opinion did in fact stress the applicant. In the T documents (T18, p101) being an attachment sent to the Department of Veterans’ Affairs in response to their request for further details, the applicant said this incident really scared him and made his hair “stand on end”.
51. The final incident relied upon as a stressor in Exhibit “F” is to be found in paragraph 7. There was a confrontation between HMAS Brisbane and several enemy patrol boats. The applicant said he believed there were about 7 of them. Mr Werner said there were “3 or 4”.. Mr Werner also said the HMAS Brisbane fired on the enemy boats but this did not accord with the applicant’s recollection. Mr Werner said they were comparatively primitive craft about 20 - 30 feet long. The applicant did not actually see the enemy boats. He says that the crew of HMAS Brisbane was ordered to action stations and, so far as he was concerned, this involved the men in the gun magazine (of which he was one) being locked in until the anticipated engagement had been completed. He envisaged the enemy craft as being bigger and better equipped than they were according to Mr Werner’s evidence. The gun magazine is below the waterline. The applicant made great haste to get to his station as he entertained considerable fear that HMAS Brisbane was in serious trouble. I accept that the applicant was seriously stressed by this event. Had he been in a position to see what was going on he may have been less severely affected.
52. There were other unparticularised events which were apparently capable of being relevant stressors, but the solicitor for the applicant made it quite clear that no reliance was placed on these occurrences. I refer to the reported destruction of a nun’s convent, the sinking of a Viet Cong Sampan (which clearly didn’t involve HMAS Brisbane at all notwithstanding that it was so attributed in one of the applicant’s letters to his girlfriend) and the dropping of a shell in the magazine by a crew member.
Discussion
53. The respondent’s advocate, Mr Crowe, submitted that there were no relevantly stressful events upon which the applicant could rely to find a reasonable hypothesis as required by s120 of the Act. I have found that there were genuinely stressful events, but the critical question is whether or not they occurred:
(a) “within the two years immediately before the clinical onset of anxiety disorder” (paragraph 5(a)(ii) SoP No 1 of 2000);
(b) “not more than two years before the clinical onset of generalised anxiety disorder” (paragraph 1(b) SoP No 48 of 1994); or
(c)“within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse” (paragraph 5(b) SoP No 76 of 1998).
The applicant could also establish the relevant reasonable hypothesis in respect of alcohol dependence or abuse by showing that he was “suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse”. (paragraph 5(a) SoP No 76 of 1998).
These prerequisites appear to me to pose the greatest difficulties in the way of the applicant’s claims.
54. I can say at once that I am not satisfied that the evidence establishes that there was a clinical onset of the applicant’s anxiety disorder (whether viewed as a generalised anxiety or an anxiety disorder simplicitor) within 2 years of any of the stressful events which I have found proved. That view holds even if the commencement of the relevant two year period is taken to be October 1971 when the applicant left HMAS Brisbane.. I am prepared to take this date as the starting point for calculations because it is difficult, if not impossible, to assign a firm date to the stressors I have accepted. I am also prepared to accept that SoP No 48 of 1994 provides the relevant stress factor in relation to anxiety disorder rather than SoP of 1 of 2000, although I must say that for myself I see little practical difference between the two criteria.
55. It is not without significance that Dr Ewer was unable to do better than “suspect” that the applicant suffered, a generalised anxiety disorder “in the years after he returned to Australia” when he first examined him in November 1999. His subsequent revision of this diagnosis in December 2000 relies heavily upon absolute acceptance of the applicant’s history without reference to any independent or quasi independent source such as his wife, parents, sister or workmates, but in any event it does not relate to any of the individual stressors claimed to the date when there was a clinical manifestation of the onset of the disorder. Dr Ewer merely says that the generalised anxiety disorder and alcohol abuse and dependence “are directly related to his war service”.. I cannot accept this as a sufficient foundation to raise the relevant reasonable hypothesis.
56. An anxiety disorder must meet the definitive descriptions provided in SoP No 48 of 1994 (or 1 of 2000 if that is used). The evidence available to Dr Ewer does not appear to permit him to say when the applicant’s anxiety disorder first became manifest. The evidence available to me likewise does not permit any such conclusion by me.
57. The applicant’s claim to have felt anxious and stressed following each relevant stressor that I have accepted provides an insufficient basis to find that these disorders or any of them occurred within a 2 year period of the occurrence of the stressor. The applicant said during his examination-in-chief ”After my experiences I had a lot of anxiety, a lot of worry. Things we were told wouldn’t happen did happen. I felt nauseous and sick. Smoking increased. I had difficulty with sleep – alcohol increased.” He then went on to say how he would sleep with the assistance of ether fumes in the gun room. He described fights he had been involved in. He said “I was nauseous quite often. That started right from the beginning – when I sighted the first mine. Symptoms increased over a period of time. I found I had no control over symptoms at all. I didn’t see the ship’s doctor – to me he was just there for physical things.” He also described his drinking habits and I will come to them shortly.
58. In my opinion the applicant fails to raise a reasonably hypothesis within the meaning of the Act and the relevant SoPs in relation to the claim for pension based upon anxiety disorder or generalised anxiety disorder.
59. I turn therefore to the question of alcohol dependence or abuse. This was included in the paragraph in Dr Ewer’s second report dealing with the relationship between the applicant’s war service and the onset of the disease. I should be noted that Dr Ewer draws no distinction between alcohol dependence and alcohol abuse which are two quite distinct diseases. He also did not attempt to give a time at which either condition became clinically manifest.
60. The applicant’s evidence as to his drinking habits was noted by me as follows:
“Before joining Navy I did drink but nowhere near to extent I did in Vietnam.
Would only drink at weekends – over about 8 months.
Friends would just have a drink.
I remember being drunk on one occasion.
During training at “Cerberus” no alcohol during lst month training.
I can recall, period when I drank to excess before going to Vietnam on one occasion – not posted to Brisbane at that time.
I would have been 17 at that time.
I drank slowly during day – I think gin squashes. We went to club or disco afterwards.
While on Brisbane on operations we have 2 cans beer a day allowance. Sometimes we would have someone else’s beer – this was while in Vietnam in Harbour.
On leave would go drinking. Singapore, Hong Kong get a room and enjoy freedom – also relief to get off ship.
Only think to calm me down even to this day.
At moment – varied – 2 cartons of beer a week (24 cans per carton). I drink Scotch and Brandy at home. I will drink what is ever there – wine and spirits on occasion. I spend about $50 per week on beer.
Didn’t drink to excess on the ship. Bought other (seamen’s) rations while on gunline.
We went to Hong Kong twice and Singapore twice I think and quite a few times to Subic Bay.
Drinking was constant when went ashore.
We always ended up drinking.
Quite a few heavy drinkers on the ship was competition for rations of non drinkers.
There was one other occasion I was involved in a fight in Singapore – I was intoxicated.
We had been drinking all day.
A dispute with head chef about payment for drinks. No charges arose out of that. I wasn’t drunk on duty.
We returned to Australian in October 1971.
We immediately went on leave.
We were drinking everywhere we went and smoking extremely heavily. Leave was for 6 weeks.
I served out naval career at HMAS Cerberus. Tour of duty in Vietnam – 7 months. Don’t known how long on gunline.
Drank heavily while at Cerberus either on base or in Frankston – or if on leave, at home in Adelaide.
I was married about one year after I left navy.
I was discharged in February ’72.
I have had complications from drinking.
Fights in bar of pubs.
Lot of fights with wife – because of drinking. Physical fights at first.
With passage of time I haven’t abused wife physically – maybe mentally.
When I came back from Vietnam I knew I had problem. I didn’t know about PTSD or anxiety attack. About 15 years ago someone told me about anxiety.
I used to take a lot of laxatives. I associated my condition with childhood problems with laxatives.
I have been having nightmares ever since.
Plane attacking ship – a few times every week.
I have shot Viet Cong, although never happened.
Everything on TV regarding war.
I have dreamt I have committed suicide.
Didn’t have nightmare before Vietnam.
My short term memory is poor.
I forget where I leave things.
I work at Bunzl – 19 years, I have been there as a storeman.
I constantly have consultations with my boss.
I fight with my boss, supervisor and branch manager – verbal argument.
Fisticuffs only on occasion in ???
Shown “B” and “C”.
Before demotion I was warehouse supervisor. I had a fight with a storeman on that occasion.
Other occasions I called aboriginal employee Jane Barnes a “silly black bitch” – she manager area sales.
My employers have only learnt of my Vietnam service and problems only this year.”
61. Under the provisions of SoP No 76 of 1998 “alcohol dependence” and “alcohol abuse” are defined. They have been set out above. The diagnostic criteria for “alcohol dependence” appear to me to involve factors about which there is little or no evidence in the present case. The applicant did cut down his alcohol intake by about half at one stage so it is difficult to see how Factor 4 in the diagnostic criteria could be satisfied. I am aware of course that Dr Ewer has diagnosed the applicant as having alcohol dependence or alcohol abuse but, accepting that as being the status of his condition at the present time, there is no evidence to show when this condition became clinically manifest. The evidence given by the applicant as to his drinking while on HMAS Brisbane does not allow me to conclude that he was alcohol dependent either then or within any finite period thereafter. The diagnostic criteria suggest a gradual development and progression of this disease over a period of time, so obviously, it is not a diagnosis which could be made solely on the evidence of his binge drinking with his naval colleagues while attached to HMAS Brisbane. He specifically denied being alcohol affected at any time while he was on duty on board ship. There is no evidence of “tolerance” as defined or “withdrawal” (see Factors 1 and 2) in the definition of “alcohol dependence”. There is no evidence to support Factors 3, 5 or 7. No evidence has been given upon which it could be found that he gave up important social, occupational or recreational activities within a period of 2 years of his return from Vietnam (Factor 6). In my opinion there is no, or insufficient, evidence available for me to find that he had clinically manifested alcohol dependence within that period of time, regardless of whether or not he currently fits the required diagnostic criteria.
62. The question therefore arises. Has it been shown that he suffered “alcohol abuse” within the SoP criteria and definitions and within the required 2 year period? It is noteworthy that the DSM-IV criteria (which are embodied in the SoP definition) require, first, “a maladaptive pattern of alcohol use leading to clinically significant impairment or distress as manifest by one (or more) of the following, occurring within a 12 month period”. This preliminary formulation clearly implies that a minimum period of 12 months must be available over which the applicant’s behaviour should be assessed before a diagnosis can be achieved. This implication is confirmed by what follows:
“(1) Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home”.
Clearly then a weekend drunk who does not neglect his “relevant role obligation” is not necessarily suffering “alcohol abuse” unless of course, coming home drunk is seen of itself as neglect of a “relevant role obligation”.
“(2) Recurrent alcohol use in situations in which it is physically hazardous”.
This suggests drink driving, being drunk at work in an industrial or similar setting and the like. It is debatable if it would include drunken fighting. Excessive alcohol consumption may well precede the fight and may well be a cause of the fight, but it is difficulty to fit this concept within the criterion.
“(3) Recurrent alcohol-related legal problems”.
There is no evidence of this in the present case.
“(4) Continued alcohol use despite having persistent or recurrent social or personal problems caused or exacerbated by the effects of alcohol”.
The applicant married his wife about 12 months after his discharge from the Navy. He says he doesn’t know why she married him, implying that his behaviour towards her left a lot to be desired, due to his alcohol intake. He says however that they have always had disagreements, often quite violent, in a verbal sense. My views on his evidence may well have been strengthened had I received some supporting evidence from his family, but after carefully considering the whole of the evidence I feel able to say that I have sufficient confidence in the applicant’s basic veracity to find, as I do, that he was suffering alcohol abuse within the prescribed two year period. There is material raising a reasonable hypothesis connecting the disease with the circumstances of the applicant’s war service, and there is no sufficient ground for me to be satisfied beyond reasonable doubt for determining that the disease was not war-caused. I accordingly determine that it was so caused.
63. I do not see this finding as being affected by paragraph B of the DSM-IV diagnostic criteria viz:
“The symptoms have never met the criteria for alcohol dependence”.
This would prevent a diagnosis being made that both conditions are present at the present time, but we are looking at the 2 year period after the applicant’s Vietnamese service. As already noted I have been unable to make a finding that he was alcohol dependent at that time, so there is no coincidence of both alcohol related diseases at the relevant time.
64. There is strictly no need to consider whether the applicant establishes a reasonable hypothesis in reliance on the alternative factor called in aid under SoP No 76 of 1998 paragraph 5(a), however as I have already stated above I am unable to find that he was suffering an anxiety disorder at the time of the onset of the alcohol abuse so he would not meet this criterion in my view.
65. The decision under review should therefore be set aside insofar as it confirms the Commission delegate’s rejection of pension entitlement based upon alcohol abuse. The decision under review is however confirmed insofar as it confirms the Commission delegate’s rejection of pension entitlement based upon generalised anxiety disorder and alcohol dependence.
66. I formally determine that the applicant’s alcohol abuse is war-caused within the meaning of the Veterans’ Entitlements Act 1986.
67. The applicant’s entitlement will require assessment by the Commission on the basis of the findings made and the decision now published. Accordingly I direct that the matter be remitted to the Commission for assessment.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)
Signed: K.L. Miller (Administrative Assistant)
Date/s of Hearing 20 and 21 February 2003
Date of Decision 31 March 2003
Counsel for the Applicant Mr T White
Solicitor for the Applicant Tindall Gask Bentley Solicitors
Counsel for the Respondent Mr Crowe
Solicitor for the Respondent Department of Veterans’ Affairs
0
5
0