Downes and Repatriation Commission
[2010] AATA 344
•10 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 344
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1545
VETERANS' APPEALS DIVISION ) Re MICHAEL RAYMOND DOWNES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member, and Dr Kerry Breen AM, Member Date10 May 2010
PlaceMelbourne
Decision The Tribunal affirms the decision under review. ...................[signed].................
Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol abuse – whether war-caused
Veterans' Entitlements Act 1986 ss 9, 120(1)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2008] FCA 50
REASONS FOR DECISION
10 May 2010 G. D. Friedman, Senior Member and Dr Kerry Breen AM, Member 1. Michael Downes lodged a claimed for a disability pension for post-traumatic stress disorder (PTSD) and alcohol abuse as a result of his service in Vietnam. The respondent rejected the claim on the basis that he does not suffer from PTSD and that the alcohol abuse was not caused by his service in Vietnam.
2. The issues before the Tribunal are:
· Does Mr Downes suffer from the claimed conditions?
· If so, is each condition war-caused?
LEGAL FRAMEWORK
3. Mr Downes served in the Australian Army as a National Serviceman from 3 September 1968 to 2 September 1971. His service in Vietnam from 12 August 1970 to 2 August 1971 was operational service under the Veterans’ Entitlements Act 1986 (the Act). Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
4. The Tribunal is first required to determine to its reasonable satisfaction whether Mr Downes suffers from the claimed particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622). In the circumstances of this case, where Mr Downes has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service then is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:
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…
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)….
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…
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… If the Tribunal is so satisfied, the claim must fail…
DOES MR DOWNES SUFFER FROM PTSD?
5. In the Diagnostic and Statistical Manual of Mental Disorders (Fourth ed.) (DSM-IV) a diagnosis of PTSD requires that:
The person has been exposed to a traumatic event in which both of the following were present:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(ii) the person’s response involved intense fear, helplessness, or horror…
Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at 74:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service it must be answered by saying that the decision maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD.
This reasoning was followed in Repatriation Commission v Hill [2008] FCA 50.
6. In Hill v Repatriation Commission [2001] FCA 1775 van Doussa J stated at [30]:
Counsel for the applicant optimistically contended that the Tribunal misinterpreted the requirement of par (a)(ii) in finding that the adjective "intense" qualified "helplessness". Counsel suggested that the adjective only qualified "fear". I do not agree with that submission. In my opinion the Tribunal was correct in holding that the veteran's emotion whether it be of fear, helplessness or horror had to be "intense".
7. In Gerzina v Repatriation Commission [2003] FMCA 490 McInnis FM referred to van Doussa J’s comments and stated at [40]:
In my view, although it may be argued that the adjective "intense" superficially may only appear to qualify "fear", I do not accept that the adjective appearing at the beginning of those three terms is restricted in the manner proposed for the appellant in the present case. I do not accept that the words "helplessness" and "horror" cannot be the subject of the adjective "intense". In my view, having regard to the dictionary definitions it is quite possible for the helplessness and horror to be described by the adjective "intense". Although it may be suggested that helplessness to some extent appears to be an absolute term, it must be viewed in the light of the context of the DSM-IV and the condition of post-traumatic stress disorder which is sought to be diagnostically defined.
8. Mr Downes told the Tribunal that after leaving school at the age of 14 years he worked in a number of unskilled positions until he commenced National Service. He explained that after initial training he completed corps training in the Ordnance Corps and at the end of his two-year term he volunteered for an additional year on condition that he could serve in Vietnam, as he was aware of the considerable financial benefits of overseas service. He said that he was sent to Vietnam as a member of Army Logistics Support Group at Vung Tau, where his duties consisted of maintaining and cleaning vehicles prior to their return to Australia.
9. Mr Downes stated that there were a number of traumatic events during his service in Vietnam that caused significant distress. The first was when he observed wounded soldiers and bags containing the bodies of deceased soldiers being removed from helicopters to the hospital close to his work area (the casualties incident). He said that he could hear and see the helicopters approaching the landing area and he had a reasonable view. He explained that on occasions he would look at the landings and he found the events upsetting because to see Australian soldiers wounded or killed made him feel helpless even though he did not know the victims personally. Mr Downes stated that witnessing the medical evacuation of casualties contributed to his current emotional state.
10. The second event was when he was cleaning an armoured personnel carrier that had been severely damaged during an attack on 12 June 1971 in which a number of Australian personnel had been killed (the APC incident). He said that the vehicle had been cleaned partially in Nui Dat but his task was to ensure that the vehicle was prepared to Australian Government standards, which involved further cleaning using a high-pressure hose. Mr Downes said that he observed blood, hair and bone fragments which caused him distress to the point of being physically ill.
11. The third event was when he was on guard duty at Vung Tau airfield when he became aware of a possible raid by Vietnamese civilians on a nearby United States compound (the raid incident). He said that American guards opened fire about 100 metres from where he was standing, and a bullet struck a lamp pole near his position, and he was frightened, although he did not observe any casualties.
12. The fourth event was when he was required to stand guard with a loaded weapon over a wounded member of the North Vietnamese Army in Vung Tau hospital (the prisoner incident). He said that he had received no practical training in this type of activity, and was afraid that the prisoner would overwhelm him.
13. Mr Downes stated that on his return to Australia he had difficulty in sleeping and relating to other people. He said that he was unable to hold down any type of stable employment, and his emotional health has deteriorated over the years. He experiences nightmares and flashbacks, particularly concerning the casualties incident. Mr Downes said that he first sought treatment for his psychological problems in the early 1990s and has spent several periods in a repatriation hospital for treatment of PTSD. He is now under the care of a psychiatrist and takes prescribed medication. Mr Downes explained that he has been reluctant to discuss his experiences in Vietnam until about four years ago because of the hostile reception he and other veterans received from the public on their return from Vietnam.
14. In a statement dated 27 August 2009 Mr R Fletchett said that he served in Vietnam with Mr Downes maintaining and cleaning vehicles at Vung Tau. He stated that his work area was located about 100 metres from the helipad at Vung Tau hospital, and frequently he witnessed helicopters arriving with wounded soldiers and bags containing the bodies of deceased soldiers. He said that on more than one occasion he cleaned vehicles that had been damaged by enemy fire and observed human blood, skin and hair in the vehicles, a sight that made him ill. Mr Fletchett said that he did not have a specific recollection of Mr Downes working with him when he found remains, but had no doubt that Mr Downes’ recollections were accurate. Under cross-examination Mr Fletchett agreed that he did not raise several of these matters with psychiatrists during his own application for a disability pension because some issues affected him more than others did.
15. The Tribunal had before it reports from a number of psychiatrists who have examined Mr Downes. In a report dated 21 July 2008 Dr P Collier, consultant psychiatrist, stated that Mr Downes described several stressful events from his service in Vietnam but Dr Collier did not specify the events. Dr Collier diagnosed major depressive disorder, generalised anxiety disorder and alcohol abuse but did not believe that the conditions met the relevant Statements of Principles (SoPs). In a report dated 25 February 1999 Dr L Fernando, consultant psychiatrist, stated that Mr Downes said that he saw helicopters bringing in the dead and wounded and referred to the guard incident during which a warning shot was fired at local civilians who were trying to gain access to a store. Dr Fernando found no features of anxiety or depression and no evidence of a psychiatric illness.
16. In a report dated 3 April 2003 Dr P Graf, consultant psychiatrist, took a history of Mr Downes’ role in Vietnam as looking after vehicles. Mr Downes described a number of traumatic events including the casualties incident in which he …saw many casualties being helicoptered back to the hospital for treatment. He also said that bloodstains were visible on the APC that was involved in the APC incident, and referred to the prisoner incident which angered him because enemy soldiers were being treated at the same hospital as Australian casualties. Dr Graf noted that Mr Downes was traumatised by the hostile reception he received from the public on his return to Australia, but found no sign of depression or anxiety. He attributed all psychological issues to alcohol abuse and diagnosed no other psychiatric illness.
17. In a report dated 30 July 2007 Dr C Seabridge, consultant psychiatrist, stated that Mr Downes did not mention the raid incident or the prisoner incident. He said that Mr Downes described the casualties incident as …seeing wounded and deceased soldiers being unloaded from helicopters some one or two hundred yards from where he was often positioned, and the APC incident in which there was evidence of blood and bone fragments, although Dr Seabridge recorded Mr Downes as agreeing that there was no sign of body parts or recognisable body tissue, and that Mr Downes had not been distressed when describing the events. Dr Seabridge concluded that a diagnosis of PTSD could not be sustained. Under cross-examination he agreed that Mr Downes had left the consultation abruptly before the allotted time had expired, but Dr Seabridge referred to his significant experience assessing and treating Vietnam veterans and maintained that his conclusions would not have changed.
18. In a report dated 18 January 2006 Dr B Holwill, consultant psychiatrist, stated that Mr Downes’ duties involved cleaning tanks and APCs prior to their return to Australia and his work area was about 200 metres from the landing zone for medical evacuation helicopters. Mr Downes described seeing medical evacuees arrive daily and being unsettled at the sight of service personnel flushing blood out of the helicopters using buckets of water. Dr Holwill noted that Mr Downes referred to the APC incident in which he was obliged to clean out an APC containing blood and bone fragments remaining from an attack that resulted in multiple fatalities, which Mr Downes found upsetting. Dr Holwill stated that Mr Downes had told him he was bitter and angry on his return to Australia and had described two nightmares, one of which involved the APC incident. Mr Downes had also described being shot at on two occasions while performing guard duty. Dr Holwill said that the principal psychiatric problem was substance (alcohol) abuse, with chronic mild PTSD.
19. In a report dated 4 August 2006 Ms C Colman, psychologist, stated that Mr Downes presented with symptoms of depression and anxiety, and that he self-medicates with alcohol.
20. In reports dated 24 September 2009 and 24 September 2009 Dr J Mordike, researcher on behalf of Writeway Research Service, investigated the claimed stressors. In relation to the casualties incident he stated that the closest a member of Mr Downes’ unit could be to the helicopter landing area was 80 metres, and that on arrival medical evacuees were taken immediately by stretcher along a covered walkway to the hospital. He said that the helicopter itself and the medical staff supervising the unloading of evacuees would present difficulties in clear observation of casualties from some distance away, although he agreed that personnel working in the vehicle area would have been able to see the arrival of casualties at the landing pad and the carriage of deceased soldiers to the hospital mortuary.
21. In relation to the APC incident Dr Mordike confirmed that damaged armoured vehicles were first cleaned at Nui Dat with a high-pressure hose and human and other remains were removed before the vehicles were taken to Vung Tau for final cleaning in compliance with Australian quarantine regulations and shipment to Australia. Dr Mordike stated that it is possible that some human body tissue could conceivably have escaped the cleaning process, but this would have been very minor. He said that the APC in question was damaged in the fatal attack on 12 June 1971, so it could not have passed through Mr Downes’ work area until late June or early July 1971, which was about four weeks from the end of his service in Vietnam.
22. In relation to the raid incident, Dr Mordike stated that his research indicated that there was an incident in 1971 when Australian soldiers guarding a storehouse within an American compound near the Vung Tau airfield discharged their weapons inside the storehouse when they heard someone apparently removing a wall panel. No shots were returned, no intruders were apprehended and no bloodstains were found at the scene. Mr Downes told the Tribunal this was not the incident he was referring to when he described American gunfire hitting a lamp pole near his position.
23. In relation to the prisoner incident, Dr Mordike said that during 1971 Mr Downes’ unit was rostered to provide guards for enemy wounded in the hospital wards for 18 twenty-four hour periods, and that seven soldiers were required on each occasion (one during day shift and six for the three night shifts). Soldiers rostered for duty were given instruction before they commenced their shift. Ten wounded enemy soldiers were admitted to the hospital at Vung Tau for treatment during this time.
24. In assessing the claimed stressors, the Tribunal acknowledges that the events occurred almost 40 years ago and that recollection of details is difficult. The Tribunal takes into account that the descriptions given by Mr Downes to medical practitioners and the Department of Veterans’ Affairs have varied widely and contain inconsistencies.
25. In relation to the casualties incident, the Tribunal accepts that Mr Downes’ work area was located near the helicopter landing pad for medical casualties, and that he could see helicopters arriving with wounded and deceased soldiers. Occasionally he would look at the landings and was upset at the thought of Australian personnel being killed or wounded. However on all the material including the accounts of the incidents given to various practitioners of his reaction to the arrival and departure of helicopters the Tribunal is not reasonably satisfied that the events were traumatic or that his response involved intense fear, helplessness or horror.
26. In relation to the APC incident, the Tribunal accepts that Mr Downes was required to assist with final cleaning of the APC that was involved in a fatal attack on 12 June 1971, and that this occurred in late June or early July 1971, some four weeks before the end of his service in Vietnam. The Tribunal accepts the evidence from Dr Mordike that some human remains could have escaped the earlier cleaning process, although the likelihood was small. The Tribunal notes that Dr Holwill described Mr Downes as finding the task as very upsetting and Dr Seabridge recorded that Mr Downes was not affected at the time and was not distressed when describing the incident. Mr Downes did not mention the APC incident at all to Dr Fernando. Mr Fletchett does not recall Mr Downes working with him when human remains were found, and little reliance can be placed on his evidence. On all the material the Tribunal is not reasonably satisfied that the event was traumatic or that Mr Downes’ response involved intense fear, helplessness or horror.
27. In relation to the raid incident, the Tribunal finds that the details are somewhat sketchy. Mr Downes did not mention the incident at all to Dr Holwill, Dr Graf or Dr Seabridge, and only a brief reference was included in Dr Fernando’s report. The Tribunal accepts that Dr Mordike’s evidence of an incident that occurred at a storehouse in which shots were fired at intruders may have been the raid incident Mr Downes recalled. On all the material the Tribunal is not reasonably satisfied that the event, as described by Dr Mordike or Mr Downes, was traumatic or that Mr Downes’ response involved intense fear, helplessness or horror.
28. In relation to the prisoner incident, the Tribunal accepts Mr Downes’ evidence that on one occasion he was required to guard a wounded enemy prisoner using a loaded weapon at Vung Tau hospital, and he had not received appropriate practical infantry training. However Mr Downes did not mention the incident at all to Dr Holwill or Dr Seabridge, and Dr Graf recorded Mr Downes’ description of this incident as a trying task because it involved using Australian medical resources for enemy soldiers. On all the material the Tribunal is not reasonably satisfied that the event was traumatic or that Mr Downes’ response involved intense fear, helplessness or horror.
29. In view of its findings on each of the claimed traumatic events, the Tribunal is reasonably satisfied that Mr Downes was not exposed to an event or events that could be described as traumatic as required for a diagnosis of PTSD as defined in DSM-IV, and the Tribunal concludes that Mr Downes does not suffer from PTSD, so he cannot satisfy the criteria in Deledio and his application in respect of PTSD cannot succeed.
DOES MR DOWNES SUFFER FROM ALCOHOL ABUSE?
30. There was no dispute, and the Tribunal accepts, that Mr Downes suffers from alcohol abuse.
IS ALCOHOL ABUSE WAR-CAUSED?
31. Mr Downes told the Tribunal that he was a light drinker before joining the Army, and his consumption was about two cans of beer each week. He said that his consumption increased only slightly after enlisting, because he was playing football and was conscious of the need to maintain physical fitness. In addition there was no access to alcohol during basic training, and during corps training he drank about two cans of beer every second day. He acknowledged several civil convictions in the Magistrates’ Court, but said that only two charges relating to being drunk and disorderly involved alcohol. He also conceded that a military conviction on 13 July 1969 for striking a superior officer occurred while he was intoxicated.
32. Mr Downes stated that his drinking increased considerably when he served in Vietnam. He explained that as a National Serviceman he wanted to fit in so he attended the wet canteen most nights. He said that as his duties were confined to the base he had nowhere else to go and that drinking was the done thing. He noted that he was soon drinking six days each week, and that by the end of his service in Vietnam he was consuming as much alcohol as he could, whenever he could, to lessen his feelings of emotional stress and to help him sleep. Often he drank to the point of intoxication. Mr Downes said that after his discharge from the Army he continued to drink to excess and has sought treatment for his drinking problem. He stated that currently he does not drink during the week, and his consumption is about 12 stubbies of beer each Friday, Saturday and Sunday.
33. In an alcohol questionnaire dated 8 November 2005 completed by Mr Downes in connection with his application to the Department of Veterans’ Affairs, he stated that he was only a social drinker until he went to Vietnam despite great peer pressure in Australia, but in Vietnam everybody drank …all the time…as it helped relieve the stress and boredom.
34. Ms C Downes, wife of Mr Downes, told the Tribunal that when she met Mr Downes in 1967 she was 16 years of age and he was 19. She said that he was a light drinker when she saw him at weekends before and during his Army training, and she and her parents had no concerns about his alcohol consumption. She stated that they became engaged before he was sent to Vietnam, and he came home on leave once during his operational service, during which he was a little unsettled. However Ms Downes said that they were married shortly after his return from Vietnam and she noticed a marked increase in his level of drinking.
35. In his report Dr Fernando recorded that prior to Vietnam Mr Downes drank only on Saturdays. Dr Graf stated in his report:
Before going into the Army Mr Downes was not drinking heavily…Shortly after joining the Army his alcohol intake escalated dramatically. Mr Downes confirms that this was even before going to Vietnam, that heavy drinking really started when he was stationed at Bandiana…Mr Downes stated that he continued to drink heavily in Vietnam…
Dr Graf concluded that joining the Army caused a major escalation in Mr Downes’ drinking behaviour, and that this was further reinforced by heavy alcohol intake while in Vietnam. Dr Graf attributed the heavy drinking to the general culture in the Army at the time, the ready availability of alcohol and Mr Downes’ own decision to abuse alcohol.
36. In his report Dr Holwill stated:
When he joined the Army he began to drink heavily, even during training. This continued whilst he was on active service and he drank whenever he was off duty to the point of inebriation on a daily basis…
…
The history, as related by Mr Downes, indicates that he was a relatively modest drinker prior to his Army service, but following his induction into the Army, he began drinking very heavily, and that continued whilst in Vietnam.
37. In his report Dr Seabridge stated:
Mr Downes gives a clear history of heavy alcohol consumption, sufficient to be considered abusive, during his two years of army training, before he volunteered for a third year of service so that he could go to Vietnam.
Mr Downes was in fact court martialled and jailed for 40 days for seriously assaulting a sergeant who had earlier caused problems for him, when Mr Downes was heavily intoxicated well before he went overseas. He said that quite frequently went AWOL, during his training, and always when he did this it was “associated with grog”.
38. In a Mental health - inpatient discharge summary from Austin Health: Veteran Psychiatry Inpatient Unit Services upon discharge on 24 April 2009, and a further discharge on 13 October 2009, Mr Downes’ alcohol history is recorded as:
…only occasionally social drinks before joining Army. Regular bing[e]ing started while in Army and during the war and some heavy drinking while young man upon returning from the Army.
39. In relation to the first step from Deledio, the Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 stated at 372-3:
A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
40. Factor 6 of SoP Nº 1 of 2009 concerning Alcohol Dependence or Alcohol Abuse provides:
(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b) experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c) experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse;
Paragraph 9 of the SoP provides:
For the purposes of this Statement of Principles:
"a clinically significant psychiatric condition" means any Axis 1 or Axis II disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, excluding alcohol-related disorders. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
41. Factor 5 of SoP Nº 76 of 1998 concerning Alcohol Dependence or Alcohol Abuse provides:
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
Paragraph 8 of the SoP provides:
“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;
42. The Tribunal takes into account Mr Downes’ evidence that he had been only a social drinker before service in Vietnam. This seems at odds with his admission that the serious military offence on 13 July 1969 of striking a superior officer was alcohol-related. The Tribunal notes that Ms Downes’ evidence supported his drinking history, but she conceded that she saw him only at weekends before operational service, so little weight can be given to her evidence on this subject.
43. The weight of evidence strongly supports the view that Mr Downes became a heavy drinker after he joined the Army and before he was sent to Vietnam. This is based on the history taken by Dr Graf, Dr Holwill and Dr Seabridge, none of whom related the onset of alcohol abuse to operational service. This view is supported by the discharge summary from Austin Health. The only comment to the contrary by a psychiatrist is Dr Fernando’s brief reference to pre-Vietnam drinking as occurring on Saturdays.
44. After considering all the material the Tribunal prefers the history recorded by most of the psychiatrists during assessments which gives a consistent account of Mr Downes’ alcohol consumption, and finds that the clinical onset of alcohol abuse was during Army service prior to service in Vietnam. Therefore the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Downes because he did not have a clinically significant psychiatric condition at the time of the clinical onset of alcohol abuse, and he did not experience a category 1A or category 1B stressor within the five years before the clinical onset of alcohol abuse because his claimed stressors occurred after the date of clinical onset. In any case, for the reasons given in respect of PTSD, the claimed traumatic events did not constitute a category 1A or category 1B stressor. Therefore he does not satisfy the first step in relation to SoP Nº 1 of 2009.
45. For similar reasons the Tribunal finds that Mr Downes did not experience a severe stressor within the two years immediately before the clinical onset of alcohol abuse and he does not satisfy the first step in relation to SoP Nº 76 of 1998. Therefore he cannot succeed in his application in respect of alcohol abuse.
DECISION
46. The Tribunal affirms the decision under review.
I certify that the forty-six [46] preceding paragraphs are a true copy of the reasons for the decision of
G.D. Friedman, Senior Member, and
Dr Kerry Breen AM, MemberSigned: .............................[signed]...........................................
Associate Grace HorzitskiDates of Hearing 28 and 29 April 2010
Date of Decision 10 May 2010
Counsel for the Applicant Mr A. Larkin
Solicitor for the Applicant Williams Winter
Counsel for the Respondent Mr K. Rudge
Solicitor for the Respondent Advocacy Section, Department of Veterans’ Affairs
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