Downie and Repatriation Commission - [2003] AATA 855

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 855

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1134

VETERANS' APPEALS DIVISION

Re: TERRY DOWNIE

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

Date: 1 September 2003

Place: Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member

VETERANS' AFFAIRS – cirrhosis of the liver – alcohol ~~abuse~~ dependence or alcohol ~~dependence~~ abuse – whether war‑caused – whether inability to obtain appropriate clinical management - whether experienced a severe stressor - voyages to Vietnam onin HMAS Sydney

Veterans' Entitlements Act 1986

REASONS FOR DECISION

1 September 2003 Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

This is an application to review a decision of the Veterans’ Review Board (VRB) dated 5 April 2001, which affirmed a decision of the respondent dated 14 July 2000 refusing the applicant’s claim for cirrhosis of the liver and alcohol dependence or alcohol abuse and a continued disability pension at 100 per cent of the general rate.
At the hearing, the applicant, Mr T. Downie, was represented by Mr C. Thomson, of counsel. The respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant and a consultant psychiatrist, Dr J. Gelb. In addition to the documents provided by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties at the hearing:
Report by Dr Gelb dated 18 October 2002  Exhibit A1
Report by Dr W. Kemp, consultant rheumatologist,
dated 7 February 2003  Exhibit A2
Extracts from book, Vung Tan Ferry by Nott and Payne                   Exhibit A3
Copy page of Daily Telegraph of 30 April 1965  Exhibit A4
Transcript VRB hearing of 5 April 2001  Exhibit R1
Clinical notes of Frankston Medical Clinic Nº 1‑159  Exhibit R2
Report by Dr D. Barton,
consultant occupational physician, dated 18 July 2002                 Exhibit R3
Report by Dr D. Beer, audiologist, dated 9 August 1999                   Exhibit R4
Report by WriteWay Research Service Pty Ltd
dated 26 September 2002  Exhibit R5
Report by Dr L. Walton, consultant psychiatrist,
dated 23 October 2002  Exhibit R6
Combined Impairment Assessment by Dr F. Morgan,
Senior medical officer, dated 4 April 2003  Exhibit R7
Service Medical Documents of applicant Nº 1—14  Exhibit R8
Report by WriteWay Research Service Pty Ltd
dated 27 June 2003  Exhibit R9
Report by WriteWay Research Service Pty Ltd
dated 30 June 2003  Exhibit R10
Report by WriteWay Research Service Pty Ltd
dated 29 June 2003  Exhibit R11
Mr Downie served in the Royal Australian Navy (the navy) from 16 January 1965 to 1 December 1972. He had eligible war service which was also operational service on eight voyages on in HMAS Sydney between 27 May 1965 and 28 November 1968, totalling 212 days. He has accepted conditions of ischaemic heart disease, chronic bronchitis and bilateral sensorineural hearing loss since July 1997 and is entitled to a disability pension of 100 per cent of the general rate. His claim, made on 17 April 2000, was for unspecific psychiatric problems and increase in pension to the special rate under s24 of the Veterans' Entitlements Act 1986 (the Act). After receipt of medical reports, the respondent treated the claim as being for cirrhosis of the liver and alcohol dependence or alcohol abuse.
Mr Downie was born on 15 January 1948. After leaving school after completing Year 9, he commenced a fitter and turner apprenticeship but did not complete it. He applied for and was accepted by the navy on the day after his seventeenth birthday. He completed three months recruit training at HMAS Cerberus (Cerberus). On 28 April 1965, he was posted to the former aircraft carrier, HMAS Sydney, which had been held in reserve but was at that time returned to service and in the process of being converted to a troop ship at Garden Island. He sailed to Vung Tau harbour in Vietnam on 27 May 1965, returning to Australia on 26 June 1965. He served a week at HMAS Penguin after his return, but the records do not disclose the reason. The records disclose an absence without leave from 3 September 1965 to 6 September 1965. On 14 September 1965, he had his second voyage to Vietnam on in HMAS Sydney. From 29 October 1965 to 19 November 1966, Mr Downie returned to Cerberus for training as a steward. In April 1967, the records show that he was involved in a fracas, received multiple lacerations to the right hand and was admitted to a hospital in Sydney, then transferred to HMAS Penguin. He had six more trips to Vietnam on in HMAS Sydney between May 1967 and November 1968.
Mr Downie said that he was exposed to alcohol at home where his father and mother each consumed a bottle of beer every night. During his apprenticeship, he visited the hotel on Friday nights but said he could afford one drink of beer only. During his recruit training, beer was not available to him at Cerberus but he went to ~~the~~ a hotel in nearby Hastings when on occasional leave. He said that he was big for his age and had no trouble being served with beer at the hotel. In his evidence to the VRB, Mr Downie said that, on most days from when he was posted to Garden Island in April 1968 until the ship sailed a month later, he would go with others to local hotels and drink between 20 and 30 schooners of 15oz. beer. He was drunk regularly and, on several occasions, found himself in Darlinghurst gaol. Mr Downie said that his drinking habit progressed and he drank excessively whenever he was able to obtain beer. While still under age on the first voyage, he maintained that he was able to purchase beer from others except when the ship was at action stations when beer issue was unavailable.
Mr Downie said that, prior to HMAS Sydney sailing on its first voyage, there were demonstrations at Garden Island against Australia's involvement in the Vietnam War. He said he was apprehensive during that voyage, particularly when in Vung Tau harbour. He said that, at night, he saw U.S. aeroplanes dropping napalm on a ridge on shore and he realised that he was in a war zone. He thought that the ship spent one week in harbour anchored some two miles from shore. Clearance divers and patrol boats were active against possible enemy ~~mine attacks and scare charges~~mine attacks and scare charges were detonated regularly. Mr Downie said that he saw a couple of bodies floating down the river. There was no sign of uniforms on the bodies and the sight made him feel a bit crook. He was not able to state with any certainty which trip to Vietnam he was on when he saw the bodies. He acknowledged that there were announcements made prior to scare charges being detonated. However, he said that, on one voyage, no announcement was made and he received a fright when the charge detonated. He recalled that he was a steward at the time so that the incident must have occurred after his second voyage to Vietnam. Mr Downie said that loading and unloading became more efficient after the first voyage so that HMAS Sydney was in harbour for much shorter periods.
Mr Downie said that he had some informal discussions with Commodore Brasch on in HMAS Sydney who told him to back off drinking a few times to no effect. He said that, on one occasion, he spoke to a priest about his drinking problem, reduction was recommended but he did not reduce his drinking. He said that in 1970 or 1971, after becoming drunk in Thailand, he was given some pills by the doctor to help reduce his drinking but they had a short‑term effect only. His medical records disclose that he was referred to a psychiatrist in August 1970 with it noted that Mr Downie faced charges for sexual misconduct if he did not seek treatment from a psychiatrist. He was prescribed Nardil and Librium. He was, again, referred to a psychiatrist in August 1972 at the request of the Commanding Officer of HMAS Torrens for an opinion as to whether he could be rehabilitated from an abnormal desire for drink. Dr N. Myers, psychiatrist, found that Mr Downie had a longstanding personality problem and a history of severe alcoholism. He noted apparent dyslexia and depression as a result of his wife leaving him and not seeking his son thereafter. Dr Myers considered there was a need for psychiatric treatment with only a fair chance of significant long‑term response. He was prescribed Serepax. On a review, another psychiatrist, Dr J. Rowe, noted that Mr Downie was seeking to use his excessive drinking as an excuse to get a medical discharge, was adamant that he does not want help with his drinking problem and wishes to continue to drink. In his evidence, Mr Downie acknowledged that he had never wanted help with his drinking problem.
Mr Downie ~~was~~ married in 1965. His wife was 5 months pregnant at the time of the marriage and lived in Melbourne. After a 13½‑hour honeymoon, he returned to Sydney and there was little contact. The couple separated after 3 years. Mr Downie said that, in 1972, he had major problems both domestically and aboard ship. Other sailors would not take orders from him and he decided to get out of the navy. He ~~had~~ remarried ~~again~~ and, after weekend leave in Melbourne, took a further 2 weeks without leave before surrendering voluntarily in Melbourne. In August 1972, Mr Downie was convicted of the theft of 2 bottles of intoxicating liquor and given a suspended sentence of 21 days. After his absence without leave in October 1972, he was given a further sentence of 7 days and required to serve the previous sentence of the further 21 days. He was discharged on 1 December 1972.
Dr Gelb examined Mr Downie and provided a report dated 22 December 2000 (T22) and a further report dated 18 October 2002 (Exhibit A1). In his first report, Dr Gelb considered that Mr Downie was seriously abusing alcohol prior to his first trip to Vietnam, but that he went on to develop even worse alcohol dependence during his Vietnam service. Dr Gelb was of the opinion that factor 5(e) of the relevant Statement of Principles (SoP) applied to Mr Downie. He considered it clear that Mr Downie's alcohol abuse and later dependence was well known by both his peers and superiors, but that his condition was never reported to Navy Medical Services and no attempt made to arrange psychiatric assessment and referral to an alcohol treatment programme. In Dr Gelb's view, appropriate clinical management would have been to ensure that Mr Downie was medically and psychiatrically assessed and referred to an alcohol treatment facility for detoxification and specific addiction treatment. In his oral evidence, Dr Gelb said that treatment was available in 1965. He believed that Mr Downie had dealt with the stress of the voyages to Vietnam by self‑medication with alcohol. He accepted that Mr Downie had made alcohol a part of his life from an early age and that 20‑30 schooners of beer amounted to excessive drinking. He accepted that the early pattern of alcohol consumption could have inevitably led to alcohol dependence.
Dr Walton examined Mr Downie on 3 October 2001 and provided a report dated 23 October 2001. He diagnosed Mr Downie as being alcohol dependent. He noted a history of a well‑established pattern of excessive alcohol consumption well prior to operational service. Dr Walton was of the view that alcohol rehabilitation services were available during the relevant period but noted that Mr Downie had clearly refused to cooperate with suggested treatment and rehabilitation in 1972 and later, perhaps, in 1994. Dr Walton found no convincing evidence that Mr Downie was exposed to a severe stressor during his service in Vietnam.
~~Mr Downie was examined by Dr L. Chester, consultant psychiatrist~~Dr L. Chester, consultant psychiatrist, examined Mr Downie on 10 December 1997. In his report of 22 December 1992 (T22), Dr Chester was of the opinion that Mr Downie did not suffer from any psychiatric disorder and may have relied on alcohol and marijuana to compensate for the limitations placed on his lifestyle by his physical conditions, particularly his heart disease. Mr Downie was examined also by another consultant psychiatrist, Dr P. Graf, on 24 May 2000. Dr Graf diagnosed …severe chronic alcohol dependence going back to the early years of his service in the navy. While Dr Graf considered that Mr Downie may benefit from an alcohol withdrawal programme supplemented by drug treatment, he felt that the …motivation to give up alcohol is questionable.
WriteWay Research Service Pty Ltd (Writeway) provided reports to the respondent regarding the various incidents referred to by Mr Downie. It was confirmed that there were protest demonstrations conducted in the vicinity of Garden Island in May 1965, resulting in minor fracas and civil disturbances that were dealt with by the New South Wales Police, although there was no recorded attacks against or upon sailors. The only reported sighting of a body in the water was in 1971 when scare charges resulted in a cadaver, clad in military uniform, floating to the surface and passing HMAS Sydney at a distance of some 50 to 60 yards away. There were no records or recollections of serving officers of HMAS Sydney of any observation of Napalm air strikes during the visit of the ship to Vung Tau harbour in 1965.
The reports of both Dr Kemp and Dr Barton provide opinions that Mr Downie is not incapacitated for work from his accepted medical conditions but is so incapacitated by the physical and mental effects of his alcohol dependence and cirrhosis of the liver.
As Mr Downie had operational service, s120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any SoP issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:
Instrument Nº 76 of 1998 concerning alcohol dependence or alcohol abuse
Instrument Nº 35 of 1998 concerning cirrhosis of the liver

Each of the relevant SoPs sets out the factors, one of which must relate to the veteran’s service, which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. There was no dispute that Mr Downie satisfied factor 5(a) of the SoP concerning cirrhosis of the liver, consuming at least 150 kgs of alcohol within any 10‑year period before the clinical onset of cirrhosis of the liver, and suffered from that condition. What was in dispute was whether that level of consumption related to his service. For alcohol dependence or alcohol abuse, the factors relied on were 5(b) and/or 5(e), being:

…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
…
(e)inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse.

In this SoP, experiencing a severe stressor is defined, and is relied on, in the following terms:

"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;

It was submitted for Mr Downie that, while it was possible that there was alcohol abuse in the month before HMAS Sydney sailed in May 1965, he commenced to suffer from alcohol dependency as a result of his operational service. It was said that there was no evidence of any alcohol problems prior to service and, with the close supervision of recruits and limited leave during recruit training, there was little likelihood of the development of any established pattern of drinking prior to his transfer to HMAS Sydney. Mr Thomson submitted that the trip to Vietnam was stressful for a 17-year-old who was new to the navy and his experiences in Vietnam constituted a severe stressor. It was said that the demonstrations in Sydney prior to the voyage increased the effect of the fear experienced on that first voyage. ~~The applicant~~ Mr Downie relied on the opinion of Dr Gelb in submitting that factor 5(e) of the SoP relating to alcohol dependence applied.
For the respondent, it was submitted that Mr Downie's history demonstrated the development of an alcohol problem prior to service and its continuation thereafter was unrelated to the circumstances of that service. Mr Rudge submitted that the amount of alcohol consumed by Mr Downie's parents, the history given to Dr Walton of his drinking at 14 years of age, his evidence of drinking as an apprentice limited only by availability of money, the visits, where possible, to the hotel at Hastings when on recruit training and the acknowledged very heavy drinking in Sydney prior to sailing, all indicated a person who had an established pattern of drinking alcohol at every opportunity prior to the voyage to Vietnam. It was ~~argued~~ contended further that none of the factors in the relevant SoP were satisfied so that a reasonable hypothesis connecting the condition with Mr Downie's service had not been raised.
It is clear that, if a condition of alcohol ~~abuse~~ dependence or alcohol ~~dependence~~ abuse can be accepted as related to Mr Downie's service, then his claim for cirrhosis of the liver must also be accepted. While he satisfied the relevant factor in Instrument Nº 35 of 1998, it is necessary for success in his claim to have a finding that this high level of alcohol consumption was connected with such service. As set out in the following, we are satisfied that the level of alcohol consumption was not so related.
In relation to the claim for alcohol ~~abuse~~ dependence or alcohol ~~dependence~~abuse, it is accepted that, initially, the material before the Tribunal points to the hypothesis connecting the condition with service, although, more correctly, it leaves such a hypothesis open. As there is a SoP in force, the next consideration is whether the hypothesis is reasonable under that SoP. This will be so unless the Tribunal is satisfied beyond reasonable doubt that the factors required by the SoP are not satisfied, connecting the condition with service. The factor relied on principally was factor 5(e) inability to obtain appropriate clinical management for the condition. This was primarily based on the view of Dr Gelb that Mr Downie's history of alcohol abuse would have been recognised by his superiors and appropriate treatment should have been offered. However, there is no evidence that appropriate treatment was not available or that Mr Downie was unable to access such treatment. Both Dr Gelb and Mr Downie acknowledged that the treatment and facilities for treatment were available in 1965. It is clear from his medical records that Mr Downie was required to have psychiatric assessments in 1970 and 1972, but he was not interested in undertaking any treatment for his alcohol problem. He had been advised by Commodore Brasch and a priest to reduce his alcohol consumption without any effect. We are satisfied that it was not a matter of an inability to obtain appropriate clinical management for his condition but a lack of any desire to obtain such treatment which applied during the relevant period. It is appropriate to stress that Mr Downie's operational service was a total of 212 days on 8 voyages on HMAS Sydney to Vietnam. During a major part of that service, access to alcohol was relatively limited. We are satisfied beyond reasonable doubt that Mr Downie does not satisfy factor 5(e) of the SoP. It is not a matter of whether his superiors should have offered or arranged treatment, but whether there was an inability to obtain the treatment. We are satisfied that clinical management was available if sought.

The alternative factor relied upon was factor 5(b) experiencing a severe stressor. No psychiatrist, including Dr Gelb, was prepared to connect Mr Downie's alcohol dependence or alcohol abuse with any stressor during operational service. At best, Dr Gelb thought that he may have self‑medicated himself with alcohol to deal with the general stress of the voyages to Vietnam. There was simply no evidence from Mr Downie that he experienced, witnessed or was confronted with any event that involved threat of injury or physical integrity or invoked fear, helplessness or horror. His only concern at the scare charges was a slight fright on one voyage, which must have been on his third or later voyage. He saw in the distance some bombing, although it is clear that it was some considerable distance away and his evidence was that it solely made him realise that he was in a war zone. He may have seen a body in the river, although there must be some doubt about his evidence. However, there was no indication in his evidence that any such sighting was of a war casualty or that it caused him any severe stress. The demonstrations in Sydney were prior to actual operational service and there is no evidence of any threat of injury to Mr Downie or any other navy personnel. We are satisfied that Mr Downie does not satisfy factor 5(b) of the SoP so that a reasonable hypothesis has not been raised. It is clear that Mr Downie's pattern of drinking was established prior to service and the alcohol abuse at that time continued and developed to alcohol dependence. However, that condition was not connected with his service.
It follows from the foregoing that the decision under review should be affirmed. The evidence is clear that it is the two claimed conditions only which prevent Mr Downie from undertaking remunerative work and, as neither of these are war‑caused, he does not satisfy either s23 or s24 of the Act to entitle him to a rate of pension in excess of 100 per cent of the general rate.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

Mr C. Ermert, Member

(sgd) Catherine Thomas
Clerk

Dates of Hearing: 4 June 2003
22 July 2003

Date of Decision:  1 September 2003
Counsel for applicant:                  Mr C. Thomson
Solicitor for the applicant:            Peter J. Liefman
Advocate for the respondent:       Mr K. Rudge, Department of Veterans’ Affairs