DYCE and REPATRIATION COMMISSION
[2011] AATA 550
•11 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 550
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4975
VETERANS' APPEALS DIVISION ) Re GREGORY KENNETH DYCE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate11 August 2011
PlaceMelbourne
Decision The Tribunal:
1.affirms the decision under review insofar as it refused acceptance of cervical spondylosis;
2.sets aside the decision under review with respect to the condition of diabetes mellitus and alcohol abuse and in substitution decides that:
(a)the applicant does not suffer alcohol abuse but does suffer alcohol dependence; and
(b)the conditions of diabetes mellitus and alcohol dependence are war-caused; and
3.remits the application to the respondent for assessment of pension in accordance with these reasons.
(sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – operational service – applicant engaged in evacuation of civilians and refugees from Saigon in 1975 – denial by respondent of service in South Vietnam – deficiencies and errors in service records ‑ alcohol abuse or dependence – category 1A stressor ‑ diabetes mellitus – smoking – defence service – cervical spondylosis – whether service related conditions
Veterans’ Entitlements Act 1986
Repatriation Commission v Budworth (2001) 116 FCR 200
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 49 ALD 193
Kaluza v Repatriation Commission [2010] FCA 1244
Kattenberg v Repatriation Commission (2002) 73 ALD 365REASONS FOR DECISION
11 August 2011 Mr John Handley, Senior Member
Dr Kerry Breen, Member1. Mr Dyce, the applicant in these proceedings, claimed acceptance of two illnesses ‑ alcohol abuse and diabetes ‑ that he alleged arose out of his service in South Vietnam when he was engaged in an operation to evacuate civilians and refugees immediately before the fall of Saigon in April 1975. A combination of errors and deficiencies in his service records caused the respondent to deny he was ever in South Vietnam when he alleged.
2.During the currency of this review, which occupied four sitting days, the respondent did seek, and eventually obtained evidence which allowed it to make a number of concessions. Regrettably those investigations were not undertaken before the hearing commenced, despite a considerable body of documentary evidence supporting his presence in South Vietnam.
3.The quality and comprehensive nature of the material lodged before and during these proceedings will hopefully correct relevant historical records. It should also ensure that other veterans who were engaged in the evacuation of South Vietnamese civilians and refugees will not endure the scrutiny to which the applicant was exposed. Rather those veterans will be afforded respect and acknowledgement for the perilous nature of the service then undertaken.
4.The applicant also claimed acceptance of cervical spondylosis which he alleged arose out of defence service, after his service in South Vietnam. That application will also be considered in these reasons.
THE REVIEW
5.The applicant claimed acceptance of the conditions of diabetes mellitus, cervical spondylosis and alcohol abuse as war-caused on 9 September 2008. The respondent decided to deny the claim. The Veterans’ Review Board (VRB) affirmed that decision on 6 October 2009.
6.The applicant presently receives pension at 30% of the general rate for the accepted conditions of solar keratosis, osteoarthrosis of the left hip and lumbar spondylosis. He is presently 62 years of age having been born on 27 July 1949. He is currently engaged in full-time employment.
7.On the first day of hearing a preliminary issue emerged. Mr Thomson who appeared on behalf of the applicant contended that the review should be extended to determine a connection between service and post-traumatic stress disorder (PTSD).
8.At the conclusion of submissions made by counsel we delivered oral reasons and decided that the Tribunal did not have jurisdiction to determine a connection between PTSD and service in this review (Transcript, p 38-42). The hearing then resumed. A request for written reasons was later made by the applicant’s solicitors. We delivered those reasons on 30 November 2010 (Re Dyce and Repatriation Commission [2010] AATA 956. Nothing further needs to be recorded in these reasons about that application or the decision that we made.
SERVICE BEFORE SOUTH VIETNAM
9.The applicant enlisted with the Royal Australian Air Force (RAAF) on 10 January 1966 as an apprentice at the School of Technical Training in Wagga Wagga, New South Wales. At the completion of his apprenticeship, he entered the No 486 Squadron and was principally engaged in the maintenance, fault diagnosis and repair of C130A and C130E (Hercules) Aircraft. On 1 August 1973, he was promoted to the rank of Corporal after he had completed service in Washington during the previous month.
SERVICE IN SOUTH VIETNAM
Applicant
10.Immediately prior to departing for South Vietnam, the applicant had been living with his wife on an RAAF base at Richmond in New South Wales. He was a member of the duty crew.
11.On Easter Saturday 1975 (which was later agreed to be 29 March 1975), the applicant and a number of others were directed to return to their quarters, pack a bag and return within one hour. The applicant thought that he would be travelling to Cambodia. He assumed that the instructions to him were limited because he was a member of the ground crew, as opposed to the flight crew. He and a number of others boarded a Hercules aircraft which flew in convoy with other Hercules aircraft to the RAAF Base at Butterworth stopping only for refuelling in Darwin. The applicant learnt that he would be engaged in an operation to evacuate civilians and refugees from South Vietnam. He later learnt that it was intended to enter South Vietnam from Butterworth, collect civilians and refugees from Phan Rang and take them to Can Tho which is located south west of Saigon.
12.The applicant arrived in Butterworth on 30 March 1975 and departed for South Vietnam on 2 April 1975. Six or seven Hercules aircraft flew at regular intervals from Butterworth into Phan Rang. The applicant was a member of the ground crew, on one of the Hercules and understood that his role was to assist the loading of persons who were evacuating. At that time it was understood that there was rapid advancement of North Vietnamese forces and the evacuation effort was regarded as being humanitarian in nature. The applicant was told that he was not to allow members of the South Vietnamese Army to evacuate with the civilians. Immediately before departing Butterworth, the applicant was either told or understood, that he would be returning to Butterworth later that day. Accordingly, he left his kit bag behind.
13.The applicant initially thought that he was on the first or second Hercules plane flying into Phan Rang because he believed that only two Hercules planes entered. When he read statements of other witnesses who gave evidence in these proceedings, he became aware that up to six aircraft flew from Butterworth to Phan Rang. He then thought that he could have been on either the third or the fourth aircraft into Phan Rang.
14.Whilst travelling between Butterworth and Phan Rang, the applicant was advised that one of the earlier RAAF Hercules had been shot at whilst it was on the tarmac at or about the time that refugees were being loaded. He and other crew members on his flight were directed to allow access by one of the rear doors only.
15.When his plane landed and they were ready to accept passengers, he said they were mobbed. He described women, children and soldiers screaming and in panic. He described the situation as pandemonium and very, very, intense (Transcript, p 72). He said the soldiers were screaming and waving their weapons.
16.The applicant estimated approximately 200 persons were loaded on to the aircraft. His role was to assist persons on-board without delay and then secure the plane for take-off. An incident occurred during the loading which caused him considerable distress.
17.The applicant recalled a woman and a child were attempting to board the plane. He said the Vietnamese woman passed the child to him and he then passed the child on to other persons in anticipation of assisting the woman to board the plane. He held her arms and was attempting to lift or drag her on to the plane.
18.Whilst describing this event in evidence, the applicant became very distressed. He gave a description of what happened at the time he was assisting the South Vietnamese woman on to the plane:
There was a South Vietnamese soldier. He was madder than the rest of them had been, he was really kind of crazy, and the crowd was sort of pushing away from him a little bit because he was obviously – he was screaming and the Vietnamese – which I have no idea, but I sort of understood that he wasn’t a very happy person and he started to bash the woman’s hands as I was trying to lift her into the aircraft. And then he just stuck the gun on my chest, and I thought I was going to die, and I let her go. Because I tried to help – soldier on – the crowd surged back and they pushed her sort of under and away from the aircraft door so I couldn’t get to her, and I’m sure she smiled at me and said “Thank you.” I’ve never been able to tell anyone this. I’ve lived with the shame (Transcript, p 72).
19.The applicant said that the South Vietnamese woman was denied entry on to the plane. He said:
She was pushed to the side and basically under the aircraft, and I don’t know what happened to her. I’ve just – I’ve struggled to live with that for 35 years. I’ve suppressed that. I don’t know. I couldn’t save her. I put my life before hers I guess. And all I could think of was my wife and my little girl, my unborn baby (Transcript, p 72).
20.In cross-examination, the applicant agreed that he had been directed not to allow South Vietnamese soldiers on-board the plane. He also understood that no one was permitted on to the plane if they were armed. The applicant acknowledged that a letter had been received into evidence from one of his colleagues, Mr Boshammer, which was a letter written by him to his parents recording that persons were not permitted on-board the plane if armed. When questioned concerning that policy, the applicant said:
Well, we didn't let anyone come onto the aircraft armed. Once they got onto the aircraft, they - we got their weapons off them. I mean, there was no way to stop them from coming on the aircraft. You know, they're pointing a rifle at you. You say, “Oh sorry, you've got a gun. Go away”. That didn't happen. They ‑ they physically forced their way onto the aircraft. Once they were on board the aircraft, they were happy to relinquish their arms, and we had a hell of a collection up the back of the aircraft in the – in the cargo hold of all sorts of weapons: pistols, rifles, grenades (Transcript, p 149).
21.The applicant acknowledged that his first statement dated 15 October 2009 (Exhibit A3) and the history he gave to Dr Seabridge, a psychiatrist, on 11 November 2008, did not contain any history of having a rifle pointed at him by a South Vietnamese soldier. The second statement taken on 8 July 2010 did explain the incident at Phan Rang (Exhibit A4). When asked why he had not previously disclosed that history, the applicant said:
- I was a young man, probably in the prime of my life. I had school acquaintances that, you know, because conscription was alive and well in the 60s that went to Vietnam and came home in a box. I had probably dreams of being the perfect serviceman, and I was put in a position where, you know, could have performed something heroic and I went to, and I - I – I’ve just been so terribly ashamed and I was so frightened.
… And I just didn't want to admit it and I didn't tell anyone. I never told anyone. I just couldn't bring myself to tell them. I still haven't told my wife; I can't.
Well, why didn't you tell someone in connection with this claim earlier? Because I didn't ‑ didn't understand that I had to bear my sole [sic] and let all the little skeletons out of the closet. I'm sure that there's some things in your life that you don't want everybody else to know, and I mean, I'm ‑ with respect, but I ‑ I was ashamed of that incident and I didn't want anyone to know about it, and I ‑ I was hoping to get through this with as it was, you know.
Well, by not serving up the full story? I just left part of it out, yes (Transcript, p 146).
22.The applicant was also challenged for his failure to notify Dr Walton, another psychiatrist engaged by the respondent, about the incident involving the soldier and the gun. (That consultation occurred on 17 May 2010, before the statement made on 8 July 2010). The applicant said that he had previously explained why he did not speak about that incident and he did not know that it was extremely relevant to his application.
23.The applicant was again challenged about his failure to disclose the incident involving the soldier in Phan Rang in his first witness statement and to the psychiatrists, Dr Seabridge and Dr Walton. The following passage from Transcript is illustrative:
Okay. So you didn't realise it became relevant until you had been talking to your solicitor and he indicated that that was an important ingredient?‑‑‑
Well, he didn't know that either, but he was telling me that I, you know, as it stood it didn't look like I ‑ I had a - what do you call them, a stressor or something like, you know. And I – I knew that this happened all the time and I did not want to disclose this because, as I said, for the reasons I have already mentioned, and it's not something that I'm very proud of (Transcript, p 154).
24.In response to a query by us, we reproduce the following from the Transcript:
Sorry, when you say you're not proud of, do you mean the incident with the woman or the gun? Basically my act of cowardice.
You mean insofar as the lady was concerned? I could have got ‑ well, I could have got her onto the aircraft and I let her go. I was just so scared, I let her go. I grabbed him instead and then she was pushed basically under the aircraft and she still smiled at me and I think she was trying to say thank you as she disappeared (Transcript, p 154).
25.Shortly after this episode at Phan Rang, the applicant recalled that the plane he was loading commenced to taxi along the runway. (At all times whilst the plane was stationary, its engines were running). He recalled that persons were holding on to the door frame continuing to attempt to climb on-board. The applicant was aware that he was required to close the door and feared that he would trap persons’ fingers in the door. As the plane commenced to accelerate, persons could no longer hold on to it and the door was lowered and secured. The applicant believed that the Hercules flew to Saigon. The applicant said when his plane landed, it was directed into a remote area and the rear cargo door was opened. He recalled that a number of armed soldiers were waiting, who removed the South Vietnamese soldiers and took them away. The civilians on-board the plane were directed elsewhere (Transcript, p 73).
26.The applicant was based in Saigon from 2 April to 17 April 1975, when he returned to Australia. An entry in the Commanding Officer’s Report of the No 486 Squadron of April 1975 (appended to Exhibit R11), recorded that the applicant served in Bangkok between 17 April and 27 April 1975. The applicant denied serving in Bangkok.
27.Whilst in Saigon the applicant stayed with others at the Embassy Hotel and worked daily at the Tan Son Nhut airport in Saigon. At the airport, he was required to service and repair Hercules aircraft and to assist the loading of humanitarian supplies and foodstuffs which were to be delivered by the Hercules planes to An Toi.
28.Civil and military disobedience was rife in Saigon. The applicant and his colleagues travelled to and from the airport daily under escort and did not leave the Embassy Hotel after they returned at night.
29.The applicant recalled that a few days after arriving in Saigon, he spoke with two Australian nurses at the airport, who were about to board a United States Galaxy aircraft which was being loaded with refugees and was destined to fly to Bangkok. An Australian Hercules aircraft had also been loaded with refugees and was scheduled to depart after the Galaxy aircraft.
30.Shortly after the Galaxy aircraft departed, a message was received that it had a problem and was intending to return to the airport (Transcript, p 73). Sabotage of the plane was suspected. Passengers and baggage on-board the Australian Hercules aircraft were taken off and searched because of suspicion that it may also have been the subject of sabotage.
31.The applicant recalled that he was standing near the tarmac, waiting for the Galaxy to return and saw a large fireball and smoke. The Galaxy had crashed. Approximately 200 persons were killed. The Australian Hercules plane then took off and it was the last plane evacuating refugees. Thereafter, Australian and allied planes only delivered food and other humanitarian items.
32.In cross-examination, the applicant was asked why he did not refer to this event in any of the three statements that he lodged prior to the commencement of the hearing. He said he gave a history of it to Dr Seabridge. He acknowledged that it was reported that he had witnessed the crash but said he did not witness it, rather he saw smoke following the explosion. He denied a suggestion put to him that the Galaxy crash was not an incident that came to [his] mind at the time he completed his statements. He explained he understood that he was only required to refer to the major stressor, the one that caused [him] the most grief. He also added, if I wrote a statement about everything that stressed me while I was in Vietnam, it would be, you know, a novel of horrendous proportions (Transcript, p 144).
33.Whilst stationed in Saigon, both at the Embassy Hotel and at the airport, the applicant was aware of reports of North Vietnamese troops rapidly approaching. Saigon was under curfew. At night, he and his colleagues would sit on the roof of the hotel and observed what appeared to be lightning and thunder in the distance but was understood to be ground and canon fire and explosions. Gunfire could be heard in the streets of Saigon.
34.The applicant described an occasion when early one morning in Saigon, while he and others were having breakfast at the Embassy Hotel, when two bombs were dropped on the Presidential Palace adjacent to the hotel. Windows and doors of the hotel exploded. It was learnt that a South Vietnamese pilot, believed to be defecting, had commandeered an F54 fighter plane and dropped bombs on the palace.
35.The applicant departed Saigon on 17 April 1975 and returned to Richmond Air Base in New South Wales. He resumed duties on 19 April 1975.
John Hunt
36.John Hunt was a Corporal in the RAAF at Richmond who departed for Butterworth on 29 March 1975 with the applicant. He gave evidence in these proceedings and prepared a statement on 24 September 2010 (Exhibit A1). He also provided copies of letters that he wrote to his wife on 2 April 1975 from Butterworth, 8 April 1975 from Saigon and 17 April 1975 from Bangkok (Exhibit A7).
37.Mr Hunt was a radio technician. In his statement, and in evidence, Mr Hunt confirmed that he and others were deployed from Butterworth to Phan Rang to evacuate civilians and deliver them to Can Tho (Transcript, p 244). Mr Hunt recalled that he and the applicant were members of a ground crew of 10 persons who were allocated to Hercules aircraft. The applicant was not on the same plane as Mr Hunt and he had no recollection of where the applicant travelled after departing Phan Rang. He reunited with him and others in Saigon on 6 April 1975.
38.In his statement, and in evidence, Mr Hunt recalled that there were chaotic scenes at Phan Rang when he arrived. He was on the second Hercules plane into Phan Rang. He recorded in his statement that South Vietnamese soldiers were mobbing the plane and civilians were pushed aside.
39.Mr Hunt recalled that he was threatened by a South Vietnamese soldier who was in the process of withdrawing a pistol from his holster. Mr Hunt was armed with a rifle. He pointed the rifle at the soldier and released the safety catch. He also recalled that a number of South Vietnamese soldiers did board the plane but once on-board they were disarmed without resistance and their weapons were left behind on the tarmac.
40.Mr Hunt said that he had also been told that the first Hercules plane into Phan Rang had been shot and had four bullet holes in its tail. So far as he could recall, six Hercules planes travelled from Butterworth to Phan Rang to evacuate refugees.
41.When stationed at Saigon, Mr Hunt was engaged as a radio technician or served on Hercules aircraft delivering rice to An Toi, near the border of Cambodia. He also worked in the hangars at the Saigon airport with the applicant and Mr Boshammer (who also gave evidence in these proceedings).
42.In cross‑examination, Mr Hunt recalled that after arriving at Can Tho, the intention was to return to Phan Rang to collect more refugees. However, it was learnt that the North Vietnamese had taken over the Phan Rang airport and his Hercules plane was diverted to Butterworth, where he remained until he was flown to Saigon on 6 April 1975.
43.He recalled that when at Phan Rang, his plane was on the ground for between 10 and 15 minutes only. He was aware from radio broadcasts from the first Hercules plane, that there was chaos on the ground associated with the loading. The chaos was later the subject of discussion with other colleagues in Saigon.
John Boshammer
44.John Boshammer departed Richmond with the applicant and Mr Hunt on 29 March 1975. He was a flight engineer with the RAAF. He prepared a statement on 14 October 2010 (Exhibit A8) and provided copies of letters that he wrote to his parents from the Embassy Hotel in Saigon. He also gave evidence before the Tribunal (Transcript, p 230).
45.Mr Boshammer recalled that after leaving Richmond, the Hercules refuelled in Darwin and then travelled to Butterworth. He recorded in his statement that he could not remember whether he was on the same Hercules plane as the applicant but did recall there were either four or six Hercules planes flying in convoy. After one or two days in Butterworth, the Hercules planes flew into Phan Rang to collect refugees. So far as he could recall, some of the planes flew into Phan Rang and some flew directly to Saigon. The applicant was not on the same flight into Phan Rang as Mr Boshammer. However, he did recall the applicant was on one of the other Hercules, as part of that rescue operation.
46.In cross-examination, Mr Boshammer read a letter that he wrote from the Embassy Hotel in Saigon on 7 April 1975. Relevant parts of that letter are reproduced as follows:
… Tuesday morning we left Butterworth on route to Phan Rang where we had to pick up refugees. We each had an SLR and 50 bullets as we were going into VC country. Also in my case … the aircraft was hijacked by saboteurs or panicky troops … we landed at Phan Rang at 11.30am and kept all engines going while the refugees got on. They were coming on, or trying to, at the rate of 10 a second. I was given the job of packing and checking for booby traps – not the best job I have had. My overalls were drenched in sweat and to top it all off I had to nurse a pregnant woman during the one and a half hour flight to … Can Tho. I was scared stiff that at any moment I would have to play doctor … we got a shock when we opened the doors at Can Tho Air Base to find rifles, grenade launchers, machine guns aimed at us just in case we had any VC on board… You can imagine our immense relief when we finally took off for Tan Son Nhut Air Base at Saigon … (Transcript, p 234‑235).
47.Mr Boshammer confirmed that he worked at the Saigon airport on a seven day per week roster at 14 hours per day. In Saigon, he and others principally stayed in the Embassy Hotel, save for one occasion where he attended a local market which he described being naive because he did not appreciate the danger of being on the streets of Saigon. He also recalled an occasion where the Embassy Hotel suffered damage when the Presidential Palace adjacent to it was bombed.
48.Mr Boshammer confirmed in cross-examination that he and others had been told not to let South Vietnamese soldiers on-board the plane. However, most of them were armed. Their weapons were taken from them on-board and were stowed within the Hercules plane. Later, when he arrived in Saigon, he learnt from others that an earlier Hercules plane had been shot at whilst on the tarmac.
49.Mr Boshammer recalled that the engine to his plane kept running whilst refugees were being loaded and a number of RAAF Hercules were arriving regularly at intervals of about 30 minutes.
Brian Young
50.Brian Young was a Hercules pilot with the RAAF and served between 1961 and 1998. He is now retired. He did not provide a statement but was called by the respondent.
51.Mr Young said that he was the pilot of the last Hercules flight into Phan Rang from Butterworth. He understood that it was the seventh flight.
52.He recalled that each plane landed at between 15 and 30 minute intervals, was stationary for about 10 minutes with engines running whilst being loaded with civilians and refugees.
53.Mr Young said that so far as he could recall, his flight collected all remaining refugees waiting at Phan Rang. He thought approximately 100 persons were loaded on to his plane but did not dispute a suggestion put to him that it could have been up to 150 persons or more. Mr Young did not leave the flight deck whilst his plane was stationary and did not observe loading but understood that it had been in a fairly orderly fashion (Transcript, p 262). He flew to Can Tho and to his knowledge that was the only location that RAAF Hercules planes flew after departing Phan Rang (Transcript, p 262). He then flew from Can Tho to Saigon.
54.Mr Young said that he did not know personally about any of the circumstances surrounding the arrival, loading and departure of six earlier RAAF Hercules planes into and out of Phan Rang but did swap stories with other persons at Saigon later on 2 April 1975 (Transcript, p 263).
Brendan O’Keefe
55.Brendan O’Keefe is a historian engaged by the respondent who provided a report dated 9 December 2010 (Exhibit R11). Attached to it were a number of historical documents, including newspaper cuttings and photographs taken by Mr Young. (Those photographs depict persons loaded into the Hercules aircraft, seated unrestrained on the floor. The photographs were taken from the flight deck and were donated by Mr Young to the Australian War Memorial).
56.From the research undertaken by Mr O’Keefe, he was satisfied that either five or seven Hercules aircraft were involved in evacuation of refugees from Phan Rang. He suspected that there were seven Hercules aircraft being five C130E models from 37 Squadron and two C130A models from 36 Squadron, both based at Butterworth.
57.Mr O’Keefe was unable to locate the flight authorisation books for any of the planes into or out of Phan Rang from either National Archives or the Office of Air Force History.
58.Mr O’Keefe was unable to locate any documents which corroborated the applicant having flown into Phan Rang as part of the evacuation operation. He said that he could not locate any records for any other members of the ground maintenance team flying into Phan Rang. He interviewed pilot officer Monty Banks, Mr Boshammer and Mr Hunt, who all remembered the applicant as a member of the ground crew who did fly into Phan Rang. However, they were unable to recall the Hercules plane to which the applicant was assigned.
59.Mr O’Keefe concluded that there was a likelihood of the applicant having been engaged on one of the evacuation flights to Phan Rang and Can Tho because he, Mr Banks and Mr Boshammer were the first three members of the ground maintenance team to arrive in Saigon on 2 April 1975.
60.Appended to the report of Mr O’Keefe was a copy of the No 486 Squadron Newsletter dated 14 April 1975 which recorded that on Easter Saturday six aircraft and a ground maintenance team had flown to Butterworth. The applicant, together with Mr Banks, Mr Hunt and Mr Boshammer are recorded by name as members of the ground maintenance team.
61.A report of April 1975 completed by the Commanding Officer of the No 486 Squadron, recorded that the applicant together with Mr Banks, Mr Hunt and Mr Boshammer, along with a number of others, all departed Richmond on 29 March 1975 in a convoy of six Hercules aircraft and travelled to Butterworth. The same report records the applicant as having been based at Butterworth between 30 March and 2 April 1975, in Saigon between 2 and 17 April 1975 and in Bangkok between 17 and 27 April 1975.
62.An article from the Melbourne Age newspaper of 3 April 1975 reported that armed South Vietnamese soldiers barged their way onto an RAAF evacuation flight. The article also reported that those soldiers were deserters; they surrendered their weapons and refused to leave the C130 transport aircraft. There were unruly crowd scenes, bullet holes were located in the tail section of another plane on the tarmac, 7 Hercules planes were deployed into Phan Rang and carried approximately 1800 refugees to Can Tho.
63.A similar article in the Melbourne Age newspaper on 4 April 1975 reported that South Vietnamese troops had boarded one of the aircraft by force trampling women and children. The refugee air lift was abandoned because of danger to aircraft and crew from desperate soldiers. Two of the Hercules aircraft were deployed to Butterworth and the other aircraft in the air lift are waiting in Saigon …
64.Having regard to the documentary evidence and the evidence from the witnesses, we are satisfied that the service records of the applicant found at page 15 of Exhibit R8 are incorrect. The service records provide that the applicant was attached to No 478 Squadron – C130 Support between 29 March 1975 and 11 April 1975 and attached to Headquarters Richmond Detachment C130 Support between 12 April 1975 and 19 April 1975. Neither of those entries gives any indication of where the applicant was located between 29 March 1975 and 19 April 1975.
Max Brennan
65.In his first report dated 29 July 2010, Mr Brennan concluded that the applicant served in South Vietnam between 12 April and 19 April 1975 only (Exhibit R1). He was given additional documents and asked to review his conclusions. In a report of 17 January 2011, Mr Brennan was satisfied that the applicant was in Butterworth on 30 March 1975. However, he could not locate any records of movements subsequently and it was not clear to him when the applicant first entered South Vietnam (Exhibit R14).
66.In his first report, Mr Brennan was satisfied that two Hercules planes flew into Phan Rang. In his second report, having undertaken further research, he was satisfied that there were seven aircraft involved in evacuation of refugees from Phan Rang on 2 April 1975. That conclusion is consistent with a report in the RAAF News (Vol 17 No.3 published in April 1975 – annexed to Exhibit R11) which reported seven C130s began flying in earnest on 2 April when about 1400 refugees were flown from Phan Rang…
67.Consistent with his first report, Mr Brennan was unable to locate any documents indicating that the applicant was involved in any flights on-board Hercules into and out of Phan Rang.
68.It appears that Mr Brennan, at least in his first report, relied on an extract from a book entitled The RAAF in Vietnam of which Mr Chris Coulthard-Clark was the author. There was an error in that publication which mislead Mr Brennan. At page 323, the publication records that two C130 aircraft made five or six flights on 2 April 1975. The evidence heard in these proceedings clearly indicates that entry is incorrect.
69.We are satisfied that the applicant did depart Richmond on 29 March 1975 and did arrive in Butterworth on or about 30 March 1975. He remained there until 2 April 1975 when he flew on-board an RAAF Hercules aircraft, being one of seven in a convoy into Phan Rang to evacuate refugees. It is unclear to us whether the applicant did fly from Phan Rang to Can Tho and then to Saigon or to Saigon directly. Whilst there is evidence that some of the flights did depart Phan Rang for Can Tho, it would appear that some also flew directly to Saigon. We acknowledge that there is no documentary evidence of the applicant flying into or out of Phan Rang. However, the evidence of the applicant (especially), Mr Banks, Mr Boshammer and Mr Hunt all point to the applicant flying into Phan Rang. The historical research of Mr O’Keefe also points to the applicant flying into Phan Rang. We note the historical records point to the applicant having departed Butterworth on 2 April 1975 and having been located in Saigon from the same date. There is nothing which points to any direct flight from Butterworth to Saigon with the applicant or any other person on-board. This confirms, in our view that the applicant did fly from Butterworth to Saigon via Phan Rang, although it remains unclear whether that journey also incorporated a flight into and out of Can Tho.
70.We are satisfied that the applicant was located in Saigon until 17 April 1975 and the entry in the Commanding Officers Report of the applicant having served in Bangkok between 17 and 27 April is incorrect. The applicant said he departed Saigon on 17 April 1975 and returned to Australia on or about 19 April 1975. We need not dwell on that issue because nothing turns on whether the applicant did or did not travel into Bangkok.
71.We are satisfied that the applicant was at the Tan Son Nhut airport in Saigon on or about 4 April 1975 when he saw the consequence of a Galaxy aircraft crashing resulting in the death of approximately 200 persons. We are satisfied that the applicant did not actually witness the crash nor is there anything which points to the applicant having seen bodies. Page 324 of the publication The RAAF in Vietnam records that a United States Galaxy aircraft crashed soon after take-off from Saigon on 4 April 1975 and 243 persons were reported as being on-board. The applicant had spoken with two Australian nurses a short time prior to them boarding that flight.
72.We are also satisfied, having heard from the applicant, Mr Hunt and Mr Boshammer that they worked long days out of Tan Son Nhut airport, travelled to and from the airport from the Embassy Hotel under escort and remained in the hotel (for their own safety) because of the impending threat from North Vietnamese and gunfire on the streets. We are also satisfied that on one occasion, an adjacent building was bombed which caused damage to the hotel whilst the applicant and others were inside it.
73.During the hearing the respondent made some concessions, namely:
(i)the applicant was engaged in operational service in South Vietnam between 2 and 17 April 1975;
(ii)some of the histories contained within the respondent’s documents provided by the Department of Defence are inaccurate;
(iii)it was probable that seven C130 aircraft flew into Phan Rang on 2 April 1975 (Transcript, p172); and
(iv)the applicant was on-board one of the seven aircraft that flew into Phan Rang on 2 April 1975 (Transcript, p 290).
WHETHER CLAIMED ILLNESSES AROSE OUT OF SERVICE
74.Each of the three claimed illnesses – alcohol abuse, diabetes mellitus and cervical spondylosis – will be separately discussed with reference to the evidence heard in these proceedings.
Alcohol Consumption
before service in south vietnam
75.The applicant was married in 1972 and regarded himself then as a light social drinker.
76.In his statement of 15 October 2009 (Exhibit A3), the applicant recorded that he regularly drank between four and five pots of full strength beer on Friday nights between 1972 when he married and 1975 when he travelled to South Vietnam. He also recorded that he drank socially on other occasions and estimated that he would consume between two and three stubbies of beer during the week.
77.In cross-examination, the applicant said that parts of that statement were incorrect. He said he did not drink every Friday night before 1975 but rather he would drink occasionally on Friday nights and when he did, it would have been at an average of between four and five pots of beer.
78.Mrs Dyce, in her statement recorded that her husband drank at a hotel on Friday nights and did not drink during the week unless he attended a social function (Exhibit A10).
79.Mr Hobday, the applicant’s brother-in-law recalled that the applicant was a quiet drinker, he didn’t drink very much at all during the first few years of marriage and seemed to be the moderate one, drinking after playing sport on weekends (Transcript, p 207-208).
after service in south vietnam
80.The applicant said he increased his alcohol consumption in South Vietnam to help him sleep and would drink every night to oblivion (Transcript, p 75). On his return to Australia he was drinking daily and on two or three occasions per week, he was intoxicated. He also said he was drinking 20 pots of beer on Friday nights.
81.With some greater degree of precision the applicant said that for the first weeks after he returned to Australia, he would drink beer in the mess at work at the conclusion of each day and when he arrived home, he would drink up to six stubbies nightly. He played sport on weekends and would drink one dozen beers on Saturdays, either in pots or stubbies. He said he would drink 10 pots of beer at home on a Sunday or would share a slab socially which would cause him to drink up to 12 stubbies (Transcript, p 78-79).
82.The applicant acknowledged that an entry dated 20 July 1984 in his service medical records, records that he was drinking 30 grams of alcohol per day which is the equivalent of three pots (Exhibit R6, p 18). On 21 September 1986 there was a recording of him drinking four or five beers on two occasions per week (Exhibit R6, p 9).
83.The applicant said that those recordings were not true (Transcript, p 162). He said he was then concerned that a true recording of his alcohol consumption would affect his fitness for duty which might ultimately alter his Defence Force Retirement Death Benefits (DFRDB) rating and therefore, have an adverse effect on his financial entitlements (Transcript, p 161-163).
84.Presently the applicant said that he drinks between five and six pots of beer on most nights of the week, thirty pots of beer on Friday nights and would also drink alcohol on the weekends.
85.Although his statement records him drinking on five of seven days of every week, he said that he does drink alcohol every day (Exhibit A3).
86.Further, the applicant said that he has never attempted to reduce his consumption because he would not want to do so. There was an occasion when he tried to cut back but after two days of abstinence, he became anxious and needed to drink (Transcript, p 92).
87.In cross-examination, particular attention was given to an alcohol questionnaire completed by the applicant on 9 December 2008 (T8, p 66-69). It records that from 1966 the applicant started to drink during his apprenticeship training and was consuming 12 cans of beer per week. It also records that he had never permanently stopped drinking alcohol. The questionnaire records that in 1968 the applicant was drinking 24 cans of beer per week.
88.The questionnaire records that from 1975, the applicant was drinking beer 42 per week; wine 2 bottles; spirits vary between 2-20 standard spirit drinks. The reasons for change against those entries are after returning from Vietnam my consumption rate became extremely high for an extended period (T8, p 66).
89.The applicant agreed that he probably did drink 42 pots of beer per week, however, he would not have consumed two bottles of wine per week nor the quantity of spirits as recorded. The applicant said he would occasionally drink wine and the total amount consumed over a 12 month period would be about two bottles. He agreed that he did drink some spirits but only the occasional gin and tonic (Transcript, p 124).
90.The applicant said that the entries against 1975 should be disregarded because the quantities of wine and spirits consumed are inaccurate. He acknowledged that he signed the questionnaire and also acknowledged that he was responsible for its contents. However, he said, the form was completed by his advocate who is supposed to know more than I do. The applicant said that the importance of the form was not stressed to him at the time it was completed (Transcript, p 124).
91.At the conclusion of the questionnaire, against the subheading 1998-current, the quantity consumed is recorded as beer in glasses 748 grams of alcohol, wine 1 bottle a week. When challenged against that entry, the applicant said he did not know why the quantities of alcohol were changed in description from glasses and cans to grams and did not know at the time the form was completed that 10 grams of alcohol constituted a standard drink. The applicant again volunteered that the contents of the questionnaire were not entirely correct. He said that he and his advocate focussed on the claim for acceptance of diabetes and smoking and the claim for alcohol abuse was of a secondary nature. He said that he did not afford it the attention that it obviously demanded (Transcript, p 125).
92.After 1975 the applicant said, he continued to drink at the same level of approximately 42 pots per week, yet when his earlier evidence of heavy consumption on Friday nights was raised, he acknowledged that the estimate of 42 pots of beer per week did not take account of the considerable quantities consumed on Fridays. The applicant said that he had been binge drinking on Friday nights since 1975. He said his tolerance for alcohol was now greater than what it was in 1975. He estimated his consumption on Friday nights in 1975 at about 20 pots and reaffirmed that presently he is drinking about 30 pots on Friday nights.
93.As there was continuing attention given to the contents of the questionnaire, the applicant’s confusion continued to be apparent. He said that before moving to Victoria, he drank beer in New South Wales in schooners, which held a greater quantity than pots from which he drank in Victoria. The applicant said he was drinking 15-20 schooners in New South Wales which would equate to approximately 30 pots. He thought the references against the entries of 1975 and 1998 in the questionnaire followed an attempt by his advocate to convert the quantity consumed relatively from schooners to pots.
94.The applicant said he could remember completing the form and was confused when he reflected on its contents (Transcript, p 126). He said the form was prepared and typed by his advocate who had guided him (Transcript, p 127). The applicant acknowledged that he did not comprehend the significance of the questionnaire when it was completed.
95.Mr Hobday said he would drink between six to eight pots of beer at the hotel on Friday night with the applicant. He agreed that he and the applicant were normally in a shout. He often left before the applicant who stayed at the hotel and continued drinking. Mr Hobday agreed it would be difficult for him to compare the quantities of alcohol consumed by the applicant before and after 1975, other than it seemed to him that their drinking pattern had reversed. That is to say, before 1975 Mr Hobday recalled the applicant would stop drinking before he did, but subsequently the applicant continued to drink after Mr Hobday had ceased.
96.Mrs Dyce said her husband drank excessive quantities of alcohol after he returned from South Vietnam. She recalled that he was inebriated most nights and drank beer to help him sleep. She estimated that he drinks on three nights per week at between five and six pots and also drinks beer throughout most weekends. Her yardstick of his consumption, especially after her husband returned from South Vietnam, was the financial impact on their family and the disharmony within it because of his alcohol consumption. Mrs Dyce said that she and her husband often argued and in the context of having been married for three years (in 1975) and having two young children she said that’s not the reason why you get married (Transcript, p 218).
97.Dr Velakoulis, the applicant’s treating psychiatrist, had a history that the applicant’s consumption of alcohol escalat[ed] between 1966 and 1972 and then diminishing until 1975. His alcohol consumption then escalated markedly (Transcript, p 180). More precisely, Dr Velakoulis had a history of the applicant drinking six to ten standard drinks per day during the week and 20 to 30 standard drinks on Fridays, from the early 1970s until he first consulted in 2009.
98.Dr Velakoulis said in his experience over four years as a consultant in a drug and alcohol centre, persons who drink heavily tend to minimise their intake during the early phases of treatment. As he reflected on his assessment of the applicant, his impression was that he had been underestimating the quantities consumed (Transcript, p 199).
99.Dr Simonis, a general practitioner who had been treating the applicant from 2002, was referred to a report she prepared at the request of the applicant’s solicitors. In evidence, she was specifically referred to the history she obtained from the applicant about his alcohol consumption. She reported that the applicant had been consuming eight standard drinks on average, for three or four nights per week and 20 pots of beer on Friday nights. She calculated that eight standard drinks on three or four occasions per week would be in the vicinity of 32 standard drinks per week. She said that the recommended standard for alcohol consumption by males was 28 standard drinks per week with two alcohol free days per week. She later reflected on that evidence and said that 20 standard drinks was the recommended standard and because the applicant, on her estimates, was consuming 32 standard drinks during the week, a diagnosis of alcohol abuse was appropriate and, perhaps, alcohol dependency.
100.She was later challenged on the basis that her calculations had excluded the quantity consumed on Friday nights. She explained that the applicant probably was consuming 44 standard drinks per week, being eight standard drinks on three nights per week and 20 pots on Friday nights.
101.Dr Walton obtained a history from the applicant that it would be relatively rare for him to have any alcohol free days. He would drink a minimum of 6 pots between 6.00pm and 8.00 or 8.30pm daily, 30 pots of full strength beer on Friday night and significantly less on a Saturday night (Transcript, p 293).
Cigarette Smoking
102.The history of the applicant’s cigarette smoking was also the subject of considerable focus during the hearing. The hypothesis connecting service and diabetes commands attention to the smoking history.
103.The applicant said that he commenced smoking during his apprenticeship in Wagga Wagga and increased his smoking to about 20 cigarettes per day at its completion. He recorded in his statement that he increased his consumption to about 30 cigarettes per day before departing for South Vietnam (Exhibit A3). Mrs Dyce said in evidence that she recalled her husband smoking about one packet per day or thereabouts before he departed for South Vietnam (Transcript, p 225‑226). Mr Hobday said that he was smoking about one packet per day and recalled that the applicant was smoking less than him. He regarded the applicant as being moderate in his smoking (and alcohol) habit before South Vietnam (Exhibit A11).
104.During his service in South Vietnam, the applicant said he increased his smoking to about 50 cigarettes per day. He said cigarettes were cheap. He speculated that he could have been smoking up to 100 cigarettes per day and when he was inside the Embassy Hotel he was constantly smoking one cigarette after another until he went to sleep. In cross-examination, the applicant said he was confident he was smoking at least 50 cigarettes per day in South Vietnam because he recalled smoking more than two packets per day, each of 20 cigarettes. He said there were occasions where he would smoke one packet of cigarettes alone at night when in the bar of the hotel (Transcript, p 105-106).
105.After he returned from South Vietnam, the applicant said he continued to smoke 50 cigarettes per day. He said he stopped smoking for about 12 months in the mid‑1980s when he moved to Melbourne because he was suffering from hay fever. He eventually resumed smoking at about 50 cigarettes per day until he ceased in the mid‑1990s. Mrs Dyce recorded in her statement that she remembered her husband was a significantly heavy smoker after he returned from South Vietnam. She was then smoking 20 cigarettes per day and in addition to recalling him smoking more than her, she thought that he had almost doubled his intake of cigarettes compared to the quantity that he was smoking before his service in South Vietnam. She recalled that her husband continued to smoke heavily until the mid‑1990s when he ceased. Although Mrs Dyce could not quantify (precisely) the number of cigarettes that he smoked after South Vietnam, she said her husband smoked an enormous amount …for a very a long time (Transcript, p 226). She also recalled that his purchase of cigarettes impacted financially on their family and as an indicator of his cigarette consumption she said it also seemed forever that we were poor (Transcript, p 227).
106.Mr Hobday said that he had noticed that the applicant was smoking a greater quantity of cigarettes after South Vietnam (Exhibit A11 and Transcript, p 206). He also recalled that the applicant ceased smoking in the mid‑1990s.
107.During cross-examination, considerable attention was given to a questionnaire signed by the applicant and completed by him in consultation with his advocate (T8, p 62-65). The questionnaire was lodged with the respondent and was before the VRB.
108.Appended to the questionnaire is a Table purporting to record the quantities of cigarettes smoked between 1966 and 1996. In 1966 it is recorded the applicant was smoking 105 cigarettes per week. It is recorded that in 1966, he was smoking 210 cigarettes per week; in 1975 he was smoking 350 cigarettes per week; and between 1976 and 1996 he was smoking 210 cigarettes per week, save for the entry against 1979 which records that he was also smoking 14 cigars and 14 grams of pipe tobacco (in addition to the 210 cigarettes).
109.When the applicant was cross-examined about the contents of the questionnaire – having regard also to his evidence before the VRB (Exhibit R3), the applicant agreed that he did increase his cigarette smoking during service in Wagga Wagga, largely because his salary increased and had more money available to purchase of cigarettes and alcohol. The VRB transcript records that the applicant described his smoking habit in 1968 as between one and half to two packets per day, his consumption did not increase and stayed pretty constant until he returned from South Vietnam when his consumption of cigarettes then increased (Exhibit R3, p 5). In evidence before this Tribunal, the applicant disagreed with that history but did acknowledge that the transcript records him as having given that evidence. When he was asked by the VRB whether he was relying on the smoking questionnaire, the applicant said well that seems a bit conservative really, but, yes (Exhibit R3, p 8). The applicant later told the VRB that it was difficult to estimate the quantities of cigarettes that he had smoked. He regarded himself as having been a heavy smoker, that alcohol was a problem for him and every time I drank, you know, I smoked twice as much, you know. Look, yes, I’ll stand by that (Exhibit R3, p 9).
110.The applicant’s advocate volunteered to the VRB that he completed the smoking questionnaire in consultation with the applicant where an attempt was made to obtain a history of cigarette smoking at various periods of time. The advocate said that process was a big procedure and attempts were made to record the average numbers of cigarettes smoked per week. The advocate said the process was not regarded as being an exact science (Exhibit R3, p 9).
111.It became obvious during cross-examination that the applicant resiled from the contents of the statement and largely disowned it. When it was put to the applicant that the smoking questionnaire was an accurate history of his smoking, the applicant said actually it’s not. He disagreed that the history purports to record that after he returned to Australia he had returned to his pre-Vietnam level of smoking and said that the questionnaire was flawed. When asked why it was flawed he said, Well, we made – obviously made mistakes. He disagreed that he reduced the numbers of cigarettes per week to 210 in 1976 and said it was highly improbable that he was smoking that number of cigarettes after his service in South Vietnam. He agreed that the money he spent purchasing cigarettes was a big drain on his family finances and the purported reduction in cigarettes smoked reflected pressure on him to reduce his smoking. The applicant said I don’t accept that (Transcript, p 114-115).
Cervical Spondylosis
112.On 21 February 1973 the applicant was riding his motorcycle home from the Richmond Base at the completion of his shift. As he was approaching Blacktown – where he lived – he confronted a roadway which was under construction or repair. He was travelling at approximately 100 kilometres per hour. He suddenly came upon a large pothole. He lost control of the motorbike and recalled being propelled across the handlebars. The first impact was to his head and he recalled sliding along the roadway for a considerable distance. He was wearing a helmet and said that it had become paper thin. He was admitted to hospital for treatment of extensive grazing and lacerations. X-rays did not detect any fractures.
113.Thereafter, the applicant said he suffered intermittent neck pain. His work in the RAAF – later at the Williamtown Air Base – refuelling Mirage aeroplanes, required him to carry fuel hoses which he estimated to be about four inches in diameter, four to five metres in length and about 20 to 40 kilos in weight. He carried the hoses by draping them across his shoulders and around his neck.
114.The applicant, in consultation with his advocate, prepared a spread sheet of various items carried or lifted throughout service. The spread sheet provides a description of the items carried or lifted, the approximate weights, the frequency of each lift and the number of occasions that those items were carried or lifted. The spread sheet focuses largely on the need to carry fuel hoses. However, there is a reference to the applicant engaged in the loading of bags of rice during humanitarian relief in South Vietnam in April 1975.
115.The applicant returned to Butterworth in 1979 where he worked for about two years, having been promoted to the rank of Sergeant. He recorded that the extent of pain and discomfort in his neck had then diminished because he was not undertaking as much heavy work as he had been undertaking in Australia and he thought that he obtained benefit from warmer weather.
116.Between 1981 and 1985, the applicant was undertaking work which he described as supervisory. He said that his neck then was not too bad, he did have some discomfort and although for most of the time his neck didn’t bother (him) all that much, there were occasions when he did have some discomfort but he was able to deal with it.
117.In 1985 the applicant was transferred to Melbourne where he mainly performed clerical work at a desk which he continued to do until he was discharged in 1988. He said that his neck was a little bit more troublesome and attributed the discomfort to working with his head down all the time. He was able to relieve the discomfort by stretching.
118.From 1988 until present, the applicant has been engaged in civilian employment, mainly working at a desk. He said he continues to have some discomfort which he associates with his work. He did have some chiropractic treatment in late 2003 and said he had not had any chiropractic treatment for about 18 months because I haven’t had a need (Transcript, p 85-91).
INJURY, ILLNESS OR DISEASE
119.We are required to make findings on the balance of probabilities of whether the applicant has suffered an injury, illness or disease (Veterans’ EntitlementsAct1986 s 120(4) (the Act); Repatriation Commission v Budworth (2001) 116 FCR 200; Benjamin v Repatriation Commission (2001) 70 ALD 622.
120.We are not limited, when finding injury, illness or disease, to the case advanced by an applicant (Benjamin at [48]). We are satisfied that the applicant does suffer from alcohol dependence. We are not satisfied that he suffers alcohol abuse.
121.Dr Velakoulis and Dr Walton were satisfied of a diagnosis of alcohol dependence. Both are experienced practicing psychiatrists who gave evidence and confirmed the contents of their reports. Based on the history they obtained, they were both satisfied that the applicant is alcohol dependent (Transcript, p 179,180, 182 and 296).
122.The applicant was assessed by Dr Seabridge at the request of the respondent in November 2008. He prepared a report dated 13 November 2008 (T7, p 53-55). Dr Seabridge concluded that his alcohol consumption does not fulfil the strict DSM‑IV or SoP criteria for abuse or dependence. We do not accept that conclusion. It would appear that Dr Seabridge – who was not called to give evidence, had a history which was in many ways deficient and we think inferior to the quality of evidence we heard from all of the witnesses in this review.
123.Dr Simonis thought that the applicant definitely suffered from alcohol abuse. It would appear she was influenced by the quantity of alcohol that the applicant consumed, as she understood it. She thought that alcohol dependence might also be diagnosed but that conclusion was prefaced on the basis of attempts made by the applicant, as she understood, to reduce alcohol consumption. The clinical criteria defining alcohol dependence consists of many elements, most of which had not been considered or, we think, understood by Dr Simonis. We are satisfied that her basis for forming the opinions that she expressed are in error.
124.We are reassured that the diagnoses of Dr Velakoulis and Dr Walton are sound having regard to the clinical criteria found within DSM-IV-TR reproduced in Instrument No 1 of 2009 at paragraph 3(b). Having also heard the applicant’s evidence, we are satisfied that he satisfies the clinical criteria for the definition of alcohol dependence at Parts (1)(a), (2)(a) and (b), (4), (5), (6) and (7) of DSM-IV-TR.
125.We are satisfied on the balance of probabilities that the applicant suffers from Type 2 diabetes. This was confirmed in a report from Associate Professor Hamblin dated 5 May 2009 (T14, p 89). Professor Hamblin reported that he had been treating the applicant since July 2004, initially by oral medication but from October 2004, insulin has also been prescribed. On 9 September 2008, a delegate of the respondent found that the applicant did suffer from Diabetes Mellitus (T10, p 78) but it was not related to service (T10, p 75). The same delegate was satisfied that the applicant did not suffer Type 2 Diabetes (T10, p 80). The source of that finding is unknown.
126.Professor Hamblin emphasised in his report that the applicant did suffer Type 2 Diabetes and not Type 1 Diabetes.
127.We are also satisfied on the balance of probabilities that the applicant suffers cervical spondylosis. The respondent became satisfied that the complaints of neck and referred pain suffered by the applicant are properly described as cervical spondylosis (T10, p 78). Dr Simonis completed a questionnaire (T6, p 38), in response to the diagnosis of cervical spondylosis as found by the respondent. She recorded that the applicant suffered multi-level disc disease of cervical spine with referred symptoms to upper limbs/shoulder and neck pain. A CT scan of 15 May 2008 (T6, p 50) found small disc protrusions from C3/C4 to C6/C7 that appear most prominent at the C5/C6 level.
WHETHER INJURY, ILLNESS OR DISEASE WAR-CAUSED
Alcohol Dependence and Diabetes
128.The applicant’s alcohol dependence and diabetes will be will be war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the conditions with war service. The hypothesis will be reasonable if the applicant can satisfy a factor in the relevant SoPs. Applying the four stages of analysis determined in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, we are satisfied that those conditions arose out of the applicant’s operational service.
129.The applicant submitted that the stressors he experienced during his service in South Vietnam caused him to drink excessively, thereby resulting in alcohol dependence. The stress endured in South Vietnam also caused him to increase his smoking habit which eventually caused his diabetes mellitus. In accordance with the first stage of Deledio, we are satisfied that there is material that points to a hypothesis connecting both alcohol dependence and diabetes with the circumstances of the applicant’s operational service.
130.Each illness is the subject of a SoP which is in force.
131.Alcohol dependence is the subject of Instrument No 1 of 2009. The applicant relies on factors 6(b) and (c) which provide as follows:
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence ...
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence ...
132.A category 1A stressor and a category 1B stressor are defined in paragraph 9 of the SoP as follows:
"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;
133.An eye witness is also defined at paragraph 9 as a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident:
134.Diabetes mellitus is presently the subject of Instrument No 89 of 2011. At the hearing, the applicant relied on factor 5(c) of Instrument No 11 of 2004 reproduced as follows:
(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; ...
135.The expression pack years of cigarettes or the equivalent thereof in other tobacco products is defined at paragraph 8 of the SoP concerning diabetes mellitus in the following terms:
“pack years of cigarettes or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
136.Instrument No 89 of 2011 was issued on 1 July 2011 and has effect from 13 July 2011. It was issued within the assessment period and we are obliged to consider it. However, it is in identical terms to factor 5(c) and the pack year definition within paragraph 8 of Instrument No 11 of 2004. The only other SoP for diabetes within the assessment period was Instrument No 9 of 2008. It had no relevance to this application. Instrument No 89 of 2011 revoked both Instruments issued in 2004 and 2008.
137.We are satisfied that each of these hypotheses as raised by the applicant are reasonable. Each hypothesis fits or is consistent with the template within each of the SoPs identified above. Each of the hypotheses raised contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist, and be related to the person’s service (Deledio at 206).
138.The fourth and final Deledio stage compels us to make findings of fact. A reverse onus applies. We are required to determine whether we are satisfied beyond reasonable doubt that one or both illnesses were not war-caused. If we do not reach that level of satisfaction, the claim must succeed.
139.Having heard from the applicant and some of his former colleagues, having also read a number of documents that were lodged by the parties, we are satisfied and find as a fact that the applicant did depart Richmond on Easter Saturday in 1975, being 29 March, at short notice and did travel to Butterworth. The records of the respondent omitting that journey are deficient.
140.We are satisfied that the applicant remained at Butterworth until 2 April 1975 when he flew into Phan Rang on one of seven Hercules aircraft which were engaged in evacuating South Vietnamese civilians and refugees. Support for that history was given by the applicant himself, together with Mr Hunt and Mr Boshammer. Support for the applicant departing Richmond and travelling at least to Butterworth is found in the 486 Squadron Newsletter.
141.We are satisfied that the applicant did assist in the loading of civilians and refugees on to one of the Hercules aircraft. We acknowledge the respondent’s contention that there is no documented evidence of the applicant having undertaken those duties. However, the records held by the respondent and the Department of Defence are largely deficient and imprecise. We prefer the evidence heard in these proceedings, particularly from the applicant, who we regard as a witness of truth.
142.There is uniformity in the description of the events on the ground at Phan Rang during the loading of the seven Hercules aircraft. In broad terms, there were many persons waiting to board Hercules aircraft made available by Australia to permit evacuation pending the rapid advancement of the Viet Cong. Hercules aircraft landed in rapid succession and whilst on the ground had their engines running. Persons were assisted on to the aircraft and each aircraft departed, after a short period of time, estimated at between 15 and 30 minutes. Despite instructions to prohibit South Vietnamese soldiers boarding the aircraft, the evidence was consistent and supported the applicant’s evidence that South Vietnamese soldiers did force entry by the brandishing their weapons which were removed from them on‑board.
143.We acknowledge that none of the witnesses in these proceedings were present on the occasion when the applicant flew into Phan Rang and assisted South Vietnamese civilians and refugees on to his aircraft. However, as stated above, we find the applicant to be a witness of truth and have no reason to doubt his evidence.
144.The applicant said in the course of loading persons on to his aircraft, a small child was passed to him by a person he believed to be the mother. He passed the child to another person and then attempted to lift the mother on to the plane. As he did so, a South Vietnamese soldier pointed a rifle at him and placed it against his chest. The applicant described that person as really kind of crazy who had been striking the woman’s hands as she was being lifted by the applicant. When the rifle was placed against his chest, the applicant said that he thought he would die. He then released his grip of her. Other persons attempting to board the plane pushed the woman aside to a point the applicant believed to be under the aircraft entry door. The woman smiled at him and he believes she also thanked him.
145.Counsel for the respondent, despite having made some concessions, submitted that there was no evidence that persons waiting to be evacuated by the third to seventh Hercules plane were unruly or attempting to force entry (Transcript, p 327). Support for that submission was found, it was submitted, in an article of a journalist, Mr Richardson, in the Age newspaper of 3 April 1975, who reported that the last five Hercules landing at Phan Rang encountered no difficulty… (Exhibit R11).
146.Mr Richardson was not called to give evidence. However, he replied to an email from the respondent’s counsel and stated that he was not at Phan Rang on 2 April 1975. He was in Saigon and the source of his article was Australian Embassy officials (Exhibit R13).
147.The respondent also relied on an interview between Mr O’Keefe and Allan Jeffrey, an electrical fitter, who was a member of the ground crew of the 486 squadron. Mr Jeffrey told Mr O’Keefe that after the first two aircraft had trouble with the refugees, the other C-13Os stopped at the other end of the strip at Phan Rang and took refugees on board there (Exhibit R11, p 5). The respondent submitted that Mr Jeffrey’s evidence suggests that the applicant’s aircraft was not affected by unruly crowds (Transcript, p 327-328). Mr Jeffrey was not called to give evidence.
148.We are not prepared to infer, on the basis of Mr Richardson’s article and Mr Jeffrey’s comments, that the crowds were unruly during the loading of the first two Hercules aircraft only and the third to seventh Hercules landed at the end of the runway to avoid the problems associated with unruly crowds. An extension of that inference is the refugees boarding those five aircraft were orderly and the evidence of the applicant should not be believed. In a war zone, with the imminent threat of Viet Cong occupation of the airport, there could be many other explanations for these aircraft landing in a different location to the first two.
149.We dismiss these contentions. Mr Richardson was not present at Phan Rang. There was no evidence that his sources were present or their information to him was reliable or accurate. There was no evidence that Mr Jeffrey was involved in the evacuations. If he was, it would have been preferable to call him.
150.There was evidence of the applicant being exposed to and affected by unruly crowds attempting to board the Hercules to which he was assigned. It was his direct evidence and as we have recorded earlier, we regard him as a witness of truth.
151.The applicant said that he felt shame at releasing the woman and had not been able to speak about that event with other persons. In his statement, he recorded that he had never told his wife about that experience. Indeed it emerged in the hearing that the applicant had not mentioned that experience to his own solicitors. (He did refer to it, in general terms to Dr Seabridge, who also noted the applicant was extremely distressed and crying when giving that history (T7, p 54)). The applicant regarded his release of the woman as an act of cowardice.
152.The applicant was overwhelmed whilst giving this evidence and was visibly distressed. We are satisfied and find as a fact that the event as described by him did occur, that he spoke truthfully and his recollection of it was accurate and painful. We are satisfied that he has been and continues to be substantially affected by that experience.
153.There was some evidence of most of the Hercules aircraft departing Phan Rang and travelling to Can Tho and then travelling to Saigon. There was also evidence of some aircraft flying directly from Phan Rang to Saigon. The applicant thought that he travelled directly from Phan Rang to Saigon but his memory was imperfect. We think little turns on that issue. We find as a fact that after departing Phan Rang on 2 April 1975, the applicant was in Saigon from later that day until he concluded his service in South Vietnam and returned to Australia. We are not satisfied the applicant served in Bangkok and we again find that the service records are inaccurate.
154.In Saigon, the applicant worked 12-14 hour days at the airport, maintaining and servicing aircraft and assisting the loading of other aircraft with food supplies which were delivered elsewhere. Accommodation was provided in the Embassy Hotel in Saigon. He and others travelled daily to and from the airport from the hotel under escort. The applicant described lawlessness in the streets and on one occasion, the bombing of an adjacent building.
155.The applicant also described an occasion, three or four days after arriving in Saigon when a United States Galaxy aircraft crashed shortly after take-off with approximately 200 persons on-board. The applicant said he had been speaking with two Australian nurses who eventually boarded that plane. He did not observe the crash – it occurred about five kilometres away from the airport in an attempt to return for landing – but did observe flames and smoke.
156.We are satisfied that the applicant did suffer a category 1A stressor namely (a) experiencing a life threatening event and (c) being threatened with a weapon ... He experienced that stressor in Phan Rang when a rifle was pointed at him and rested against his chest by a South Vietnamese soldier intent on forcing his way on to the aircraft. We are satisfied that the applicant did believe that unless he released the woman he was attempting to lift on to the aircraft, he would be shot. His belief, in our view, amounts to experiencing a life threatening event and he was clearly threatened with a weapon. We are also satisfied that belief was reasonably held. It takes little imagination to comprehend that having a rifle ‑ a weapon ‑ pointed and rested against the applicant’s chest, by a soldier, would be life threatening.
157.We are unable to find that any of the other events or circumstances fall within the traumatic events recited within the definition of a category 1A or category 1B stressor. The applicant was not an eye witness to persons being killed in the Galaxy crash, although we acknowledge that it was upsetting. The applicant worked at the Saigon airport and resided at the Embassy Hotel in an atmosphere of instability and uncertainty pending the entry into Saigon of North Vietnamese forces. The sound of shooting in the streets and the bombing of an adjacent building, together with the need to travel to and from the airport under escort, would have been very confronting for the applicant. Nonetheless, none of those events qualify as traumatic events as defined in the relevant SoP.
158.We are satisfied that the applicant’s experience at Phan Rang as recorded above was responsible for him becoming alcohol dependent.
159.The history of alcohol consumption occupied a great deal of the hearing. There were a number of inconsistencies in the evidence of the applicant, especially the content of documents prepared with his advocate and which were lodged with the respondent prior to the VRB hearing.
160.Having regard to the totality of the evidence heard from the applicant, his wife and his brother-in-law, we are satisfied that the quantities of alcohol recorded in that document are inaccurate. The applicant resiled from the contents of the document during the hearing. It was careless of him to have signed it.
161.We are satisfied that in or about 1972, the applicant did drink and he described himself as being light social drinker. Thereafter, he did not drink every Friday night but rather did so occasionally and then would have consumed four or five pots. Support for that habit, between 1972 and 1975, was given from the applicant’s wife and from Mr Hobday, who regarded the applicant as being a quiet drinker.
162.In South Vietnam, the applicant drank enormous quantities of alcohol on a daily basis. He described himself as drinking to oblivion. When he returned from South Vietnam he drank daily and on two or three occasions per week he was intoxicated. He commenced a habit of drinking enormous quantities of beer, estimated by him to be 20 pots every Friday night. On weekends he would drink up to one dozen stubbies or pots of beer after sport and drank about 10 pots on Sundays. There were occasions when he would share a slab with another person. We are satisfied that the history given to doctors in 1984 and 1986 during routine medical assessments deliberately underestimated the quantities of alcohol consumed. We accept the applicant’s explanation that had he been truthful in his disclosure of the quantities of alcohol consumed, he believed his DFRDB rating would have been reduced which would have affected his pension entitlements. It was submitted that this evidence impugns the credibility of the applicant. We are not prepared to make that finding. This is the only blemish on his character and pales into relative insignificance against the totality of the evidence.
163.The applicant largely continues to consume excessive amounts of alcohol. He drinks five or six pots of beer every night and about 30 pots of beer on Friday nights. He does not have any alcohol free days. He has not attempted to reduce his alcohol consumption except on one or two occasions. The applicant said he has no present desire to reduce his alcohol consumption.
164.Mrs Dyce also supported the applicant’s evidence about the quantities of alcohol he consumed. She said her husband was inebriated most nights of the week and consumes alcohol during each weekend. She said the purchasing of excessive quantities of alcohol had a financial impact on the family and the applicant’s behaviour was causing disharmony. Mr Hobday also noted the applicant was drinking greater quantities of alcohol after he returned from South Vietnam.
165.On balance, whilst we acknowledge that the applicant did drink beer before his service in South Vietnam, nothing points to him being alcohol dependent before his operational service commenced. We are satisfied that the effect of the event at Phan Rang on him was so profound that he sought comfort from drinking alcohol to excess. We are satisfied that he has become alcohol dependent as a result of his service in South Vietnam.
166.Dr Walton concluded that the applicant become alcohol dependent in about 1980 (Exhibit R5, at [4]). In the absence of evidence to the contrary, we accept that the clinical onset of alcohol dependence was in 1980. The applicant experienced a category 1A stressor in 1975 in Phan Rang and it follows that it occurred within five years of the clinical onset of alcohol dependence.
167.In concluding this part, we must refer to an issue raised by the respondent during the hearing, namely, the relevance of or relationship between gamma‑glutamyl transferase (GGT) readings and the quantities of alcohol consumed by the applicant.
168.Counsel for the respondent tendered material from the Lab Tests Online website and from the Merck manual in relation to Alcoholic Liver Disease. It was submitted that the material indicated that a GGT reading less than 50, doesn’t suggest a problem because a GGT reading is an indicator of excessive alcohol use (Transcript, p 57-58).
169.A GGT reading of 31 in a blood test report of 27 March 2009 was the genesis of this issue (Exhibit R7, p 81) and was the subject of questions put to the medical witnesses. All were satisfied that a GGT reading of 50 or more would indicate excessive alcohol consumption, but not without qualification.
170.Dr Velakoulis said if a person’s liver was bordering on cirrhotic and therefore shrunken, there would be inadequate liver mass and a GGT reading, being an indicator of liver function, might not show an elevated reading (Transcript, p 189). When Dr Velakoulis was informed that an ultra sound report (within the file of Dr Simonis) demonstrated the applicant having a fatty liver, he said it can be a marker of high-level alcohol consumption (Transcript, p 196). Dr Walton held a similar opinion (Transcript, p 305).
171.Dr Simonis reported that a liver function test in July 2010 indicated that the applicant’s GGT was normal (Exhibit A13, p 1). She did not record in her report, nor was she asked in evidence, of the actual result of that test. We do not know what Dr Simonis regards as normal. In evidence she said a fatty liver often also results in abnormal Gamma GGT (Transcript, p 278).
172.We are not prepared to find that a GGT reading on 27 March 2009 of 31, or interpreted to be normal in July 2010 indicates, of itself, an absence of excessive alcohol consumption. We are also concerned, having reviewed the clinical file of Dr Simonis after the hearing concluded, that our attention (and the attention of the doctors) was not drawn to a number of other GGT readings between 19 November 2001 and 29 October 2009 being 41, 48, 43, 39, 41, 47, 31, 31, 44 and 39 (Exhibit R7, p 28, 55, 61, 66, 76, 87 and 90).
173.We would have preferred to have heard the opinion of an appropriately qualified specialist on the relevance of GGT readings to alcohol consumption and an interpretation of the variation in the applicant’s readings referred to above. In the absence of specialist evidence and because of a possible cirrhotic liver and an actual fatty liver having to be considered in the interpretation of a GGT reading, we prefer to find that the GGT reading on 27 March 2009, alone, does not indicate the absence of excessive alcohol consumption. On the evidence of the applicant and those in corroboration, we are satisfied that he did, after his service in South Vietnam, consume alcohol excessively.
174.We are also satisfied the applicant’s operational service in South Vietnam was responsible for an increase in his cigarette smoking.
175.In broad terms, the applicant smoked between 20 and 30 cigarettes per day before he served in South Vietnam and then increased his consumption to about 50 cigarettes per day. Thereafter, the applicant said he continued to smoke cigarettes at that rate until he ceased smoking in the mid-1990s, save for a period of approximately 12 months in the mid-1980s.
176.The applicant’s evidence before the VRB about his smoking after South Vietnam appears to be consistent with a document completed by his advocate which was submitted to the respondent and lodged with the VRB. The applicant resiled from that evidence and the contents of the document in this proceeding.
177.For the same reasons given above in relation to the history of his alcohol consumption, we regard that the contents of that document to be in error and the applicant was careless in adopting it. We accept that he underestimated the extent of his smoking habit for fear that truthful disclosure would impair his pension entitlements.
178.We are satisfied on the evidence of the applicant, his wife and Mr Hobday that the applicant did continue to smoke cigarettes at about 50 per day after 1975 until he ceased in 1996.
179.When compared to the quantities of cigarettes smoked before 1975, his subsequent consumption represents an increase of about 20 cigarettes per day for approximately 19 years. The quantity of cigarettes smoked by the applicant represents much more than 10 pack years as defined in the SoP concerning diabetes mellitus.
180.Professor Hamblin in his report detected diabetes in 1998 (T14, p 89). We are satisfied that the clinical onset occurred at that time.
181.The applicant ceased smoking in the mid-1990s and the clinical onset was in 1998. It follows that the clinical onset of diabetes mellitus did occur within 10 years of cessation as required under factor 5(c) of the SoP.
182.We are satisfied that the consumption of cigarettes giving rise to Type 2 diabetes arose out of the same primary trauma suffered by the applicant at Phan Rang when a gun was pointed at him and was rested against his chest by a South Vietnamese soldier. In addition to that event, the applicant was also exposed to the distressing event involving the mother of the child as described above; anxiety associated with travelling under escort to and from the Saigon airport from the Embassy Hotel daily; having to reside in the hotel and being aware of uncertainty and unrest outside associated with the threat of the entry of the North Vietnamese into Saigon; being inside the hotel when an adjacent building was bombed and having observed the apparent consequence of the Galaxy aircraft crash.
183.All of these events combined to cause a degree of anxiety which gave rise to a marked increase in the smoking habit. We are therefore satisfied that a connection does exist between service in South Vietnam, the increased smoking habit and the eventual diagnosis of diabetes.
184.In reaching the above findings, we are aware that there does not need to be a finding that the applicant’s service was wholly responsible for the increase in the habit of alcohol consumption and cigarette smoking.
185.We are satisfied that the increase in the alcohol and cigarette habit arose out of, or was attributable to the service in South Vietnam (s 196B(14)(b) of the Act). We are also satisfied there was a contribution in a material degree to the pre-existing habits, by that service (s 196B(14)(d)).
186.We are also satisfied that the increases in those habits would not have occurred but for the rendering of that service (s 196B(14)(f)(i)); Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42-44]).
187.We adopt the conclusions of Jacobson J in Kaluza v Repatriation Commission [2010] FCA 1244 at [93] that the clinical onset occurs by the presence of features or symptoms as found by a doctor. The clinical onset of alcohol dependence and Type 2 diabetes was found by Doctor Walton and Professor Hamblin, respectively. The opinions they expressed and recorded above were within their expertise and we see no reason to depart from those opinions.
188.The obligation within the respective factors to identify the occasion of clinical onset, thereby ensuring all links in the chain constituting a reasonable hypothesis, is as a fact, satisfied.
Cervical Spondylosis
189.Unlike the application for acceptance of the conditions of alcohol dependence and diabetes – which have been determined on the basis of the applicant’s operational service – the claim for cervical spondylosis arose out of defence service and will be determined on the balance of probabilities.
190.The applicant’s neck injury was alleged to have occurred when he was propelled from his motorcycle whilst travelling at speed on his way home from duty on 21 February 1973. The provisions of s 70(5)(b) of the Act are relevant. The nature of the journey and the occurrence of the accident were not in dispute. The applicant also alleged that a connection exists between his cervical spondylosis and the carrying of fuel hoses during his service. The respondent challenged this claim on the basis that the applicant is unable to meet relevant provisions in the only SoP applicable within the assessment period, namely, Instrument No 34 of 2005 concerning Cervical Spondylosis. (Instrument No 77 of 2008 amended Instrument No 34 of 2005 but not relevantly).
191.The applicant relied on factor 6(f) of the SoP concerning cervical spondylosis in relation to the alleged neck injury arising out of the motorcycle accident namely, having a trauma to the cervical spine within the 25 years before the clinical onset of cervical spondylosis.
192.Trauma to the cervical spine is defined at paragraph 9 of the Instrument in the following terms:
“trauma to the cervical spine” means a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
193.The applicant relied on factor 6(h) of the SoP to establish a connection between carrying fuel hoses during his defence service and cervical spondylosis. Factor 6(h) provides:
(h)carrying loads of at least twenty-five kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the twenty-five years following that period; or ...
194.In the alternative, the applicant relied on factor 6(r) which is in identical terms to factor 6(h), save that the word onset is substituted with the word worsening.
195.On the balance of probabilities, we are not satisfied that a connection exists between the applicant’s defence service and cervical spondylosis.
196.The service medical records contain the applicant’s inpatient notes of his hospital treatment following the motorcycle accident on 21 February 1973 (Exhibit R6, p 59-68). There is no reference to the applicant’s neck, save for one reference to the applicant’s neck against which the symbol ü appears (Exhibit R6, p 68). The entirety of the notes refers to extensive lacerations and abrasions suffered by the applicant. X‑rays were undertaken of his left elbow. There is no radiology of his neck or spine generally. There is no recording of any complaint by the applicant of pain or discomfort in his neck.
197.In evidence, the applicant was asked whether he noticed any ongoing pain in his neck after the accident and his response was even right up until today I still get, sort of, stiffness and soreness in the neck. The applicant then added yes, the answer to your question is yes, I did (Transcript, p 85).
198.We do not accept the applicant’s evidence that he suffered neck pain immediately following the accident. If he did, complaint was not made to hospital staff. The entry at page 68 (of Exhibit R6) indicates to us that enquiry was made of the presence of pain and the applicant denied it.
199.None of that evidence points to the applicant having suffered a discreet injury to his cervical spine, within 24 hours, (of the alleged injury) of any symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine. There is no material which points to symptoms and signs that lasted for a period of at least 10 days. The applicant cannot obtain any comfort from the remaining part of the definition because there was no medical intervention at all or in the terms required under the relevant SoP.
200.We are also unable to find any connection between the carrying of fuel hoses during his defence service. Irrespective of the weights carried by the applicant, singularly and cumulatively, they were not carried on the head as required under factors 6(h) and (r) of the SoP.
201.No other factor within the SoP concerning cervical spondylosis was relied on by the applicant. However, factor 6(p) of the SoP is identical in terms to factor 6(h) save that the word worsened is substituted for the word onset.
202.Dr Simonis thought that the CT report of 15 May 2008 indicated degenerative changes in the applicant’s cervical spine (T6, p 50). If that opinion is valid, it does not assist the applicant. She was unable to say that those degenerative changes had their origin in a defence caused injury. It was acknowledged that the degenerative changes could have emerged either from the applicant participating in rugby or simply be reason of his age. Nothing from her evidence points to any factor within the SoPs in support of this part of the claim.
203.If we assume the CT report of 15 May 2008 (in the absence of evidence of any other radiology) was the occasion of clinical onset of cervical spondylosis (refer Kaluza), it is well outside the 25 years between the motor cycle accident and the onset. There is no evidence of any worsening, by defence service, of cervical spondylosis after 1973.
204.Accordingly, we are not satisfied on the balance of probabilities that there are factors within the SoP that exist and which can be said to connect the condition of cervical spondylosis with the circumstances of the applicant’s defence service.
DECISION
205.In all of the circumstances, we are satisfied that the decision under review insofar as it refused acceptance of cervical spondylosis should be affirmed.
206.The decision under review with respect to the condition of diabetes mellitus and alcohol abuse should be set-aside and in substitution for it, we are satisfied:
(a)the applicant does not suffer alcohol abuse but does suffer alcohol dependence; and
(b)the conditions of diabetes mellitus and alcohol dependence are war‑caused.
207.The application is remitted to the respondent for assessment of pension in accordance with these reasons.
I certify that the two hundred and seven [207] preceding paragraphs are a true copy of the reasons for decision herein of
Mr John Handley, Senior Member and
Dr Kerry Breen, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Dates of Hearing 25-26 October 2010 and 24-25 January 2011
Date of Decision 11 August 2011
Counsel for the Applicant Mr C. Thomson
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr G. Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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