Finn and Repatriation Commission

[2003] AATA 764

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 764

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1096

VETERANS' APPEALS   DIVISION		)
Re		JAMES CHRISTOPHER FINN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date7 August 2003 

PlaceSydney

Decision The decision under review is affirmed.

...............................................

Dr J D Campbell   Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - claim for peripheral neuropathy to be an accepted disability - excessive intake of alcohol - whether alcohol intake related to operational service.

LEGISLATION

Veterans' Entitlement Act 1986, sections 120(1),(3), 120A

Statement of Principles concerning Peripheral Neuropathy, Instrument No 79 of 2001 concerning peripheral neuropathy

REASONS FOR DECISION

7 August 2003  Dr J D Campbell, Member            

1.      In this application Mr James Finn ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 17 December 2001 in so far as it relates to the issue of the disability of peripheral neuropathy and the quantum of general rate pension payable if the Applicant is successful in his appeal to have the disability of peripheral neuropathy accepted as a war-caused disability. The primary decision of the Respondent in relation to these two matters had been affirmed by the Veterans' Review Board ("VRB") in a decision dated 17 July 2002.

2.      A hearing was held before the Tribunal in Sydney on 1 July 2003. The Applicant was represented by Mr Winship, a solicitor. The Respondent was represented by Ms Hook, an advocate from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal.

3.      The following material was placed into evidence before the Tribunal:  

Exhibit No.	Descriptions	Date
T1-T21 pp1-105	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Statement of the Applicant	27/11/2002
A2	Applicant's Statement of Facts and Contentions	24/01/2003
R1	Respondent's Statement of Facts and Contentions	13/02/2003
R2	Research Report compiled by Captain Josephs (retired)	23/05/2003

issues

4.      The relevant issue in this matter is whether the Applicant's condition of peripheral neuropathy was causally related to his period of service in the Royal Australian Navy.

legislation

5.      The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 120(1), (3) and 120A.  Statement of Principles ("SoP") Instrument No 79 of 2001 concerning peripheral neuropathy (SoP 79/2001).

background

6. The Applicant served in the Royal Australian Navy between 22 July 1953 and 21 July 1959. While serving on HMAS Arunta the Applicant completed the following periods, which could constitute operational service under the Act:

·Service with the Far East Strategic Reserve from 2 July 1955 to 2 August 1955;

·Service with the Far East Strategic Reserve from 4 - 27 October 1955;

·Service with the Far East Strategic Reserve from 14 November 1955 to 11 December 1955.

7.      The Applicant lodged a claim with the Respondent on 8 June 2001 (T5) in which he sought to have the following disabilities accepted by the Respondent as being war-caused:

·      Peripheral neuropathy

·      Impotence

8.      Bilateral sensorineural hearing loss with tinnitus had been accepted as a war- caused disability with effect from 16 March 2000.

9.      On 17 December 2001, the Applicant's claim for impotence was accepted by the Respondent as a war-caused disability.  However, his claim for peripheral neuropathy was denied, the Respondent stating that he was unable to find a relationship between the Applicant's alcohol intake and his operational service (T3, p10).

10.     In a decision dated 17 July 2002, the VRB affirmed the Respondent's decision is so far as it relates to the issues of peripheral neuropathy and the rate of disability pension (T18).

applicant's statement

11.     In a statement dated 13 February 2003, (Exhibit A1), the Applicant states that he joined the navy at age 18 years.  He states that he had never consumed alcohol prior to his navy service, and that he first consumed alcohol during his recruit training at HMAS Cerberus.  The Applicant describes travelling to Frankston with some fellow recruits and drinking beer.  The Applicant states that he would have a couple of beers and remembers being sick afterwards, not being much of a drinker at that time.

12.     The Applicant next describes serving on HMAS Vengeance, a training ship with no beer ration as such a ration was only available in the tropics. 

13.     The Applicant details his next period of service with HMAS Arunta which lasted about 15 months.  In the first six months he remembers doing a capital city tour of Australia, after which the ship sailed to South-East Asia.  The Applicant describes this period as stressful, with alcohol available as a beer ration at the end of each watch.  The Applicant details an increased consumption of alcohol on returning to port, and when at sea would acquire other sailor's beer ration. The Applicant describes himself as getting very drunk every time he went ashore.

14.     The Applicant describes returning to Australia at Christmas time in 1955, being picked up by his sister and brother-in-law from the dock, visiting his mother in Earlwood prior to drinking until very drunk at a hotel in Earlwood - a happening which occurred on numerous occasions. The Applicant stated that as a consequence of this behaviour, his father would not let him stay in the family home on his subsequent visits. 

15.     The Applicant said that he met his wife in 1957, married in 1958 and that he continued his heavy drinking until seven years ago.  He explained that his wife left him because of his drinking. After navy service the Applicant served in the merchant navy for a few years, and later worked as an electrical linesman for the Water Board.

documentary evidence

16.     In completing an alcohol questionnaire, dated 20 November 2001 (T13), the Applicant stated that he first started to drink alcohol "on the first trip up top on FESR HMAS Arunta 55", that he "was a binge drinker and from several a day at the start, I soon developed to 15 to 20 schooners of beer every day as well as spirits"..  He explained that he permanently stopped drinking alcohol in March 1995, but that during one of the exercises on FESR Service with USA forces, five Americans were killed, which affected him greatly. The Applicant stated that “… I began to drink and rapidly progressed to becoming a heavy drinker” (T13, p66).

17.     At the VRB hearing on 17 July 2002 (T18), the Applicant, when asked questions about the death of the five men, stated that he did not witness any of the deaths, but was told about them by the ship doctor on his return from attending one of the victims on an American ship.

applicant's evidence

18.     The Applicant told the Tribunal of his childhood, which he described as good, with good parents, a father who drank only at Christmas, and who was strict with all the children, treating them equally and equitably.  The Applicant stated that at age 18 he had not consumed alcohol, with his father giving him a drink when he turned 21.  The Applicant stated that he played a lot of sport while growing up and that he had not consumed any alcohol prior to joining the navy at 18 years and two months.

19.     At HMAS Cerberus, the Applicant described how he completed his recruit training, and, while initially allocated to the Electrical Branch, how he later transferred to Seamanship Branch.  The Applicant stated that during recruit training he and four others from Sydney, who had enlisted at the same time went ashore after five weeks of recruit training on a weekend pass.  The Applicant described how they went to a Frankston hotel and spent an hour drinking prior to moving onto the White Ensigh Club.  The Applicant detailed how he became ill after drinking beer and later woke up on the Saturday, when he again commenced drinking prior to again becoming ill.

20.     The Applicant described how similar occurrences were experienced on subsequent weekend leave, and that over time he became used to it and did not retire to bed.  The Applicant believed he was at Flinders for some six to twelve months.

21.     The Applicant stated that he was next posted to HMAS Vengeance, a training ship, for three to four months.  He described spending three days to a week at sea from time to time, and when on shore he would have a few beers at the local hotel, while residing with his parents.  The Applicant stated that at this time he had started to enjoy drinking, but he never drunk at home.

22.     In his next ship, the HMAS Arunta, the Applicant stated that he was the bosun's mate, with the quartermaster as his boss.  In early 1955, the ship visited the capital cities in Australia and when in port his duties involved 24 hours on and 24 hours off.  When on leave, he and the quartermaster would go ashore and drink.

23.     The Applicant told of the ship moving to South-East Asia, where it was on patrol between 2 July 1955 and 2 August 1955 in exercise with UK, USA and NZ forces.  During such exercises the Applicant stated that there was not a beer ration, but, outside the exercise schedule, an opened bottle of beer was issued to each crew number per day.  The Applicant stated that by then he had acquired a taste for beer and often he was able to persuade a couple of his friends to give him their ration.  During the exercise period the Applicant found it a busy time, and when returning to port he and the quartermaster would go on shore and engage in binge drinking to help thaw out.

24.     The Applicant believed he was drinking more at this time, that he had a taste for it and that each time he went to port he drank a lot.  The Applicant also related how the doctor told him of a death on an American warship, and that there had been five deaths during the exercise.  The Applicant stated that when next ashore, he drank a lot with the Americans and returned to his ship drunk.  The Applicant stated that, when in overseas ports, he drank in NAAFI clubs as the alcohol was cheaper, before embarking on a round of the bars and that he believed he was drinking more after his period of operational service.

25.     The Applicant told the Tribunal that he met his wife in 1957, that they had three children and that they divorced because of his drinking habits many years ago, although he still sees his former wife from time to time.  In 1995, his son arranged for his admission to St John of God and after detoxification, the Applicant stated that he has not had a drink since.

26.     In response to questions in cross examination the Applicant stated that, in September 1955, he and the quartermaster, having undertaken duty between midnight and 4am, left the ship and went on a six day binge.  He informed the Tribunal that he was given a month's detention for that binge, which he served onshore.  In quantifying his drinking habits over time, the Applicant stated that:

(a) while at Cerberus on the weekends ashore he would consume some six to eight pots (7ozs);

(b) while serving on HMAS Vengeance, six to eight middies a day when ashore;

(c)while serving on HMAS Arunta when visiting the Australian capital cities, 10 - 12 middies per day when ashore;

(d) in Singapore (starting from first visit), six pints at NAAFI, plus bottled beer in beer hall when ashore.  The amount seemed to increase; and,

(e)  after the navy, 20 schooners a day until 1995.

27.     The Applicant stated that the exercises in the later half of 1995 were undertaken in difficult and in tense circumstances, although nothing ever came of the difficult time.  The Applicant described to the Tribunal how he passed his intermediate certificate prior to joining the navy, but at this time he experiences some difficulty with his memory.

medical evidence

28.     In a report dated 11 May 2001 (T5, p26), Dr MacKenzie, Consultant Neurologist, confirmed the Applicant's diagnosis of peripheral neuropathy, and considered the most likely cause as being the high alcohol intake of the Applicant over many years.

29.     In a claim form lodged with the Respondent on 8 June 2001, Dr Sivarajah, the Applicant's treating general practitioner, detailed that the Applicant first attended in relation to his condition of peripheral neuropathy about ten years ago (T5, p20).

research report - captain josephs (rtd)

30.     In a research report dated 23 May 2003 (Exhibit R2), Captain Josephs AM RAN Rtd, details the following:

·       The Applicant was stationed at HMAS Cerberus from 22 July 1953 to 8 June 1954;

·       The Applicant served on HMAS Arunta between 20 December 1954 and 1 March 1956;

·       HMAS Arunta visited Singapore on 7 June to 10 June 1955;

·       The Applicant served detention for a period of 28 days from 29 September 1955 to 22 October 1955, four days of detention being remitted. Place of detention probably Hong Kong.

·       The Tribunal also notes from the tabled Instruments that the Applicant was serving on HMAS Arunta during the following periods:

§2 July 1955 - 2 August 1955

§4 October 1955 - 27 October 1955

§14 November 1955 - 11 December 1955

submissions of the applicant

31.     Mr Winship, Counsel for the Applicant, submits that the Applicant did not drink alcohol prior to enlisting in the navy, and contends that, as a consequence of his enlistment, the Applicant commenced drinking alcohol during his period of service.  Mr Winship notes that the Applicant continued to consume alcohol during periods of binge drinking when in port, so much so that by the time he retired from the service he was consuming at least a minimum of ten middies of beer a day.  This amount, over time, increased to 20 schooners of beer per day, until he ceased drinking in early 1995.

32.     Mr Winship submits that the Applicant's periods of operational service were associated with particular stressful events, which in time led to an increase in the Applicant's alcohol consumption.

33.     Mr Winship contends that the Applicant had consumed 350 kg of alcohol within a period of 10 years before the clinical onset of peripheral neuropathy, this satisfying the requirement of SoP79/2001, factor 5(a).  Mr Winship further contends that the drinking was related to relevant service, with the consequence being that the Applicant's condition of peripheral neuropathy is a war caused disability.

submissions of the respondent

34.     The Respondent accepts that the Applicant suffers from peripheral neuropathy, with the clinical onset being around 1990 and that the Applicant had consumed 350 kg of alcohol within ten years of the clinical onset of peripheral neuropathy.  However, the Respondent submits that the Applicant's alcohol consumption neither commenced nor increased during his periods of operational service, and refers to the argument as to whether the period spent in detention in Hong Kong constitutes eligible service.

35.     In making such a submission, the Respondent relies upon the history of events and alcohol consumption as detailed by the Applicant in his oral evidence.

consideration and findings

36.     In this matter, the Tribunal has been particular in considering all the material in evidence.  The Tribunal is satisfied, as were the parties, that the Applicant suffers from peripheral neuropathy, with a clinical onset of this condition occurring circa 1990.  Further the Tribunal is satisfied that the Applicant suffered from alcohol abuse and/or dependence with a clinical onset prior to leaving the navy and that this condition continues, although in remission since cessation of drinking in 1995. In making the latter diagnosis, the Tribunal relies upon the Applicant's evidence, the documentary history of alcohol, the documented evidence of an alcohol related misdemeanour during his navy service, and his alcohol consumption and working experiences post service.

37.     The Tribunal also observes that the parties agree that the material points to the Applicant having consumed 350 kg of alcohol within any ten-year period of the clinical onset of peripheral neuropathy. The Tribunal concurs that this is a raised fact, pointed to by the material.

38.     The Tribunal also acknowledges that the material points to the stressful effects of his periods of eligible service, in particular, the stress of the exercise activity and being told of the death of an American sailor by the doctor, with such circumstances causing the Applicant to increase his alcoholic intake when ashore.

39.     In summary, the Tribunal does conclude that the material does point to the following raised facts nominated in the following hypothesis: the Applicant, during periods of eligible service, experienced stressful circumstances which led to an increasing alcohol consumption, particularly when ashore.  This increased consumption led, in turn, to alcohol abuse and dependence and many years later to the clinical onset of peripheral neuropathy.

40.     The Tribunal acknowledges that the appropriate SoP in this matter is SoP 79/2001 and that the relevant factor is factor 5(a).  Factor 5(a) provides that consuming at least 350 kg of alcohol (contained within alcoholic drinks) within any ten year period before the clinical onset of peripheral neuropathy.

41.     In considering whether the hypothesis raised is reasonable, the Tribunal concludes that the hypothesis nominated is consistent with "the template" nominated within factor 5(a) of SoP 79/2001.  Accordingly the Tribunal concludes that the hypothesis nominated is a reasonable hypothesis.

42.     In noting that "the disputed fact" between the parties centred on whether the Applicant's alcohol habit was caused and/or increased by this three periods of eligible service, the Tribunal turns to a consideration of establishing and examining the factual circumstances.

43.     Firstly, in overviewing the alcohol consumption of the Applicant, the Tribunal concludes that he commenced drinking during his recruit training at HMAS Cerberus, and that, at the end of the first year of navy service and during his period of service aboard HMAS Vengeance, the Applicant had developed both a liking for alcohol and, by the nature of his service, a somewhat episodic drinking habit.  During his first six months on HMAS Arunta, it is evident that his alcohol consumption increased to 10 - 12 middies per day when ashore, and that prior to his periods of eligible service the Applicant was consuming his daily beer ration (if issued) plus the beer ration of a few mates (occasionally) when at sea, and when ashore in Singapore, for example, he would drink significant quantities of beer at the NAAFI plus further bottled beer in the beer halls.

44.     The Tribunal also notes that the Applicant considered his periods of eligible service stressful in that the exercises with the other naval ships caused particular tensions.  The Tribunal also notes the incident in which the doctor told the Applicant of the American sailor dying in his arms on the US warship.  In analysing both circumstances, the Tribunal concludes that, in the absence of any detail as to the stated effect upon the Applicant, neither circumstance appeared to evoke a particular response from the Applicant and therefore any concept of experiencing a stressor or a stressful event is negated.

45.     The Tribunal has examined the Applicant's alcohol consumption pattern following his three periods of eligible service, and notes that each period lasted for approximately four weeks.  The Tribunal also notes that the eligible period between 4 October 1955 and 27 October 1955 was served by the Applicant ashore in detention as a consequence of a period of absence without leave during a non-eligible service period, the absence due to the Applicant being ashore drinking for six days..  As a result, the Tribunal is unable to discern any change in either the pattern of drinking and/or the quantity of alcohol consumed by the Applicant as a consequence of his periods of eligible service.   

46.     Similarly, in examining the Applicant's post service drinking habits, it is evident to the Tribunal that he continued to drink abundant quantities of alcohol on a daily basis, his abuse and dependence on alcohol having been established during his six years of navy service.  This continued until he ceased drinking in 1995.     

47.     In turning to the critical issue in this matter, the Tribunal is satisfied beyond reasonable doubt that the Applicant's three periods of eligible service have played no part in either the development of the Applicant's alcohol abuse and/or dependence conditions, nor did such periods aggravate and/or contribute to the said conditions. In so finding, the Tribunal is satisfied beyond reasonable doubt that the Applicant's alcohol consumption patterns were established prior to his three periods of eligible service and that there was no evidence of any change in such patterns as a result of the periods of eligible service, or as a consequence of what may have occurred during those periods of eligible service.

48.     In view of the Tribunal's findings, the Applicant's claim must fail. The decision under review is affirmed.              

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  1 July 2003
Date of Decision  7 August 2003
Solicitor for the Applicant          Mr Winship
Advocate for the Respondent   Ms Hook