Gibson and Repatriation Commission - [2001] AATA 861

DECISION AND REASONS FOR DECISION [2001] AATA 861

ADMINISTRATIVE APPEALS TRIBUNAL )

)No N2000/517 & N2000/518

VETERANS' APPEALS DIVISION       )
           Re      ROBERT JOHN GIBSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal DR J CAMPBELL

Date15 October 2001
PlaceSydney

Decision The Tribunal determines that the two decisions under review are set aside for the reasons nominated in this decision and in substitution therefor determines that: (a) The Applicant's diseases of post-traumatic stress disorder, alcohol abuse and hypertension, are war-caused. The date of acceptance for post-traumatic stress disorder and alcohol abuse is the date of acceptance by the Respondent of the disease of post-traumatic stress disorder – 26 September 1995, with date of effect being 10 February 1995, and for hypertension – 25 March 1996, with date of effect being 10 February 1995; and (b) The Applicant is entitled to the payment of a disability pension at the Special Rate, with the date of effect remaining 24 February 1997. The Tribunal in turn acknowledges that payment at the Special Rate has been made to the Applicant from 24 February 1997 to 25 August 1999.

[sgd] DR J CAMPBELL
Member
CATCHWORDS
Veterans' Entitlements - special rate pension for accepted disabilities - section 31(6) review - revocation of earlier determinations - cancellation of special rate pension - issue of whether post-traumatic stress disorder and hypertension are war-caused disabilities - rate of pension

Veterans' Entitlement Act 1986 – ss 24, 31, 120, 120A, 120B

Banovich v Repatriation Commission (1986) 69 ALR 395
Cavell v Repatriation Commission (1988) 9 AAR 534
Repatriation Commission v Keeley (2000) 98 FCR 108
Budworth v Repatriation Commission [2001] FCA 317
Davis v Repatriation Commission (1997) 74 FCR 577
Statement of Principles Instrument No 15 of 1994
Statement of Principles Instrument No 5 of 1994
Statement of Principles Instrument No 83 of 1995

REASONS FOR DECISION

DR J CAMPBELL

In these two applications, Mr John Gibson ('the Applicant') seeks a review of the decisions of the Repatriation Commission ('the Respondent') dated 19 August 1999 and 17 September 1999. In the first mentioned decision, the Respondent revoked earlier determinations of the Repatriation Commission dated 26 September 1995 and 25 March 1996, which had determined that post-traumatic stress disorder and hypertension were war-caused diseases. The date of effect of the revocation was determined to be 19 August 1999. Further, the Respondent refused the Applicant's claim in relation to post-traumatic stress disorder and hypertension and determined that both diseases were not war-caused, reducing the payment of pension to 100 per cent of the General Rate, with effect from 26 August 1999. This rate was to be reviewed following further medical investigation. In the second decision, dated 17 September 1999, the Respondent determined to continue the disability pension at 100 per cent of the General Rate with effect from 26 August 1999. Both decisions were reviewed by the Veterans' Review Board ('the VRB') and affirmed in a decision dated 1 February 2000.
A hearing was held in Sydney before the Tribunal on 5 April 2001 at which the Applicant was represented by Mr Dawson of Counsel. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans' Affairs. Mr Gibson and Dr Dinnen presented oral evidence before the Tribunal. Further submissions were requested from the parties in July 2001, when the Tribunal considered that neither party had addressed the nature of the section 31(6) review undertaken by the Respondent in this matter and that on grounds of fairness each party should be afforded such an opportunity to address a relevant matter. Further submissions were received from the Respondent on 21 August 2001 and from the Applicant on 27 September 2001.
The following material was placed into evidence before the Tribunal:
Exhibit No.     Description    Date
T1-T35 PP1-221 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
T36-T43 Supplementary documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Applicant's Statement of Facts and Contentions          1 November 2000
A2      Statement of Applicant      1 January 2001
A3      Medical report of Dr Dinnen         14 July 2000
A4      Letter from the Applicant    23 June 2000
A5      Undated letter from Mr Myers
A6      Letter from Mr James Cameron    20 June 2000
R1      Compensation Court of NSW records of Applicant      7 November 2000
R2      Coal Operations Australia Limited bundle of documents
R3      Various reports and clinical notes on the Applicant from Dr Nichols 8 September 2000
R4      Clinical records on the Applicant from John Hunter Hospital
R5      Medical report from Dr Carne      14 November 2000
R6      Records from the New South Wales Department of Transport
R7      Letter from Coal Mines Insurance 27 November 2000
R8      Medical report from Professor O'Rourke 19 September 2000
R9      Medical report from Professor O'Rourke 26 September 2000
R10     Writeway Research Service Report         11 November 2000
R11     Writeway Research Service Report         18 February 2001
R12     VRB Hearing Transcript     1 February 2000
R13     Respondent's Statement of Facts and Contentions      16 November 2000

issues

The relevant issues in these matters are:
(a) Whether or not the Applicant's conditions of post-traumatic stress disorder and hypertension are war-caused.

(b) Whether or not the Applicant is entitled to disability pension at the special rate.

legislation

The relevant legislation in these matters is the Veterans' Entitlement Act 1986 ('the Act') and in particular subsections 31(6) 120(1), 120(3), 120(4), 120A, 120B.
background
On 8 May 1995, the Applicant submitted a claim for disability pension and medical treatment for the following disabilities (T5):
(a)Post-traumatic Stress Disorder and drinking problems, caused by "picking up drowned people from Voyager disaster and constant sound of charges going off".
(b)Hearing loss and ringing in ears, caused by "constant noise of engines in confined spaces; anti malarial tablets".
(c)Heart and Lung Problems, caused by "stress, smoking, drinking, inhalation of dust on board ship, constant heat (sweating)".
(d) Diabetes, caused by "drinking, stress, obesity, local water".
The Applicant also completed an alcohol questionnaire on 8 May 1995 in which he stated that he had commenced drinking during service because of the stress of training, to be accepted as one of the team and to relax after duties. The Applicant stated that he drank at the rate of five to six cans per day until the Voyager incident, following which his consumption increased and that he was still drinking at the rate of at least six scotches and an occasional beer, per day. (T5, pp31-32).
In a medical report dated 31 July 1995, Dr Nichols, a Consultant Psychiatrist, detailed the following comments as a result of interviewing the Applicant on 24 July 1995 and on 3 August 1995 (T6, pp33-34).
"John is Mine Deputy at the Chain Valley Colliery now working on the surface. He views his position as being
"Stable but stagnant"
Service was seen over a nine year period from 14.3.1960 to 14.3.1969 with the R.A.N.. John was a Petty Officer (Mechanic Engineering) aboard such vessels as HMAS Melbourne, Sydney and Duchess. He saw service in Vietnamese waters from 1965 to 1968 on the Sydney and Duchess also seeing service aboard the Duchess in the conflict with Indonesia and Malaysia. It is considered that John was exposed to two traumatic events in which he experienced, witnessed or was confronted with happenings that involved actual or threatened death or the perception of this or a threat to the physical integrity to self or others viz:-
1.John served on the HMAS Sprite out of Jervis Bay during the search and rescue operation following the collision between the Voyager and the HMAS Melbourne. By the time the Sprite arrived on the scene the bow section of the Voyager had sunk but the stern section was still afloat. As crew aboard the Sprite John assisted in plucking comrades from the sea finally taking three bodies from HMAS Snipe to Sprite to return to the shore.
Anxiety associated with the above event is triggered by any publicity surrounding the sinking of the Voyager especially the subsequent litigation.
2.John was serving as a Petty Officer in the boiler room, on the HMAS Diamentina, while serving in the Barrier Reef waters. Charges were laid along the side of the vessel, which were detonated for some scientific purpose. John and a fellow comrade were not informed that the detonation was about to occur, steam tubes were blown in the room during the exercise.
"I thought I was dead"
Memories regarding this are associated with anxiety and cued by loud noises especially those caused by metal to metal contact.
John's response then involved at times intense fear, helplessness or horror.
The above traumatic events are persistently re-experienced by daytime recollections of the event cued as described above.
"It is so real, I think I am there. I can relive it all"
Distressing dreams still occur on a regular basis causing light fitful sleep.
Intermittent depressed mood at times of moderate intensity is still present.
Persistent avoidance of stimuli associated with the above trauma exists. John avoids thoughts, feelings or conversations of the above events tending to avoid activities and places or people that arouse recollections of the trauma.
A markedly diminished interest or participation in significant activities has occurred and has been largely replaced by time spent in consumption of alcohol, John being described at this stage as a heavy drinker ie. he consumes in the order of ½ bottle of Scotch every night, drinking having intensified during his period of service.
A restricted range of affect is present, this combined with his heavy consumption of alcohol has tended to interfere in interpersonal relationships in the family setting. Loving feelings being replaced by irritability and outbursts of anger.
A sense of a foreshortened future exists.
Persistent symptoms of increased arousal are still present and it is considered that the criteria for the diagnosis for the Post-traumatic Stress Disorder exist and the condition is chronic. A permanent disability has resulted from the above and using the impairment rating from Table 411 of the 4TH Edition of the GARP Chapter 4 (Emotional Behavioural Disorders) he has a score of 45." (T6, p34, 35)

On 26 September 1995, the Respondent accepted the claims for post-traumatic stress disorder, bilateral sensorineural hearing loss and tinnitus as war-caused, while rejecting the claims for ischaemic heart disease, pleural plaques and diabetes mellitus. Pension was granted at 30 per cent of the General Rate with effect from 10 February 1995 (T7).
On 12 January 1996, the Applicant lodged a further claim for hypertension to be considered as a war-caused disease, stating that it was caused by stress, smoking, alcohol and taking of salt tablets due to constant sweating, during his operational service (T8).
In a determination dated 25 March 1996, the Respondent accepted the Applicant's claim for hypertension as being war-caused, with pension to be paid at 70 per cent of the General Rate, with effect from 12 October 1995. Following reconsideration of his earlier decision, the Respondent also determined the Applicant's claim for ischaemic heart disease and diabetes mellitus as being war-caused, with pension to be paid at 70 per cent of the General Rate with effect from 10 February 1995. (T9).
On 10 December 1996, Dr Nichols, as a consequence of a further assessment of the post-traumatic stress disorder of the Applicant, considered the Applicant "to be totally and permanently incapacitated for all forms of remunerative employment and he is unsuited for rehabilitation" (T10, p52).
The Applicant was retrenched from his last place of employment (Coal Operations Aust Ltd) on 8 November 1996, because of a shortage of work (T10, p56). Ms McCall, a Consulting Psychologist at the Commonwealth Employment Service, following an interview with the Applicant on 19 December 1996, concluded that the Applicant "is not capable of sustaining employment" (T10, p57).
On 7 May 1997, the Respondent increased the Applicant's disability pension to 100 per cent of the General Rate, with effect from 24 February 1997, following the Applicant's claim for an increase in disability pension dated 24 February 1997. The Respondent also noted, following particular investigations, that the Applicant's cessation of work was by way of voluntary redundancy (T11).
On 31 October 1996, the Applicant lodged a claim for a service pension, and a medical report was obtained from Dr Woo, the Applicant's treating General Practitioner, in relation to the assessment of permanent incapacity for service pension purposes. A service pension on grounds of permanent invalidity was granted to the Applicant, with effect from 21 November 1996 (T42).
On 2 April 1998, the VRB set aside the decision of the Respondent dated 7 May 1997 which increased pension to 100 per cent of the General Rate from 24 February 1997, and substituted its decision that the pension be assessed at Special Rate, with effect from and including 24 February 1997 (T14).
On 6 May 1999, the Respondent notified the Applicant of his intention to conduct a review of the Applicant's disabilities and pension assessment. The Respondent's delegate was not satisfied that the decision of 26 September 1995 was correctly made, in that he could find no evidence that the Applicant experienced a severe stressor during eligible service, prior to the clinical onset or worsening of post-traumatic stress disorder. The Respondent indicated that it was his intention to revoke the determinations that post-traumatic stress disorder, hypertension, ischaemic heart disease and diabetes mellitus were war-caused, and replace them with a determination that all such diseases were not war-caused and that the Applicant is entitled to pension at the rate of 10 per cent of the General Rate (T16).
Dr Nichols, Consulting Psychiatrist, in his report dated 17 June 1999 made the following statements (T18, pp92-93):
"I would now like to correct and enlarge upon our report of 31/7/95 in which John is deemed to be suffering from a Post-traumatic Stress Disorder related to traumatic events, which occurred during the above period of service. In addition to the stress that John experienced on the HMAS Sprite out of Jervis Bay, and as a petty officer in the boiler room on the HMAS Diamentina, John was exposed to traumatic events viz:
1.In 1965 whilst in Vung Tau harbour on the HMAS Duchess acting as leading hand of the watch in the boiler room, John was subject to stress and anxiety as he listened to the sound of scare charges, which were being exploded alongside the ship. John at times had actually thought that the ship had been mined as he had been warned that this was a possibility, on entering the harbour. Instances such as the above occurred at regular intervals. In effect the scare charges were exploded more frequently if objects such as debris were approaching the vessel. The problem existed that the debris may conceal divers attempting to approach the vessel.
2.Whist in Vung Tau harbour again aboard the HMAS Sydney he was again subject to scare charges. In his position in the boiler room, which is below the water line, effects of scare charges were noticeable. On occasions the explosions caused paint, asbestos and rust to be sprinkled in his vicinity.
3,Whilst in Vung Tau harbour this time on board the HMAS Duchess he was witness to a fire fight "this consisting of planes attacking presumably V.C. positions in surrounding hills".
There were times then when John's response involved intense fear, helplessness and horror.
Traumatic events are still re-experienced by distressing dreams and memories, which occur during the day, the dreams occur on a regular basis and cause light fitful, sleep. To quote the wife Helen:
"He flails around a lot at night"
The above memories are triggered by loud noises, thunder, and flashes of light especially on television, and music of the era. Mood swings are still present and at times he becomes suicidal.
Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness not present before the trauma are indicated by:
1.        Efforts to avoid thoughts, feelings or conversations associated with trauma.
2.Efforts to avoid activities, places or people that involve recollections of the trauma. An inability to recall important aspects of the trauma exists, that is he is frequently reminded of what happened during these traumatic incidences by colleagues. A restricted range of affect is present, that is John has difficulty in expressing emotive feelings of affection in depth, that is being replaced by irritability and outbursts of anger. A sense of foreshortened future is also present and John does not expect to have a normal life span.
Persistent symptoms of increased arousal are present;
1.        Including difficulty in falling or staying asleep.
2.        Irritability and outbursts of anger.
3.        Difficulty concentrating.
4.Hyper vigilance and exaggerated startle response (noticed especially by his wife and other members of the family).

It is considered that the criteria for a diagnosis for the Post-traumatic Stress Disorder exist and that the condition is chronic (irreversible) as per D.S.M. 1V."

On 19 August 1999, the Respondent revoked the determinations of 26 September 1995 and 25 March 1996, which had determined that post-traumatic stress disorder and hypertension were war-caused. The claim for these two conditions was refused, as they were not considered to have been war-caused, and the payment of pension was reduced to 100 per cent of the General Rate with effect from 26 August 1999, pending a review following further medical investigation (T19).
On 17 September 1999, the Respondent determined to continue the Applicant's disability pension at 100 per cent of the General Rate, with effect from 26 August 1999 (T26).
On 1 February 2000, the VRB affirmed both decisions under review, following an application of Statement of Principles existing at the time of the primary determination, namely 26 September 1995, for post-traumatic stress disorder, and 25 March 1996, regarding hypertension (T28).
applicant's evidence
The Applicant informed the Tribunal that he was born on 10 November 1941 and commenced working in the mines as a clerk at age 16, where he remained for a period of two years, prior to joining the Navy in March 1960. After he received training at HMAS Cerebrus, he was posted as a mechanic engineer to HMAS Swan and in 1964 to HMAS Sprite, which was a 50-foot sea air rescue craft.
At the time of the Voyager incident, the Applicant stated that his craft went out from HMAS Creswell at Jervis Bay to search for survivors and bodies. It is the Applicant's recollection that they brought in some thirty odd survivors and some bodies from the incident. Although not associated with picking the bodies out of the sea, the Applicant stated that he did assist in lifting the stretchers on which the bodies lay, to waiting ambulances, and also assisted in identifying the deceased persons. The Applicant described the scene at the time, as one where everyone was upset and distressed and that "he just got on with his job".

The Applicant stated that he was "crash drafted to HMAS Duchess", a replacement for the Voyager, and after a cruise to Malaysian waters, returned to escort HMAS Sydney to Vietnam on its first trip in 1965. The Applicant stated that during the period in Vung Tau harbour, the main problem was scare charges, which were detonated on the first occasion when he was on duty in the boiler room and about which he had not received any earlier warning. The Applicant stated that he was scared by this experience.
Following his return from Vietnam, the Applicant was posted to HMAS Kimbla, a posting that he enjoyed. The Applicant stated in oral evidence that on receiving notification of posting to HMAS Sydney, he put in for discharge, in 1966, because he did not want to go back to Vietnam. He stated "I knew the same thing would happen, I'd end up going to water as I did before", which he detailed as "I just had the shakes, I was scared, I was a worry. I just wanted out of the navy".
The Applicant stated that his next posting was on HMAS Diamantina until 1967, prior to being posted to HMAS Penguin after which he was discharged in early 1969.
After discharge, the Applicant stated that he worked in the petrochemical industry in Newcastle for a little over 12 months, prior to returning to work in the coal mines where he worked for 25 years, with all but 18 months being underground. The Applicant indicated that he was retrenched in 1996 and the coalmine closed in early 1997. After his retrenchment in late 1996, the Applicant stated that he rang various managers seeking work in mine occupational health and safety areas, but was unsuccessful, and even if he had been successful, the Applicant was of the view that he would not have passed a medical examination because of his heart condition. The Applicant further stated that he ceased searching for work in 1998, after being granted pension at the Special Rate.
In relation to alcohol consumption, the Applicant stated that he may have had an occasional social drink prior to joining the Navy, but that this changed after his first trip to Vietnam on HMAS Duchess, when he commenced drinking a substantial amount of beer on a daily basis. The Applicant indicated that he has not consumed alcohol since his oesophagial operation in October 2000. However, prior to that operation he had been drinking six to eight cans, per night, before changing to half a bottle of scotch, per night.
The Applicant indicated that he was first referred to Dr Nichols in 1995 by his general practitioner, upon his request, after having been advised to do so by the Vietnam Veterans' Association. The Applicant indicated that he had seen Dr Nichol every six to eight weeks until his retirement in February 2001. The Applicant also indicated that he had been treated by his local general practitioner for hypertension since 1971. Further, the Applicant stated that Dr Gillies, a Consultant Surgeon who surgically removed the lower portion of the Applicant's oesophagus, was of the opinion that he had a 30 per cent five year survival probability in relation to the carcinoma of the oesophagus. The Applicant indicated that he expected to have more surgery in June 2001 in relation to the oesophagus and a hernia arising from earlier treatment. The Tribunal notes that the Applicant's malignant neoplasm of the oesophagus has been determined by the Respondent to be a war-caused disease with effect from 11 June 2000 (T36).
In response to questions asked in cross-examination, the Applicant confirmed his history of employment, and that he was not discharged prematurely from the Navy because of medical problems. While the Applicant indicated that he had become aware that he may have had a drinking problem after the Voyager incident in 1964, he stated that his post-traumatic stress disorder was not diagnosed as such until 1995. In defining his alcohol intake, the Applicant indicated that he started drinking after joining the Navy, and that when posted to HMAS Swan, he would have no more than five beers a night. The Applicant indicated that his consumption of alcohol increased after the Voyager incident in 1964, and that his consumption in 1995 had further increased to half a bottle of scotch or more per day.
Further, the Applicant noted that the stressful events identified in Dr Nichols' initial report in 1995, concerning post-traumatic stress disorder, related to the Voyager incident in 1964 and a later event in HMAS Diamantina involving scare charges in 1966/67. The Applicant's period of service on HMAS Duchess in 1965 was also mentioned in this report. The Applicant concluded that the doctor may have overlooked the fact of his service in Vietnam waters in 1965 and the use of scare charges. The Applicant also indicated that his period of service on HMAS Melbourne was enjoyable and did not cause him any stress, the period of service occurring prior to his posting to HMAS Creswell and the Voyager incident in 1964. Further, the Applicant stated that he left the Navy because he had had enough and that his wife also wanted him to leave.
In relation to work, the Applicant indicated that he had only done voluntary work since leaving the colliery in 1996, that he was granted an invalidity service pension in late 1996 and a Special Rate disability pension in 1998. On revocation of his Special Rate in August 1999, the Applicant said he made enquiries seeking work, as he thought he had to look for work, even though he believed he did not have the capacity to work at the time he was looking for work.
In relation to scare charges, the Applicant was able to describe the item and its purpose; that apart from the firing of the ship's guns and a hammering on the deck, he had never heard a scare charge, or of "Operation Awkward", before the episode on HMAS Duchess in Vung Tau Harbour in 1965. Further, the Applicant denied reading the ship's daily orders and revealed that he was aware that precautions would be taken to protect the ship, but as to the particulars, he was unaware. Further, when the scare charges were first detonated, he was in the boiler room and he was startled and sought reassurance from his superiors. He continued to feel startled with each fresh detonation and again when they were first detonated when he was aboard HMAS Sydney in a later voyage to Vung Tau.
The Applicant stated that after his discharge from the Navy and after a period of working in the petrochemical industry in Newcastle, in 1970 he returned to work in the mines. He remained working in the mines as a Deputy Shot Firer because of his qualifications as a licensed Shot Firer. The Applicant stated that he did not experience stress or react with fear in such situations, as it was a controlled activity. Further, the Applicant indicated he was able to cope with situations of unexpected and/or controlled roof collapses and had handled the deaths of two miners from rock falls without difficulty, because he knew what to do.
The Applicant admitted that he had denied alcohol abuse when completing a Department of Motor Transport questionnaire to drive the DVA bus on a voluntary basis in 1999. Further, he also admitted to denying drinking four standard drinks over a 24-hour period at the time. The Applicant also indicated that he never took any time off for a stress-related illness when he was working in the coalmines.
In describing his reactions to the Tribunal when the scare charges when off for the first time, the Applicant stated in oral evidence:
"Fear of my life and every time one-one-a scare charge went off alongside us I had that feeling only for seconds, milliseconds or seconds and then everything goes quiet and that was a scare charge… I don't know how else I can explain it. I won't say I got the shakes or the sweats that I don't recall. I know there was fear there. I feared for my life and in those days there was no help available."

medical evidence

dr nichols

The reports of Dr Nichols have been detailed earlier in this decision.
dr carne
Dr Carne, Consultant Psychiatrist, detailed his opinion in a report dated 14 November 2000, following a single consultation with the Applicant (Exhibit R5):
"3.       I found no evidence that Mr Gibson was suffering from post-traumatic stress disorder at the time of my examination of him on 22 September, 2000.
          Considering the following:
·     Mr. Gibson's account of his service experience between the 26th May and 26th June, 1965 and from the 8th April to the 14th June, 1967, subjected to the sound of scare charges whilst working in the boiler rooms of HMAS Duchess and HMAS Sydney.
·     Mr Gibson's involvement in rescuing bodies of sailors who died in the Voyager accident.
·     The fact that the HMAS Duchess was an identical destroyer to the HMAS Voyager.
In my opinion Mr Gibson suffered from significant anxiety, probably best defined as an Acute Stress Reaction (DSM IV) and that his anxiety led him to increase his alcohol consumption.
It is possible that Mr Gibson did develop symptoms of post-traumatic stress disorder during this period however the symptoms have subsequently dissipated.
4.        Mr Gibson's symptoms of anxiety seem to have started during his period of service on HMAS Duchess between the 26th May and the 26th June, 1965.
5.        In my opinion, at the time of my examination of Mr Gibson on the 22nd September, 2000, he did not exhibit symptoms of post-traumatic stress disorder.
          5(a) In my opinion, from Mr Gibson's account of what happened in the engine/boiler rooms of HMAS Duchess and Sydney, his subjective experience was that of experiencing a severe stressor prior to the clinical onset of anxiety symptoms. In my opinion the experiencing of a severe distressor in Mr Gibson's case was his belief that he was under threat of serious injury or death in the boiler room of the ships on which he was working. This fear was compounded by the fact that the HMAS Duchess was a ship identical to the HMAS Voyager where he was involved in salvaging the corpses of the victims.
7.        In my opinion the stressful events that Mr Gibson relies upon have had a permanent effect, leaving Mr Gibson with the symptoms of alcohol dependence.
8.        The psychiatric literature suggests that it is the subjective perception of the stressor(s) as perceived by the victim that is critical in the development of anxiety disorders such as post-traumatic stress disorder and acute stress disorder.
9.        Psychoactive Substance Abuse or Dependence
          In my opinion Mr Gibson is suffering from alcohol dependence.
10.      In my opinion, Mr Gibson's experiences on the HMAS Duchess between the 26th May and the 26th June 1965, on the background of his experience of salvaging the bodies of the victims of the Voyager disaster and his experiences on HMAS Sydney between May and June 1967, led to levels of anxiety to which Mr Gibson "self-medicated" with alcohol.
          Hence in my opinion, Mr Gibson's alcohol dependence is related to his period of operational service, as referred to above. He therefore fulfils the following criteria of Instrument No 5 of 1994:
          1(a)
In addition Mr Gibson satisfies the following criteria of Instrument No 76 of 1998:
2b(i)i Tolerance as defined by a need for a markedly increased amounts of alcohol.
2b(ii) Withdrawal is manifested by the characteristic withdrawal syndrome.
4. Unsuccessful efforts to cut down or control alcohol use.
6. Important social occupational recreational activities are given up.
7.Alcohol use has continued despite knowledge of having a persistent or a current physical or psychological problem that is likely to have been caused or exacerbated by alcohol.
In my opinion Mr Gibson also satisfies criterion 5(b) of Instrument No 76 of 1998 for periods of service on board of the HMAS Duchess (26th May – 26th June, 1965) and on board to the [sic] HMAS Sydney (8th May – 18th June, 1967).
In my opinion Mr Gibson's alcohol dependence is now primary although when it started it was probably secondary to symptoms of anxiety precipitated by the events described above.
11.      Mr Gibson told me that he last worked on September 1st, 1996, although he was apparently formally employed until the 8th November, 1996 when the company for which he was working closed down. The period between September, 1st 1996 and 8th November, 1996 was spent on long service leave. Mr Gibson remained employed by the company.
12.      Suitability for employment
          I find it difficult to disentangle the contributions of Mr Gibson's medical and psychiatric problems in relation to his incapacity to work. In my opinion Mr Gibson is unemployable however it appears that he was capable of being employed up until the 8th November, 1996.
…
11.[sic] In my opinion, the views of Dr Nichols expressed in his letter of 10th December, 1996 and of Natalie McColl in her letter (of which I only have the last paragraph), both of which opine that Mr Gibson was so incapacitated as to render him unlikely ever to be able to be re-employed in a position for which he is reasonably qualified, seem to be consistent with my findings and with the evidence which they adduced in their letters. I note that in Dr Nichols' letter of 17th June, 1999, Mr Gibson is described as suffering current severe active symptoms of post-traumatic stress disorder whereas I found Mr Gibson's problems to be primarily alcohol dependence. It can sometimes be difficult to distinguish between symptoms of alcohol dependence, particularly the withdrawal symptoms that may be present and symptoms of anxiety from other causes. I draw your attention to the fact that Dr Nichols has been treating Mr Gibson for some years and therefore his history is probably drawn from a number of interviews with both Mr Gibson and his wife whereas my opinion was based on a single interview only.
…
13.      I would like to draw your attention again to the enormous difficulties in establishing relationships between an individual's current state and events, which took place almost forty years beforehand. Memories are generally imperfect: subjective and reconstructive rather than objective.
          The reports in your file from sailors who experienced boiler room and engine room conditions whilst scare charges were fired around a ship suggest that their working conditions were horrendous. To somebody who had seen seamen die in an incident in an identical ship, such conditions would be disturbing and capable of causing profound anxiety. It is difficult, forty years hence, to identify whether such symptoms constituted post-traumatic stress disorder, acute stress disorder or generalised anxiety and how they precipitated the evolution of an alcohol dependence problem.
          My recommendations would be that, on the balance of probabilities, Mr Gibson's claim for alcohol dependence as war-caused is justified and that it is quite likely that for a period of time he was suffering from post-traumatic stress disorder. Dr Nichols' account of continuing post-traumatic stress disorder is quite convincing to me although, as I stated above, during my interview with Mr Gibson, these symptoms seemed to be more related to his alcohol use.
          I would give Mr Gibson the benefit of doubt of at least one of those disorders as being war-caused."
In an addendum to his report, following further requests from the Respondent, Dr Carne made the following comments (Exhibit R5):
"ADDENDUM
In response to your three letters dated 2nd November 2000:
1. It appears that Mr Gibson's history has changed according to circumstances. You must ask him to explain this. You need to take into account that all memory is reconstructive, not mimetic and is affected by subsequent knowledge and experience.
2. In relation to Dr Dinnen's opinion, I would draw your attention to my comments, above, on the difficulties of reconstructing events and their associated emotional or psychological reactions, thirty-five years after the event. In my opinion, Dr Dinnen's hypothesis is quite sound. It is important to realise that it may never be possible to accurately reconstruct the cause-effect relationship between an experience and its emotional effects after such a passage of time."
Dr Carne considered the Applicant to have an impairment rating of 21 for his psychotic/alcohol dependence disease.
dr dinnen
Dr Dinnen, Consultant Psychiatrist, in a report dated 14 July 2000 detailed the following comment and opinion, following a consultation with the Applicant and his wife (Exhibit A3):
"Comment: That the patient suffers from past traumatic stress disorder seems to be generally accepted. It is a peculiarity that a serviceman experiencing operational combat can be found to suffer from this condition independent of that combat exposure. In this patient's case his involvement with the Voyager disaster certainly caused post-traumatic stress disorder, and I believe that it is his subsequent operational experience in Vietnam that aggravated and reactivated this pre-existing condition. According to the Statement of Principles, number 3 of 1999, factor 5(b) is satisfied – "experiencing a severe stressor prior to the clinical worsening of post-traumatic stress disorder".
I note reports indicating the patient's incapacity for work in 1996 from Dr Nichols (52), the Colliery Manager (55), and the occupational psychologist with the Commonwealth Employment Service (53 and 57).
Opinion: I believe this patient does suffer from post-traumatic stress disorder attributable to his operational service.
The history and documentation is consistent with the presence of long standing alcohol abuse, which was present at the time of the accurate termination of hypertension. The history is consistent with the diagnosis of psychoactive substance abuse (alcohol) related to service, coexistent with and related to post-traumatic stress disorder.
In my opinion the assessment of impairment according to GARP V is as follows:
Table 4.1 – 15; Table 4.2 – 15; Table 4.3 – 1; Table 4.4 – 8; Table 4.5 – 6; Table 4.6 – 5; Table 4.7 – 5; Table 4.8 – 5. This gives a total score of 49 points – moderately severe disability.
I do not believe the patent is capable of working more than 8 hours per week because of his post-traumatic stress disorder and alcohol abuse."
In oral evidence before the Tribunal, Dr Dinnen confirmed his view that the Applicant met the criteria for the diagnosis of post-traumatic stress disorder; that this was caused by events during the Applicant's operational service on HMAS Duchess and HMAS Sydney; that his disorder and alcohol abuse prevented him from working more than eight hours a week, and that his ability to work up to eight hours a week remained unchanged as a consequence of the Applicant no longer drinking alcohol since October 2000 because of carcinoma of the oesophagus and surgical removal thereof.
In response to questions in cross examination, Dr Dinnen stated that there was a number of stressors experienced by the Applicant at the time of the Voyager incident and they included:
·     the sinking of the boat;
·     the Applicant, being in the Navy, was a colleague of those who died;
·     seeing the bodies was a traumatic experience;
·     the whole involvement during the incident.
In further response, Dr Dinnen confirmed his opinion that loud noises can be a severe stressor, and the response engendered is dependent on the state of mind of the person having it, and in this regard subjectivity is important rather than objectivity. In relation to the issue of detonation of scare charges, Dr Dinnen was of the opinion that it would be a moot point as to whether it would constitute a stressor, if it were not for the pre-existing condition of the Applicant.
In response to a question from the Tribunal concerning clinical worsening of a pre-existing post-traumatic stress disorder, Dr Dinnen stated that the Applicant considered that if affected him and made him feel worse. In Dr Dinnen's opinion the Applicant's level of anxiety was greater following the service in Vietnam, both after the first and subsequent trips.
writeway research report

Commodore Mulcare, in his two reports dated 11 November 2000 and 18 February 2001, confirmed the Applicant's periods of operational service. He generally confirmed the Applicant's story in relation to the Voyager incident, with the exception of stating that only three bodies were recovered on the night, and that they were transported to HMAS Creswell by ships other than HMAS Sprite. Further, Commodore Mulcare confirmed that the Applicant was unlikely to have received any prior training in scare charges before HMAS Duchess anchored on Vung Tau on 11 June 1965, nor was it likely that he had experienced a scare charge explosion before that time (Exhibits R9, R10).
submissions
the applicant
Counsel for the Applicant contended that the evidence of all the psychiatrists is confirmatory of the Applicant experiencing a war-caused psychiatric disorder. In noting that Dr Carne placed more emphasis on an alcohol abuse disorder, counsel submitted that the evidence of Drs Nichols and Dinnen, (supported, for a greater part by the analysis and opinion of Dr Carne), was that the Applicant suffered a post-traumatic stress disorder arising from the Voyager incident in 1964. Further, counsel contended that this disorder was clinically worsened, as a consequence of the Applicant's experiences with scare charge detonations during his periods of operational service on HMAS Duchess and HMAS Sydney.
Further, counsel for the Applicant contended that the Applicant does have an alcohol abuse disease and that this has arisen as a consequence of his psychiatric disorder and his experiences during his periods of operational service. Similarly, it was contended that at the time of the onset of the Applicant's hypertension, diagnosed by Professor O'Rourke as commencing in 1971, the Applicant had both a war-caused psychiatric condition and a war-caused alcohol abuse disease.
Counsel also submitted that the Applicant satisfies all the requirements for payment of a disability pension at the Special Rate, if the diseases in dispute are found to be war-caused.
As an alternate submission the Applicant, relying upon the decision of Richardson v Repatriation Commission (2001) AATA 578, submits that the section 31 review, which purported to remove post-traumatic stress disorder as an accepted condition was ultra vires. On this basis the Applicant's condition of post-traumatic stress disorder remains an accepted condition.
the respondent
The Respondent contended in the first alternative that the Applicant does not suffer from post-traumatic stress disorder and that, relying upon the opinion of Dr Carne, the Applicant does suffer from a non-war-caused disease of alcohol abuse.
In the alternate, the Respondent contended that if the Applicant is considered to suffer from post-traumatic stress disorder, this arose out of the Voyager incident. Further, the Respondent contends that the scare charge detonations experienced by the Applicant while on HMAS Duchess in June 1965 do not constitute the objective requirements of a severe stressor as defined in the relevant Statement of Principle ('SoP'). As such, clinical worsening of a post taumatic stress disorder, even if such clinical worsening could be demonstrated to have occurred, could not have occurred as a consequence of the Applicant experiencing a severe stressor. Thus, it was contended that the Applicant fails to satisfy the necessary requirements within the relevant SoP, which would allow his psychiatric disease to be causally related to his operational service.
Further, the Respondent contended that the Applicant's disease of alcohol abuse and hypertension are not war-caused, for the increase in alcohol consumption was related to the Voyager incident in 1964, which was not within a period of operational service. Similarly, the Respondent contended that the Applicant's disease of hypertension is not a war-caused disease, as the Applicant's alcohol abuse and psychiatric condition are not war-caused.
The Respondent further contended that the Applicant does not satisfy ss 24(1)(c) and 24(2), in that the Applicant ceased work as a consequence of redundancy, which was unrelated to his war-caused disabilities. The Applicant is incapacitated or prevented from engaging in remunerative work because of his post-traumatic stress disorder, alcohol abuse and hypertension, all diseases which the Respondent contended are not war-caused disabilities. The Respondent relies upon the opinions of Dr Nichols and the two psychologists, who considered that the Applicant was unfit to work on account of those conditions at the relevant time, and the opinions of Doctors Carne and Dinnen, who considered that the post-traumatic stress disorder and alcohol abuse continue to prevent him from working.
In their further submission dated 21 August 2001, the Respondent submits that the Commission has power to cancel a pension pursuant to section 31(6) of the Act, and the basis for making such a cancellation must rest on the particular condition being no longer war-caused. In so stating the Respondent relies upon the decision of Sundberg J in Davis v Repatriation Commission (1997) 74 FCR 577, where after the production of further medical evidence, a death which had earlier been found to be war-caused and for which a pension was being paid, was found no longer to be war-caused and the pension no longer payable.
The Respondent further contends that the Commission has the power to cancel a pension, suspend a pension or decrease the rate of pension payable, pursuant to a section 31(6) review. Further, pursuant to section 13(1) of the Act, the Commonwealth is liable to pay a pension to a veteran when he or she has an incapacity, and that incapacity has resulted from a war-caused disease or injury. It is therefore contended that before a pension can be cancelled, suspended or varied in rate of payment, a change in the incapacity status of the veteran must have occurred and/or any incapacity is no longer attributable to a war-caused injury or disease.
The Respondent also contends that both sections 31(6A) and 31(6) confer a power to "cancel" a pension. It is the Respondent's contention that if the power to cancel a pension did not enable the Commission to determine that in fact a veteran was not suffering from a war-caused disease or injury, section 31 (6B) of the Act would be otiose, in that where a decision to cancel was based upon a finding that a veteran was not suffering from a war-caused injury or disease, it would not then have been necessary to expressly deal with the issue of section 31(6B).
consideration and findings
In preliminary comments, the Tribunal observes that this matter arises from a review conducted by the Respondent pursuant to subsection 31(6) of the Act. The relevant subsections 31(6), (6A), (6B), (7), (7A) provide for:
"31(6) Where the Commission is satisfied that:
(a) having regard to any matter that affects the payment of a pension or attendant allowance, being a matter that was not before the Commission, the Board or the Administrative Appeals Tribunal, as the case requires, when the decision to grant the pension or attendant allowance, or a decision to vary the rate of the pension or attendant allowance, was made;
(b) by reason of a refusal or failure of any person to comply with a provision of this Act;
(c) by reason of a refusal or failure of a veteran to comply with a notice served on the veteran under subsection (5A) or with a request made under paragraph 32(1)(c); or
(d) by reason of the circumstances referred to in a paragraph of section 24A being applicable to the veteran;
in a case to which paragraph (a), (b) or (c) applies, a pension or attendant allowance should be cancelled or suspended or is being paid at a higher rate than it should be or, in a case to which paragraph (d) applies, a pension is being paid at a higher rate than it should be, the Commission may, by determination in writing, cancel or suspend or decrease the rate of the pension or attendant allowance, or decrease the rate of the pension, as the case may be, with effect, subject to subsection (7), from the day on which the determination was made or such later day as is specified in the determination.
(6A) Where the Commission is, under subsection (6), satisfied that the rate of a pension payable to a veteran is higher than it should be by reason that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is less than 10 per centum (including nought per centum), it shall cancel the pension that was payable to the veteran.
(6B) The cancellation of a pension payable to a veteran under subsection (6A) does not affect any decision of the Commission, the Board or the Administrative Appeals Tribunal that is in force determining that the veteran is suffering from a war-caused injury or a war-caused disease, or both.
(7) Where a determination is made under subsection (6):
(aa) by reason of the Commission having regard to a matter that affects the payment of a pension or attendant allowance in the circumstances specified in paragraph (6)(a); or
(a) by reason of the refusal or failure of a person to comply with a provision of this Act, other than:
(i) subsection 127(4) in relation to a notice under paragraph 127(1)(f); or
(ii) subsection 128(4); or
(b) by reason that an amount has been paid by way of pension or attendant allowance that, but for the false statement or misrepresentation of any person, would not have been paid;
a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.
(7A) Subsection (7) does not apply to a determination made under subsection
(6) for a reason set out in paragraph (6)(c)."
In noting the statutory construction of section 31, and in particular the subsections enumerated above, the Tribunal concludes that section 31 provides for a defined and limited power of Commission Review and further defines the remedies available to the Commission.
In particular, the Tribunal observes that pursuant to section 31(6)(a), any matter affecting the payment of the pension must not have been a matter before the Commission or the VRB when the decision to grant the pension was made. Further, pursuant to section 31(6B), the cancellation of a pension payable to a veteran under section 31(6A) does not affect any decision of the Commission that is in force determining that the veteran is suffering from a war-caused injury or a war-caused disease, or both. The Tribunal further notes that the Commission's available remedies are detailed in subsections 31(6) and (7), and earlier in section 31, in relation to reviews taken under nominated circumstances, and all relate to matters surrounding pension alteration, suspension and cancellation.
In noting the further submissions, the Tribunal does accept that pursuant to section 31(6) of the Act the Commission does have the power to cancel, suspend, or decrease the rate of pension payable to a veteran with the date of such action being the date of the determination, or an earlier date pursuant to section 31(7) of the Act.
In addressing section 31(6A) of the Act, the Tribunal interprets this section as being specific to situations where, as a result of a section 31(6) review, the Commission determines to reduce the rate of pension payable from war-caused injury or disease or both to less than 10 per cent (including nought per cent), then the pension is cancelled. It is in such situations that section 31(6B) of the Act comes into play, with decisions made pursuant to section 31(6A) of the Act to cancel the pension, not affecting any decision of the Commission, the VRB or the Administrative Appeals Tribunal that is in force, determining that the veteran is suffering from a war-caused injury or disease or both.
The Tribunal notes that such an interpretation as suggested by the Tribunal is consistent with the Explanatory Memorandum accompanying the introduction of the Veterans' Affairs Legislation Amendment Bill 1987, where in relation to the proposed section 31(6B) it was stated that it would ensure that "the veteran would continue to be entitled to other benefits including medical and other treatment under the Principal Act". The Tribunal also accepts that section 31(7) of the Act defines the situation and circumstances of false statement and misrepresentation by any person and the consequences thereof.
As a consequence of the Tribunal's considerations, it would be the Tribunal's conclusion that pursuant to a review under section 31(6) of the Act, the Commission could conclude, that having regard to any matter, being not a matter which was not before the Commission when the decision to grant a pension was made, that a disease or injury or both, which had been previously been determined to be war-cause were not war-caused, and as a consequence a change in the rate of pension payable including cancellation could be determined. The Tribunal considered and applied the findings of Sundberg J in Davis v Repatriation Commission (1997) 74 FCR 577; a case in which a pension was cancelled when a war-caused death was determined not to be war-caused following a review involving a new medical report and opinion, which had not been before the decision-maker at the time the decision was made to grant a pension.
The Tribunal now turns to the two decisions of the Commission under review in these proceedings, namely the decisions of 19 August 1999 and 17 September 1999. The Tribunal observes that in the first decision, the Respondent, as a consequence of a section 31(6) review, revoked earlier determinations of the Commission dated 26 September 1995 and 25 March 1996, which had determined that post-traumatic stress disorder and hypertension were war-caused diseases. The Respondent then addressed and refused the Applicant's claim in relation to post-traumatic stress disorder and hypertension. It was determined that both diseases were not war-caused, and that the rate of pension be reduced to 100% of the General Rate, with effect from 26 August 1999, pending review following further medical investigation. The second decision confirmed that the pension be paid at 100% of the General Rate, with effect from 26 August 1999.
The Tribunal notes that the Respondent in its letter of 6 May 1999 to the Applicant clearly identified that it considered that the decision made by the Commission on 26 September 1995 was not correctly made. The Respondent was unable to find any evidence that the Applicant experienced a severe stressor during eligible service, either prior to the clinical onset or the clinical worsening of post-traumatic stress disorder. Also the Tribunal notes that the Respondent in its letter of 6 May 1999 clearly indicated that it intended to revoke the determination that post-traumatic stress disorder, hypertension, ischaemic heart disease and diabetes mellitus were war-caused diseases/injuries.
The Tribunal observes that the Respondent, as part of its section 31(6) review, received a further report from Dr Nichols dated 17 June 1999, which nominated, in addition to the two traumatic episodes nominated in his report of 31 July 1995, three further traumatic episodes experienced by the Applicant. Following consideration, the Respondent revoked determinations dated 26 September 1995 and 25 March 1996, and made a new determination that the conditions of post-traumatic stress disorder and hypertension were not war-caused.
In considering the sequence of events, the Tribunal concludes that the issues of the particular stressors experienced by the Applicant relating to the Voyager incident and the HMAS Diamentina episode were before the Commission at the time of the determination on 26 September 1995, on 25 March 1996 when determining that hypertension was a war-caused disease, on 7 May 1997 when the pension was increased to 100 per cent of the general rate and before the VRB on 2 April 1998, when a decision was made to grant disability pension at the special rate. The Tribunal would further conclude, that while Dr Nichols' report of 17 June 1999 addresses the circumstances of three further traumatic events, that there is nothing in Dr Nichols' further report which contradicts his earlier opinion, and that there is no other medical opinion preferred by the Respondent, which in any way negates at that point in time the opinion expressed by Dr Nichols.
The Tribunal observes that in the original decision of 26 September 1995, which granted the Applicant's claim and found that post-traumatic stress disorder was war-caused, the Respondent made such a decision on the basis of a stressor nominated within the report of Dr Nichols dated 31 July 1995 (T7, p39). In considering this report, a substantial portion of which is detailed earlier in this decision, it is clear to the Tribunal that the two stressors nominated in Dr Nichols report did not relate to periods of operational service. As such, while the Applicant may have been suffering from post-traumatic stress disorder at that time, it is evident to the Tribunal that the decision concluding that the post-traumatic stress disorder was war-caused was not consistent with the evidence. In the Tribunal's view, this may constitute a mistake made by the Respondent at that time.
As a consequence, it is the Tribunal's finding that the issues of the particular stressors experienced by the Applicant in relation to the episodes involving HMAS Voyager and HMAS Diamentina were clearly before the Commission/VRB on the occasions nominated in paragraph 68 and were clearly fundamental to the making of the primary determinations. While other stressors were nominated in the report of Dr Nichols of 17 June 1999, such stressors were considered on their own merits, and in so doing neither subtract or add to the earlier assessment, albeit wrongly made, in that the only manner in which the original mistake can be redressed involves a reconsideration of that matter, and that is an activity not available in the Tribunal's view in a section 31(6) review, as it is a matter which had been squarely before the Commission on the occasions nominated.
It would be the Tribunal's view that in such circumstances that the Respondent has great difficulty, which is perhaps evidenced by the desire to revoke all the appropriate earlier determinations and commence a fresh consideration, free of any acquired difficulties. In the particular circumstances of this matter it is the Tribunal's finding that the Respondent is unable to redress his error made at the time of the primary determinations by way of a section 31(6) review, and as a consequence any such attempt to so do creates further difficulty. Further, the Tribunal, while acknowledging the Respondent's difficulty, does conclude that in the context of beneficial legislation any redress of the Respondent's primary determination and the self error albeit difficult, would have to occur within a reasonable time frame, and in circumstances which are clearly codified.
The Tribunal has earlier detailed the statutory provisions and remedies available to the Respondent, in the conduct of section 31 reviews generally, and in particular section 31(6) reviews. In addressing the decisions made by the Respondent on 19 August 1999 and 25 March 1996, the Tribunal concludes that the Respondent did not have the power to revoke earlier decisions of the Commission as it did. However, the Respondent did have the power to affect any decision of the Commission or the VRB that was in force determining that the veteran was suffering from a war-caused injury, or a war-caused disease, or both, as a consequence of a section 31 review, except in circumstances nominated s31(6A) and (6B) of the Act. The Tribunal again acknowledges that the effective remedy available to the Respondent is to vary, cancel or suspend the rate of pension to be paid.

As a consequence of the Tribunal's analysis, the Tribunal finds that the decision taken by the Respondent on 19 August 1999 was ultra vires in respect of that part of the decision which purported to revoke earlier determinations of the Respondent dated 26 September 1995 and 25 March 1996, which had determined that post-traumatic stress disorder and hypertension were war-caused diseases. The other two elements of the determination made by the Respondent on 19 August 1999, namely that post-traumatic stress disorder and hypertension were not war-caused and that the rate of pension was reduced to 100 per cent of the general rate from 26 August 1999, were elements which, provided all other issues within section 31(6) of the Act were satisfied, the Tribunal finds that the Commission was competent to make.
The Tribunal, by virtue of its earlier finding - that the Commission had regard to a matter which was before the decision-maker both at the time a determination was made to accept post-traumatic stress disorder as a war-caused disease and hypertension as a war-caused disease on 26 September 1995 and 25 March 1996 respectively, and a further decision was made to grant pension at the special rate by the VRB on 2 April 1998 - concludes that the Respondent fails to satisfy subsection 31(6)(a) of the Act. As a consequence the Tribunal concludes that the latter two elements of the determination dated 19 August 1999 referred to in the previous paragraph are ultra vires, for the Commission had undertaken a review in circumstances in which the power to carry through a section 31(6) review could no longer be established for the reasons nominated.
The Tribunal finds that both the determinations made by the Respondent on 19 August 1999 and 26 September 1999 were ultra vires for the reasons earlier outlined, and having taken into consideration these issues, the same is found as regards the determination of 26 September 1999, being a determination which purported to confirm a disability pension rate at 100 per cent of the general rate. With both determinations being declared ultra vires and as such void abinitio, the two primary determinations dated 26 September 1995 and 25 March 1996 remain the "live" determinations. The further decisions made by the VRB, where they relate to appeals on the pension rate determinations made by the Respondent, arising as a consequence of the two primary decisions, remain operative. In essence, the Applicant's list of accepted disabilities continue, as determined by the two primary determinations, and pension continues to remain payable at the special rate.
In view of the circumstances existing in this matter, including the nature and extent of the Tribunal's findings on particular issues of law, the consequences of the Respondent having to address and redress the issues, the obvious lack of physical well being of the Applicant, and the incapacity of his wife, the Tribunal believes it appropriate to address the underlying substantial issue in this matter – namely, whether the Applicant has a psychiatric disease. Further, the Tribunal needs to address what the appropriate diagnosis is and whether the diagnosed disease or diseases are war-caused pursuant to the Act.
In assessing the evidence of the Applicant as detailed before the Tribunal, his reported statements to the various doctors and his responses made in cross-examination, the Tribunal finds that the Applicant told, and continues to tell, his story in a relatively consistent manner. It is also true to say that the Applicant's memory of events some forty odd years ago reflects some variability when detailing particular scenarios. Nevertheless, in relation to the particular events of the Voyager and the scare charges incidents, the Tribunal finds that the Applicant's evidence is corroborated, in part, by the reports of Commodore Mulcare, with the exception that the three bodies collected during the Voyager incident were conveyed to HMAS Cresswell by vessels other than air sea rescue craft.
In further preliminary comment the Tribunal observes that there is no issue between the parties as to his periods of operational service on HMAS Duchess and HMAS Sydney. The parties agree that the Applicant has had the following conditions accepted as war-caused:
·     bilateral hearing loss with tinnitus;
·     ischaemic heart disease;
·     diabetes mellitus; and
·     carcinoma of the oesophagus.
The issue remaining between the parties is whether the Applicant has a psychiatric disorder, what the diagnosis of that disorder is and whether it is a war-caused disease. Further, the Tribunal needs to consider the Applicant's alcohol abuse and hypertension in terms of whether they are war-caused diseases.
In turning to the issue of the psychiatric disorder, there is particular evidence of this in the Applicant's statements and in the opinions given by the three psychiatrists in this matter, these having been detailed earlier in this decision. It is the Tribunal's finding that on the balance of probabilities the Applicant does have a psychiatric disease.
In analysing all the evidence before it, particularly the opinions of the three psychiatrists, namely Drs Nichols, Carne and Dinnen, the Tribunal concludes that the following hypothesis is pointed to, or raised, by the material: as a consequence of his experiences associated with the sinking of HMAS Voyager, the Applicant developed post-traumatic stress disorder; the post-traumatic stress disorder clinically worsened as a consequence of the Applicant's exposure to stressors during his operational service with HMAS Duchess and HMAS Sydney; and this disorder became clinically apparent in 1995 and has continued thereafter. Further, the Tribunal finds that a hypothesis postulating alcohol abuse, arising as a consequence of the Applicant's psychiatric disorder is pointed to by the material before the Tribunal, particularly the Applicant's statements and the opinions of the three psychiatrists, in particular Dr Carne. Relying on the opinions of the three psychiatrists, the Tribunal finds, on the balance of probabilities, that the diagnosis of alcohol abuse exists. Finally, the Tribunal concludes that a hypothesis postulating the Applicant's disease of hypertension is causally connected to the Applicant's alcohol abuse, and finds that the clinical onset of the disease of hypertension was 1971. In this regard the Tribunal relies upon the opinion of Professor O'Rourke.
In moving to the next phase of the analysis, namely the issue of whether the hypotheses are reasonable, the Tribunal must consider which SoP the raised hypotheses are required to fit. The Tribunal, relying upon the decision of Repatriation Commission v Keeley (2000) 98 FCR 108, concludes that, as a section 31(6) review is a review of the primary decisions, the SoPs to be applied in this matter are those existing at the time of the primary decisions. It is the Tribunal's view that in this matter the earlier SoPs, namely those existing at the time of the primary decision, are more beneficial to the Applicant than current SoPs, particularly where it relates to the issue of stressor. Accordingly, the Tribunal concludes that the relevant SoPs in this matter are:
·     Instrument No 15 of 1994, as amended by Instrument No 225 of 1995, concerning post-traumatic stress disorder;
·     Instrument No 5 of 1994, concerning psychoactive substance abuse or dependence;
·     Instrument No 83 of 1995, concerning hypertension.
In considering Instrument No 15 of 1994, as amended by Instrument No 225 of 1995, concerning post-traumatic stress disorder, the Tribunal notes that there are three factors nominated, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting post-traumatic stress disorder with the circumstances of service. They are:
"(a) experiencing a stressor prior to the clinical onset of post-traumatic stress disorder; or
(b) experiencing a stressor prior to the clinical worsening of post-traumatic stress disorder; or
(c) inability to obtain appropriate clinical management for post-traumatic stress disorder."

The Tribunal also notes the definition of "experiencing a stressor" which means the following (derived from DMS-IV):

"(a) the person experienced, witnessed, or was confronted with an event that an event that involved actual or threatened death or serious injury, or a threat to the person's or other people's physical integrity; and
(b) the person's response to the event involved intense fear, helplessness or horror".

The hypothesis postulated is that the Applicant suffered post-traumatic stress disorder as a result of his involvement in the Voyager incident; that this condition was clinically worsened as a result of the scare charge episode on board HMAS Duchess and HMAS Sydney in Vung Tau Harbour and that this disorder became clinically apparent in 1995 and has continued thereafter.
In discussing each element of the hypothesis and noting the definition of 'experiencing a stressor', the Tribunal concludes that the statement of the Applicant and the opinions of all three psychiatrists point to the Applicant having experienced a stressor during his involvement in the search and rescue operation surrounding the Voyager incident, particularly when the Applicant was asked to assist in identifying the bodies on the deck of the vessel at HMAS Cresswell. The Applicant described his feelings at the time as being upset and distressed, but that he just got on with his job. In analysing the Applicant's subsequent clinical history, both Dr Nichols and Dr Dinnen are of the opinion that the Applicant's symptomatology is consistent with a diagnosis of post-traumatic stress disorder, having been initiated as a consequence of the Voyager episode.
In addressing the clinical worsening, the evidence contained within the material points to the Applicant having experienced a stressor when the scare charges were detonated while he was in the boiler room of HMAS Duchess, in Vung Tau Harbour, in 1965. The Applicant stated that he had never heard such a charge explosion before, had not been trained in such defensive measures, nor told that such was going to occur. Such statements are corroborated, in part, by both of Commodore Mulcare's reports.
An issue strongly argued by the Respondent was that the test of 'experiencing a stressor' is an objective test. The Respondent cited a number of examples in support of this position. The Tribunal, in considering the proper analysis of 'experiencing a stressor', believes there is both an objective element, ie the event must have actually occurred, as well as a subjective response by the Applicant to the objectively defined event. The Tribunal does not agree with the proposition put in Budworth v Repatriation Commission [2001] FCA 317 where there was no objective evidence of the event occurring. The Tribunal also indicates that the event, besides having actually occurred, must contain objective elements of serious injury, or a threat to the person's physical integrity, or actual, or threatened, death. In the scare charge situation, as outlined in this matter, the Tribunal has no difficulty in accepting that the Applicant's description of the event and his response meets the template outlined. The Tribunal also points to the evidence of all three psychiatrists, which confirm that the Applicant did experience a stressor as a consequence of the scare charge incident on HMAS Duchess, in June 1965, while in Vung Tau Harbour. Further, while not necessarily agreeing on a particular psychiatric diagnosis (with Drs Nichols and Dinnen diagnosing post-traumatic stress disorder and Dr Carne diagnosing anxiety, acute stress reaction and alcohol abuse), all three psychiatrists agree that there was an increase in anxiety symptomatology, which represented a clinical worsening of the underlying psychiatric disorder.
As a consequence of the Tribunal's considerations, the Tribunal concludes that the evidence does point to the Applicant having experienced a stressor, as a consequence of his exposure to scare charge detonations while in the boiler room on HMAS Duchess in June 1965. The Tribunal notes that further evidence would point to the Applicant's continued difficulties in subsequent scare charge detonations on board HMAS Duchess and HMAS Sydney, while in Vung Tau Harbour, and on HMAS Diamentina in 1965 (the latter not being involved with operational service). Further, the evidence clearly points to the Applicant experiencing a clinical worsening of the underlying post-traumatic stress disorder, as opined by Drs Nichols and Dinnen, with Dr Carne considering the hypothesis of Dr Dinnen quite sound.
The Tribunal therefore finds that the hypothesis raised connecting the Applicant's post-traumatic stress disorder with his operational service is a reasonable hypothesis, as factor (b) of Instrument No 15 of 1994 as amended by Instrument No 225 of 1995, concerning post-traumatic stress disorder, is satisfied, in terms of material pointing to the necessary elements contained within the factor.
Further, the Tribunal has given consideration to the matters raised by the Respondent in relation to: the absence of a mention of the scare charge detonations "as a stressor" in the initial report of Dr Nichols; the fact that Dr Carne did not think that the Applicant was suffering from post-traumatic stress disorder at the time of his consultation on 14 November 2000; the issues surrounding 'experiencing a stressor' and the concern over the accuracy and adequacy of the Applicant's evidence; and the Applicant's post service employment in underground mining and his involvement with explosive charges. Having done so, the Tribunal concludes that the Respondent has not adduced material which the Tribunal finds disproves beyond reasonable doubt, the facts which constitute the hypothesis. Nor has the Respondent adduced material which the Tribunal finds proves beyond reasonable doubt, the existence of any other fact in the material, which is inconsistent with the hypothesised connection to war service, which would disprove beyond reasonable doubt, the hypothesis.
The Tribunal, in summary finding, concludes that the Applicant's post-traumatic stress disorder is a war-caused disease.
alcohol abuse
Having considered the Applicant's evidence, in particular the longitudinal history of his alcohol use, and the opinions of three psychiatrists, the Tribunal has determined that the Applicant, on the balance of probabilities, suffers from substance abuse (alcohol). The Tribunal further finds that after a consideration of all the material before it, that the material points to a hypothesis that the Applicant experienced a stressful event prior to the clinical onset of alcohol abuse and that this was maintained post service. An alternative hypothesis pointed to by the material, would be that the Applicant had a psychiatric condition prior to the clinical onset of alcohol abuse. The material also points to a further hypothesis, whereby the Applicant experienced a clinical worsening of his alcohol abuse as a consequence of experiencing a stressful event or, alternatively, as a result of suffering from a prior psychiatric condition.
The Tribunal in noting the four hypotheses postulated, the definition of stressful event in paragraph 4 of SoP Instrument No 5 of 1994, and factors 1(a), (b), (c), (d) nominated in the same instrument, concludes that the Applicant does meet all factors nominated, namely:

(a) experienced a stressful event (psychological stress and subjective symptoms of incurred stress from the scare charge detonations in June 1965 on HMAS Duchess), prior to the clinical onset of alcohol abuse (substantial increase in daily alcohol consumption after this event), and that this increased consumption continued until late 2000 when operated on for his carcinoma of the oesophagus;

(b) suffered from post-traumatic stress disorder prior to the clinical onset of alcohol abuse;

(c) the Applicant indicated that he had increased his consumption after the Voyager incident - then experienced the scare charge detonations on the Duchess, a severely stressful event, leading to a further substantial increase in alcohol consumption which was maintained post-service;

(d) suffered from post-traumatic stress disorder, increased his alcohol usage post the Voyager incident and substantially increased his usage post the Duchess scare charge incidents.

The Tribunal finds that the hypotheses nominated, connecting the Applicant's service with the disease of alcohol abuse are reasonable, in that the Applicant meets the requirements of the template nominated by SoP Instrument No 5 of 1994.
Further, the Tribunal finds that the Respondent has not disproved, beyond reasonable doubt, the facts which constitute the hypothesis. Nor has the Respondent proved, beyond reasonable doubt, any other facts in the material inconsistent with the hypothesised connection to war-service, which would disprove, beyond reasonable doubt, the hypothesis.
hypertension
The Tribunal has already made the finding that the Applicant suffers from hypertension and that, in relying upon the opinion of Professor O'Rourke, the clinical onset of hypertension was in 1971. Further, the Tribunal finds that the material points to a hypothesis relating hypertension to alcohol abuse (consumption on average greater than 200gms/week), continuing at the time of the accurate determination of hypertension in 1971. The Tribunal, having noted that the relevant SoP in this matter is Instrument No 83 of 1995, concerning hypertension, further finds that factor 1(b) of this SoP is satisfied, in that the Applicant did suffer from alcohol abuse involving an average daily consumption of alcohol, before, and continuing at least until, the accurate determination of hypertension. The Tribunal therefore concludes that a reasonable hypothesis is established.
Further, the Tribunal finds that the Respondent has not disproved, beyond reasonable doubt, facts which constitute the hypothesis. Nor has the Respondent proved, beyond a reasonable doubt, any other facts in the material inconsistent with the hypothesised connection to war service, which would disprove beyond reasonable doubt, the hypothesis.
special rate pension
In considering this issue, the Tribunal notes the following facts:

(a) the Applicant was retrenched from his last place of work on 8 November 1996. For the previous 18 months the Applicant had been working on the surface of the colliery because of work related knee conditions. These conditions were not the cause of, or related to, the reasons for the Applicant's redundancy;

(b) on 10 December 1996 Dr Nichols, the treating psychiatrist, considered the Applicant to be "totally and permanently incapacitated for all forms of remunerative employment and… unsuited for rehabilitation" (T10, p52);

(c) on 19 December 1996, Ms McCall, a Consultant Psychologist at the Commonwealth Employment Service, concluded that the Applicant was "not capable of sustaining employment" (T10, p57);

(d) on 21 November 1996, the Applicant was granted a service pension on grounds of permanent invalidity (T42);

(e) a Special Rate pension was granted on 2 April 1998 with date of effect being 24 February 1997 (T14);

(f) a Special Rate pension was ceased with date of effect being 26 August 1999 (T19);

(g) after retrenchment on 8 November 1996, the Applicant sought work by ringing various mine managers seeking occupational health and safety work activities, but was not successful. Even if he had been successful, the Applicant believed he would not have passed the necessary medical examinations. The Applicant stated that he continued to search for work until granted a special rate pension in 1998, although he did make some inquiries when his special rate pension was withdrawn in August 1999;

(h) Dr Carne, in his report dated 14 November 2000, in noting the Applicant was employed up to 8 November 1996, considered that the Applicant was unemployable at the time of his examination on 22 September 2000. Dr Carne also stated that his findings were consistent with those of Dr Nichols and Ms McColl, the only difference being that Dr Carne believed his psychiatric symptomatology arose from alcohol dependence. However, Dr Carne noted that it was difficult to distinguish between symptoms of alcohol dependence and symptoms of anxiety from other causes (Exhibit R5);

Dr Dinnen, in his report dated 14 July 2000, stated his belief that the Applicant is not capable of working more than 8 hours per week because of his post-traumatic stress disorder and alcohol abuse (Exhibit A3); and

(j) at the particular time in question, namely 19 August 1999, and following earlier findings made by the Tribunal in its review of this matter, the Applicant was suffering from the following diseases/injuries which the Tribunal considered to be war-caused:

post-traumatic stress disorder;
alcohol abuse;
hypertension;
ischaemic heart disease;
diabetes mellitus;
bilateral hearing loss with tinnitus.

In noting the statutory framework defined within section 24(1) and (2) of the Act, the Tribunal finds that the Applicant satisfies section 24(1)(a)(i) in that his rate of pension at the time was 100 per cent of the General Rate; that the Applicant satisfies section 24(1)(b) of the Act in that the Applicant was permanently incapacitated from his war-caused diseases/injuries alone, as evidenced by the reports of three psychiatrists, Drs Nichols, Carne and Dinnen and the psychologist, Ms McColl. Further, it is noted that the Applicant was granted a service pension on grounds of permanent invalidity on 21 November 1996. While it was noted In the evidence that the Applicant had been transferred from below ground to surface work in his last 18 months of employment due to work related knee injuries, the Tribunal finds that the Applicant's past knee injuries were not a reason for his retrenchment in 1996, nor did they prevent him from undertaking employment. Further, the Tribunal finds it is evident from the reports of the three psychiatrists nominated, and the psychologist, that the Applicant is unable to undertake remunerative work aggregating more than eight hours a week, and that this is attributable to his war-caused disabilities alone.
In considering section 24(1)(c) of the Act, as further defined by section 24(2), the Tribunal finds that the Applicant left his last place of employment for reasons unassociated with incapacity from war-caused diseases or injuries, as it is clear that he was made redundant. However, it is evident to the Tribunal that by late 1996 the Applicant had been found to be unfit for any work, by both Dr Nichols and Ms McColl, and that this arose as a consequence of his war-caused post-traumatic stress disorder and other accepted disabilities. The Tribunal also notes the opinions of Drs Carne and Dinnen in this regard and concludes, having also noted that the Applicant was granted a service pension on grounds of permanent invalidity on 21 November 1996 by the Respondent, that the Applicant was prevented from continuing to undertake remunerative work from 24 February 1996 by reason of his incapacity from his war-caused injuries/diseases alone. In making such a finding, the Tribunal was guided by the Full Court in Banovich v Repatriation Commission (1986) 69 ALR 395 where at 402 the Court states:
"It follows that a member's loss of particular employment for a reason unrelated to a war disability would never destroy a member's subsequent entitlement to claim a special rate pension; the question would remain at the relevant date for determination of a claim, whether the member was prevented by his or her war-related incapacity -–and by that incapacity alone – from continuing in that field of remunerative activity."
In further addressing section 24(1)(c), as further defined by section 24(2) of the Act, the Tribunal notes the Respondent's argument that the Applicant left his place of last employment for reasons unrelated to his incapacity arising from his war-caused disabilities. In turn, however, the Tribunal accepts that the Applicant did seek further employment in the occupational health and safety area in mines, and continued to do so up to the granting of Special Rate pension, despite being granted a service pension on grounds of permanent invalidity on 21 November 1996. The Tribunal recognises that the Applicant was of the opinion that even if he was successful in gaining such employment, it was unlikely that he would have passed any necessary medical examination for such employment. As such, the Tribunal finds that the Applicant's incapacity from his war-caused disabilities was the substantial cause of his inability to obtain remunerative work in which to engage. In so finding, the Tribunal again notes and adopts the reasoning of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539, where he states in a decision relating to special rate pension:
"It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."
As a consequence of the Tribunal's findings, the Tribunal concludes that the Applicant's incapacity from his war-caused injuries/diseases alone prevented him from continuing to undertake remunerative work, and that he suffered a loss of salary or wages, or of earnings on his own account, by reason of that incapacity. While it was argued that he ceased to engage in remunerative work because of his redundancy, it is evident to the Tribunal that the Applicant, while further seeking to secure remunerative work, was unable to do so due, substantially, to his incapacity. In summary, the Tribunal finds that the Applicant satisfies section 24(1)(c), as further defined by section 24(2), and in particular section 24(2)(b) of the Act.
In final comment, the Tribunal further addresses the issue of the manner in which the section 31 review was approached. As already indicated, it is the Tribunal's appreciation that the section 31 review must operate within the powers nominated and for reasons associated with the presentation of new material, which was not available at the time of the primary decision. In noting the beneficial nature of the legislation and the specific purposes and powers associated with a section 31 review, the Tribunal would sense considerable unfairness to a veteran where he has presented evidence in good faith, a decision has been made to accept his particular conditions as war-caused injuries/diseases and then the decision is revoked some years later. By virtue of such revocation, the initial primary decision becomes a legal nullity and the veteran would then have his primary claim adjudged against the legislation, including Statement of Principles in existence at the time of the new primary determination. As indicated earlier in this decision, a section 31 review can only deal with circumstances and matters nominated in section 31 of the Act, and the remedies available to the Respondent relate essentially to pension variation, cancellation or suspension. Further, the Tribunal is of a view that such a review, where it relies upon a section 31(6) power can only occur where the matter in question has not already been before the Commission, and clearly, in this matter, it had been before the Commission at the time of primary determination.
It is for these reasons that the Tribunal concluded that the two decisions under review are ultra vires and void ab initio. Further, the Tribunal concludes that it is not possible to void only those parts of the decisions that related to revocation and further determinations as to what, or was not, accepted as a war-caused disability, because the decisions determined a rate of pension by taking into account matters improperly determined by those parts of the decision which were ultra vires. As a consequence, the Tribunal finds that the Applicant should continue to be paid at a Special Rate of pension from 24 February 1997 and continuing without interruption.
In further findings, in case it could be argued that the issue of pension determinations contained in the two decisions under review, could be perceived as being able to be separated from the remaining elements of the decision which have been found to be ultra vires, the Tribunal has concluded that the diseases of post-traumatic stress disorder, alcohol abuse and hypertension are war-caused. In relation to post-traumatic stress disorder and hypertension the date of acceptance of those two conditions are the dates on which they were originally accepted, that is, the dates of the respective primary determinations made by the Respondent. As alcohol abuse has already been determined by the Tribunal to be a war-caused disease, and as the disease of alcohol abuse is intricately associated with the disease of posttraumatic stress disorder, the date of acceptance for the disease of alcohol abuse must be the date on which post-traumatic stress disorder was first accepted, as the section 31 review was indeed a review of the primary determination. In relation to pension entitlements, the disease of alcohol abuse has already been factored into assessments in relation to the post-traumatic stress disorder. As such, the Tribunal does not alter either of the primary determinations which determined a pension rate for post-traumatic stress disorder and hypertension, in association with other accepted war-caused disabilities. Nor does the Tribunal alter other determinations of pension rate entitlement, up to and including the entitlement to payment of disability pension at the Special Rate determined by the VRB on 2 April 1998, with the date of effect being 24 February 1997. As a consequence, the Applicant should continue to be paid disability pension at the Special Rate with the date of effect being 24 February 1997 and continuing without the disruption caused by the review process. In essence, this means that payments should recommence from 26 August 1999.
determination
The Tribunal determines that the two decisions under review are set aside for the reasons nominated in this decision and in substitution therefor determines that:

(a) The Applicant's diseases of post-traumatic stress disorder, alcohol abuse and hypertension are war-caused. The date of acceptance for posttraumatic stress disorder and alcohol abuse is the date of acceptance by the Respondent of the disease of posttraumatic stress disorder - 26 September 1995, with date of effect being 10 February 1995, and for hypertension - the 25 March 1996, with date of effect being 10 February 1995; and

(b) The Applicant is entitled to the payment of a disability pension at the Special Rate, with the date of effect remaining 24 February 1997. The Tribunal, in turn, acknowledges that payment at the special rate has been made to the Applicant from 24 February 1997 to 25 August 1999.

I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of DR J CAMPBELL, Member
Signed: R Quinn    .....................................................................................
  Associate
Date/s of Hearing  5 April 2001
Date of Decision  15 October 2001
Solicitor for the Applicant         Mr Dawson
Solicitor for the Respondent    Mr Marsh