Ian Keith Craine and Repatriation Commission - [2012] AATA 221

[2012] AATA 221

Division	VETERANS' APPEALS DIVISION
File Number(s)	2010/0550
Re	Ian Keith Craine
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member John Handley, Senior Member
Date	17 April 2012
Place	Melbourne

The Tribunal affirms the decision under review.

(sgd) John Handley

Senior Member

VETERANS AFFAIRS – operational service – multiple hypotheses – posttraumatic stress disorder, alcohol dependence and hypertension ‑ service with Royal Australian Navy in South Vietnam – fear of mortar attack – perception of being responsible for deaths onshore by missiles and interdiction fire from HMAS Brisbane – applicant did not suffer category 1A or 1B stressors – hypotheses not upheld by Statements of Principles – decision affirmed

LEGISLATION

Veterans' Entitlements Act 1986 ss 120, 120A, 196B

CASES

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Hunter v Repatriation Commission (2010) 114 ALD 89
Repatriation Commission v McKenna (1998) 52 ALD 72

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

Senior Member John Handley

Mr Craine, the applicant in these proceedings, was a member of the Royal Australian Navy (the Navy) between 1 July 1966 and 30 June 1986. He is presently 62 years of age and receives pension at 60 per cent of the general rate.
The applicant contends that the conditions of post-traumatic stress disorder (PTSD), hypertension and alcohol dependence arose out of two limited periods of operational service. The Repatriation Commission on 12 March 2009 and the Veterans’ Review Board (VRB) on 11 November 2009 respectively, found against him. The applicant challenges those decisions by this review and he seeks acceptance of the claimed conditions as war-caused.
Evidence was heard from the applicant and his wife, Neville Hoey who served on HMAS Brisbane (Brisbane) with the applicant, retired Commodore Philip Mulcare (who was engaged by the Writeway Research Service Pty Ltd), Darryl Dunlop who was formerly a Leading Seaman and the operations room supervisor on-board Brisbane and Captain Graeme McKinnell who was a Lieutenant and bombardment control assistant on-board Brisbane during the relevant period of the applicant’s service.
The applicant was represented by Mr Thompson and the respondent by Mr Brown. A number of documents were received into evidence and will be referred to later in these reasons. A number of medical reports and clinical records were also received into evidence. The authors of those reports and records were not called to give evidence.

SERVICE HISTORY

The applicant first went to sea on-board HMAS Sydney (Sydney) in 1966. During that voyage he said that he was directed to remove and relocate decomposing human body parts which were stored within a black plastic bag in the officer’s showers and toilets. He was then required to clean the area where human blood and tissue was present. In 1969 the applicant was a member of the crew of HMAS Vampire (Vampire) and was engaged in the search for bodies following the collision between HMAS Melbourne and the US vessel Frank E. Evans. He did not observe bodies or body parts. The applicant said that both of these incidents were unsettling and did upset him but he did not regard them as causing any long term effect.
The first period of operational service occurred between 14 May 1969 and 25 May 1969. The applicant was then a member of the crew of Vampire which escorted Sydney from Indonesia to Vung Tau and return. That journey was the first occasion the applicant had ever been in a war zone. He said that he had an expectation of being shot at, he had heard that depth charges were placed in the water and a good deal of time was spent at action stations (Transcript, p17). For the next 2 years, until March 1971, the applicant said that his mental condition was normal. During that time, he was engaged in duties at sea and onshore where he also played a lot of sport. He said the experience of service in May 1969 had no effect on me really (Transcript, p18).
The second period of operational service occurred between 16 March 1971 and 11 October 1971. The applicant was then a member of the crew of Brisbane. He was engaged as a radar plotter. The applicant contended that events which occurred during that period of service were responsible for the claimed conditions.

SERVICE EVENTS

Risk of attack

The applicant said that he perceived being at risk during the second period of operational service. He said that the Australian vessel HMAS Hobart had previously travelled into Vietnamese waters and had been missiled by an American helicopter resulting in 3 casualties. Whilst on-board Brisbane, despite being located within a couple of miles of the coast, he said it was possible that small arms originating onshore could have reached his vessel, although he did acknowledge that it was highly unlikely. He said that he could hear ammunition going off all the time and at night the sky looked as if fireworks were being set off (Transcript, p18).
In cross-examination the applicant said there was an occasion when Brisbane was travelling in the Qua Viet River and a broadcast was heard over the PA system that mortars were being fired from shore towards the ship. He understood that the broadcast was an alert. He also understood that it was not considered that Brisbane was under fire and the mortars were falling short. However, the applicant said he understood that whilst Brisbane was not being fired at, because it had been firing onto shore, there was a natural reflex to expect people to be firing back. He acknowledged that there were no records of Brisbane being fired upon and as far as he knew, never sustained a direct hit (Transcript, p55).
Mr Mulcare said that he did not ever detect, from any records inspected by him, that any Royal Australian Navy ship came under fire in South Vietnamese waters. He said that Brisbane generally stayed at least 5000 yards offshore. In his experience, mortars were not renowned for their accuracy and had a range of up to 3000 yards only. He said that rockets had a much longer range but they were not set up to fire at the ships. Mr Mulcare explained:
The ship was a moving target and they didn't have artillery or anything that could fix onto a moving target at sea. So they really weren't threatened by enemy artillery which was a comparatively short range compared with ships’ guns…. (Transcript, p18)
Captain McKinnell was on-board Brisbane throughout 1971. He said that it was never the subject of rocket or mortar attack. He said one of the reasons that Brisbane always remained at least 5000 yards off the coast was to have it positioned out of range of weapons understood to be held by the Vietcong (Transcript, p44).

Radar plotting

The applicant’s work on-board Brisbane was in the operations room where he was plotting aircraft within 100 miles of the ship. At any one time up to 50 aircraft would be in the air. It was assumed that they were American or South Vietnamese aircraft. His duties in the operations room and the presence of aircraft overhead contributed to the risk he perceived. Predominantly, the concern experienced by the applicant was his involvement in receiving (from a spotter on shore or in the air), the coordinates for an intended bombardment. The applicant was required to record that information and convey it to a gunnery officer.
The applicant and his witness Mr Hoey explained in evidence that Brisbane was deployed as a gun line ship. It was engaged in the firing of missiles onto enemy locations on shore. Those locations were communicated to Brisbane by a spotter who had detected or located enemy persons. Co-ordinates were fed into a computer on-board Brisbane which made calculations of the range and direction of the mortar which would shortly thereafter be discharged to those locations. The spotter also notified if there was any risk to civilians or allied forces (Transcript, p18, 52-55, 63-68, 72-74, 77-88).
Mr Dunlop said in evidence that the spotter is a person who was either onshore or in an aeroplane and was the connection between ship and shore (Transcript, p 27). He explained that the role of the spotter was to:
…identify a target and then call that target through to the ship, identifying the target by a number, and identifying the target as far as friendly troops may have been concerned or any civilian villagers that may have been around the place for danger (Transcript, p 27).
Mr Dunlop said that the first call for fire, if danger was perceived to civilians or allies, was accompanied by the word danger which would cause persons operating firing mechanisms on-board Brisbane to fire 750 m away from the intended target and then walk the shells into the target by corrective calls…(Transcript, p28).
The applicant said that Brisbane also discharged interdiction fire at night to either halt or disrupt enemy movement or the transfer of enemy weapons or supplies. Mr Dunlop said that interdiction fire was at random and was not observed. He said shooting was aimed at known choke points within an area to prevent the enemy from using a particular track, pathway or gathering area (Transcript, p32). He said a choke point is a passage which funnels through a particular area. He acknowledged that no one could be certain whether a civilian would pass through those areas however the choke points were known areas of transit for NVA and Vietcong personnel (Transcript, p32).He said that harassment or interdiction fire was conducted at night, local civilian villagers were unlikely to be present and they would have been subject to a curfew.
The applicant said, during his training prior to deployment on Brisbane, that precautions were implemented to avoid civilian casualties and it was assumed that there would not be any danger, actual or perceived, to civilians. However, the applicant had access to a number of charts and maps which, when the coordinates were plotted, suggested to him the presence of buildings and other installations which caused concern that civilians and allied forces would be at risk. The applicant also recalled an occasion of mortar being discharged when a colleague walked through the operations room and apparently, without expressing any cause for concern, said words to the effect great, a village full of burning – burning babies (Transcript, p19 and 54). The applicant acknowledged that he had no knowledge of any report of civilian casualties.
Mr Mulcare said he did not locate any report of any civilian or allied deaths or injuries. He said that it would be quite fair to assume that the reports given by spotters of casualties would be of enemy persons. He said there was no record of any ship being advised that there was any uncertainty about casualties (Transcript, p21). He acknowledged that interdiction or harassment fire, sometimes up to 7 nautical miles off Brisbane, would have been unobserved by a spotter. There would not have been any reports of any persons – civilian, allied or enemy – being injured or killed as a consequence of those operations (Transcript, p15).
Mr Dunlop said that he had no memory of any report of civilian or allied casualties. He said persons on-board Brisbane had to take trust in the spotter, who is calling this stuff in, because he is in the vicinity and he knows what local movements are… He did not agree with a proposition put to him in cross-examination that it was highly likely that civilians were being caught up from time to time in the shelling. He said we were not given targets which were not legitimate. I don't believe that we fired on civilians (Transcript, p36).
Captain McKinnell said that in the discrete areas of Vietnam where we were firing, the civilian population had essentially left, other than, of course, the Vietcong (Transcript, p42). He acknowledged that some of the maps and charts they were using would have been based on surveys conducted in the 1920s or the 1930s. Nonetheless, they did depict towns, roads and bridges. When he was asked whether a commanding officer on‑board Brisbane ever asked a spotter to confirm the absence of a village within the coordinates that were relayed, he said he vaguely recalled an occasion where such confirmation was sought however that was a pretty rare instance because in [those] areas they were basically uninhabited (Transcript page 42 – 43).
In cross-examination Captain McKinnell said that one of the reasons discrete areas of the South Vietnam were the subject of bombardment was because they were uninhabited by civilians. He said all members of the crew of Brisbane would not have been aware of that information which was received only at officer level. He agreed that a person operating the radar plot and receiving instructions from a spotter would not have had knowledge that the areas subjected to bombardment were uninhabited by civilians (Transcript, p47 – 48).
In his statement of 3 August 2011, the applicant said:
…I still did not stop loathing myself for being personally involved in the bombardments and was frightened I had directly contributed to the deaths and injuries of innocent civilians (Exhibit A4 at [6]).
In his undated statement (Exhibit A3 at [8]), the applicant recorded that he:
… was convinced that people were being killed or injured. I was shocked and horrified by this awareness and I felt helpless that I couldn't do anything about it.
The applicant explained in evidence that his reaction to service in South Vietnam was to consume alcohol, which he described as self-medication. He said that when he analysed his situation, he would conclude that he was personally responsible for … causing innocent deaths in Vietnam (Transcript, p21). It became obvious that the applicant was referring only to the deaths (as he perceived) of civilians and allied forces. When he was asked to describe his reaction to the known deaths of enemy forces in or around the demilitarised zone, he said (Transcript, p 67):
I was comfortable with that because there were no civilians in that area, so any personnel that we’re shooting at there were North Vietnamese or people trying to infiltrate to the South … I had no problem with that. It's when we’re in the southern part where there was, you know, sort of countryside and the, you know, sort of farmers around that we were shooting into.
Mr Hoey said that he recalled occasions where the applicant had said to him, during periods of service on-board Brisbane, words to the effect I just wonder where our shots are falling. He said that the applicant had concerns that there were civilians that were on the receiving end of them. He actually believed that (Transcript, p77).
The applicant said that reports of enemy deaths and injury gave him a wake up call … a reality check, of the consequences of the attacks on the mainland. The applicant reaffirmed and Mr Hoey agreed that they did not ever hear, learn or receive any report of civilian or allied casualties (Transcript, p66 and 81). If a spotter reported the presence of friendlies (allied soldiers), the co-ordinates were adjusted from the Brisbane to eliminate risk.

Fisherman washed from a raft

In his evidence, the applicant also attributed his claimed conditions to an incident where he observed a fisherman washed from a bamboo raft on an occasion when Brisbane was travelling at speed. That incident occurred when the applicant was having a break from duties in the operation room and was standing with others on the port side of the ship. He said Brisbane produced large bow waves when travelling at speed which were responsible for washing the fisherman from his raft. He said some of his colleagues laughed and thought that it was a huge joke. The applicant said that he felt totally disgusted (Transcript, p23).
The applicant said that he did not know whether the fisherman survived the incident, he was not aware that anyone was concerned about his welfare nor did the Brisbane turn around to check on that person (Transcript, p23).
Mr Mulcare reported that he understood the applicant was on the bridge as a helmsman during the passage to Point Virginia when he observed the fisherman who he believed had been washed off his bamboo raft by bow waves of Brisbane. Mr Mulcare reported that fishing structures built of bamboo were only used in shallow waters near to the shore (Exhibit R1 at [17] and Transcript p17). He also reported that Brisbane was then travelling at about 10 knots and it had a draught of about 6m. He reported that fishermen on bamboo rafts would not have been operating in water of those depths, but would have been in shallow water closer to shore (at [18]).
In cross-examination, Mr Hoey said there were a number of occasions where wiblicks (waterborne logistic craft) were operating along the South Vietnamese coast during the night. They were disguised as bamboo fishing structures and they were suspected of being camouflaged to convey enemy persons. Crew members of Brisbane adopted a take no prisoners attitude to those vessels (Transcript, p83).

THE CLAIMED CONDITIONS

Treatment and management of the applicant's psychiatric illness has principally been undertaken by Dr Velakoulis who first saw the applicant in January 2008 on referral from Dr Moffitt, the applicant’s treating general practitioner. Dr Velakoulis referred the applicant to the Repatriation Hospital where he was a day patient between 5 May 2008 and 22 July 2008. A primary diagnosis on admission to that facility was of PTSD and alcohol abuse.
Dr Velakoulis has written four reports dated 2 November 2008, 14 April 2009, 17 September 2009 and 6 October 2010. Those reports were written to Dr Moffitt, Mr Pace, the applicant’s advocate before the VRB and to Mr Liefman, his solicitor. In all of the reports, he has diagnosed the applicant as suffering from PTSD. He obtained a history from the applicant of events in service before and during the two periods of operational service. He reported the applicant had some symptoms of PTSD during the early stages of his service but which had settled. He thought that PTSD was reactivated by the events during the 2nd period of operational service.
The applicant was examined by Professor Graham Burrows, a practising psychiatrist at the request of the respondent. He also diagnosed PTSD. Consistent also with the opinions expressed by Dr Velakoulis, he obtained a history of some events during the early part of the applicant’s service with the Navy which he thought were PTSD in nature but which had settled. Having obtained a history of events during the second period of operational service, he also thought the earlier symptoms were reactivated.
Both Dr Velakoulis and Professor Burrows diagnosed the PTSD suffered by the applicant as chronic.
Whilst he was a patient at the Repatriation Hospital, the applicant was under the care of Dr Hassan, a practising psychiatrist. In a report of 2 June 2008, she also diagnosed the applicant as suffering from PTSD. In a claim form lodged on17 December 2008, Dr Moffitt diagnosed PTSD with anxiety attacks.
In his first report of 2 November 2008, Dr Velakoulis noted that the applicant did have some depressive symptoms but which had not reached clinical significance (T4, p126). In his second report of 14 April 2009, he found that the symptoms of depression did not currently meet the criteria for Major Depressive Disorder. In his last report of 6 October 2010, Dr Velakoulis recorded the applicant’s symptoms of depression did not meet the DSM‑IV diagnosis for major depressive disorder.
There was no dispute about diagnoses and the parties agreed that the applicant suffers from PTSD, alcohol dependence and hypertension. The parties’ representatives agreed not to call medical evidence at the hearing and they relied on the reports and the clinical notes which had been filed. In those circumstances, in the absence of oral evidence from the doctors and having regard to the contents of their reports and clinical files, I am satisfied on the balance of probabilities that the applicant does suffer from PTSD.

In his third report of 17 September 2009 Dr Velakoulis diagnosed the applicant as also suffering from alcohol dependence. Professor Burrows made a similar diagnosis in his report of 18 May 2011. Whilst I note that the records from the Repatriation Hospital record a diagnosis on admission of alcohol abuse, I am satisfied, having regard to the contents of the reports of Dr Velakoulis and Professor Burrows (especially the history of treatment of the applicant by Dr Velakoulis) that the appropriate diagnosis, on the balance of probabilities, is alcohol dependence.
The clinical records clearly indicate that the applicant does suffer hypertension and is being treated for it. I am satisfied that condition does exist.

LEGISLATIVE FRAMEWORK

Section 120 of the Veterans’ Entitlements Act 1986 (the Act) provides that a disease or injury will be war-caused unless the decision-maker is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a Statement of Principles (SoP) in force that upholds the hypothesis.
In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Court of the Federal Court set out four stages of analysis to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act.

Is there a reasonable hypothesis?

In Deledio, the Full Court stated that the first stage requires the Tribunal to determine whether the material before it points to a hypothesis connecting the particular injury or disease to the circumstances of the veteran’s service. A finding of fact is not required at this stage nor is there any requirement to determine whether the hypothesis is reasonable.
The applicant has advanced two hypotheses connecting his injuries or diseases to his operational service, namely:
(a)Service à PTSD à alcohol dependence à obesity à hypertension
(b)Service à Alcohol dependence à obesity à hypertension.
The applicant confined his case to the events while on-board Brisbane during the second period of operational service (Transcript, p5). On the material before me in these proceedings, I am satisfied that the material points to a hypothesis connecting the applicant’s claimed conditions to his service. Therefore, the first stage of analysis is satisfied.
The second Deledio stage requires me to ascertain whether there is a SoP in force. The Tribunal is obliged to determine the application by regard to a SoP in force at the date of decision. If the current SoP upholds the hypothesis consideration will extend to whether it is disproved beyond reasonable doubt. However, an applicant has an accrued right to have an application determined under an earlier SoP existing at or made after the date of the primary claim, even though it has subsequently been revoked or amended (Repatriation Commission v Gorton (2001) 110 FCR 321 at [42-43]). The reasonableness of a hypothesis, that is, whether it is upheld by a SoP is determined at a later stage of Deledio. The applicant made his primary claim on the respondent for acceptance of the claimed conditions on 17 December 2008.
I am satisfied that the Repatriation Medical Authority has issued a number of SoPs applicable to the hypotheses advanced by the applicant, namely:
(i)Instrument N°5 of 2008 concerning PTSD (currently in force with effect from 9 January 2008);
(ii)Instrument N° 1 of 2009 (currently in force with effect from 14 January 2009) and N° 17 of 2008 (date of effect 5 March 2008) concerning alcohol dependence and alcohol abuse; and
(iii)Instrument N° 35 of 2003 concerning hypertension (date of effect 20 August 2003) as amended by Instrument N° 3 of 2004 (date of effect 3 March 2004) and N° 11 of 2008 (date of effect 9 January 2008).
Having identified the relevant SoPs, the third stage in Deledio requires the Tribunal to determine whether the hypotheses are reasonable. They will be reasonable if they are consistent with the template of a SoP. The hypotheses must contain one or more of the factors which the RMA has determined must exist as a minimum and be related to the person’s service.
The applicant relies on factors 6(a) or (b) or (e) or (f) of the Instrument N° 5 of 2008 concerning PTSD. The relevant factors are reproduced as follows:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
(e)experiencing a category 1A stressor before the clinical worsening of posttraumatic stress disorder; or
(f)experiencing a category 1B stressor before the clinical worsening of posttraumatic stress disorder;
Paragraph 9 of the SoP concerning PTSD provides that a category 1A stressor means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
Paragraph 9 provides that a category 1B stressor means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties.
An eyewitness is defined within paragraph 9 as:
…a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident.
In relation to his alcohol dependence, the applicant relies on factors 6(a), (b) and (c) of Instrument N° 1 of 2009 which is the current SoP concerning Alcohol Dependence. Those factors are also found within the instrument existing at the date of claim, namely Instrument N° 17 of 2008.
Factors 6(b) and (c) are in identical terms to the factors involving category 1A and 1B stressor found within the PTSD instrument and reproduced above, save that in the SoP concerning alcohol dependence there is a reference to those stressors being experienced within 5 years before the clinical onset of alcohol dependence or alcohol abuse. The definitions of a category 1A and 1B stressor are also identical to the definitions within the PTSD instrument. The definition of eyewitness is also identical.
Factor 6(a) of Instrument N°1 of 2009 is in the following terms:
…having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse.
Paragraph 9 of each instrument concerning alcohol dependence defines the expression a clinically significant psychiatric condition (in terms which need not be reproduced). The condition of PTSD would be embraced by it.
The applicant relies on factor 5(a) and (b) of the SoP concerning hypertension. Factor 5(a) provides being obese at the time of the clinical onset of hypertension. Factor 5(a) in the principal instrument has not been amended by the two subsequent instruments.
Factor 5(b) in the principal instrument refers to the consumption of a defined quantity of alcohol at the time of clinical onset of hypertension. The two subsequent instruments amend that factor only with respect to a quantity of alcohol consumed and also impose a period of time within which that quantity is consumed prior to the clinical onset of hypertension.
The hypotheses raised by the applicant contain one or more factors found within each of the relevant SoPs. Therefore, the hypotheses are reasonable.
The fourth and final stage of Deledio requires an enquiry into whether the Tribunal can be satisfied beyond reasonable doubt that the claimed conditions did not arise out of service. It is at this stage only that findings of fact must be made. If the Tribunal is not satisfied that the claimed conditions did not arise out of service, the application will succeed.
In Hunter v Repatriation Commission (2010) 114 ALD 89 Perram J examined the SoP applicable in these proceedings, namely Instrument N° 5 of 2008 and compared it with its predecessor. His Honour concluded at [22] that the instrument presently in force (and being the only SoP applicable since the date of claim):
…required the presence of a category 1A or 1B stressor which were defined in a materially different way to the SoP with which the present appeal is concerned … It suffices instead to observe that the later SoP requires the claimant to have come, in effect, face to face with some species of peril. The earlier SoP could be satisfied if a claimant were “confronted” with a peril which this court has held includes being confronted “in the mind.”
The applicant did not come face-to-face with some species of peril.
Whilst I am satisfied that the applicant does suffer from PTSD, for reasons which follow, I am not satisfied that he meets the definition of a category 1A or a category 1B stressor within the relevant SoP.
The applicant contended that the three circumstances of service that gave rise to PTSD were:
(a)risk of mortar attack;
(b)deaths of civilians or allied forces; and
(c)a fisherman being washed from his raft.

Category 1A stressors

The applicant contended that as a member of the crew of Brisbane, he experienced a life threatening event because he was at risk of attack from mortars or rockets propelled from onshore. The evidence heard in this proceeding indicates, and I am satisfied and find as a fact, that having regard to Brisbane’s location offshore, any discharge of weapons from onshore would not have reached Brisbane.
In Border v Repatriation Commission (No 2) (2010) 191 FCR 163 at [67], Reeves J concluded that it is the effect of the event and not the threat itself that has to be assessed. His Honour decided that when enquiring into whether a veteran experienced a life-threatening event:
… it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subparagraph (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death.
There is nothing from the evidence which would satisfy me on the probabilities that the applicant did experience, from actual events, that his life was threatened. There was no evidence of any attack upon Brisbane nor was any record found by any of the witnesses of such an attack. His perceived risk of attack from mortars does not qualify as experiencing a life threatening event and therefore, does not satisfy that part of the definition. There must be an actual event constituted by an attack. No such event occurred.
Neither the fear of deaths of civilians or allied forces nor the episode involving the fisherman attracts any of the elements of category 1A.
There was no evidence, nor was it contended, that the applicant was subject to a serious physical attack or assault; or that he was threatened with a weapon, held captive or kidnapped. Therefore, he does not satisfy the remaining category 1A stressors as defined in the PTSD SoP.

Category 1B stressors

Consideration of the definition of a category 1B stressor and the evidence before me, satisfies me that the applicant was not an eyewitness to a person being killed or critically injured; he did not view corpses or critically injured casualties as an eyewitness; he was not an eyewitness to atrocities inflicted on another person or persons and he was not an eyewitness to or participate in the clearance of critically injured casualties.
The word eyewitness is well understood. It is also defined within the PTSD instrument (and reproduced above). The applicant was not an eyewitness as that word is commonly understood. Additionally, he does not satisfy the definition of that word because he was not a person who observe(d) an incident first-hand and can give direct evidence of it. There was no evidence of any incident, being a reference to any of the events embraced by a category 1B stressor.
The applicant said that he believed that he was putting the lives of civilians and allied forces at risk onshore by his involvement on Brisbane as a radar plotter. He said that his observation of maps and charts indicated the presence of buildings and other structures which were likely to be inhabited by civilians. He also said that the interdiction firing would have exposed civilians and allied forces to risk. I am satisfied and find as a fact that he did hold those beliefs and consequently, reacted to them. However, having regard to the evidence of Captain McKinnell, I am not satisfied that this qualifies as a 1B stressor.
Captain McKinnell said that the areas into which Brisbane fired mortar and other weaponry had been cleared and were uninhabited. Indeed, he said those areas were the subject of firing because they were known to be cleared of civilians and allied forces. He also said that was known by officers. Unfortunately, it was not known by other members of the crew, including the applicant. The tragedy of this review is that had the applicant known that uninhabited parts of South Vietnam were the subject of attack by Brisbane, he may not have reacted as he described in evidence.
The applicant also contended that a fisherman washed from a raft contributed to his PTSD. For reasons which follow, I am also satisfied that it does not constitute a category 1B stressor. Although Mr Mulcare reported that such rafts were used in shallow water closer to shore, the applicant said he did observe a fisherman being washed from his raft. He was therefore an eyewitness to that incident but there was no evidence that the fisherman was killed or critically injured being one of the qualifying elements within the definition of a category 1B stressor.
The remaining element within category 1B, as defined, is killing or maiming a person. This is the only part of 1B which does not require being an eyewitness. The statistical evidence heard in these proceedings was of six and possibly eight enemy persons killed by the activities of Brisbane. The applicant specifically distinguished his reaction to his perception of the deaths of civilians and allied forces from the deaths of enemy forces. There is nothing from his evidence nor from the contents of medical reports, that the applicant reacted to the death of enemy forces – indeed there is no evidence that he knew of them – which would be responsible for him suffering PTSD.
There was no evidence of civilians or allied forces killed or maimed by missiles discharged from Brisbane either in response to plotters or by interdiction fire. This remaining part of category 1B is not satisfied.
The risk of mortar attack on Brisbane as described by the applicant earlier, does not meet any of the elements of category 1B.
I am therefore not satisfied that any of the three events contended by the applicant satisfy any of the elements of the category 1B stressor as defined.
Whilst I am satisfied that the applicant does suffer from PTSD and it has been properly diagnosed, I am satisfied beyond reasonable doubt that PTSD is not war-caused. It therefore follows that the hypothesis of connection between service and PTSD must fail.
These findings apply irrespective of whether the applicant experienced a category 1A or 1B stressor before the clinical onset or the clinical worsening of PTSD.
The alternative hypothesis advanced by the applicant is of service related alcohol dependence which in turn precipitated obesity and hypertension, as a consequence.
Relevant factors for alcohol dependence also include category 1A or1B stressors. They are the same stressors that are found within the PTSD SoP and are defined in identical terms. Consequently they have no relevance at this part of the review because the applicant cannot satisfy either of them.
The other factor of relevance in the SoPs concerning alcohol dependence is factor 6(a) namely, having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse. Relevantly, a clinically significant psychiatric condition is, in the circumstances of this review, the condition of PTSD which I have found to exist on the balance of probabilities. However, it does not follow that factor 6(a) is satisfied only because the relevant clinically significant psychiatric condition exists.
A hypothesis which connects an injury or disease suffered by a person with the circumstances of service will only be reasonable if there is a SoP in force that upholds the hypothesis (s 120A(3)(a) of the Act). The factor must also be related to service (s196B(2)(e) of the Act). The hypothesis of connection between service and alcohol dependence probably does not pass the third Deledio stage because the whole of a hypothesis, made up of a number of links, must be upheld by a factor within a SoP. Put another way, it is necessary to identify whether there is in force a Statement of Principles which upholds the whole, and not just part of [the] hypothesis (Repatriation Commission v McKenna (1998) 52 ALD 72 at 80-81; upheld by the Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144).
It follows that the hypothesis with respect to alcohol dependence will only be reasonable if the condition of PTSD, that is the condition which is a clinically significant psychiatric condition, is itself upheld by a SoP.
As recorded earlier, the condition of PTSD is not upheld by a SoP. Accordingly, all the links constituting this hypothesis namely service àPTSD (the clinically significant psychiatric condition)àalcohol dependenceàobesityàhypertension is broken because the first link cannot be established.
There was mention in the medico-legal reports and clinical notes that the applicant had symptoms of anxiety, depression and major depressive disorder. Those conditions were dismissed by Dr Velakoulis and Professor Burrows as constituting an injury or disease. Instead, they preferred, and I find, those conditions did not constitute an injury or a disease in their own right, rather, they were symptoms of PTSD. Had they been established they may have amounted to a clinically significant psychiatric condition and an examination of SoPs concerning those conditions would have been undertaken.
It is for these reasons I am satisfied that the second hypothesis must also fail. Consequently, I cannot find that alcohol dependence is war-caused. As a consequence also of that finding, it follows that the condition of hypertension is not war-caused.
The decision under review will be affirmed.

I certify that the preceding 84 (eighty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member John Handley.

.............................[sgd]...........................................

Associate

Dated 17 April 2012

Date(s) of hearing	28 September and 12-14 December 2011
Counsel for the Applicant	Mr C. Thomson
Solicitors for the Applicant	Peter J Liefman
Counsel for the Respondent	Mr D. Brown
Solicitors for the Respondent	Australian Government Solicitor