La Roche and Repatriation Commission
[2003] AATA 151
•13 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 151
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/212
VETERANS' AFFAIRS DIVISION ) Re PAUL THOMAS LA ROCHE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member J.A. Kiosoglous MBE Date13 February 2003
PlaceAdelaide
Decision The decision under review is set aside, and the matter is remitted back to the respondent for reconsideration in accordance with the findings that the applicant’s generalised anxiety disorder and hypertension are war-caused. (signed)
J.A. KIOSOGLOUS MBE
(Senior Member)
CATCHWORDS
VETERANS’ AFFAIRS – operational service – whether generalised anxiety disorder and hypertension war-caused – alcohol dependence and alcohol abuse – severe psychosocial stressor – time of onset of conditions – reasonable hypothesis – relevant Statements of Principles
Veterans’ Entitlements Act 1986 sections 9, 120, 120A
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 25 of 1999Statement of Principles Instrument No 76 of 1998
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
13 February 2003 Senior Member J.A. Kiosoglous MBE 1. This is an application by Paul Thomas La Roche (the applicant) for review of a decision of a delegate of the respondent dated 11 April 2000 (T21), as affirmed by the Veterans’ Review Board (VRB) dated 9 April 2001 (T2), rejecting the applicant’s claimed conditions of hypertension and anxiety disorder as war-caused.
2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T26), together with eighteen exhibits, nine lodged by the applicant (Exhibits A1-A9) and nine lodged by the respondent (Exhibits R1-R9). In addition the Tribunal heard evidence from the applicant and Dr Martyn Robert Ewer, psychiatrist, whilst the respondent called Mr Robert K. Piper, Historian. The applicant was represented by Mr T. White of Counsel, and Mr G. Doube, a departmental advocate, represented the respondent.
issues
3. The issues before the Tribunal are whether or not the applicant’s generalised anxiety disorder (GAD) and hypertension are war-caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the Act).
4. In determining whether these conditions are war-caused the Tribunal needs to determine whether or not the applicant satisfies the relevant Statement of Principles (SoP). Instrument No 1 of 2000 pertains to GAD (T26/160), while Instrument No 25 of 1999 pertains to hypertension (T26/146), and Instrument No. 76 of 1998 pertains to alcohol dependence or abuse (Exhibit R9).
history of the application
5. The applicant was born on 15 September 1946, and served in the Royal Australian Navy (RAN) from 13 March 1965 to 12 March 1974. He rendered operational service in Vietnam aboard HMAS Sydney from 14 September 1965 until 20 October 1965.
6. On 22 February 2000 the applicant lodged a claim for the acceptance of hypertension and emotional and behavioural disorder (T5). A delegate of the respondent diagnosed hypertension and anxiety disorder, but rejected these on 11 April 2000 (T21) as being war-caused. This was affirmed by the VRB on 9 April 2001 (T2). An application was lodged with the Administrative Appeals Tribunal on 13 June 2001 (T1).
applicant’s evidence
7. The applicant joined the RAN on 13 March 1965 at the age of 18 years, and enlisted for nine years. He undertook basic recruit training. After concluding his training he was initially posted as an Ordinary Seaman on the HMAS Sydney, an aircraft carrier. His duties were general at first but he was then ranked Ordinary Communications Operator. He was limited to the communications room located in the bridge and mast area of the ship above the upper deck. He stated that whilst he had not been trained in communications, he spent most of his time in that area.
8. The applicant stated that he had been in the RAN approximately six months when he undertook his first trip to Vietnam on the HMAS Sydney.. He was 18 years of age at the time of this trip. He stated that whilst travelling there he recalled the HMAS Sydney moving in a “zig-zagging” motion. He further stated that there were destroyers in position and in particular in front of the HMAS Sydney.. He was unable to say how many destroyers there were at the time. He stated that he later learnt that there were two destroyers, one of which was the HMAS Vendetta.
9. The applicant stated that he and other crewmen were told that the ship was “zig-zagging” because there was a submarine in the area and it was not known if it was friendly or unfriendly. He stated that at the time he had no idea where the ship’s location was. He was also unable to recall how long the “zig-zagging” lasted. He further stated that at the time when told why the ship was “zig-zagging” he got very scared as he thought the ship was about to be under attack. He stated that he had not previously received any training in such procedure.
10. The applicant could recall arriving in Vung Tau Harbour in Vietnam and seeing planes and helicopters everywhere in the sky. He stated that he was amazed at just how many there were. He also stated that whilst moored in the harbour he became particularly concerned when he saw aircraft dropping bombs on the mainland in the vicinity of the hills just behind the harbour. He stated that he believed the bombs being dropped were napalm bombs, but they were never told this. He stated that he could recall seeing this whilst on lookout duty positioned above the bridge.
11. The applicant stated that there were about four to five communications areas on the ship located at different parts, and were transmitting stations as well as for aircraft communications. One of these communications rooms was under the bridge. On the occasions he was in the lookout area above the bridge he was either on lookout, or ensuring that the area was clean. He stated that the bridge was one of the highest areas on the ship. He further stated that he observed the bombing previously referred to on two to three occasions during the duration in Vung Tau Harbour.
12. The applicant stated that each of the bombings were at different times and he could recall one being during the day and another in the evening. He was unable to recall how long the bombing lasted on each occasion. When asked the distance the ship was anchored from the bombing, the applicant stated that he could not say the exact distance, but it did not seem that far. He stated that he felt the ship may have been between half to one mile from the shore. He was unable to say if he could hear the bombs dropping as there was a great deal of activity going on in the harbour with small boats and helicopters everywhere.
13. He stated that the helicopters were loading things on to the HMAS Sydney as well as transporting things to shore. He stated that barges were also being used for the purpose of transporting tanks, aircraft and trucks to shore. He stated that seeing the bombing attacks on the mainland made him feel “touchy” and “nervous”. He further stated that prior to his being on the HMAS Sydney he had never seen anything like this before, or witnessed bombs exploding.
14. The applicant stated that whilst in the harbour there was also an American destroyer anchored somewhere near the HMAS Sydney, a distance of approximately half a mile to a mile. The American destroyer was repeatedly firing shells on to the mainland for quite a while. When asked to say for how long the applicant stated that the firing of the shells was approximately five to six hours continuously on each occasion. He stated that he could hear it, and was told that the firing was levelled at the river/delta area but he did not know which particular river mouth. This American destroyer was later identified as the USS Preston, and was one mile away from the HMAS Sydney.
15. The applicant believed that the HMAS Sydney was in Vung Tau Harbour for about three days, but he was unable to recall how long the USS Preston was there for. He stated that his main concern with the USS Preston firing towards the mainland was the possibility of the enemy firing back at it, but as the HMAS Sydney was moored nearby then it too would be a prime target. He stated that this made him feel very worried, anxious and not too sure of what was going on.
16. The applicant stated that on one occasion they were in their sleeping quarters when the next moment they heard a bang, and he ran to the hatch door to get out of there, going for the upper decks. He stated that he thought it was an explosion and they were being attacked. He also stated that he was sure the sleeping quarters were below the water line. He was not able to say if all the seamen in the sleeping quarters ran for the hatch door, but he was able to say that several of them did.. After he had gotten up a few decks he found out that the explosion was scare charges exploding to deter enemy divers. He stated that he had not previously experienced such before, and he was frightened and scared. He wondered if they were under attack and if the ship had been hit.
17. The applicant stated that he could not recall ever being told about scare charges, and he was fairly sure they had not been told. He stated that if he had known it was scare charges, he would not have run up the stairs. He stated that this was the first occasion that he had been subjected to scare charges. He further stated that he was unable to recall anything written by way on notices about scare charges and placed on notice boards, or other locations on the ship. He also stated that at no time had he heard anything said over the PA system. If anything had been said over the PA system then he was unaware of this. He stated that scare charges were never tested whilst he was on board the H6MAS Sydney in Australian waters, nor during any initial training at HMAS Cerberus.
18. The applicant stated that when the HMAS Sydney left Vung Tau Harbour he believed they went to Manus Island, one of the islands of New Guinea. In fact he thought when leaving Vung Tau Harbour that they were going home, back to Australia. He stated that they were never told the movements to be taken, but that he had found out from other crew members some time later. He stated that he could not recall being told what route they had taken to go home, nor at what ports they would be calling.
19. The applicant stated that within months of this trip to Vietnam, when back in Australia, he started to notice changes to himself. After these experiences his level of alcohol consumption increased considerably. He stated that his drinking became heavy, and if he was out of the base he was regularly coming back drunk and was unable to sleep properly. He stated that he had recurring dreams of the RAN and ships and seeing a ship go over a waterfall. He further stated that these dreams interrupted his sleep. He also stated that as a person he was very easy to get on with, but would fight at the drop of a hat. He stated that he had quite a few fights, but mainly when under the influence of alcohol. He stated that these were not problems he experienced before going to Vietnam.
20. The applicant stated that before going to Vietnam he hardly smoked, but post Vietnam his smoking increased. He stated that he smoked more because he had become nervous and edgy, and so he smoked as it relaxed him a fair bit. He stated that in the months after his trip to Vietnam he was smoking a packet of cigarettes per day. He purchased cartons of 10 packets of 20 cigarettes per packet at 20 cents a packet from the RAN. He stated that he bought the cigarettes by the carton. He further stated that before Vietnam he smoked socially, and that in fact before enlistment he smoked about 2 to 4 cigarettes per day.
21. The applicant stated that after enlistment into the RAN, but before going to Vietnam, his smoking increased to about 6 cigarettes per day. He stated that he had a lot of spare time on the trip from Australia to Vietnam, and so during the voyage his smoking increased to about 10 cigarettes per day. By the time he returned to Australia, it had increased to a packet per day. He stated that after his return to Australia he continued to smoke a packet per day. He further stated that he got very nervous and anxious after the Vietnam experience, and could not do without cigarettes. He needed them to calm him down.
22. As to his alcohol partaking, the applicant stated that before enlistment he drank only one or two schooners of beer for the purpose of socialising. He stated that this occasional drinking did not cause him any trouble before enlistment. He further stated that whilst at HMAS Cerberus during recruit training he was not allowed to leave there, hence was unable to drink any alcohol at all for the first 30 days. After this he was able to drink about 2 glasses of beer. However, when on the ship there was beer issue of one large can of beer for 20 cents. He stated that each evening he had a can of beer unless it was someone’s birthday and then he would give it to the person celebrating his birthday. Other times when he did not drink included when he was on duty.
23. The applicant stated that there were also some other nights when he had no beer because he did not feel like it. He stated that even in Vung Tau Harbour he had access to beer as they received an issue of beer as the climate was very hot. He further stated that on his return to Australia the level of alcohol intake increased and he began to drink quite heavily.
24. The applicant was referred to his claim for increase in the assessment of his benefit and in particular to the Alcohol questionnaire (T5/64), dated and signed by him on 14 February 2000. In the section headed Date of Change the applicant referred to “late 1965 to late 1985” stating that he consumed some 15 cans of beer and about half a bottle of spirit per day due to peer pressure and to relieve his stress. He stated in his oral evidence that when in Sydney after his return from Vietnam he used to go to parties at Kings Cross.
25. In a confidential medical record (T4/24) dated 27 November 1967, which showed his age as being 21 years, it stated that he was found unconscious at approximately 0900 on 25 November 1967 smelling strongly of alcohol. It further stated that the applicant also had concussion to the skull. It also stated that he was later arrested and placed in a padded cell under observation. In his oral evidence he stated that he was found unconscious outside the Garden Island gates, Sydney, and taken to the Balmoral Naval Hospital by ambulance. He stated that he remembered being placed in a padded cell for observation. He was unable to recall where he previously had gone out drinking.
26. In the medical record dated 15 January 1969 (T4/26) there was reference to his falling up stairs of COMCEN. This is a communications centre. The applicant stated he was drunk and fell up the stairs. He was unable to recall if he was on duty at the time or not. However, he thought he may not have been on duty otherwise he would have been in trouble and charged. He stated that this took place at HMAS Tarangau, a land base on Manus Island near New Guinea, where he was posted from 29 August 1968 to 3 November 1969 to undertake radio communications (T4/12).
27. In an outpatient record dated 6 April 1970 (T4/27), it indicated that he was hit the previous night and an x-ray revealed that the nose looked clinically to be fractured. At the time he was at HMAS Harman, a land base in the Australian Capital Territory. The applicant stated that he had had a few drinks too many and had a fight just outside the mess area.
28. A Daily Medical Record dated 24 April 1970 indicated that the applicant was at HMAS Kuttabul, a land base near Kings Cross, Sydney. It further stated that he was drunk and in a brawl resulting in his being punched on the nose. The applicant was unable to recall this incident but stated in his evidence that it must have been him.
29. A Statement of Service document (T4/12) indicates that on 2 February 1967 the applicant was confined to a cell for seven days. He explained in his evidence that at the time he was based on HMAS Melbourne in Sydney. He stated he felt unhappy and could not handle it, so he went absent without leave for four to five days, hitchhiking to Adelaide to see his father. Upon seeing him his father talked him into returning to the ship, which he did, and gave himself up. He was given seven days in a cell on the HMAS Melbourne.
30. The same document (T4/12) also indicated further punishment of ten days in a cell which was imposed from 26 July 1968. The applicant stated that he was sure this occurred whilst on shore leave in Manilla, Philippines. He stated that he returned to the ship, HMAS Melbourne, in a drunken state and he swore and abused others, including an officer. He further stated that at that time the HMAS Melbourne was there on exercises as part of the Far East Strategic Reserve.
31. The applicant stated that he was discharged from the navy on or about 13 March 1974.
32. A Medical Examination Record indicated that prior to discharge the applicant was examined at HMAS Penguin on 5 February 1974 (T4/33). He stated that as a result of the examination he had various tests, including one for high blood pressure and scans, as a result of which he was admitted to Balmoral Hospital where he was hospitalised for two weeks and found to have “essential hypertension”. He stated that this was the first time he had been diagnosed with hypertension, and he was placed on medication.
33. A document dated 11 June 1974 (T4/44) indicates the applicant was exposed to stress during his naval service. It also states that stress is regarded as one of the contributing factors to the development of hypertension, which, once developed, would be of a permanent nature even though the stress factor is removed. The applicant stated that he was unable to recall putting in a claim for stress at that time. He stated that he did put one in in either 1976 or 1977, but not in 1974. He further stated that his claim for hypertension was made in 1977.
34. The applicant stated that he made an application to again join the RAN. As a result he underwent an entry medical examination on 27 May 1977 (T4/45 and 46). In answer to Question 14(a) he stated that he drank alcohol at the rate of 5 schooners per night, 3 times per week. He stated that he was drinking much more heavily than this at the time, but reduced the amount so as to be able to get back into the RAN as he was finding it hard to settle down into civilian life and could not find a job.
35. The applicant also stated that he had been charged for driving under the influence of alcohol on three occasions. As to the first occasion, he is unable to recall the date, but believes it may have been in 1970 whilst still in the RAN. The second occasion was in approximately 1980 when living in Gawler and not in the RAN, and likewise on the third occasion which occurred in either 1993 or 1994. The applicant stated that he was not accepted by the RAN as he was declared unfit medically.
36. The applicant was referred to a medical report by Dr John B. Truman, psychiatrist, dated 25 October 1994 (T16/106). The applicant stated that he saw Dr Truman on one occasion and was only with him some 5 to 10 minutes. He stated he was not with him very long and Dr Truman did not ask him anything about Vietnam other than what is in the report. He stated that Dr Truman did not go into detail.
37. The applicant stated that he then saw Dr Martyn Ewer, psychiatrist. He was unable to say when he first saw Dr Ewer but believed it was some two to three years ago. He stated that he has seen Dr Ewer on a number of occasions, and that Dr Ewer has prescribed him with depressive tablets to calm him down and, he thought, to also help him stop drinking.
38. In cross-examination the applicant stated that he joined the RAN to further his career job wise. He stated that at the age of 18 years he enlisted for 9 years and served out the whole time until discharge. In joining the RAN his expectations were to obtain a “bit” of a career and to see the world. He stated that he was aware that the RAN was part of the armed forces, which he joined to fight. Notwithstanding this, he felt that this was unlikely to occur and as everything was fairly quiet he did not think there would be any involvement in conflict. He stated that all incidents occurred in the first year of his naval service.
39. The applicant stated that he first experienced anxiety symptoms after returning to Australia from Vietnam. When asked to describe the symptoms the applicant stated that he was on edge, unable to sleep, smoked too much, worried too much and drank too much. He was aware of the symptoms, but tried to carry on believing that they would go away. He put down their causes as his service in Vietnam. In particular he contributed the cause to Vietnam because of his heavy drinking. He also stated that he believed his stressors resulted from Vietnam.. Despite this he agreed that he served out the full nine years and two years after discharge he again tried to get back into naval service. He stated he did this because he felt he had to do something, and felt that if he was successful it may have helped him.
40. The applicant stated that throughout the nine years of service he suffered from an anxiety disorder, and was getting desperate for work. When put to him in cross-examination that the records show nothing of anxiety, he stated that he made no mention of it as he thought it would wear off.
41. He stated that prior to Vietnam he hardly drank at all, but he did get drunk once or twice. However, he stated that after Vietnam his drinking increased and got much worse.
42. When questioned in relation to the “zig-zagging” incident, the applicant stated that he was aware of this as at the time he was on the upper deck of the HMAS Sydney. He stated that he was later informed that there was possibly a submarine about in the area. He further stated that it was not known if the submarine was friendly or unfriendly. When asked if he could say who it may be if unfriendly the applicant stated that he did not know who it was. He could not say where the incident occurred other than it happened on the way to Vietnam. He did not know whether or not North Vietnam had submarines, but when told the submarine may be unfriendly it passed through his mind that the enemy were North Vietnam. Apart from the zig-zagging he could not recall what other action was taken. When put to him that North Vietnam did not have submarines, the applicant stated that he did not know this at the time.
43. The applicant was referred to a report dated 2 October 1965 (Exhibit A8 paragraph 17) wherein was stated that the HMAS Sydney, escorted by destroyers HMAS Vendetta and Duchess, had an uneventful voyage, “although several false alarm Sonar contacts kept the screen on its toes”. The applicant’s response was that set out in the previous paragraph.
44. The applicant told Dr Ewer that he thought the HMAS Sydney was going to be attacked by a submarine. The applicant stated that he did not think he was ever told that there was not any submarine contact. He did not know how long the “zig-zagging” lasted but he noticed that it returned back to cruising and ceased the “zig-zagging”. He stated that the HMAS Sydney was also a training ship and that whilst on it he received communications training. He did not recall any alarms sounding, and surmised the HMAS Sydney was placed on alert, and he told this to Dr Ewer meaning that when the ship went on a the “zig-zagging” course to him this meant being on alert.
45. The applicant stated that he had no idea what time the ship entered Vung Tau Harbour, nor could he recall what he was doing at that time but that he was not then on deck. He believed that the first time he saw the harbour would have been in daylight, but he was not sure of this. He further stated that it may have been after the ship anchored. He stated that his duties included cleaning, painting and being in the area of the bridge communications room. He was not involved in any unloading activities.
46. The applicant, in cross-examination, stated that he saw some bombing on the mainland and although he had no idea of the direction believed it was in the hills region. He stated that the bombing occurred on two to three occasions, with one being at dusk. He was not able to say how far away it was, but it was far enough that he could not see people. He also stated that he could not hear the bombing and possibly this was due to a lot of noise and activity around the ship. There was a lot of loading and unloading activity going on at the time. He stated he watched this together with others.
47. As to the firing of bombs (shells) by USS Preston he could not recall the exact times, but presumed the firing went on from four to six hours at a time. When asked why he told Dr Ewer they fired for 24 hours, he stated that this is what he presumed to be the case, but in any event he was satisfied that they fired for quite some time. He stated he had no idea whether or not the USS Preston was concerned about its firing being retaliated. He stated that he cannot remember anything being said about it. Whilst this was going on the HMAS Sydney was still anchored in its same spot. He did not know if this concerned the authorities on the HMAS Sydney.
48. The applicant, in cross-examination, stated that the first scare charge exploded when he was below deck. He immediately made for the hatch door and ran up the stairs. He stated that when he was several decks up he was told of the scare charge and the significance. He did not know how long after the HMAS Sydney entered Vung Tau harbour that this incident occurred.
49. The applicant stated that after this he became aware of the explosions from scare charges and knew what they were. Notwithstanding this, he still was scared when he heard the explosions which were very noisy and startled him. In his evidence he stated that he was unable to recall if on the first occasion he returned back to the sleeping quarters, nor if anybody said anything to him. He stated that he did not mention to Dr Ewer the fact that he scrambled to the upper deck. He stated that there were a lot of things he did not say including his not giving details to anyone.
50. When seeing Dr Truman about his stress, the applicant stated that he said nothing about his symptoms because the doctor did not ask him anything about Vietnam. When asked why he did not raise anything about his symptoms, the applicant stated that he did not like Dr Truman’s attitude as he seemed to want to get it over and done with. He stated that he saw Dr Truman’s report (T16) some 6 to 8 years ago.
51. A claim by the applicant dated 14 June 1994 (T15) set out the disability being claimed as war-caused due to service in Vietnam. It indicated ‘nervous condition’ (T15/102). The report of Dr Truman (T16/106) was also put to the applicant, and he agreed that he had never had any treatment prior to this for anxiety, only for blood pressure.
52. The applicant stated that he saw other doctors including Dr G. Hyde, general practitioner, Dr R. Burston, physician, and Dr J Truman, psychiatrist. None of their reports refer to nor cover the applicant’s service in Vietnam. The applicant stated that until he saw Dr Ewer he did not discuss Vietnam with any of the other doctors. He mentioned the Vietnam incidents for the first time to Dr Ewer. He stated that he was aware that these incidents in Vietnam were responsible for the anxiety order, but he did not want to be “kicked out”. He did not say anything in 1994 and no one ever asked him what happened. He stated that the only persons who subsequently asked him were Mr R. Coxon of the Vietnam Veterans’ Association and someone from the RSL.
53. The applicant stated, in cross-examination, that he suffers from occasional nightmares such as a “ship going over a waterfall”.. He stated that he has suffered nightmares for quite a few years, from about 1965. He further stated that this could be once a week, then he is alright for a while and then it recurs. He stated that he told Dr Ewer that he is often troubled with nightmares, and that he is uptight all the time. He also stated that he dreams a lot about RAN ships and the sea.
54. Mr Doube in cross-examination put to the applicant the medical questionnaire concerning re-enlistment in 1977 (T4/45 and 46). At question 38 (b) he was asked if he had frequent nightmares to which he ticked the “no” box. When put to him why he had answered this way, the applicant stated that he was trying to re-enlist in the RAN and so he answered in the negative so as to exclude the chances of his being rejected. He stated that those questions to which he answered “yes” were already on record with the RAN. The applicant agreed that the medical record dated 14 August 1965 (T4/20), which showed his being “under the influence of alcohol”, was at least one month prior to going to Vietnam.
Mr RK Piper, historian
55. Mr Piper stated in his evidence that he has been a Military Aviation Researcher and Historian for some 30 years, 22 years with the Department of Defence and 15 years as an airforce historian. He also stated that he has written numerous articles and reports, including a report before this Tribunal dated 19 May 2002 (Exhibit R2).
56. Mr Piper in his evidence stated that he adheres to the contents of his report. In addition he stated that it was quite logical for the applicant to see the guns firing, but not necessarily see where the shells land as the distance could be between five and 24 kilometres. He further stated that it would be impossible for the guns to fire for 24 hours as they would melt and it is not possible for weapons of that size to sustain fire for that time.
57. Mr Piper stated that there was no immediate apparent danger as both ships, the Preston and Sydney, were anchored and hence this would indicate there being no fear of retaliation. If they were being fired upon then they would not be in an anchored position but moving so as not to be an easy target. He further stated that if the HMAS Sydney was in any danger it would have up anchored and moved out of the harbour.
58. Mr Piper stated that as to the scare charges, the object of these was to keep away enemy frogmen. They would not cause any damage to the ship, but have a concussion effect on the enemy frogmen. In his report (Exhibit R2/4), he stated that as RAN ships entered Vietnam waters they went to a State of Operation Awkward, which meant that crew on board were also alerted that scare charges might be used. He stated that this was piped over the ship’s intercom and appeared with routine daily orders on notice boards throughout the ship. This was contrary to what the applicant had stated in his evidence. He further stated in his oral evidence that the crew may even have had practice sessions before entering the harbour. He stated that the records indicate the HMAS Sydney being in Vung Tau harbour for about 48 hours.
59. In his research Mr Piper stated that he could not find any evidence involving bombing activity of the mainland. Whilst the applicant stated that he could see the USS Preston firing at the mainland or delta area, Mr Piper stated that he was unable to find any record of such activity. He also stated that there is no record of the actual location of HMAS Sydney whilst in Vung Tau Harbour.
60. In cross-examination, Mr Piper stated that the USS Preston has the potential to fire shells up to 24 kilometres. He stated that there is no historical information where it was firing from in relation to the location of the HMAS Sydney. He stated he was not aware of this as he in fact had not researched it. In relation to the time the HMAS Sydney spent in Vung Tau Harbour, he agreed that the 48 hours in total could spread over three calendar days. He also stated that he was not able to locate the exact anchorage of HMAS Sydney as there is no reference in its records.
61. In relation to the scare charges, it was the usual thing to have a practice run before entering Vietnam waters at either other ports or before entering the harbour. He was not able to say whether or not the applicant saw the scare charge notices, although they are fairly large. He further stated that if the applicant had not seen it on the notice board then he (the applicant) would have heard it over the PA system. In any case Mr Piper believed that the issue of scare charges would have been the subject of discussion by those on board. He also stated that scare charges are usually released from launches (boats) travelling around the HMAS Sydney keeping about 6 metres away from the ship.
dr mr ewer, psychiatrist
62. Dr Ewer first saw the applicant on 21 March 2000. He prepared three reports which are dated 22 March 2000 (T20), 24 October 2000 (T24), and 7 May 2002 (Exhibit A5) respectively. In the first report (T20) he stated that the applicant had informed him that he had been exposed to a number of stressful experiences during his trip, namely:
(a) the applicant saw jets shooting at the ground and planes dropping
napalm bombs on the mountain which he found to be a hostile environment which was very threatening and caused him considerable stress and anxiety;
(b)an American destroyer (USS Preston) was situated only 200 metres
from the applicant’s ship (HMAS Sydney) and was firing shells constantly for 24 hours, which caused the applicant considerable anxiety;
(c) scare charges were dropped overboard to deter enemy divers and this
caused him some anxiety; and
(d) HMAS Sydney was placed on alert when it was suspected that enemy
submarines were nearby which caused the applicant considerable anxiety.
63. These incidents were further outlined and expanded upon in Dr Ewer’s second report (T24). In the first report he diagnosed, inter alia, that the applicant has been suffering from GAD since he went to Vietnam. He further stated that the applicant has suffered from many years of disabling anxiety and irritability. He further stated that the applicant has suffered from alcohol abuse and dependence since he went to Vietnam.
64. In his second report (T24) he stated that he continues to believe that the applicant suffers from GAD and alcohol abuse. He further stated that he notes the SoPs in relation to Alcohol Dependence or Alcohol Abuse and GAD both refer to a “severe psychosocial stressor”. He further stated, inter alia:
“….The Statement of Principles goes on to state this means an “identifiable occurrence that evokes feelings of substantial distress in an individual”. The Statement of Principles then refers to a range of stressors that would meet this definition. Such stressors include “loss of employment, major financial problems or legal problems”.. There is little doubt in my mind, as an experienced Psychiatrist, that the stress of being in a war zone and hearing and seeing bomb explosions would far exceed the threshold referred to by the definition I have just mentioned. There is no doubt that being in a war zone, and hearing and seeing bombs explode, would evoke intense anxiety in most individuals and would be considered a severe stressor. Consequently, I believe Mr La Roche’s Generalised Anxiety Disorder as well as his Alcohol Abuse and Dependence are both directly due to his war service and meet the criteria for causality as described in the Statement of Principles.”
65. In his third report (Exhibit A5) Dr Ewer stated his opinions and reasons on the assumption that the applicant has truthfully relayed his history to him; the history provided is factually correct, the ancillary information provided is accurate and valid; and that the observations of the applicant’s mental state are accurate and can be used to form an opinion regarding the applicant’s psychiatric state.
66. Dr Ewer’s opinions and reasons (Exhibit A5) are as follows:
“8.1Mr La Roche satisfies the definition of a Generalised Anxiety
Disorder set out in paragraph 8 of the Statement of Principles concerning Anxiety Disorders (Instrument 1 of 200). In particular I note the following:A.Mr La Roche has suffered from excessive anxiety and worry for
many years. He experiences anxiety on more days than not. His anxiety is precipitated by relatively minor events. Mr La Roche’s anxiety is accompanied by a range of physical symptoms. He often becomes sweaty and goes red.
B.Mr La Roche finds it difficult to control his worry. He worries
excessively and about relatively minor matters.
C.Mr La Roche reported lethargy, poor concentration, irritability,
muscle tension and insomnia.
D.Mr La Roche’s anxiety and excessive worry are not features of
another axis-1 psychiatric disorder.
E.Mr La Roche’s anxiety and excessive worry are interfering with
his ability to function socially. He is also having difficulties functioning in the workplace.
F.Mr La Roche’s anxiety is not solely due to the direct
physiological effects of a substance nor is his anxiety due to a medical condition or another psychiatric condition.
8.2Mr La Roche told me that he went to Vietnam on one occasion in 1965.
He recalls experiencing a range of symptoms on his journey back from Vietnam to Australia. These symptoms included:
· Feeling anxious and tense
· Difficulty sleeping
· Inability to control worry
· Difficulties coping
8.3Mr La Roche currently drinks approximately ten cans of full strength
beer per day. He drinks alcohol every day. Mr La Roche satisfies the definition of Alcohol Dependence set out in the Statement of Principles concerning Alcohol Dependence of Alcohol abuse (Instrument 76 of 1998). In particular I note the following:
· Mr La Roche gives a history of tolerance to alcohol. In particular Mr La Roche experienced a markedly diminished effect with continued use of the same amount of alcohol.
· Mr La Roche experiences withdrawal symptoms. If he attempts to stop drinking he becomes shaky, sweaty and he has a strong compulsion to abuse alcohol.
· Mr La Roche regularly consumes alcohol in larger amounts than was intended.
· Mr La Roche’s alcohol abuse leads to conflict and arguments with his wife.
· Mr La Roche has made repeated unsuccessful attempts to reduce his alcohol intake.
· Mr La Roche has continued to abuse alcohol despite knowing the adverse consequences this will have upon his health.
8.4Mr La Roche told me that he started to abuse alcohol upon the HMAS Sydney as it was returning to Australia. Mr La Roche told me that he regularly consumed three large cans of beer per day on the ship as it was returning to Australia. He recalls abusing alcohol when he first arrived back in Sydney. He told me that he went ashore every night and returned to the ship intoxicated every night.”
67. Dr Ewer stated in his oral evidence that it is not unusual for people seeing a psychiatrist to be less talkative on the first occasion, but that with second and subsequent appointments it is common for them to “open up more”.. He stated in reference to “severe psychological stressor” that this may have been in reference to the bomb or shell episodes, as well as the scare charge incident. He felt that the four incidents referred to in his first two reports meet the definition of severe psychological stressor, although he felt that possibly the incident of the USS Preston firing the shells and being close to the HMAS Sydney, thus placing the HMAS Sydney at risk could be in what he termed a “grey area”.
68. Dr Ewer stated that the events need to cause the experiencing of a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse. This is provided by factor 5(b) of SoP Instrument No 76 of 1998 (Exhibit R9). In regard to this, Dr Ewer (Exhibit A5) stated that the abuse of alcohol occurred when he returned to Australia and that the applicant was intoxicated every night. He stated that the onset occurred on the applicant’s way back from Vietnam. In regard to factors 5(a) and 5(b), Dr Ewer was of the opinion that factor 5(b) was the one more applicable to the applicant.
69. Dr Ewer stated that he has seen the applicant on average of every two to three months. He further stated that he has prescribed the applicant with medication including Moclobamide for his anxiety. He stated that the applicant did not want to take any other medication, not even for alcohol abuse.
70. As a result of the consultations with the applicant, Dr Ewer stated that he assessed the clinical onset of the GAD as resulting on the applicant’s way back from Vietnam although the diagnosis was made years later. It was made in the year 2000 when he first saw the applicant. He stated that the applicant first saw a psychiatrist in 1977, and again in 1994. He did not know if the applicant saw the same psychiatrist, and he was not told who it was. Dr Ewer did ask the applicant who the psychiatrist may have been but the applicant was unable to recall.
71. In cross-examination Dr Ewer stated that he had never been to Vietnam and had no personal knowledge. He stated, however, that a great number of his patients are Vietnam veterans. He also stated that he was totally reliant on the history given by the applicant. He further stated that he did not test the veracity of the information the applicant provided, and that none of the documents given him to consider showed any contradictions.
72. From what he had been told, his understanding was that the HMAS Sydney was in Vung Tau Harbour to unload troops and supplies and that the harbour was a very busy one. He also believed that there was some evidence that the enemy was not far away due to the firing of shells by the USS Preston.. He stated that he did not believe the HMAS Sydney to be under any threat but that as a precaution scare charges were dropped. He stated that on his first visit the applicant had told him that he had gone to Vietnam on two occasions but that this was corrected to one on the second consultation.
73. When told that the applicant had not told Dr Truman everything and so the report did not refer to Vietnam, Dr Ewer stated that had he known this or seen Dr Truman’s report, he would have questioned the applicant about this. He agreed that the applicant had told him that the USS Preston was only 200 metres away and shells were fired constantly for 24 hours, and he was not told 5 to 6 hours and maybe 3 hours. Dr Ewer stated that the applicant’s anxiety symptoms had not been clarified at that time.
74. In relation to the scare charges, Dr Ewer stated that the reaction to this was to cause the applicant some anxiety. He stated that the applicant described that he was about six decks below water line and as a result of the scare charge explosion started running up the stairs. It was not until a span of five minutes had elapsed that the applicant had been told that it was a scare charge. He had no record of what the applicant did next.
75. As to the incident of the submarine, Dr Ewer stated that the HMAS Sydney went into a high level of alertness by “zig-zagging”.. He stated that the applicant indicated that this occurred as the ship approached Vietnam and within close proximity. He understood the applicant to inform him that this occurred some 8 days prior to getting to Vietnam and near Manus Island that sonar contact was made. He was told by the applicant that an unidentified submarine was in the area but it was not known if it was friendly or unfriendly. He agreed that it was possible that if this incident, of which there is no record, occurred far away from Vietnam then the stress effect would be lessened. Dr Ewer stated that the applicant had to ask why the ship was “zig-zagging” and found out a short time later. He stated that this incident may meet the requirement for severe psychosocial stressor.
76. It was put to Dr Ewer that there are no historical records to show that any such incident occurred near Vietnam. Dr Ewer stated that the applicant had no idea how far he was from Vietnam. When put to him that there was no enemy in the region other than North Vietnam and it did not have any submarines, Dr Ewer stated that the applicant did not know this and when the HMAS Sydney went into a “zig-zagging” pattern then the applicant would not have been the only person concerned.
77. As to his nightmares and dreams the applicant did not tell him when they started. What the applicant did tell him is that the nightmares concerned aircraft carriers coming to harm. The applicant did not specify any particular aircraft carrier. He stated that the applicant told him the nightmares started on the way back from Vietnam.
78. Dr Ewer stated he was not told about the applicant being upset as to the way he left the RAN, nor did he have any record of the applicant in 1974 being found to have severe hypertension. Dr Ewer also stated that the applicant did not tell him that Dr Truman’s report stated that the applicant was upset at the way he was treated by the RAN; that his libido had diminished; that he has insomnia; and that occasionally has trouble sleeping; and no reference to nightmares.
79. As a result of the information put to him during cross-examination, Dr Ewer stated that the submarine incident would have to pass into the “grey area”, as also would be the positioning of the HMAS Sydney near the USS Preston in Vung Tau Harbour. He also stated that the bombing incident could be classified as a stressor although on what had been put to him in cross-examination, it too could lean towards the “grey area”.. He was quite definite that the scare charge incident could be classed as a stressor. In relation to the onset of the condition, Dr Ewer stated that this would have occurred on the applicant’s voyage back from Vietnam.
80. It was put to Dr Ewer that there is no historical evidence to indicate that the mainland bombing incident occurred at that time. Dr Ewer responded that if there had been no such incident then this would raise serious questions about the applicant’s veracity. He was also told that the HMAS Sydney was escorted by the destroyers Duchess and Vendetta, and were present in the harbour. Dr Ewer stated that this stressor number one would be eliminated.
81. Dr Ewer stated that the applicant had told him that he only abused alcohol after Vietnam and not prior. In fact Dr Ewer stated that the applicant told him that he had not drunk alcohol until on the ship returning from Vietnam to Australia. It was brought to Dr Ewer’s attention that service records clearly show that the applicant was affected by alcohol prior to Vietnam and in fact before enlistment. He stated that if he had been aware of this then he would have questioned the effect of the stressors. He agreed that the mere presence of a young 18 year old in Vung Tau Harbour was not sufficient to count as a stressor. He was also aware that the HMAS Sydney had many young recruits undergoing training.
82. In re-examination Dr Ewer stated that he did not pick up any alarm bells of an 18 year old in Vietnam waters. He did not believe that the applicant was exaggerating or fabricating new stressors. As to the history of drinking both before and after Vietnam this indicated to him that the applicant’s abuse of alcohol was getting worse after Vietnam.
discussion and findings
83. The two main conditions before the Tribunal for consideration are the generalised anxiety disorder and hypertension. However, in order to link hypertension the applicant needs to establish alcohol dependence is service caused. The parties are in agreement that the diagnosis of both conditions is not in dispute, but rather it is the causation. It was also agreed that the days of eligible service commences from the day the applicant left Australia and his return thereto. The applicant was in the Vietnam war-zone for 48 hours.
84. The questions before the Tribunal, then, are whether these conditions are caused by the applicant’s operational service, under the Veterans’ Entitlements Act 1986. The manner in which the Tribunal is to approach these questions was laid down by the Full Federal Court in Repatriation Commission .. Deledio (1998) 49 ALD 193, and which is as follows:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. They hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (page 97-98)
These steps must be applied for each of the conditions.
85. The applicant served in the RAN from 13 March 1985 to about 13 March 1974, of which his eligible operational service was from 14 September 1965 to 20 October 1965 in Vietnam. The Tribunal is satisfied that such is the case and so finds. In respect of the operational service, sub-sections 120(1) and 120(3) of the Act apply. Hence, the Tribunal is required to find that the applicant’s GAD and hypertension were war-caused. There is also the necessity in order to link the hypertension to establish alcohol dependence is service caused.
86. The Tribunal is also required to apply section 120A of the Act as the application was lodged after 1 June 1994. Accordingly, the Tribunal is required to assess the reasonableness of hypothesis in accordance with any SoPs issued by any relevant determinations under the Act.
87. The applicant has submitted to the Tribunal that his GAD was caused by his operational service in Vietnam. For the applicant to succeed, however, the Tribunal needs to be satisfied that he experienced a severe psychosocial stressor. Also, the applicant, on the diagnosis of Dr Ewer, claimed that he was suffering from alcohol abuse and dependence caused by the stressors he was subjected to in Vietnam. On this basis, the applicant submitted that his hypertension was caused by his alcohol abuse.
88. As previously stated, the SoP for GAD lists factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of a person’s relevant service. Factor 5(a)(ii) of the SoP (T26/160) is the appropriate factor applicable in the current matter. This provides:
“5. …
(ii)experiencing a severe psychosocial stressor within the two years before the clinical onset of anxiety disorder; …”
89. The applicant in this case referred to four stressors, which he submitted satisfied the requirements of the SoP. Briefly, these are:
(a)The shooting and dropping of napalm bombs incident which he maintained to be a hostile environment which he found to be very threatening and caused him considerable stress and anxiety;
(b)the shooting of shells by an American destroyer towards the delta area of Vung Tau Harbour, and being in close proximity to the HMAS Sydney;
(c)scare charges being dropped overboard, whilst on the HMAS Sydney an anchored in Vung Tau Harbour, which caused him some anxiety; and
(d)the placement of HMAS Sydney on alert when it was suspected that enemy submarines were nearby, thus causing him considerable anxiety.
90. The Tribunal takes into account all of the evidence before it, principally the applicant’s account of events and the evidence of Dr Ewer. In so doing, the Tribunal is satisfied that the material “points to a hypothesis” that the GAD is war-caused. The hypothesis is raised in relation to each of the stressful events described by the applicant.
91. As previously stated, there is a SoP in force in relation to GAD. The relevant SoP is Instrument No 1 of 2000.
92. The hypotheses raised by the applicant are that each one of the four stressful events outlined in his evidence caused him considerable stress. The applicant contends that each one of these events constituted a “severe psychosocial stressor” under factor 5(a)(ii) of the SoP. He further contends that he suffered the onset of clinical symptoms within two years of the first of these incidents, also required by the said factor.
93. As to the shooting and dropping of bombs incident, the applicant in his evidence was vague as to detail. He stated that he saw aircraft dropping bombs on the mainland and he believed the bombs were napalm bombs. He stated that he observed the bombing on two to three occasions. In his research, Mr Piper stated that he could not find any evidence involving bombing activity on the mainland at that time. The applicant only first mentioned this event when he first consulted Dr Ewer on 22 March 2000. He stated that he was distressed to see the napalm bombs, and that he also found this hostile environment very threatening, and it caused him considerable stress and anxiety. He made no mention of this when he saw Dr Truman. The only information before the Tribunal is that of the applicant that this event occurred. Whilst documentation refers to bombardments from the USS Preston, there was no reference to aerial bombardments occurring. Dr Ewer in his evidence, after having had put to him in cross-examination that there had been no such incident, then this would raise serious questions about the applicant’s veracity. Dr Ewer stated that as a result of the information now before him he would eliminate this as a stressor.
94. In relation to the firing of shells towards the delta region by the anchored USS Preston in close proximity to the anchored HMAS Sydney, the applicant in his interview with Dr Ewer stated that this was being done continuously 24 hours per day. In his oral evidence he agreed that it could have been five to six hours. The applicant stated that his main concern was the possibility of the enemy firing back at the USS Preston, and as the HMAS Sydney was moored nearby that it too would be a prime target. He stated that this made him feel worried, anxious and not too sure of what was doing on. Dr Ewer stated that he assessed that the HMAS Sydney not to be under any threat. After what had been put to him in cross-examination, Dr Ewer concluded that this too could lean towards the “grey area”.. Mr Piper in his report stated that there was some bombardment (Exhibit R2). Dr Ewer discounts this as a “severe stressor”. He also accepted that there was no apparent danger to the HMAS Sydney.. The evidence here is such that the applicant was not confronted with anything there. He did not see where the shells fell. The Tribunal is satisfied that the objective test is not met.
95. As to the scare charges that were dropped overboard to deter enemy divers, the applicant stated that this caused him some anxiety. Without repeating the evidence as to this incident, the Tribunal accepts that the applicant may have heard details concerning scare charges over the PA system, and may have read notices to this effect, which he may have forgotten about. The Tribunal accepts this as a possibility. It also takes into account the respondent’s contention that the applicant fails the objective test. Dr Ewer, in relation to this incident, stated that the applicant’s reaction to this was that it caused him some anxiety. Unlike in the previous two incidents, he was quite definite that the scare charge incident could be classed as a stressor. He further stated that in relation to the onset of the condition, this would have occurred on the applicant’s return voyage to Australia. Without elaborating further, the Tribunal is satisfied that this meets the objective test and can be classed as a stressor.
96. The final incident is that of the HMAS Sydney “zig-zagging” on being put on alert due to a submarine in the area, and not knowing if it was friendly or unfriendly. The applicant thought the HMAS Sydney was going to be attacked. He classed the ship to be on alert when it was “zig-zagging”. Although it is now known that North Vietnam did not have any submarines at the time, this was not known by the applicant at the time of the incident. Hence when he heard of the possibility of it being an unfriendly submarine, it passed through his mind that the enemy were North Vietnam. He thought they would be attacked by the submarine. He told Dr Ewer that this caused him considerable anxiety. There was no record of this incident insofar as there was present any submarine. However, the applicant agreed that the “zig-zagging” occurred some 8 days prior to getting to Vietnam, and near Manus Island. Dr Ewer stated that if this incident occurred far away from Vietnam, then the stress effect would be lessened and hence pass into the “grey area”.. The Tribunal is satisfied and finds that the incident, whilst it maybe classed as a stressor, does not meet the requirement of severe psychosocial stressor and hence the objective test fails.
97. The final step is whether any factor essential to the hypothesis has been disproved beyond reasonable doubt. The respondent principally relied on trying to show that there was no evidence supporting the applicant that any of the events occurred. On balance, and taking the evidence as a whole into account, the Tribunal is satisfied to this exacting standard that the incident of the scare charges relied on by the applicant to establish the hypothesis linking his war service to his GAD did occur. Hence the applicant succeeds under the legislation in establishing his GAD as war-caused. The Tribunal further finds that the onset of this condition was within two years of his Vietnam service, and being no later than 30 September 1967.
98. As to the issue of hypertension, this was investigated back in 1977 and conflicts with what the applicant told Dr Ewer. The applicant had stated that he only abused alcohol after Vietnam and not prior. Dr Ewer stated that the applicant had told him that he had not drunk alcohol until on the ship returning from Vietnam to Australia. The Tribunal is satisfied and finds that on the evidence before it, the applicant was affected by alcohol even before enlistment, not withstanding to a limited degree. Dr Ewer in his evidence stated that if he had been aware of this, then he would have questioned the effect of the stressors.
99. Dr Ewer stated that the history of drinking both before and after Vietnam indicated to him that the applicant’s abuse of alcohol was getting worse after Vietnam. The Tribunal is satisfied and finds that the applicant did in fact have a history of drinking, not only before Vietnam, but also before enlisting. Notwithstanding this, the Tribunal is satisfied on the evidence before it that the applicant’s abuse of alcohol was far worse after Vietnam, and the increase in his drinking started on the journey back to Australia. The Tribunal is satisfied, and so finds, that the applicant’s abuse of alcohol was war-caused.
100. As previously stated, the appropriate SoP for the condition of alcohol dependence or alcohol abuse is SoP Instrument No 76 of 1998. The applicant contends that factor 5(a) is satisfied and this provides:
“(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.”
101. In relation to this said factor 5(a), the Tribunal is satisfied that factor 5(b) of the hypertension SoP Instrument No 25 of 1999 is met. This provides that a reasonable hypothesis has been raised connecting hypertension with the circumstances of a person’s relevant service due to suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at lest 200 grams per week of alcohol.
102. The applicant’s condition of alcohol dependence or alcohol abuse is highlighted by the evidence in that his pattern of intake increased considerably because of his operational service. He was suffering with hypertension (as well as the psychiatric disorder, GAD), attracting a diagnosis under DSM-IV, and the same stressors relevant to the development of the condition and satisfaction of the GAD SoPs.
103. There is clear evidence that the veteran was a drinker prior to enlisting in the RAN, and before his operational service in 1965. As to his pattern of drinking from the time of departing from Vietnam, there is both his evidence and the documentary evidence before the Tribunal. It is evident that his drinking habit increased as a result of his operational service. The Tribunal is satisfied, and so finds, that his alcohol consumption was in place before 1965, but altered by far as to his intake by his operational service. Accordingly, the Tribunal is satisfied that the onset of his alcohol dependence or alcohol abuse occurred factually on his return from Vietnam. The Tribunal is therefore satisfied, that factor 5(a) of the Alcohol Dependence or Alcohol Abuse SoPs is met.
decision
104. Accordingly, for the reasons set out herein, the Tribunal sets aside the decision under review and the matter is remitted to the respondent for reconsideration in accordance with the findings that the applicant’s generalised Anxiety Disorder and hypertension are war-caused.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed: (signed)
John Howell, AssociateDates of Hearing 24 & 25 September 2002
Date of Decision 13 February 2003
Counsel for the Applicant Mr T. White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G. Doube
Solicitor for the Respondent Department of Veterans' Affairs
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