Lee-Tet and Repatriation Commission
[2005] AATA 1279
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1279
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/416
VETERANS' APPEALS DIVISION
Re: RICHARD JOHN LEE-TET
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 22 December 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - naval service - anxiety - diabetes mellitus - impotence - alcohol consumption - smoking - whether service‑caused
Veterans’ Entitlements Act 1986 ss 9(1), 68(1), 70(1), 120, 120(4),120A, 120B
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581Woodward v Repatriation Commission [2003] FCA 160
REASONS FOR DECISION
22 December 2005 G.D. Friedman, Senior Member
1. This is an application by Richard John Lee-Tet (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 1 March 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) on 9 May 2003 to refuse a claim for disability pension for post traumatic stress disorder (PTSD), alcohol abuse, alcohol hepatitis and impotence, because the conditions were not service-caused.
2. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T19), plus six exhibits (Exhibit A1 to A6) lodged by the applicant and twelve exhibits (Exhibits R1 to R12) lodged by the respondent.
BACKGROUND
3. The applicant was born in Albury, New South Wales on 4 January 1945 and was brought up in Melbourne. He left school at the age of 14 ½ years and worked at the Post-Master General delivering telegrams until he joined the Royal Australian Navy (the navy) on 30 July 1962. He served as a sick bay attendant until 29 July 1982, when he was discharged with the rank of Petty officer. The applicant’s service on HMAS Hobart from 16 March 1970 to 9 October 1970 constitutes operational service in accordance with the Veterans’ Entitlements Act 1986 (the Act). His service from 7 December 1972 until 29 July 1982 constitutes eligible service under the Act.
4. After his discharge from the navy, the applicant worked as a labourer and a storeman before finding employment as a security guard. He did that job for nine years, until he was retrenched in about 1999. He has not worked since then.
5. On 17 April 2003 the applicant lodged a claim for diabetes mellitus, anxiety and alcohol abuse to be accepted as war-caused. On 9 May 2003 the respondent rejected the claim for PTSD, alcohol abuse, alcohol hepatitis and impotence, and continued pension at 20 per cent of the general rate for the previously accepted condition of calcaneal exostosis. The respondent also rejected a claim for anxiety disorder and injury to left knee. On 15 September 2003 the applicant sought review of the decision by the VRB.
6. The applicant lodged an application with the Tribunal on 1 April 2004 for review of the VRB decision.
7. The issue before the Tribunal is whether the applicant suffered from the rejected conditions, and, if so, whether they were service-related.
EVIDENCE
8. In a written statement dated 14 July 2004 (Exhibit A5) the applicant said that he began smoking cigarettes in 1960, before joining the navy, and that At this stage I was a very light smoker smoking around 15 cigarettes per day. He said that during operational service in 1970 he increased his level of smoking to 25 cigarettes per day, because of stress, and that in 1982 he smoked an additional 2 oz. of tobacco (roll-your-own cigarettes) per week. He said that he stopped smoking in 1996.
9. The applicant stated that he was a non-drinker when he joined the navy, and became a social drinker when he reached 18 years. He said that during operational service there were many incidents on the ship, including a fire. And when he was on shore leave he would consume large amounts of alcohol (12 large bottles of beer per week) to relieve the stress. He stated that in 1979 he commenced drinking half a bottle of spirits per day and wine, but that he stopped drinking in 1998 when he was diagnosed with diabetes and liver problems.
10. In a further written statement dated 3 February 2005 (Exhibit A4) the applicant said that his retrenchment as a security guard occurred when his employer ceased operation. He stated that he tried to find work in home maintenance or gardening, but was unsuccessful. He said that he then developed diabetes mellitus and has been prevented from undertaking any physical work.
11. In oral evidence the applicant stated that when on board HMAS Hobart he worked long hours in stressful situations. He described a culture of smoking and drinking in the navy and said that beer and cigarettes were readily available, although drinking was not permitted at sea. He said that he smoked 25 cigarettes per day at sea, and less when on shore, and that his smoking level increased after his discharge because he was drinking more and was unemployed for 11 months.
12. The applicant referred to a number of stressful incidents which he experienced while serving on HMAS Hobart during operational service. He said he had described these incidents to various medical practitioners. He stated that in June 1970 there was a fire in a gun carrier room (the fire incident). On another occasion, when in Subic Bay, the Philippines, he witnessed the gun turret of an American destroyer which had exploded, killing 10 men (the turret incident). He said that saw some of the remains or blood of the victims inside the turret. He also said that when HMAS Hobart was in Vietnamese waters he observed floating mines (the mines incident) near a river mouth.
13. The applicant referred to further incidents including an occasion in June 1970 when the ship collided with a Vietnamese fishing boat (the fishing boat incident) on a foggy day, and there were a number of Vietnamese casualties, although no serious injuries.
14. Under cross-examination the applicant agreed that in his two written statements (Exhibits A4 and A5) he made no mention of the incidents (other than the fire incident) that he claims were stressful, and that at VRB hearings in 1999 and 2004 he had not mentioned the turret incident. He also agreed that in the ship’s official Record of Proceedings (RoP) there is no reference to the fire incident. In relation to the turret incident the applicant said that he was directed to view the inside of the turret to reinforce the message that service at sea was dangerous, and saw blood that had been fused to the turret wall. He agreed that this occurred about 13 days after the explosion. He agreed that during the fire incident a sailor was unconscious due to heat exhaustion, but no-one was injured and the fire was minor.
15. In relation to his smoking history the applicant agreed that In a Claimant Report – Cigarette Smoking questionnaire, completed for the Department of Veterans’ Affairs on 10 September 1998 (T6), he stated that he first starting smoking on a regular basis in 1960 (15-20 cigarettes per day) and 2oz. of tobacco per week from 1982, and ceased smoking in 1996. He noted that in 1965/66 he increased to 25 cigarettes per day because At sea more – stress and this rate continued until 1980/81 because of stress and added responsibility. He said that this rate continued in 69/70 At sea - Vietnam - stress and 80/81 Stress due to added responsibility, in job. He stated that he also smoked a pipe and cigars intermittently. The applicant agreed that the reason his smoking rate increased in the three time periods was because he was at sea, with more of an opportunity to smoke.
16. In a written report dated 16 August 2004 (Exhibit A1) Mr G. Foenander, clinical psychologist, said that the applicant told him of anxiety associated with wartime experiences in Vietnam and alcohol-induced hepatitis and diabetes mellitus, both of which were diagnosed in 1998. Mr Foenander stated at page 8:
On the basis of my examination he has sub-threshold PTSD, but it is probable that he has at times met three Criteria C ratings which would give him a diagnosis of PTSD in the past. Currently he can be said to be suffering from residual symptoms of PTSD.
In addition to PTSD he meets the criteria for past Alcohol Dependence but not for current Alcohol Dependence since he stopped drinking in 1998.
17. In oral evidence Mr Foenander said that the applicant was a reliable but reserved patient. He said that he did not include the fishing boat incident in his report because the applicant told him the matter was minor and was not traumatic. Under cross-examination he agreed that the applicant does not meet the criteria for PTSD or generalised anxiety disorder, but displays many of the features of these conditions. He said that the applicant suffers from mild anxiety and depression. He agreed that in his handwritten notes made during the consultation he wrote: No horror or helplessness but very frightened.
18. Mr Foenander agreed that the applicant had described being toey and tense at the time of the fire incident. He also said that he was not aware of whether the applicant had witnessed the explosion that led to the turret incident.
19. In a written statement dated 14 July 2004 (Exhibit A2) Mr D. Benfield said that he has known the applicant since 1969 and that they served together on HMAS Hobart. He stated that they have remained friends since leaving the navy and their families spend time together. Mr Benfield said that a number of incidents that occurred during the applicant’s operational service have affected both men’s personal lives and medical conditions. He referred to a fire in the missile generator room prior to deployment to Vietnam; the fire incident; the fishing boat incident in which he said that we swamped/ran over fishing boats; the mines incident and the turret incident, which he described as: Explosion onboard US warship (3 dead and 10 injured) and subsequent sighting of the damaged barrel in Subic Bay.
20. Mr Benfield stated that he and the applicant engaged in binge drinking and a consequent heavy smoking habit, particularly when on shore leave. He noted that after discharge the applicant’s smoking and alcohol consumption continued to increase. He stated:
We had both come to the conclusion that our problems could be blamed on our period of service in Vietnam and other problems that both of us encountered during the next 12 years of service life.
In oral evidence Mr Benfield referred to a letter dated 27 June 2002 (Exhibit A3) to the Department of Veterans’ Affairs in which he described several of the incidents. He said that in relation to the fishing boat incident he was on the upper deck and observed fishermen and wreckage in the water after the collision. In relation to the mines incident he said that he noticed mines floating down the river. In relation to the turret incident he said that he saw the turret and barrels from a US warship on a wharf in Subic Bay and observed external damage. He did not go inside the turret, but believed that the applicant went inside and told him afterwards that the inside was gruesome.
21. In relation to the applicant’s smoking and drinking habits, Mr Benfield said that the applicant was a light smoker and drinker when they met in 1970, but they both became heavy smokers and consumed large amounts of alcohol while in the navy. He stated that the applicant has been a guest in his house on a number of occasions and has experienced nightmares and sleeping difficulties.
22. Under cross-examination Mr Benfield agreed that the Captain of HMAS Hobart would have reported significant incidents in the ship’s RoP. He said the RoP for June 1970 must be incorrect if there is no reference to the fire incident. In relation to the fishing boat incident and the applicant’s description of it as a minor incident, he said that his recollection was that there were at least three fishing boats involved. In relation to the turret incident he agreed that the damaged turret he observed might have been on the ship rather than the wharf, and there may have been one barrel, rather than two.
23. In a written report dated 7 April 1999 (T7) Dr E. Redmond, consultant psychiatrist, noted that the applicant was a heavy drinker in the navy, and left in 1982 as a result of stress burnout, which she said is not a psychiatric diagnosis but a real psychological illness caused by excessive and prolonged exposure to a variety of stressors. She referred to his experiences as a sick bay attendant and his regular nightmares experienced after service, and stated that the culture of drinking in the navy has had a significant impact on the applicant’s physical and mental health. Dr Redmond diagnosed alcohol dependence and anxiety disorders, not otherwise specified, with mild to moderate symptoms precipitated by work-related stress.
24. In a written report dated 4 April 2001 (T9) Dr A. Sheehan, psychiatrist, recorded a history of the applicant’s service including the turret incident and the mines incident. He referred to the applicant’s drinking habits and said that the applicant started drinking large amounts of alcohol in 1970 when serving on HMAS Hobart in Vietnam. Dr Sheehan assessed the applicant as suffering from PTSD and alcohol abuse and said that both conditions are related to his service in the navy, particularly during the Vietnam War.
25. In a written report dated 4 November 2004 (Exhibit R2) Commodore A. Brecht of the WriteWay Research Service stated, in relation to the turret incident, that while it is possible that the applicant saw the damaged US destroyer at Subic Bay, and may have seen the gun turret on a wharf, it is unlikely that human remains would have been left in the turret for 13 days after the explosion. In relation to the fishing boat incident, Commodore Brecht stated that the RoP for HMAS Hobart on 24 April 1970 reported that the ship was involved in an incident with a small Vietnamese fishing boat in foggy conditions. He said that the ship’s bow struck the fishing boat, cutting it and hurling the occupants into the water. All were rescued and treated at the scene, and Commodore Brecht suggested that the applicant would have assisted the ship’s medical officer in rendering first aid to the victims.
26. In relation to the mines incident, Commodore Brecht stated that he was unable to substantiate the applicant’s claims, although he acknowledged that in another Vietnamese river the use of floating mines was a possible threat to ships in the vicinity.
27. In oral evidence Commodore Brecht stated that he used official documents and spoke to former HMAS Hobart personnel when compiling his report. Under cross-examination he said that the ship’s Executive Officer at the time had no recollection of the fire incident, and there is no reference to the incident in the RoP for June 1970. He acknowledged that he had not examined the RoP for July or August 1970.
28. In a written report dated 12 August 1998 (T5) Dr N. Rose, consultant psychiatrist, stated at page 2 and 3:
There is no evidence at all of any psychiatric disorder. Furthermore there is no evidence of any war service that might have possibly contributed to or precipitated any psychiatric disorder. He certainly does not have post traumatic stress disorder. There are no abnormalities in sleep, memory, concentration or mood and there are no abnormal physical signs including speech, tremor and mannerism. I do not think that the veteran’s high consumption of alcohol can be related to war service.
In oral evidence Dr Rose said that the applicant told him that nothing bad happened in Vietnam. He said that other psychiatrists may have reached different conclusions because the applicant may have given different histories, or his symptoms of anxiety may have changed after 1998. Under cross-examination Dr Rose agreed that the applicant may have downplayed his symptoms during the consultation. He also agreed that the applicant did not provide a history of stressful events experienced during service.
29. In a written report dated 27 October 2004 (Exhibit R1) Dr N. Strauss, consultant & occupational psychiatrist, noted that the applicant experienced a number of distressing situations while he was in the navy and particularly while he was on HMAS Hobart, including the turret incident, the fire incident and the danger from mines. He stated that the applicant reported heavy alcohol use in the navy and after service. Dr Strauss said at page 7:
I am not convinced however that this man has a post traumatic stress disorder and I note that his major difficulty over the years was alcohol abuse but he has always been a rather tense and anxious man in my opinion and I am prepared to state that this man has suffered from a generalised anxiety disorder and I do believe that his experiences in the navy were sufficient enough to provoke his condition of a generalised anxiety disorder.
…
He has also suffered from substance abuse in the form of alcohol but it is noted that this condition is now in abeyance because he is not drinking alcohol and has not drunk alcohol for six years.
30. Dr Strauss noted that the applicant was rather vague when recounting his history. However, Dr Strauss stated that the experiences the applicant had in the navy affected him more after he left the navy than while he was in the navy. In oral evidence Dr Strauss concluded that the applicant has had the underlying symptoms of anxiety disorder for many years but does not require treatment. He said that the applicant started drinking while he was in the navy and used alcohol to suppress the symptoms of his anxiety, and that he gave up drinking in about 1998 when he had been diagnosed with diabetes. Dr Strauss concluded that the applicant’s time in the navy contributed to his abuse of alcohol, and noted that the applicant stated that at this time he became impotent.
CONSIDERATION OF THE ISSUES
31. Section 9(1) of the Act provides:
9(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
32. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 [Statement of Principles] 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. The 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.
33. Mr De Marchi, the applicant’s solicitor, submitted that, on the material as a whole, there is a reasonable hypothesis connecting the applicant’s claimed conditions with the stressful events experienced during his operational service in the navy and the resultant levels of smoking and drinking. He noted the diagnosis of PTSD by Mr Foenander and that Dr Strauss, the psychiatrist called by the respondent, supported the applicant’s case, and that there was no evidence to disprove the hypothesis.
34. Ms McCulloch, an advocate with the Department of Veterans’ Affairs representing the respondent, noted that Dr Rose had not diagnosed any psychiatric disorder. She submitted that, although the applicant’s entire service in the navy was stressful, none of the events described by the applicant constituted a severe psychosocial stressor and that there was no causal or temporal relationship between the applicant’s smoking or drinking and his operational service. Ms McCulloch submitted that the applicant’s evidence contained many inconsistencies, and that, even if the applicant increased his smoking during the relevant period, there was no causal connection to the circumstances of his operational service.
35. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
36. Whether an applicant suffers from a condition is a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), to be decided on the balance of probabilities, under s 120(4) of the Act. There was a range of views from psychiatrists, including no psychiatric disorder (Dr Rose); PTSD (Dr Sheehan); sub-threshold PTSD (Mr Foenander); and anxiety disorder (Dr Redmond and Dr Strauss). The Tribunal prefers the evidence from Dr Strauss, which appeared to be the most objective and credible, and was supported by evidence of Dr Redmond. The Tribunal finds that the applicant suffers from an anxiety disorder.
37. In relation to alcohol consumption, the Tribunal notes that the applicant stopped drinking in 1998. Mr Foenander said that the applicant meets the criteria for past alcohol dependence but not for current alcohol dependence since he stopped drinking in 1998. Dr Rose reported that the applicant described drinking large amounts of alcohol on war service and when on peacetime duties, but that his drinking allegedly never affected his work. The applicant reported to other medical practitioners that he drank heavily in the navy, but that he was able to function satisfactorily after discharge. He told Dr Strauss that his heavy drinking never affected his employment after the navy. Taking into account the medical evidence, the definition of alcohol dependence and alcohol abuse in the relevant SoPs, and the diagnostic criteria specified in the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the Tribunal finds that at the time of his application on 17 April 2003 the applicant did not suffer from alcohol dependence or alcohol abuse.
38. There was no dispute that the applicant suffers from erectile dysfunction (formerly impotence), diabetes mellitus and alcoholic hepatitis.
39. The Tribunal has considered each of the four steps from Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters, that the material points to a hypothesis connecting anxiety disorder, diabetes mellitus, impotence and alcoholic hepatitis to the circumstances of the particular service rendered by the applicant.
40. In respect of the second step from Deledio, the following Statements of Principles (SoPs) were in force and are relevant:
·SoP N° 1 of 2000 concerning anxiety disorder. The relevant factor is:
5. (a) …
(i) ...
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder;
Paragraph 8 of the SoP states:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
·SoP N° 17 of 2005 concerning erectile dysfunction which revoked SoP N° 16 of 2002 and SoP N° 97 of 1996 concerning impotence. The relevant factor is:
5. …
(q)having alcohol dependence or alcohol abuse at the time of the clinical onset of erectile dysfunction;
…
The relevant factor in SoP N° 97 of 1996 is:
5. …
(n) suffering from psychoactive substance abuse or dependence involving alcohol at the time of the clinical onset of impotence;
…
Paragraph 7 of the SoP states:
“psychoactive substance abuse or dependence involving alcohol” means a maladaptive pattern of use, attracting ICD code 303, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
·SoP N° 11 of 2004 concerning diabetes mellitus which revoked SoP N° 82 of 1999. The relevant factor is:
5. …
(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation;
…
There is no SoP for alcoholic hepatitis.
41. In respect of the third step from Deledio concerning anxiety disorder, the Tribunal takes into consideration the evidence from the applicant and Mr Benfield and the accounts of stressful events while serving on HMAS Hobart given by the applicant to various medical practitioners. In these circumstances, there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the SoP (Repatriation Commission v Hill (2002) 69 ALD 581).
42. In respect of the third step from Deledio concerning impotence or erectile dysfunction, the Tribunal accepts the uncontradicted evidence from Dr Strauss that the applicant’s impotence was reported in about 1998, when he was diagnosed with diabetes. The Tribunal accepts the evidence from Dr Strauss that the applicant’s service in the navy contributed to his abuse of alcohol. Therefore, the applicant was already drinking heavily at the time of operational service, and despite the overall level of alcohol consumed, there is no causal or temporal link between excessive alcohol consumption and operational service. There is no material or evidence pointing to the hypothesis being a reasonable one, and it is therefore not consistent with the template in the SoP. Consequently, the applicant does not satisfy the third step from Deledio in relation to impotence or erectile dysfunction.
43. In respect of the third step from Deledio concerning diabetes mellitus, the Tribunal accepts that the applicant’s level of cigarette smoking during the relevant period was sufficient to satisfy factor 5(c) SoP N°11 of 2004, that clinical onset occurred in about 1998 and that the applicant ceased smoking in 1996. In these circumstances there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the SoP. Consequently the applicant satisfies the third step concerning diabetes mellitus.
44. In respect of the third step from Deledio concerning alcoholic hepatitis, the Tribunal notes that there is no SoP. However, as the Tribunal has found that there is no causal or temporal link between excessive alcohol consumption and operational service, there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the SoP. Consequently, the applicant does not satisfy the third step concerning alcoholic hepatitis.
45. In respect of the fourth step from Deledio, that is whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. In relation to anxiety disorder the Tribunal takes into account that there is no mention in the applicant’s service medical records of any stressful incident. The Tribunal notes that the applicant described to various medical practitioners the stress of navy service, particularly the responsibilities and long hours he experienced as a sick bay attendant.
46. Regarding the first claimed stressor (the fire incident) the Tribunal notes that the applicant described to Mr Foenander as being toey and tense about a fire. However, the Tribunal accepts Commander Brecht’s evidence that there is no record of the fire incident at the relevant time. The applicant described to Dr Sheehan a dream involving a ship’s turret on fire, but made no other mention of a fire on HMAS Hobart while in Vietnam.
47. Regarding the second claimed stressor (the turret incident) the Tribunal notes the description by Mr Benfield as: Explosion onboard US warship (3 dead and 10 injured) and subsequent sighting of the damaged barrel in Subic Bay. The Tribunal notes further that the applicant did not mention this incident when giving evidence to the VRB or in his written statement to the Tribunal (Exhibit A5), but told the Tribunal that he was told to look at the turret on the wharf to ram home the safety message. Mr Benfield’s accounts of the incident were inconsistent and unreliable. There is no persuasive evidence that human remains of any type were inside the turret at the time the applicant claims to have seen it.
48. Regarding the third claimed stressor (the mines incident) the Tribunal accepts that Mr Benfield described in his statement (Exhibit A3) that floating mines were observed in debris in a river near the Cambodian border. The Tribunal notes that the applicant made no mention of mines in his statement (Exhibit A5), or to Dr Strauss or Dr Sheehan. He made brief mention to Mr Foenander, describing the constant tension and tiredness while divers searched for mines, but otherwise did not express any particular distress.
49. Regarding the fourth claimed stressor (the fishing boat incident), the Tribunal accepts the evidence from Commander Brecht that, as reported in the RoP of HMAS Hobart, the incident involved minor injuries to the occupants of a small vessel, and presumably the applicant assisted in the administration of first aid. The applicant told Mr Foenander that the incident was minor and not traumatic. His version of events does not accord with the version given by Mr Benfield, who reported …we swamped/ran over fishing boats.
50. For these reasons, the Tribunal finds that none of the incidents raised by the applicant is an identifiable occurrence that evoked feelings of substantial distress in the applicant, and therefore none constitutes a severe psychosocial stressor (Woodward v Repatriation Commission (2003) FCA 160). The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of anxiety disorder was war‑caused. Therefore, the Tribunal finds that the fourth step is not satisfied in relation to this condition.
51. In relation to diabetes mellitus the Tribunal takes into account that in the smoking questionnaire and in evidence at the hearing, the applicant stated that he commenced smoking on a regular basis (15-20 cigarettes per day) in 1960 at the age of 15 years. His rate of smoking increased to 25 cigarettes per day in 1965 or 1966, several years before operational service, then decreased before increasing again. The applicant agreed that the higher rate was attributable to stress and the increased opportunities to smoke at sea.
52. The Tribunal accepts the applicant’s evidence that heavy smoking was common in the navy during his period of service, and was part of the culture at the time. Overall, the Tribunal finds that the applicant was smoking about 25 cigarettes per day at the commencement of his operational service on board HMAS Hobart, and that the rate did not increase during the relevant period. The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of diabetes mellitus was war‑caused. Therefore, the Tribunal finds that the fourth step is not satisfied in relation to this condition.
53. In respect of the applicant’s eligible service from 7 December 1972 to 29 July 1982 the relevant sections of the Act are s 70, s 120B and s 120(4). Section 70(1) of the Act provides that the Commonwealth is liable where a member of the defence force suffers incapacity or death from defence-caused injury or disease. The applicant rendered eligible defence service in accordance with s 68(1) of the Act, as he served a period of continuous full-time service as a member of the defence forces on and after 7 December 1972.
54. Section 120(4) of the Act provides that the standard of proof to be applied is that of reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. The applicable SoPs are:
·SoP N° 2 of 2000 concerning anxiety disorder. The relevant factor is:
5.(a) …
(i)experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder;
…
·SoP N° 18 of 2005 concerning erectile dysfunction. The relevant factor is:
5. …
(p) having alcohol dependence or alcohol abuse at the time of the clinical onset of erectile dysfunction;
…
·SoP N° 12 of 2004 concerning diabetes mellitus. The relevant factor is:
5 …
(c) in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within five years of cessation;
…
There is no SoP for alcoholic hepatitis.
55. The Tribunal must form an opinion whether a contention raised by the applicant fits within, or is consistent with, a factor set out in the SoPs. If the contention fails to fit within the template, the claim will fail. The factors are similar to those already considered in respect of the applicant’s operational service. For reasons similar to those given above, the Tribunal is reasonably satisfied that the applicant is unable to satisfy the relevant factors in the SoPs, and consequently none of the contentions raised by him fits within the template.
56. For these reasons the application does not succeed.
DECISION
57. The Tribunal affirms the decision under review.
I certify that the fifty-seven [57] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 1 August 2005, 2 August 2005, 7 December 2005
Date of decision: 22 December 2005
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Counsel for respondent: Mr G. Purcell (1 August 2005 and 2 August 2005)
Advocate for respondent: Ms J. McCulloch (7 December 2005)
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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