Martin and Repatriation Commission - [2000] AATA 1131

DECISION AND REASONS FOR DECISION [2000] AATA 1131

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/64

VETERANS' APPEALS DIVISION          )
           Re      NORMA MARTIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member Dr Michael Miller, AO, Member

Date21 December 2000
PlaceCanberra

Decision      The tribunal affirms the decision under review.
  ...................(Sgd)..... ...............
  Pamela Burton
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Entitlement - widow's claim that death of the veteran was war-caused – whether stressful event in the course of war service such as to cause excessive use of alcohol – whether hypertension developed and caused ischaemic heart disease – relationship between war service, alcohol intake and cirrhosis of the liver – decision affirmed

LEGISLATION
Veterans' Entitlements Act 1986
AUTHORITIES
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gartrell [2000] FCA 1228

REASONS FOR DECISION

21 December 2000 Pamela Burton, Senior Member Dr Michael Miller, AO, Member

This is an application by Norma Martin, the wife of veteran Warren Martin, for review of two decisions of the Repatriation Commission. In the first decision, dated 10 October 1997, the Repatriation Commission refused the veteran's claim for disability pension for the conditions of post-traumatic epilepsy with brain damage, psychoactive substance abuse or dependence and ischaemic heart disease. In the second decision, dated 11 March 1998, the Repatriation Commission refused the applicant's claim for war widow's pension on the ground that the veteran's cause of death from ischaemic heart disease and cirrhosis of the liver were conditions not accepted as being causally related to his war service. On 16 February 1999 the Veteran's Review Board (the "VRB") affirmed the two decisions of the Repatriation Commission.
The hearing took place on 29 September 2000. Mr Paul Crabb represented the applicant and Mr Stephen Modder represented the respondent. The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). Medical reports and clinical notes were tendered at the hearing. In addition, the tribunal heard the evidence of the applicant, and by telephone Dr Macdonald, the veteran's general medical practitioner, and Commander Graham Vagg, who served with the veteran in the Royal Australian Navy (the "RAN") as an engineering officer on HMAS Sydney.
The veteran's claims and medical history
The veteran made a claim for a disability pension and treatment, which was received by the respondent on 3 June 1997 (T4, p.34). The claimed conditions were in respect of "alcoholism (chronic), head injury with brain damage and post traumatic epilepsy & myocardial infarction" (T5). The veteran died on 10 August 1997 at the age of 52. The certified causes of death were as follows (T14, p.71 and T19, p.94):
I. Direct cause -  (a) Myocardial infarction
Antecedent causes -  (b) Coronary artery disease
  (c) Atherosclerosis & liver disease
II. Other significant conditions          Bronchopneumonia
contributing to death -  Cirrhosis of liver

On 8 September 1997 the applicant made an informal claim for a war widow's pension pending the outcome of the veteran's claim for disability pension prior to his death (T6). She later lodged a formal claim which the respondent received on 1 December 1997 (T13).
On 10 October 1997 the veteran's claim for a disability pension was refused on the basis that the conditions of post-traumatic epilepsy with brain damage, alcohol dependence and ischaemic heart disease were not war-caused (T12). The applicant sought review of this decision on 9 December 1997 (T15). On 11 March 1998 the applicant's claim for war widow's pension was refused on the ground that none of the causes of death (ischaemic heart disease and cirrhosis of the liver) were war-caused (T20). The applicant also sought a review of this decision, which was received by the respondent on 5 May 1998 (T21). On 16 February 1999 the VRB affirmed the decisions of 10 October 1997 and 11 March 1998 (T25).
Prior to his death, the veteran was unwell and had been an alcoholic for some time. Dr Macdonald, the veteran's general practitioner, completed the medical report attached to the veteran's application for disability pension (T5). Dr Macdonald stated the veteran's permanent incapacity to be "permanent" brain damage, "permanent" post traumatic epilepsy (prognosis "overall poor"), "permanent" alcoholism (prognosis "poor") and a myocardial infarction which occurred in January 1997 (prognosis "not known" but "probably bad") (T5, p.41). In relation to rehabilitation, Dr Macdonald stated that "rehabilitation is unlikely to have any affect on this veteran" (T5, p.42). In the space provided for additional comments, Dr Macdonald had the following to say (T5, p.42): "This man is totally unemployable – he will probably die of a heart attack shortly if he doesn't fall down drunk and cause … Brain Damage".
A medical impairment assessment submitted to the respondent by Dr Craig in support of the applicant's claim for a widow's pension and dated 19 September 1997, indicated that the veteran had experienced "an acute myocardial infarct" (T7, p.44). As to the veteran's alcoholism, Dr Craig wrote that he "was frequently intoxicated" and "alcohol was frequently smelt on his breath" (T7, p.46). The veteran's alcoholism interfered with his ability to cope with every day situations ("no ability to reliably care for himself"), he was "unable to work", "unable to live with another person" and was "isolated". Intervention and counselling had "not at all" been successful as the veteran had a "poor memory" and also "frequently made appointments but then forgot to attend" (T7, p.47).
The legislation
The relevant provisions of the Veterans' Entitlements Act 1986 ("the Act") are outlined as follows:
s8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
…
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
s9 War-caused injuries or diseases
(1)Subject to this section, 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;

Service

The Act requires that for a claim to be accepted the disability or death of the veteran must be related to operational and/or eligible defence service. The veteran was born on 18 March 1945. He enlisted in the RAN on 7 July 1961 and was discharged on 17 April 1968 (Exhibit 1 and T3, p.12). Between 4 May 1966 and 26 April 1968 he served on the HMAS Sydney. The veteran's operational service in Vietnam was between 4 May 1966 to 6 May 1966; 6 June 1966 to 8 June 1966; and on 9 April 1968. The periods in Vietnam were in the course of his service on each of three tours on the HMAS Sydney. The periods of his operational service therefore extend to the periods of the three tours, being: 24 April 1966 to 18 May 1966; 25 May 1966 to 11 June 1966; and 27 March to 26 April 1968. (T3, p.12). The veteran was absent from Naval Service without leave from August 1966 to 28 January 1968. He received a sentence of 42 days detention on 7 February 1968 of which he served 32 days (service records Exhibit 1).
The applicant's evidence
The applicant and the veteran had known each other since they were children. They met in Woodburn, New South Wales, and were "boyfriend and girlfriend" since the ages of 13 years. They were engaged in 1964 and married on 23 July 1966 (applicant's statement Exhibit F). During the veteran's early training as an apprentice fitter and turner in the RAN, the couple lived in Sydney (report of Ms Kate Barrelle, clinical psychologist, Exhibit B). The applicant recollects that the veteran was always "very fit and sports minded". He played rugby football at high school and representative rugby for the RAN and Parramatta. It was during this period, according to the applicant, that the veteran started drinking in a social context and on weekends. He never drank at home. He had many friends in the navy. At some point during his period with the RAN the veteran increased his drinking.
The applicant recalled in her statement (Exhibit F):
… when he returned home on leave after his tours of duty in Vietnam his drinking had increased dramatically. During his heavy drinking episodes he would mention different incidents in particular the hot, cramped conditions on board the Sydney and also an incident in Vung Tau Harbour – Vietnam where it was left to him to prevent a boiler from exploding. From memory it was his second tour of duty.

As to the boiler incident, the applicant's evidence is that the veteran did not mention the incident to her until some two to three years after 1968 when he related the story about it while they were watching either a war film or an ANZAC day march on the television.

After the veteran's discharge the couple moved to the North Coast of New South Wales, and then to Brisbane. His drinking continued to increase. In her statement the applicant said:
Being his wife and mother of his two children I did not want to admit that Warren had a drinking problem, I found myself making excuses for him. He became very withdrawn, lost all interest in sport and showed little if any interest in his sons' Rugby playing. He isolated himself from family, friends and Navy mates. He never attended any Anzac Day marches or re-unions except once which was the year he passed away.
The veteran's work experiences were not successful. The applicant recalled in evidence that her husband was able to obtain good jobs, "well paid managerial positions", but found it hard to keep work. The veteran's life, by the time the couples' children left home, "revolved around drinking and trying to hold down a job" (Exhibit F). He tried share farming, then worked at ACI (a glass factory) in Brisbane, followed by work in the insurance industry and then in real estate. According to the applicant, he lost the last two jobs "because of alcoholism". The applicant recalled that the veteran often left for work early in the morning, sometimes at 4.30am. She later learned that this was because he was drinking before work, and found the veteran had kept bottles of alcohol in the boot of his car. He drank at work, mostly scotch and port. Not long before his death, the veteran started a lattice factory "which lasted about three months leaving many debts" (Exhibit F). One of the reasons for the failure of the business is that the veteran lost his drivers' licence in 1996 and his work required him to drive.
The veteran was admitted to the Detoxification Unit at Campbell Hospital, Koraki, on 6 May 1996 (Clinical notes Exhibit E). He signed himself out on 11 May 1996 after one week of treatment. (Exhibit E and T16, p.84). Appointments were also made for the veteran to see a psychiatrist but he failed to keep them, apparently because of poor memory. By this time the veteran had been drinking approximately a bottle of scotch and half a bottle of wine over a two-day period. The veteran also tried Alcoholics Anonymous without success.
According to the applicant, the worst period was in the two or three months before the veteran's death. By June 1996 "he could no longer cope, had no job and moved to a flat close to the family home" (T16, p.84). She said he drank at least one flagon of wine a day at this time. The applicant told Ms Barrelle about the veteran's final days:
He didn't seem to want to live. He lost all hope. He moved out in the end and sat in a unit drinking all day. He seemed to feel hopeless. When he rented the unit, he said, 'I'm no good here', but he'd ring me every day. One day, he said 'I'm really sick'. He said, 'You just look for my name in the paper'. He died a week later. He died on his own.

The applicant's contentions

To be eligible for a pension a reasonable hypothesis must be raised to connect the veteran's disability or death with the circumstances of his service. The applicant claims that the circumstances of the veteran's war service raises a reasonable hypothesis that a stressful incident he experienced during his operational service on board the HMAS Sydney in Vietnam in 1968 caused the veteran's alcohol dependence or abuse. This, in turn, led to hypertension, which resulted in ischaemic heart disease. The applicant also claims that a reasonable hypothesis is raised that the veteran's cirrhosis of the liver was caused by his excessive consumption of alcohol, (again a consequence of the stressful event that allegedly occurred on board the HMAS Sydney). The applicant alleges that the veteran suffered a psychiatric disorder, namely post-traumatic stress disorder (PTSD), and a depressive disorder as a consequence of that event, so as to cause him to suffer substance abuse or dependence. However, counsel on her behalf, acknowledged that the hypothesis put forward does not require a psychiatric condition to link the veteran's death with his war-service, a stressful event being sufficient to cause substance abuse, dependence, or intake of excessive alcohol.
Standard of proof
The applicant does not bear any onus of proof. For the purposes of the Act, the standard of proof in respect of a claim for disability or death arising out of the veteran's period of operational service at Vung Tau is as set out in sections 120(1) and 120(3) of the Act. That is, the tribunal must be satisfied that the claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. Thus the applicant's claim must fail if the material before the tribunal does not raise a reasonable hypothesis to connect the conditions which caused the veteran's death with the circumstances of the veteran's service.
Statement of principles
In coming to its decision, the tribunal must have regard to any relevant Statement of Principles ("SoPs") issued by the Repatriation Medical Authority in relation to the war-caused conditions claimed by the applicant. The SoPs state what factors must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the service. The tribunal can not accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition (sections 120A and 120B of the Act). For operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.
The decisions under review dated 10 October 1997 and 11 March 1998 deal with a number of separate claimed conditions which raise consideration of which SoPs to apply in determining whether the veteran's conditions were war-caused.
The decision of 10 October 1997 deals with post-traumatic epilepsy with brain damage, alcohol dependence and ischaemic heart disease. The decision of 11 March 1998 deals with whether the veteran's death was war-caused. The causes of the veteran's death were ischaemic heart disease which led to myocardial infarction, and cirrhosis of the liver. The applicant withdrew the claim for epilepsy at the hearing, so consideration of the relevant SoP for that condition is no longer necessary.
Guidance on the application of the appropriate SoP has been provided in Repatriation Commission v Keeley (2000) 98 FCR 108 (and see Gartrell v Repatriation Commission [2000] FCA 1228). In Keeley, Justices Lee and Cooper held, at paragraph 46, that unless a contrary intention is "clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued." In relation to the Act, this means that an applicant whose claim has been determined by the respondent has an accrued right to have that claim assessed in any review in accordance with the SoP in force at the date of the primary determination of the claim.
Thus, although the SoPs in relation to alcohol dependence, ischaemic heart disease, cirrhosis of the liver and hypertension have been amended or revoked since the veteran's and the applicant's claims were lodged, the tribunal must have regard to the SoPs operating at the time of the primary decision, those SoPs being more beneficial to the applicant.
On 10 October 1997 the SoPs in force in relation to alcohol dependence and ischaemic heart disease were Instrument No 5 of 1994 (psychoactive substance abuse or dependence) and Instrument No 140 of 1996 as amended by Instrument No 77 of 1997 (ischaemic heart disease). As at 11 March 1998 the SoP in relation to cirrhosis of the liver was Instrument No 75 of 1996. The other relevant SoP is Instrument No 83 of 1995 (hypertension). At the start of the hearing the applicant indicated that SoPs dealing with PTSD and depressive disorder would also be relied on. These are Instrument No 15 of 1994 (PTSD) which was amended by Instrument No 225 of 1995 and Instrument No 65 of 1996 (depressive disorder), amended by Instrument No 181 of 1996.
The tribunal must first consider whether a reasonable hypothesis is raised to connect the conditions causing the veteran's death, ischaemic heart disease and cirrhosis if the liver, with the veteran's particular service.
Ischaemic heart disease
The SoP applying at the time of the decision under review in relation to ischaemic heart disease was Instrument No 140 of 1996 as amended by Instrument No 77 of 1997. The 1996 SoP states that ischaemic heart disease means "a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen." Ischaemic heart disease is considered to be present when there is at least one of the following:
(i)        myocardial infarction (old or new); or
(ii)       angina; or
(iii)      arrhythmia with ECG evidence of myocardial ischaemia; or
(iv)      myocardial ischaemia (for example ischaemic cardiomyopathy); or
(v)       coronary occlusion,
attracting ICD code 410, 411, 412, 413, 414.0, 414.10 or 414.8.

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease, or death from ischaemic heart disease, with the circumstances of a person's relevant service are defined in clause 5 of the SoP. Factor 5(a) is relevant to this matter as it requires the "presence of hypertension before the clinical onset of ischaemic heart disease". Hypertension receives the same definition as that which appears in Instrument No 83 of 1995 discussed below.
Hypertension
The SoP applying at the time of the decision under review in relation to hypertension was Instrument No 83 of 1995. Hypertension is defined by clause 4 to mean:
(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)where treatment for hypertension is being administered attracting an ICD code in the range 401 to 405.
Subject to clause 3 of the SoP (which does not apply here) at least one of the factors in paragraphs 1(a) to 1(x) must be related to any service rendered by the veteran. The applicant relies on factor 1(b) which requires the veteran to have been "suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension".

The evidence presented to the tribunal is that five of the six blood pressure readings of the veteran taken between 22 October 1996 to 4 April 1997 were less than as set out in clause 4(a) above. The other reading was 140 over 90. Dr Macdonald, giving evidence on behalf of the applicant, when presented with these readings agreed that the veteran was not hypertensive at this time. There is no evidence to suggest that the veteran was being treated for hypertension to satisfy clause 4(b) above. In the absence of evidence of hypertension or of an accurate determination of hypertension being made, a reasonable hypothesis is not raised connecting the veteran's drinking habits with hypertension. The tribunal cannot then accept that the veteran's ischaemic heart condition is connected with his service.
Cirrhosis of the liver
Cirrhosis of the liver was a secondary cause of the veteran's death. It must be considered a contributing cause. Whether any factor under the relevant SoP is met to raise a reasonable hypothesis connecting this condition with the veteran's service has therefore to be considered.
The SoP applying at the time of the decision under review in relation to cirrhosis of the liver was Instrument No 75 of 1996. The SoP defines cirrhosis of the liver to mean:
a pathologically defined entity involving irreversible chronic injury of the hepatic parenchyma and includes extensive fibrosis in association with regenerative nodules. It is characterised by diffuse interlacing bands of fibrous tissue typically dividing the hepatic parenchyma into micronodular or macronodular areas, attracting ICD code 571.2, 571.5 or 571.6.
Clause 5 of the SoP defines the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver with the circumstances of a person's relevant service. Clause 4 states that, subject to clause 6 (not relevant here), "the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person." The applicant relies on factor 5(a), which states that "for men, drinking at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver".
There seems to be no doubt that the veteran's consumption of alcohol increased during and after his service such as to meet the SoP's quantitative requirement. The medical evidence supports a finding that the applicant suffered from alcohol abuse and alcohol dependence. The applicant's evidence verifies this and supporting evidence is contained in Exhibits E (detoxification records) and Exhibit 3 (Dr Walden's report).
The issue then arises as to whether the veteran's consumption of alcohol during and after his service was related to that service. We need, therefore, to consider whether the particular event put forward by the applicant as occurring during the veteran's operational service, was a stressful event such as was likely to have contributed to the veteran increasing his alcohol intake, so as to raise a reasonable hypothesis that the cirrhosis of the liver condition was war caused.
The boiler incident
There is evidence available to the tribunal that the veteran was involved in an incident in which he was required to repair a broken glass gauge on a boiler on HMAS Sydney in Vung Tau harbour. In response to a question in the veteran's disability pension claim which requested details of any accidents, injuries or illnesses the veteran had suffered during service which relate to the claim, the following details were provided on his behalf (T4, p.35):
An incident occurred on the Sydney at the harbour at Vietnam. This incident may not have been reported. Warren has some memories of the boiler – the glasses where you measure the water burst and Warren was left on his own. Under extreme heat and the worry of the boiler blowing. Warren says he risked his life and repaired them.

The veteran signed the claim, which was received by the respondent on 3 June 1997, and appears thereby to have adopted the description of the incident.

Other than this and the mention of the boiler incident by the veteran to the applicant, the evidence before the tribunal of the boiler incident is the history taken from the veteran by his general practitioner, Dr Macdonald. It is for this reason that Dr Macdonald's recollection of his conversation with the veteran about the incident is focused on at length below.
On 10 September 1997 Mr Bell, a Legacy representative, wrote to Dr Macdonald in relation to the applicant's claim for a pension (T8). Mr Bell stated that he had been "told he related to you an incident or incidents that occurred on the Sydney whilst in Vietnamese waters in 1966" (T8 p.52). Mr Bell's letter then went on to say that he believed the incident may have been the "trigger" for a number of things. These include: the veteran's "marked increase in alcohol consumption"; his period of absence without leave; his early discharge; temporary marriage separation; business failures; chronic alcoholism; his "fall causing brain damage", and eventual death (T8 p.52).
In a letter dated 19 September 1997 (T9 p.53) Dr Macdonald, without the benefit of any further information from the veteran who had since died, had the following to say about the veteran:
I was not surprised to hear of his demise from acute myocardial infarction which perfectly fitted the picture of an alcoholic, smoking, brain damaged, head traumatised individual. Rather sad as from what we talked about, I believe his conditions of Navy war service contributed strongly to his downfall.
As an adjunct to his application for service pension (an easy form to fill out as Warren was obviously unemployable) I enquired about his Navy service, especially any war service. He related to me a singular event which appeared to have significantly changed his approach to life. This was on board HMAS Sydney alongside South Vietnam (he could not recall even approximate dates) as ERA2 he was 2nd in charge of Sydney's boiler (the senior a chief or petty officer) with two juniors – the engineer had gone somewhere.
Apparently, due to incompetence, the juniors failed to properly supply the boiler (short of water) creating a very dangerous situation where total shut down or slow feed balanced management – a very dangerous task – was required. The (chief) stoker, name uncertain, left Warren in charge to manage the boiler.
Warren achieved this without damaging the boiler – thus saving the engineer and chief and the ship from a disastrous event but at great cost – being confronted with imminent death but being deserted by those in authority.
I have talked to other engineering sailors who served in HMAS Sydney (troop ship) and it is quite likely that only one (or possibly two) boilers were providing power at that time and that to do what Warren apparently did was not only very dangerous but technically very difficult – and very important to the ship.
…
Unfortunately although Warren's memory was very clear of his incident, it was otherwise poor – presumably from alcoholic and traumatic brain damage.
That single incident easily conforms to the ICD of the DSMIV ICD Code 309.81 PTSD traumatic event and I suspect it alone caused Warren to lose his faith in the navy (especially authority) and resulted in a progressive downhill path leading to alcoholism, smoking, traumatic brain damage and ultimately death.

Dr Macdonald stated in evidence that the alleged incident "used to come back to him [the veteran] all the time". Dr Macdonald stated that the veteran believed that if he had not acted as he did, he, and perhaps others, could have been killed. Dr Macdonald described a shortage of water in a water gauge as "like a dry kettle". He also explained the veteran's decision not to report the incident, either at the time or upon discharge, as a "catch 22". The veteran had been left to solve the problem while others had deserted him. The actions of those who deserted him might be criticised, but these things are "often shelved". Dr Macdonald stated that if the veteran had "lost faith in the RAN I'd expect him to say nothing [about the incident] and get out of the RAN."
Dr Macdonald's interpretation of the veteran's situation was partly based on Dr Macdonald's surmise of the situation, drawing from his own experience. Dr Macdonald served with the RAN for six and half years. He claims that "[a]lthough I didn't serve on board HMAS Sydney, I served on HMAS Melbourne and have visited every engineering space at sea, so I have a reasonable knowledge of Warren's situation", (letter to Mr Bell T9, p.54).
However, the history given to Dr Macdonald by the veteran was very brief, and Dr Macdonald could not recall the details of what was told to him from the scanty notes he took at the time he examined the veteran.
In a letter tendered by the applicant dated 16 March 2000 (Exhibit A), Dr Macdonald elaborated on the alleged incident:
Mr Martin was quite lucid about the actual event (although some details were sketchy). He recalled being "alongside" – ie in Port SVN with HMAS Sydney unloading in Vung Tau (presumably either 4th – 6th May 1966 or 6th –8th June 1966). He was ERA2 – which meant he was third in charge of engineering after the Chief ERA and engineer. The engineer was not in the boiler room when the incident occurred.
The junior stokers (of whom there were two) failed to properly supply the boiler creating an extremely dangerous situation which required either total boiler shut down (not an acceptable result in a war zone when probably only one other boiler was supplying power to the ship) or a very difficult and hazardous slow feed balanced management.
Mr Martin remembers the Chief ERA (?named Thompson) leaving the boiler room making Mr Martin in charge during the evolution of shutting down the fire and restarting steam and fire. Mr Martin remembers breaking his glasses but continued on until stabilizing the situation, then going to the flight deck and collapsing with heat exhaustion.
I recall speaking about the situation following this incident and remember Mr Martin being very bitter that no recognition was made of his efforts and no action was initiated against either the Chief ERA or engineer, thus finding corroborative evidence in the ships engineering or general log may be somewhat difficult.

The tribunal notes Dr Macdonald's reference to the veteran remembering "breaking his glasses" in the above statement and to "glasses broke" in his clinical notes (Exhibit C). In evidence Dr Macdonald said that he thought the reference in his notes was possibly to "spectacles or something else". However, it seems that the veteran did not wear spectacles (T3 p.30), and it is likely that he intended to convey to Dr Macdonald that it was the glass gauge that had broken.
Dr Macdonald correctly notes that "corroborative evidence" that one would expect to find in naval records of any serious incident is not in existence. Dr Jeffrey Grey from the Australian Defence Force Academy (Exhibit 2) wrote that there was no mention of any incident of the type described in the HMAS Sydney's Reports of Proceedings. Dr Grey adds that, given there was, apparently, no damage or impairment to the ship itself caused by the incident, this might explain why it was not reported. Only "satisfactory" performance was noted in the records. Dr Grey concluded in his letter that he was "afraid that sometimes there are questions to which we cannot know the answers, and this may prove to be one of them."
The tribunal heard evidence from Commander Graham Vagg. Commander Vagg served with the RAN between 1967 and 1981. He was with the HMAS Sydney between August 1965 and December 1967, during the time when the veteran was also on the ship. In evidence, Commander Vagg claimed he knew the name "Warren Martin" but did not remember him on the ship. He said that "ERA2 Martin" spent watch-keeping time as a Lower Plate ERA2 and "may have undertaken boiler watch-keeping training" as part of his training on the ship, (statement of G.J. Vagg, 11 December 1997 at T16, p85). Commander Vagg served as an engineering officer.
According to Commander Vagg, the main engines (steam turbines) were in two main spaces which contained two boilers, a water distilling plant and a turbo generator (T16, p.85). Stand-by diesel generators and air conditioning equipment were located in auxiliary machinery spaces. As to the alleged incident in the boiler room, Commander Vagg had the following to say:
I do not recall any specific incidents which may have had an adverse affect on an individual although incidents such as boiler priming (due to excessive water), low boiler water level (insufficient water), boiler black out (loss of fuel supply) or loss of electrical power, steam joint blow out, would be stressful for any operators concerned. Such incidents could occur anytime the boilers are alight with the risk to personnel being similar in most cases. Faster reaction times are needed at high steaming rates but emergency drills for any event would be standard.

In his evidence Commander Vagg was asked to explain the reference to "glass where you measure the water burst", in the veteran's claim for disability pension (T4, p.35). He explained that the steam drum has glass gauges. The glass gauge is a tube about 18 mm in diameter with a hole 12 mm by 300-400 mm long. There is a valve above and below the tube. When the steam is normal, the water level is half way up the glass. Commander Vagg explained that the water must be at that level at all times. The glass can break. It is a "weak link" in the system. If the glass breaks the operator must shut off the valves fast and put new glass in. There should always be a second glass to rely on. When the glass bursts steam and water escapes at boiler pressure and can go off "like a gun". Water and steam will "come out at the speed of sound" and can project up to two metres above head level. Commander Vagg said it would be an unnerving experience as there would be a "large crack" followed by a "hiss of steam".
Commander Vagg said that he had never seen a gauge glass break, but knew what happened if it did. He said that the system is not hard to repair. It is a dangerous situation only if the water level is low – this would require shutting the boiler down quickly. Commander Vagg stated that in the event that one gauge blew, so long as the veteran could see the water level through the other gauge, there would be "no worries". The operator must watch the water level and regulate the valve. This would require a person with experience but the job is "not too hard". If the junior had failed to properly supply the boiler a potentially dangerous situation arises. It requires "slow feed balanced management". The veteran, said Commander Vagg, would have to adjust the feed valve and watch the gauge constantly to monitor the water level. It is involved as there is "no simple button to push to fix it all up". However, it is not necessarily dangerous to have one gauge out of order. Commander Vagg said that an ERA2 should have been able to do this task. Shutting down a boiler is part of normal training procedure. The veteran should have been "comfortable with steam machinery" by that time.
Commander Vagg said that such an incident should have been recorded in the machinery running log. The replacement of a glass gauge should have gone into the daily log as a matter of course. When questioned about the non-reporting of the incident, Commander Vagg replied that it may not have been recorded because the incident involved a supervisor failing in his duties to stay in the boiler room. The veteran may have been reluctant to report that the supervisor had deserted his post.
Dr Macdonald does not have the technical expertise to explain either the nature or seriousness of a break in gauge glass on a water boiler in a ship at sea. Dr Macdonald was a naval doctor without the engineering expertise possessed by Commander Vagg. During questioning by the tribunal, Dr Macdonald admitted that he did not understand the mechanics of boiler rooms, especially that of water gauges. In this respect, the tribunal prefers the evidence of Commander Vagg to that of Dr Macdonald. The tribunal accepts Commander Vagg's evidence that, had a glass gauge blown, the veteran would have been trained to fix the problem and that the risk to the veteran's physical well-being, and to others, was minimal.
The medical evidence
The veteran drank and enjoyed social drinking before his naval experiences. During his time in the navy the veteran increased his alcohol consumption, evidenced by his level of drinking during periods on leave at home with his wife, the applicant. Prior to this period, the applicant did not recall him drinking at home. It is impossible to know at what point the veteran became dependent on alcohol – both Ms Barrelle (Exhibit B, p.5) and Dr Walden (Exhibit 3, p.3) agree on this point. It seems incontrovertible to say that towards the end of the veteran's life he had a dependency. In the detoxification records (Exhibit E) on 9 May 1996 an entry appears which states:
Spoke to wife – quite distressed over past 18 mths – Warren drinking heavily – 1 bottle scotch & ½ bottle wine approx over 2 day period was retrenched from his job & unemployed for six months due to heavy drinking episode … Norma said that Warren started "forgetting things" but otherwise was functioning quite well … Wife expresses concern for Warren's state at present with slurred speech; dozing off; unable to feed self & walking into walls. Says that he has never been like this.
It seems that at least during 1996 the veteran suffered from alcohol abuse. Dr Walden also notes that on admission "liver function tests showed elevations in enzymes and an elevated mean cell volume consistent with chronic alcohol abuse", (Exhibit 3, p.3). The tribunal accepts the applicant's evidence that interference with the veteran's social and occupational life began well before then. It is also possible that the veteran was a regular drinker, as Dr Walden notes, prior to his service in Vietnam (Exhibit 3, p.3). It is possible that there is a history of heavy alcohol use in the veteran's family. There is a note in the detoxification records that states "father alcohol problems" (Exhibit E, 9 May 1996). However, the applicant claims never to have seen the veteran's father drunk and known him only to have been a social drinker. The veteran was a regular social drinker during his four years of training and the applicant recalled that "when he returned on leave after his tours of duty in Vietnam his drinking had increased dramatically. During his heavy drinking episodes he would mention different incidents", (Exhibit 3, p.3). She does not recall him mentioning the boiler incident during this period.
The tribunal agrees with Ms Barrelle's and Dr Walden's opinion that the veteran suffered psychoactive substance abuse and then dependence in relation to alcohol, as defined by Instrument No 5 of 1994. We accept the opinion of Dr Walden, psychiatrist, that it is impossible to date when exactly the abuse commenced other than "it seems likely it came on at some point after his service in the Navy" (Exhibit 3, p.6). The tribunal accepts that his dependency probably started in 1996 and lasted until his death on 10 October 1997.
On the medical evidence available the tribunal is satisfied that the veteran did not suffer from PTSD. The tribunal prefers the evidence of Dr Walden to that of Ms Barrelle in this respect. If the veteran had such a psychiatric condition, the failure to mention a trauma, or severe life-threatening event, might be explained by a mental blocking out of the traumatic memory. Such an event in order to cause PTSD would need to involve "actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity" where "the person's response to that event involved intense fear, helplessness or horror" (see also Dr Walden, Exhibit 3, p.4). Commander Vagg's evidence, which we accept, does not support the proposition that the boiler incident was such an event.

The tribunal has considered the veteran's possible subjective belief at the time that the boiler incident was a dangerous event. On the whole of the evidence the tribunal concludes that the veteran did not enjoy his service on HMAS Sydney. According to the applicant the veteran wrote to her complaining about the conditions of his service. He wrote of being depressed and of sleeping on hammocks in the boiler room. She said the veteran wrote to her "every other day" during his service, and she recalled no mention of the boiler incident in these letters. In February 2000 she said to Ms Barrelle, "I've still got all his old letters" (Exhibit B, p.11). The tribunal did not see these letters as it was informed at the start of the hearing that the applicant's children had since destroyed them.
After the veteran's period of detention between February and March 1968 he did another tour of Vietnam before his discharge on 17 April 1968. The veteran did not mention the boiler incident on his discharge. On this evidence we conclude that the boiler incident was not perceived by the veteran to be a significant or stressful event, such as to have contributed to the increase in his level of consumption of alcohol.
Conclusions
The tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the claimed conditions with the veteran's eligible defence service. The veteran developed a heavy drinking pattern after his first tour of duty, prior to the boiler incident. There is insufficient evidence to conclude that the boiler incident was a significant stressful incident in the veteran's service, or that it had any bearing on his subsequent drinking patterns. There is no evidence to support the hypothesis that this or any other stressful event during the veteran's service caused or contributed to the development of his excessive use of alcohol.
The tribunal is satisfied that the hypothesis raised by the applicant in relation to the ischaemic heart condition does not contain any of the factors required by the relevant SoPs to relate the condition to the veteran's relevant service. The hypothesis does not fit within the "template" of the relevant SoPs and therefore is deemed not to be "reasonable" and the claim in this respect must fail (Repatriation Commission v Deledio (1998) 49 ALD 193 at 206).
The tribunal does not accept that the veteran's level of consumption of alcohol in any ten-year period before the clinical onset of cirrhosis of the liver was causally related to his operational service. The tribunal finds that the veteran's cirrhosis of the liver, which contributed to his death, was not war caused.
Decision
The tribunal affirms the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member and Dr Michael Miller, AO, Member
Signed:         James Enderbury           .....................................................................................
  Associate
Date/s of Hearing  29 September 2000
Date of Decision  21 December 2000
Counsel for the Applicant        Mr Paul Crabb
Counsel for the Respondent    Mr Stephen Modder

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Citations

Martin and Repatriation Commission [2000] AATA 1131

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Gartrell v Repatriation Commission [2000] FCA 1228

Re Greenough and Repatriation Commission [2002] AATA 774