McDonald and Repatriation Commission

[2003] AATA 692

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 692

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/86

VETERANS' APPEALS  DIVISION		)
Re		JOHN DUNCAN MCDONALD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date9 July 2003

PlaceAdelaide

Decision For the reasons given orally at the Hearing of this matter, the Tribunal sets aside the decision under review, only insofar as it referred to the condition of "alcohol abuse and dependence", and substitutes the condition of "alcohol dependence", but otherwise affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - whether applicant’s condition of alcohol dependence is war-caused – whether applicant experienced a severe stressor during operational service – whether clinical onset of alcohol dependence occurred within two years of this stressor - reasonable hypothesis

Veterans’ Entitlements Act 1986 sections 120, 120A

Statement of Principles Instrument No 76 of 1998

ORAL REASONS FOR DECISION

9 July 2003   Senior Member WJF Purcell           

1.      This is an application for review of a decision of the Repatriation Commission (the Commission) dated 19 July 2001, insofar as it rejected alcohol abuse and dependence as war-caused.  The Veterans’ Review Board (VRB) affirmed the decision on 7 December 2001.  It is agreed between the parties that the appropriate diagnosis is alcohol dependence.  That is the condition to which these Reasons for Decision refer.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Liptak represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Crowe represented the Commission.

3.      The applicant, who was born on 29 November 1949, is 53 years of age.  He was born in Orange, New South Wales, and left high school in 1964 when his family moved to Adelaide.  He worked as a labourer in the wool and hide industry, until he joined the Royal Australian Navy (the Navy) on 12 July 1965 at the age of 15½..  He became a radar plotter, and served in the Navy until 11 July 1977 when he was 27 years of age.  He is now the skipper on a fishing boat out of Edithburgh on the Yorke Peninsula.

4.      The applicant has operational service in Vietnam aboard HMAS Brisbane (the Brisbane) from 20 March 1969 to 13 October 1969, being a period of 209 days.  He has eligible defence service also from 7 December 1972 to 11 July 1977.  He asserts that his condition relates to his operational service, and the appropriate standard of proof is that of reasonable hypothesis in accordance with section 120 of the Veterans’ Entitlement Act 1986 (the Act) which, as far as is relevant for the purpose of this review provides:

“120Standard of Proof

(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note:   This subsection is affected by section 120A.

(2)       …

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note:   This subsection is affected by section 120A.

…”

5.      Section 120A provides.

“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1)This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

(b)       a claim under Part IV that relates to:

(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)       the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

(2)       …

(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B (2) or (11); or

(b)       a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note:   See subsection (4) about the application of this subsection.

…”

6.      The hypothesis propounded by the applicant is that his condition of alcohol dependence relates to his operational service, in that on the whole of the material, the traumatic event which he experienced connects his condition with his relevant service.  In my view, the material before the Tribunal would, if correct, point to a hypothesis that the condition was war-caused.  There is a Statement of Principles in force, and in accordance with the Statement of Principles, at least one of the Factors set out in clause 5 must, as a minimum, exist before it could be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the applicant's relevant service.

7.      The current Statement of Principles for alcohol dependence is Instrument No 76 of 1998 (the Alcohol Dependence SoP).  It was in force also, at the time of the primary Commission decision.  The applicant contends that Factor 5(b) of the Alcohol Dependence SoP is satisfied:

“experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”

“Experiencing a severe stressor” is defined in the Statement of Principles as:

“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:

(i)        threat of serious injury or death; or

(ii)       engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”

8.      When the applicant completed his claim form for Disability Pension on 18 February 2000, he stated that he believed that his operational service contributed to his alcohol condition "due to stress of service" [T5/65].  The alcohol questionnaire reads, in part, as follows:

“…

1.        Have you ever drunk alcohol on a regular basis?  (For the purposes of this question a regular basis includes an average of 3-4 standard drinks of alcohol per week or above or occasional ‘binge’ type drinking.  It does not include such irregular drinking as a glass or two of alcohol only a few times a year such as on special occasions, birthdays, etc.)

[the applicant indicated Yes]

2.        When did you start to drink alcohol?

When I joined R.A.N.

3.        What alcohol did you drink?  (Please describe the types of alcohol; eg Beer, or wine, or spirits or the combination of types of alcohol consumed.)

Mainly beer – spirits & wine on occassions [sic]

4.        How much did you drink?  (Please indicate the average number of standard drinks per day or per week.  One standard drink (10 grams of alcohol) approximates to a 10oz (285ml) glass of full strength beer, a standard glass of wine, a ‘nip’ of spirits or a standard measure of fortified wine.  If a ‘binge’ type drinker, describe how often and the average amount of alcohol consumed on these occasions.  If you need more space to describe your alcohol consumption, please attach an extra sheet.)

12 stubbies per day

5.        Did you ever permanently stop drinking alcohol?

[the applicant indicated No]

6.        Do you consider that your alcohol consumption was due to, or contributed to, by your service?  If so please explain why.

[the applicant indicated Yes]

Peer pressure

Relax

Considered social acceptable

7.        Did the amount of alcohol you consumed change significantly at any time after you first started drinking alcohol?

[the applicant indicated No]

Have drank alcohol every day

…”  [T5/78-80]

9.      Dr Ewer interviewed the applicant on 15 November 2000, and reported on 16 November 2000 that the applicant told him that he started to abuse alcohol whilst serving in Vietnam, and gave a clear history of using alcohol to cope with the distress he was experiencing in Vietnam.  Dr Ewer summarised the stressful experiences to which the applicant was exposed in Vietnam in the following terms:

“…

1.Mr McDonald told me that he was on the deck on two occasions when the Brisbane came under enemy fire.  He could hear the automatic weapon fire and he was able to see the tracer bullets coming directly towards the Brisbane.  Mr. McDonald said this frightened him considerably.  He was on watch and armed but he had no bullets for his weapon.  The latter was standard practice for the Navy at this time.

2.On a number of occasions Mr. McDonald was operating the radar when he saw unidentified ships and aeroplanes appear on the screen.  These often did not identify themselves until the last moment.  Consequently the Brisbane went into battle stations and he told me the missiles were ready to fire.  Mr. McDonald felt very apprehensive and anxious during this time.

3.Mr. McDonald was standing on the bridge one day when he heard a loud explosion on the Brisbane.  Mr.  McDonald thought the ship had been hit by the enemy.  He felt intensely frightened.  Soon after he discovered that a five inch gun had exploded just below him.  Many sailors were injured in the blast.

…”[T7/83]

10.     In a later report dated 23 October 2002, Dr Ewer stated that in his opinion the applicant fulfilled the definition in the Alcohol Dependence SoP relating to alcohol dependence.  Under the heading "Further History Obtained", Dr Ewer reported, in part, as follows:

“Mr. McDonald told me the following history.

7.1Mr. McDonald stated that at least one of the stressors listed on page 2 of my report dated 16 November 2000 occurred before he had any leave in Vietnam.  In particular he thought stressor number 1 occurred prior to any leave.

7.2Mr. McDonald told me that he experienced symptoms of anxiety prior to abusing alcohol.

7.3Mr. McDonald told me that he started to abuse alcohol when he had leave during his trip of Vietnam.  He recalls “going on all night binges and being very drunk”.

7.4Mr. McDonald told me that after this time he sought out alcohol whilst in Vietnamese waters.  He regularly consumed four large cans (26 fluid ounces) of alcohol whilst aboard the HMAS Brisbane in Vietnamese waters.

7.5Mr. McDonald’s anxiety and excessive alcohol intake continued.  Mr. McDonald gave me one example of how desperate he was to obtain alcohol when he was in Cerberus.  He stated the wet canteen was shut and he and other sailors consumed after shave lotion as a substitute for alcohol.  During this time he was “drunk very night”.

7.6Mr. McDonald reported symptoms of alcohol dependence over the years.

7.7Mr. McDonald told me the following about his alcohol intake over the last six month period.  He told me that he consumes twenty-four stubbies of light strength beer every two days except when he is at sea.  When he is at sea he usually goes without alcohol although he occasionally obtains beer at sea.  Mr. McDonald has been ashore for the last month.  Mr.  McDonald described symptoms indicative of tolerance to alcohol.  In particular he described a need for increased amounts of alcohol to achieve the desired effect.  He also told me that alcohol had a markedly diminished effect upon him after he had been using it regularly for a month.  He reported symptoms of alcohol withdrawal.  In particular he told me that he would become nervous, tremulous and perspire excessively when he ceased alcohol going back on the ship.  He would also have difficulty sleeping.

…”[Exhibit A3]

11.     Dr Ewer was called as a witness at the completion of Mr Liptak's opening address, but before the applicant had given any evidence.  My comments in relation to this most unsatisfactory order of witnesses appear in the record of proceedings, and I do not consider it necessary to reiterate them in these oral Reasons for Decision.  In the course of his evidence-in-chief, Dr Ewer said that only the third stressor, "the gun explosion", would satisfy both the objective and the subjective tests applicable under the Alcohol Dependence SoP - the tracer fire incident would, in his view, satisfy the objective test, but although the applicant said it frightened him considerably, the Alcohol Dependence SoP required a greater subjective reaction.  In relation to the second stressor with the radar screen, Dr Ewer considered that the subjective criteria for a severe stressor was not met by this event.

12.     In his closing address Mr Liptak informed me that the applicant was no longer contending that the alleged stressors 1 and 2 satisfied the definition of a “severe stressor."  In the course of the Hearing, I had heard extensive evidence from the applicant, however, in relation to these alleged stressors.  The evidence remains relevant in the context of the sequence of events in his operational service and the history of his drinking pattern.

13.     In the course of his closing address, Mr Crowe conceded, on behalf of the Commission, that the gun explosion incident satisfied the definition of "severe stressor" in the Alcohol Dependence SoP.  He contended, however, that there is no evidence that the clinical onset of the applicant's alcohol dependence occurred within 2 years immediately after he experienced such a stressor.  The clinical onset of his alcohol dependence would have needed to occur, by necessity, by 22 July 1971.

14.     The applicant was an unimpressive witness.  He is a poor historian, who I accept experiences short-term memory loss, but his evidence was at times inconsistent and contradictory, and in addition, even on his own evidence, he has made false statements in relation to his alcohol intake in the course of pursuing this claim.  This does not mean that I discount the totality of his testimony, but that I prefer to rely upon other objective evidence in areas of dispute in the evidence.

15.     Dr Ewer relied upon the applicant's version of events being credible when reaching his opinions, and I take that into account when deciding upon the weight to be given to his evidence and opinions.

16.     The applicant said in evidence that a fellow seaman (Mr S) urged him to lodge a claim with the Commission, to "get on their books" before he reached 55, and told him to put in a claim for hearing loss and alcohol abuse/dependency.  The applicant says that Mr S told him he had an advocate from the Vietnam Veterans’ Association, Mr Coppock, who could help him, and arrangements were made for Mr Coppock to come to the Federal Hotel at Semaphore, where the applicant was staying whilst employed with Maritime Constructions.  He met Mr Coppock on 14 February 2002 at about 6.00pm.  They had a couple of beers before the applicant filled in the forms.  The applicant says that Mr Coppock suggested he claim alcohol abuse, hearing loss and skin cancer, and said that everyone who went to Vietnam has an alcohol problem, and it was best for his case to say that he had drunk as much as possible for as long as possible.

17.     The applicant said in evidence that he filled in the form as he was instructed to do, that he did not give much thought to the detail, when he stated he had drunk 12 stubbies a day.  He said that when Mr Coppock read the Alcohol Questionnaire, he said that the applicant had filled it in wrongly, that he should not have said that he started drinking when he joined the Navy, but that he started after Vietnam.  Mr Coppock said that the applicant would have trouble getting his claim accepted because he had started drinking when he first joined the Navy.

18.     The applicant gave evidence also, that when he completed his claim he did not associate his drinking problem with service in Vietnam on the gun line.  He put it down to peer pressure and socialising.  He thought only of the instruction he had received from Mr Coppock, that "you have to make out you have drunk a lot for a long time".  He said in evidence that he thought at the time this exaggeration would benefit his claim, but when he found out later, and particularly at the VRB Hearing, that the statement had not benefited his claim, he answered questions in a manner that would help his claim, namely, that his alcohol intake was moderate aboard the Brisbane before Vietnam, but that he became intoxicated most nights after the commencement of the gun line duty in Vietnam.

19.     The applicant said in evidence that he had been drunk in Subic Bay on various occasions before the gun explosion incident on 22 July 1969; that the Brisbane had visited Subic Bay before his first gun line service; and that he drank a "skinful" most nights, except when he was on duty.  He said he was intoxicated but not "rolling in the gutter".  He said that on his second rest and recreation visit to Subic Bay, his drinking continued at much the same pace after he "got the taste for it"; that he and his fellow seamen would take “a couple of crates of booze" ashore from the United States Base, and that "everything revolved around getting boozed".  The applicant said in evidence that firstly, since 1975, then 1972, and finally 1970, he has been drinking 12 stubbies of beer a day, and continues to do so.

20.     A perusal of the applicant's service records discloses a Daily Medical Record dated 7 May 1967, when the applicant was 17½ years of age, amnesia was diagnosed.  The entry under "Physical Examination" reads "History drinking alcohol and vomiting … no history of trauma.  ? head injury …" [T4/14].  The only notation of any alcohol related medical problem in the nearly 9 years between the gun explosion incident in July 1969 and the last entry in his service records on 7 March 1977, is on 14 February 1977.  The diagnosis is "Drinking too much".  The entry under "Physical Examination" reads "Suggest he be given more work to keep him out of the pub ie change from QM to general upper deck duties (see Buppa)".

21.     As Dr Ewer said in evidence, if the applicant had been drinking since 1969 at the level of alcohol he stated, then Dr Ewer would expect some mention of the medical consequences of the excess of alcohol intake during the subsequent 8 years.  It is clear on a perusal of the documentary evidence that there is nothing, except the applicant's own assertions, to support his contention that the clinical onset of his alcohol dependence occurred before 22 July 1971.  I prefer to rely upon the documentary evidence.

22.     I am satisfied on the evidence, and find as a fact, that the clinical onset of the applicant's alcohol dependency did not occur within 2 years of his experiencing the severe stressor, namely the gun explosion incident, on 22 July 1969.  Factor 5(b) of the Alcohol Dependence SoP is not satisfied.

23.     I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's condition of alcohol dependence was war-caused.  The material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.

24.     I accept the parties' submission that it is appropriate that the diagnosis of alcohol dependence be substituted for the diagnosis recorded in the decision under review.

25.     For these reasons, the Tribunal sets aside the decision under review, only insofar as it referred to the condition of "alcohol abuse and dependence", and substitutes the condition of "alcohol dependence", but otherwise affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .......................................................................................
  Associate

Dates of Hearing  7/8/9 July 2003
Date of Decision  9 July 2003
Counsel for the Applicant         Mr P Liptak
Solicitor for the Applicant          Lempriere Abbott McLeod
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     DVA