McKay and Repatriation Commission
[2008] AATA 1114
•15 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N 2006/1301
VETERANS' APPEALS DIVISION ) Re IAN McKAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr S H Toh, MemberDate15 December 2008
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s post traumatic stress disorder and alcohol dependence are war-caused as defined in section 9 of the Veterans’ Entitlements Act 1986 with effect from 17 July 2003. The matter is remitted to the Respondent for assessment. ..................[sgd]......................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – claim for disabilities arising out of operational service – war-caused disease – PTSD – alcohol dependence – applicant suffered a severe stressor – Tribunal accepts diseases are war-caused – decision under review set aside
Veterans’ Entitlements Act 1986 – Sections 9, 13, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) 125 FCR 331
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Repatriation Commission v Hill [2002] FCAFC 192
Bushell v Repatriation Commission (1992) 175 CLR 408
Stoddart v Repatriation Commission (2003) 74 ALD 366
Repatriation Commission v Stoddart (2003) 134 FCR 392
Woodward v Repatriation Commission (2003) 131 FCR 473
Delahunt y Repatriation Commission [2004] FCA 309
Repatriation Commission v Cornelius [2002] FCA 750
Statement of Principles concerning Posttraumatic Stress Disorder: No. 5 of 2008
Statement of Principles concerning Post traumatic Stress Disorder: No. 3 of 1999, as amended by No. 54 of 1999
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse: No. 17 of 2008
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse: No. 76 of 1998
REASONS FOR DECISION
15 December 2008 Ms N Isenberg, Senior Member
Dr S H Toh, MemberBACKGROUND
1. Mr McKay served in the Royal Australian Navy between 27 July 1963 and 25 July 1972. He had a number of short periods of “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the Act”). In particular, he served aboard HMAS Vendetta for periods from 20 September to 3 October 1965 and 25 May to 11 June 1966, while it undertook escort duties to HMAS Sydney en route to Vietnam.
2. One of his postings prior to his operational service was to HMAS Voyager (the sister ship to HMAS Vendetta) during the time of its collision with HMAS Melbourne.
3. Mr McKay contends that his claimed condition of post traumatic stress disorder (PTSD) either arose or was materially contributed to by his suffering a severe stressor while aboard HMAS Vendetta. Alternatively, he suffered PTSD as a result of his HMAS Voyager experience, which was aggravated by a severe stressor while aboard HMAS Vendetta. His claimed condition of alcohol dependence followed his PTSD.
4. Mr McKay seeks review of the decision of the Repatriation Commission dated 20 January 2004, as affirmed by the Veterans’ Review Board (“the VRB”) on 19 June 2006, that refused his claim that his conditions are related to service.
ISSUES BEFORE THE TRIBUNAL
5. There was no dispute that Mr McKay suffers PTSD and alcohol dependence.
6. Therefore the issues are:
·Did Mr McKay experience a severe stressor while aboard HMAS Vendetta?
·Was the clinical onset of Mr McKay’s PTSD and alcohol dependence before or after his service aboard HMAS Vendetta?
·If before, was his condition clinically worsened by his operational service aboard HMAS Vendetta?
LEGISLATIVE BACKGROUND
7. Section 9 of the Act provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
8. Subsection 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
9. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those subsections require us to find that the veteran’s condition was war‑caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
10. The Repatriation Medical Authority (“RMA”) was established under s 196A of the Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) (s 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service), before it can be said that a reasonable hypothesis has been raised, connecting the condition with that service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
EVIDENCE
11. We had before us the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered at the hearing:
·Report of Dr A Dinnen dated 29 March 2007 (Exhibit A1).
·Report from Writeway Research Service Pty Ltd dated 18 June 2007 (Exhibit R1).
·Report of Dr R Delaforce dated 8 March 2007 (Exhibit R2).
·Service Medical Documents and Psychological Records from the Department of Defence (Exhibit R3).
12. Mr McKay gave evidence, as did consultant psychiatrists Dr Dinnen and Dr Delaforce.
CONSIDERATION
13. Where a SoP exists we must apply the test prescribed by s 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) […]
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.
Steps 1 and 2: is there a hypothesis and is there a SoP?
14. The hypotheses are that the claimed conditions either arose or were materially contributed to by Mr McKay suffering a severe stressor while aboard HMAS Vendetta. Alternatively, he suffered PTSD as a result of his HMAS Voyager experience which was aggravated by a severe stressor while aboard HMAS Vendetta.
15. The current SoPs relevant to Mr McKay’s claim are:
·Statement of Principles concerning Posttraumatic Stress Disorder: No. 5 of 2008.
·Statement of Principles concerning Alcohol Dependence and Alcohol Abuse: No. 17 of 2008.
16. We must apply the relevant SoP for the claimed conditions on the basis of Repatriation Commission v Gorton (2001) 65 ALD 609, namely that the relevant SoP is that currently in force, unless the SoP in force when the claim was first determined, is more beneficial.
17. There was no submission on behalf of Mr McKay that his circumstances came within the current SoPs, and this would appear to be the case.
18. The SoPs in effect when the claim was first determined were:
·Statement of Principles concerning Post Traumatic Stress Disorder: No. 3 of 1999 as amended by No. 54 of 1999.
·Statement of Principles concerning Alcohol Dependence or Alcohol Abuse: No. 76 of 1998.
Step 3: does the hypothesis conform to the template in the SoP?
19. Under clause 4 of each of the SoPs, at least one of the factors set out in clause 5 must be related to the veteran’s relevant service (being in this case, operational service).
20. The veteran’s hypothesis in relation to PTSD relied on factor 5(a) as follows:
experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder.
21. “Experiencing a severe stressor” is defined as meaning:
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 another person’s, physical integrity.
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.
22. An alternative hypothesis was that Mr McKay had experienced a severe stressor aboard HMAS Vendetta, which clinically worsened his PTSD which had been caused by his Voyager experience: Factor 5(b).
23. The hypothesis in relation to alcohol dependence was that Mr McKay was suffering service-related PTSD at the time of clinical onset of alcohol dependence: factor 5(a), or alternatively, that he had experienced a severe stressor within the two years immediately before the clinical onset of alcohol dependence: factor 5(b).
24. This step entails determining whether the relevant hypotheses comply with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
25. At this stage we must consider all of the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases, Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
26. A “reasonable hypothesis” involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
27. The question for us at this stage is therefore: is there material pointing to each element of the factor? Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
28. A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192.
29. We turned first to consider the hypotheses in relation to PTSD.
·PTSD: is there material pointing to Mr McKay experiencing a severe stressor while on operational service aboard HMAS Vendetta?
30. Both hypotheses in relation to PTSD were to the effect that Mr McKay had experienced an event or events that involved threat of death or serious injury in that, while aboard HMAS Vendetta, the ship was in company with the much larger HMAS Sydney and Mr McKay feared that there would be a recurrence of his experience when the HMAS Voyager was hit by the much larger HMAS Melbourne.
31. Mr McKay had had several postings in the 18 months between the HMAS Voyager collision and his posting to HMAS Vendetta: shore postings – during which time he topped a technical course, and was promoted – and a few months aboard HMAS Sydney itself. His posting to HMAS Sydney did not trouble him as "we were the big ship".
32. But then, in August 1965, he was posted to HMAS Vendetta, the sister ship of the HMAS Voyager. His operational service commenced on 20 September 1965.
33. Mr McKay had provided a written statement that his time aboard HMAS Vendetta caused him to feel very anxious, and at times fearful. It caused him to be hypervigilant in matters of safety, and to be oversensitive to course changes. He was particularly careful to check escape hatches, emergency lighting, and life rafts. He said that his behaviour became almost "phobic".
34. He had been assigned to the same mess deck as in the Voyager and he spent many sleepless nights listening to the ship sounds for any hint of danger. A change of course or speed was of grave concern to him. He would recall the scraping sound of “metal on metal”, and visualise his mates trapped in the forward section of HMAS Voyager.
35. During operations – particularly at night, as this was when the Voyager collision had occurred – he had a feeling of foreboding of a recurrence of the Voyager collision, especially as HMAS Sydney was similar to HMAS Melbourne, as it was a converted aircraft carrier. He said this was a constant fear. He dreaded the ship working in proximity to other, especially larger, ships, as occurred when they were in close formation. At times they would be as close as 20 metres and travelling at speeds approaching 20 knots. In his evidence he said he went on deck whenever he could in order to "keep an eye on” HMAS Sydney.
36. Similarly, when HMAS Vendetta was escorting HMS Ark Royal, a British aircraft carrier, between 12 and 19 October 1965, he again stayed on deck whenever possible, because Ark Royal was “even bigger than Sydney” and would “make a bigger bang” (if there were a collision).
37. On occasions he hid on the upper deck from the other sailors, recalling the Voyager incident and sometimes shaking and weeping. On several occasions he was physically ill.
38. He became alienated from the other sailors. Other HMAS Voyager survivors tried to reassure him, without success.
39. In more recent years, even a family outing to inspect HMAS Vampire at the Australian National Maritime Museum caused him to become anxious and he had to leave. He continues to have sleepless nights and dreams about his experiences.
40. Taking the above into account, in our view there is material that points to Mr McKay experiencing a severe stressor while HMAS Vendetta was escorting HMAS Sydney.
41. As to clinical onset of PTSD, Dr Dinnen thought that while Mr McKay had some symptoms of PTSD after the HMAS Voyager collision, he did not have the full constellation of symptoms until his service aboard HMAS Vendetta. Dr Delaforce, on the other hand, considered that he had all the symptoms before his HMAS Vendetta service, but that his condition was aggravated by his service aboard HMAS Vendetta.
42. There is material which points to clinical onset of PTSD during his HMAS Vendetta service. There is also material which points to clinical worsening of PTSD during his HMAS Vendetta service.
43. Therefore, we have come to the view, without making a finding of fact, that every essential element of each hypothesis is pointed to by the material before us. Two reasonable hypotheses therefore are raised.
·Alcohol dependence: is there material pointing to Mr McKay suffering PTSD at the time of clinical onset of alcohol dependence?
44. In his statement Mr McKay said that aboard HMAS Vendetta he became depressed and anxious and used alcohol to “blot out reality”. He told Dr Dinnen that on board HMAS Vendetta he was drinking a dozen 375ml cans a day. By the time he left HMAS Vendetta he was a “heavy seasoned drinker”. Dr Delaforce noted that his significant increase in alcohol intake was from the time of his HMAS Vendetta service.
45. There is material before us that points to Mr McKay suffering PTSD at the time of clinical onset of his alcohol dependence.
Step 4: can we be satisfied beyond reasonable doubt that Mr McKay’s conditions were not war caused?
46. This step involves making findings of fact from the material before us. Subsection 120(1) of the Act provides that the claim will succeed, unless we are satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the veteran’s condition was war-caused. If we are not so satisfied, Mr McKay’s claim must succeed. In examining this question, we note that there is no onus of proof: s 120(6) of the Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
·Did Mr McKay experience a severe stressor aboard HMAS Vendetta?
47. The definition of “experiencing a severe stressor” was considered by the Federal Court in Stoddart v Repatriation Commission (2003) 74 ALD 366 (“Stoddart”): could the event with which the person was confronted reasonably be understood by a normal person in the position of the applicant as exposing that person (or others) to a detriment?
48. In this matter it was no figment of Mr McKay’s imagination that he was aboard HMAS Voyager’s sister ship undertaking escort duties with HMAS Sydney. CAPT Macdonald (RAN), referring to HMAS Vendetta’s report of proceedings, notes (Exhibit R1, p11) that HMAS Vendetta and HMAS Sydney exercised en route to Hong Kong. This is consistent with Mr McKay’s account in his evidence to the effect that ships do not just sail in convoy, but practice “zig zagging” and other manoeuvres. His evidence was also of exercises at night, as had occurred at the time of the Voyager collision. In any event, HMAS Vendetta and HMAS Sydney sometimes sailed in very close proximity: on Mr McKay’s evidence in cross-examination, as close as 50 metres while travelling at 20 knots. There was no evidence to the contrary.
49. The Respondent contended to the effect that manoeuvres undertaken by HMAS Vendetta and HMAS Sydney were part of the day to day ships’ routine and could not amount to an “event”.
50. The Full Court in Repatriation Commission v Stoddart (2003) 134 FCR 392 rejected the view that normal events that commonly occur on service cannot be a “severe stressor”. The Court held that events that are objectively “neutral in character” may, nevertheless, reasonably give rise to a perceived threat because of what they convey to a particular person who experiences them given his or her position at the time. We find that the night-time manoeuvres were [an] event[s] with which Mr McKay was confronted.
51. The Full Court in Woodward v Repatriation Commission (2003) 131 FCR 473, in agreeing with Mansfield J’s definition in Stoddart, paraphrased it as follows:
In his Honour's opinion, the definition extended to a person experiencing or being confronted with an event involving threat of death or serious injury, etc, if the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of the applicant experiencing it, was capable of conveying, and did convey, the risk of death or serious injury. In other words, "experiencing" should be construed as having at least this partially subjective connotation.
52. We note that Mr McKay had had experience with being on an identical ship which had been sunk by a larger vessel. We consider that, judged objectively from the point of view of a reasonable person, Mr McKay’s fears were not unreasonable. He had a “particular susceptibility”, but it could not be said that his response was “totally irrational” (per Delahunty v Repatriation Commission [2004] FCA 309). CAPT Macdonald wrote in his report that manoeuvres always entailed an element of risk. While the ‘odds’ may have been against such an incident occurring to him again, Mr McKay’s fears were in fact well-founded, as HMAS Melbourne was subsequently involved in another collision with a smaller ship, when it hit and sunk the USS Frank E Evans in 1969 with the loss of 74 lives.
53. Further, we accept that undertaking the manoeuvres at night caused Mr McKay considerable stress, as evidenced by his “phobic” conduct, his withdrawal and his hypervigilance, and especially his constant monitoring of the relative location of HMAS Vendetta to HMAS Sydney.
54. We have therefore come to the view that a reasonable person in the position and with the knowledge of Mr McKay would objectively perceive the night-time manoeuvres on HMAS Vendetta, when in company with HMAS Sydney, as a threat of death or serious injury.
55. Having come to that view, we turned to consider clinical onset.
·When was the clinical onset of PTSD?
56. There was conflicting evidence as to the clinical onset of PTSD: in essence, whether it was post HMAS Voyager and before HMAS Vendetta, or during his HMAS Vendetta service.
57. Dr Dinnen took a history from Mr McKay that he had a range of symptoms post Voyager “suggesting” PTSD. His evidence was that Mr McKay was not “impaired” by those symptoms until his service aboard HMAS Vendetta. He could not say that Mr McKay had met all the diagnostic criteria for PTSD post Voyager (but before HMAS Vendetta). He regarded Mr McKay’s experience on the HMAS Vendetta as a major contributor to his PTSD.
58. Dr Delaforce considered that Mr McKay would have met the diagnostic criteria for PTSD post HMAS Voyager and before HMAS Vendetta, but could not be specific as to when this might have been. He largely based his opinion on the premise that Mr McKay had not experienced a severe stressor on HMAS Vendetta, only on HMAS Voyager. He agreed in cross-examination that from the history he took from Mr McKay, he was unable to say that each of the other diagnostic criteria had first manifested themselves pre-HMAS Vendetta. Further, he agreed that some of Mr McKay’s symptoms did not manifest themselves until some “external cue” occurred, such as a “similar situation”. He considered that HMAS Vendetta’s proximity to large ships had the effect of substantially, but temporarily, aggravating Mr McKay’s PTSD, which had resulted from the Voyager experience. He noted that Mr McKay had “chosen” subsequent postings which might avoid proximity to large vessels.
59. Having considered the evidence of both specialists we have come to the view that the clinical onset of PTSD was not until during or after Mr McKay’s HMAS Vendetta service, precipitated by his experience aboard that ship, as detailed above. In coming to that view we note that a veteran may experience more than one severe stressor. Here, there is no doubt that Mr McKay’s HMAS Voyager experience was traumatic, and, in the scheme of things, an experience far exceeding that of his HMAS Vendetta experiences. However, the medical evidence, on balance, has led us to the view that all of the diagnostic criteria were not satisfied until after the second, although lesser, severe stressor.
·Alcohol dependence
60. Mr McKay said in his evidence that while there had been some increase in his alcohol consumption after the HMAS Voyager incident, it had not increased to a great degree. He said that he was still at that time a keen sportsman, and the inference was that this would preclude heavy drinking.
61. Mr McKay was referred to the report of Dr Hayes, consultant psychiatrist, to whom he was referred by the Respondent in 2003. He said that Dr Hayes, who did not take notes at the consultation, had erroneously recorded that he had said that within one year of Voyager he was drinking heavily. In any event, he noted that his posting to HMAS Vendetta was only 18 months after the Voyager incident. He said he had complained to Dr Hayes, but the report was not amended.
62. Mr McKay saw Dr Knox, consultant psychiatrist, in 1992. He was recorded as telling Dr Knox that he began drinking alcohol to excess before his posting to HMAS Vendetta. He told Dr Delaforce though that his increase at that time was marginal and gradual.
63. In his evidence Mr McKay said that he only obtained the reputation as a heavy drinker after his HMAS Vendetta experience. He told Dr Delaforce that the time of his service on HMAS Vendetta was the time of his “big boozing”, drinking up to 30 drinks per day. From the time of his posting to HMAS Aitape in 1967 his work started to be affected. He told Dr Dinnen that he would be “pissed” 14 hours a day. In the last 2-3 years of his service (which ended in 1972) he had disciplinary procedures against him because of alcohol. He was warned, and on one occasion was formally charged, and was sentenced to loss of privileges. He told Dr Knox that he lost his licence through drinking in the early 1980s.
64. Mr McKay saw Dr Danesi, consultant psychiatrist, in July 2005. He told the doctor that before HMAS Voyager he drank after sport, like the rest of the team, having 2-3 drinks, and that his drinking increased after this. He became a daily drinker as there were opportunities to drink. He would often drink with other ex-Voyager men as he felt more comfortable with them. While on course, he drank between 4 in the afternoon and 10 at night, consuming 12-20 7 oz drinks. On HMAS Vendetta he was drinking 6-12 13 oz cans of beer a night, which was about double what he was drinking before HMAS Vendetta. He would binge drink on shore. He denied to Dr Delaforce that he had given this history to Dr Danesi. Dr Danesi, however, noted that there was a “significant worsening of his alcohol dependency” during his HMAS Vendetta service.
65. Dr Dinnen thought the clinical onset of alcohol dependence was after Mr McKay’s HMAS Vendetta experience, as this was “in keeping” with the clinical onset of PTSD. Dr Delaforce considered that the clinical onset of “alcohol abuse” was during Mr McKay’s HMAS Vendetta service. He had noted that Mr McKay used alcohol to “try to help him cope with distressing time on Vendetta when other ships would get too close”. Dr Delaforce did not consider Mr McKay to have met the diagnostic criteria for alcohol dependence until a later date, such as until diagnostic criteria A(1), A(2) and A(4) were met. In that regard he noted that Mr McKay had unsuccessfully tried to reduce his intake since about 1997.
66. We prefer Dr Delaforce’s more detailed evaluation of Mr McKay’s condition as to when he met all the diagnostic criteria for alcohol dependence: 1997. At that time Mr McKay had become aware of some feature or symptom which would have enabled a doctor to say the disease was present at that time: Repatriation Commission v Cornelius [2002] FCA 750.
67. We therefore find that, at the time of clinical onset of Mr McKay’s alcohol dependence in about 1997 he was suffering PTSD, which we have found to be war-caused.
CONCLUSION
68. For the above reasons, we are not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s PTSD and alcohol dependence were war-caused. We must accordingly determine, by virtue of s 120(1) of the Act, that Mr McKay’s PTSD and alcohol dependence were war-caused.
DECISION
69. We set aside the decision under review, and decide that Mr McKay’s PTSD and alcohol dependence are war-caused as defined in s 9 of the Act with effect from 17 July 2003.
70. The matter is remitted to the Repatriation Commission for assessment.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr S H Toh, Member.
Signed: .......................[sgd].........................................................
Mr T Aviram, AssociateDate/s of Hearing 28 October 2008
Date of Decision 15 December 2008
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Ms R Wheeler, KCI Lawyers
Advocate for the Respondent Ms J Warmoll, Department of Veterans’ Affairs
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