Neath and Repatriation Commission
[2010] AATA 910
•16 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 910
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2007/1678
VETERANS’ APPEALS DIVISION ) Re KENNETH neath Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date16 November 2010
PlaceSydney
Decision
The decision under review is set aside, and the Tribunal decides that the veteran’s PTSD with alcohol abuse, hypertension and neurodermatitis are war-caused, as defined in s 9 of the VE Act, with effect from 30 September 2005, the earliest date which can be set, having regard to the late lodgement of the application for review to the Veterans’ Review Board. The matter is remitted to the Repatriation Commission for assessment.
…….…..........[sgd].............................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that post traumatic stress disorder with alcohol dependence, hypertension and neurodermatitis were war-caused – consideration of Statement of Principles – the Tribunal decides that the decision under review is set aside.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth): ss 9, 120(1), 120(3), 120A and 196
Statement of Principles – Instrument No.5 of 2008 concerning Post Traumatic Stress Disorder, as amended by No 54 of 1999
Statement of Principles- Instrument No 35 of 2003 concerning Hypertension, as amended by No 11 of 2008, and No 3 of 2004.
CASES
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Budworth (2001) 116 FCR 200.
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
Delahunty v Repatriation Commission (2004) 38 AAR 511
Repatriation Commission v Deledio (1998) 83 FCR 82
Drew v Repatriation Commission [2008] FCA 537
Elliott v Repatriation Commission (2002) 73 ALD 377
Fogarty v Repatriation Commission (2003) 37 AAR 363
Gerzina v Repatriation Commission [2004] FCAFC 96
Gorton v Repatriation Commission [2001] FCA 286
Repatriation Commission v Hill [2002] FCAFC 19
Hunter v Repatriation Commission [2010] FCA 145
Lees v Repatriation Commission (2002) 125 FCR 331
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Norton [2008] FCA 1132
Renton v RC [2009] FCA 268
Stoddart v Repatriation Commission [2003] FCA 334 (2003) 197 ALR 283
Repatriation Commission v Warren (2007) 95 ALD 606
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
16 November 2010
Ms N Isenberg, Senior Member 1. Mr Neath, the Applicant, seeks review of the decision of the Repatriation Commission dated 16 May 2005 as affirmed by the Veterans’ Review Board (“the VRB”) on 19 January 2007, that refused his claim that his conditions of post traumatic stress disorder (“PTSD”) with alcohol dependence, hypertension and neurodermatitis are related to service.
BACKGROUND
2. Mr Neath served in the Royal Australian Navy between 22 October 1966 and 29 May 1969. His “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”) was as follows:
· 10 May 1968 to 15 June 1968
· 6 August 1968 to 13 September 1968
· 21 June to 28 July 1968
3. Mr Neath contends that he suffers PTSD with alcohol dependence, hypertension and neurodermatitis as a result of his operational service aboard MV Jeparit in three trips to Vietnam during his operational service.
4. Mr Neath’s counsel submitted that all the claimed conditions were associated with a series of incidents experienced by Mr Neath in Vietnam, broadly described as:
· Being in a war zone;
· Ambush on return from Nui Dat;
· Attempted theft from stores vehicle;
· The attack on Transnorthern;
· Attack on Jeparit;
· Divers/mines in Cam Ranh Bay; and
· Murder of US servicemen by ‘white mice’.
LEGISLATIVE BACKGROUND
5. Section 9 of the VE 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.
6. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. 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 VE Act. Those subsections require me to find that the veteran’s condition was war‑caused, unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
8. The Repatriation Medical Authority (“RMA”) was established under s 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates whether 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.
9. Having regard to the contentions of the Applicant, the relevant SoP’s in this matter are:
(a)Post Traumatic Stress Disorder: No.5 of 2008, and No. 3 of 1999 as amended by No 54 of 1999; and
(b)Hypertension: No 35 of 2003 as amended by No 11 of 2008, and by No 3 of 2004.
10. There is no SoP for neurodermatitis (see below).
11. I am obliged to consider Mr Neath’s claim in the context of the current SoP for each condition, unless the SoP at the date of the original decision is more favourable: Gorton v Repatriation Commission [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108.
12. I agree with the submission on Mr Neath’s behalf that the SoP’s in effect at the date of the original decision are more favourable to Mr Neath. I note though, the outcome would be the same irrespective of which SoP were used.
EVIDENCE
13. I had before me the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:
Statement of the Applicant dated 23 April 2008
Statement of John Graves dated 28 September 2009
Statement of Lawrence Lord dated 25 September 2009
Statement of David Benjamin dated 24 September 2009
Statement of William MacDougall dated 1 December 2009
Medical report of Dr Dinnen dated 3 August 2007
Medical report of Dr Butler dated 20 August 2007
Medical report of Dr Lobel dated 11 October 2007
Photo of the cook taken by Mr Neath – undated
Medical report of Dr Roberts dated 27 November 2007
Writeway report dated 23 June 2009
Writeway report dated 29 June 2010
Extracts from “Captain Bullen’s War”, edited by Paul Ham
Newspaper extract
14. Mr Neath provided a statement dated 23 April 2008, which he supplemented by oral evidence. Evidence was also given by Messrs Graves, Lord, Benjamin and MacDougall, who were also Vietnam veterans. Medical evidence was given by Dr Dinnen and Dr Roberts, consultant psychiatrists.
Being in a war zone:
15. By way of background, Mr Neath said that he enlisted in the Navy in October 1966. After his training he was posted to HMAS Melbourne as a stoker for eight months during which time Melbourne was engaged in exercises at South East Asia. On 1 May 1968, he was posted to MV Jeparit which was an unarmed civilian merchant ship, commandeered by the government to carry equipment to Vietnam. Mr Neath said he was not provided with a brief, any additional training, or additional safety provisions with respect to his service on the Jeparit. Mr Lord wrote of Jeparit being unescorted and unarmed. Mr Neath said that it was quite frightening to think that they were on an unarmed and unescorted merchant ship. Mr Graves gave evidence of members of the Jeparit taking on extra duties or going on joy flights because they were not fully engaged on tasks for what they had been trained.
16. Mr Neath wrote in his statement that, while Jeparit was docked in Vietnam, it was ‘common’ for scare charges to be dropped every few hours or so to ensure that there were no (enemy) frogmen under the ship. No evidence was given in relation to this allegation at the hearing and it was not pressed as a stressor.
17. He said that there was ‘constant fear’ of having explosives put alongside the ship and that they might be rocketed from the Long Son islands.
18. On Mr Neath’s first trip to Vietnam, Jeparit docked at De Long Pier at Vung Tau on 5 July 1968. He said there were Australian soldiers armed with pump action shotguns on the wharf and on deck guarding the ship. This worried him and made him realise that he was in a war zone and there was potential for an attack.
19. He said he could see B52s bombing the Long Hai Hills nearly every night. He would see the flashes of light and really felt that he was in a war zone and could ‘feel the pain’ of people who were involved in the attacks. He also saw the helicopters along the Mekong Delta. At night, the gunships would rise up in a formation of a pyramid shape and they would light up the Delta some five miles away in the fire free zone. He could not hear the helicopters, but could see the tracer bullets of the 4000 rounds of ammunition they could drop per minute. He agreed these were not the enemy. He said there was ‘a war going on around [him]. And [he] was right in the middle of it’. He said as he was only 21, he was ‘quite scared’. He was worried he would be unable to get out of the engine room if something happened: ‘anything is possible in a war zone’.
20. Mr Graves provided a written statement, and gave evidence at the hearing. In his evidence he recalled the ‘light and sound show’ from bombers and helicopter gunships or ‘puff the magic dragons’ (the converted C47 Dakotas) that strafed and bombed the countryside.
21. Mr Benjamin also provided a written statement and gave evidence at the hearing. He recalled seeing planes and helicopters flying around ‘all the time and attacking targets’ while serving on Jeparit. He also gave evidence of hearing bombs exploding, seeing the flashes, and hearing bursts of machine gun fire.
22. Jeparit Docked at Vung Tau port on 5 July 1968 on Mr Neath’s second trip, during which, he said, he experienced several disturbing events.
Ambush on return from Nui Dat:
23. During this trip Mr Neath, gave evidence that he told the pilot of a Caribou that he needed to go to Nui Dat to undertake repairs so as to be allowed on board. In cross-examination though, he thought this occurred on the third trip, in August 1968. Mr Benjamin only knew of this happening once but did not know who the sailor was.
24. Mr Graves, in his statement, wrote of the ease with which flights could be organised. Mr Neath said that when he told Bob Chard, a corporal, that he would be going to Nui Dat, he was given a pistol and 50 rounds of ammunition. Mr Benjamin gave evidence of a lot of people having Colt .45 guns and illegal weapons: ‘it was like the Wild West’. Mr MacDougall gave evidence that whenever he went on shore leave, he never carried a weapon. Mr MacDougall doubted the availability of US Colt .45s. He also said that ‘shotguns’ were illegal.
25. Mr Neath missed the return flight from Nui Dat so joined a road convoy, consisting of a truck and two to three Landrovers back to Jeparit. About 15 minutes into the trip, about 10 miles out of base at Baria, the convoy was fired upon by unknown attackers firing a few rounds of automatic gunfire. The truck ‘fell off the ditch’ when the firing started. He was told to take cover underneath the truck where he remained for about 20 minutes or half an hour. Some shots were discharged by his party but he could not remember if he fired any rounds. He said in his evidence that a couple of his party sustained a few minor injuries. He denied that he was affected by alcohol at the time.
26. He was very scared whilst under attack and seriously thought that this was ‘going to be the end for [him]’. On his return to Jeparit he had to have a shower and attempt to compose himself, as he was ‘still very shaken up’. He said he was lucky to be alive. He went to the upper deck and spoke to a few of the guys about the incident including the chief coxswain. Mr Neath said he became very anxious, easily agitated, and was always extremely alert, and after that he began drinking more due to ‘my anxiety and fear’.
27. He said he told Bob Chard, Mr Benjamin and his next-door cabin mate, George Taylor. He agreed the incident was very unusual. It was a ‘shocking experience in which [he] was nearly killed and he told everybody about it because he was very frightened’.
Attempted theft from stores vehicle:
28. In his evidence, although not in his statement, Mr Neath said that he was in a truck, with several others, taking regular stores of beer and cigarettes to the sergeants’ mess in Vung Tau. Another truck came from a side road and some Viet Cong (VC) jumped onto the laden truck and started ripping open cardboard packaging with machetes and throwing cigarettes and other items onto their own truck. The soldiers opened fire with pump action shotguns and Mr Neath thought one of the thieves was injured or possibly killed. Mr Benjamin wrote that he well remembered a convoy taking goods unloaded from Jeparit being attacked by people trying to steal the cargo. His recollection was that no one was hurt. Mr Neath said he was ‘amazed’ and that it was ‘like watching a movie before your eyes’. When asked how he felt he said: ‘Here’s people shooting at you, and they’re getting shot at – what do you think?’ He said he felt ‘pretty ordinary’, by which he meant ‘shaken up’. In cross-examination he denied that he had said they were being shot at.
The attack on Transnorthern:
29. On 21 August 1968, Jeparit docked at Vung Tau wharf on Mr Neath’s third trip. Mr Neath wrote that on 24 and 25 August 1968 Jeparit was on ‘red alert’, that an attack was imminent from either rockets, heavy artillery, frogmen or from the shore. Whilst on red alert he was even more anxious and alert than before. He ‘got word’ that two men on Transnorthern, a US vessel, which was also a civilian ship, had been killed in rockets or mortar attacks when the ship was sailing through the Mekong Delta to Saigon. In his evidence he said that ‘they’ heard on the radio that Transnorthern had been hit by the VC and that two people had been killed and a few others injured. At that time, Jeparit had either left (according to his statement) or was preparing to leave Vung Tau for Cam Ranh Bay, traveling out of the harbour into open sea. He felt in real fear for his life and felt extremely anxious and worried. He kept wondering whether Jeparit would be attacked like Transnorthern: ‘Who’s next?’ He thought they were ‘sitting ducks’ while at the wharf because he understood the rockets to have a 10,000 yard range. He said that in April 1968 a Caribou was blown up on the runway, the wharf was damaged, and the road was damaged, and quite a number of people were killed from rockets that were aimed at the De Long Pier. He said he was ‘very frightened’. ‘For someone aged 21, it was quite an eye-opener’.
The attack on Jeparit:
30. Mr Neath said that Jeparit traveled very close to the shore en route to Cam Ranh Bay to unload tanks. The ship came under fire from the shore. HMAS Hobart was astern of Jeparit and fired at the shore, which stopped the attack.
31. In his evidence Mr Neath said that 1-1½ hours from Vung Tau, there was some explosions, which were heard and felt vibrations in the engine room – two to three ‘thuds’, he said in his evidence, and these sounded like underwater detonations. He went up on deck and saw Hobart on the port side of the ship. He assumed they had been fired upon by artillery or rockets and that was why Hobart was there. Jeparit came to a stop and when Hobart came round to starboard, Jeparit’s crew passed longneck bottles of beer across. Mr Neath and ‘the engine room guys’ asked what was going on and someone said, “We’ve been fired upon from the shore.” When asked how he felt he said he didn’t know. ‘[We were] in a war zone … [we’d] been fired upon and [we were] lucky [we] weren’t hit’. He thought he was ‘pretty scared’, especially as Jeparit did not have waterproof compartments. The VC knew they had tanks on board and that is why they were fired upon. It would have been easy to fire upon them form the shore.
32. Mr Lord wrote of seeing Hobart firing rounds in their vicinity, but he did not know what it was firing at. He wrote of seeing shells hitting hills to the right of the ship about half a mile away, although he could not now be sure of the distance. He said in his evidence that he did not discuss the firing with others aboard Jeparit. In cross-examination he said he did not believe they had been fired at. He said they ‘heard noises’ in the engine room and ‘we went to have a sticky beak and went back again’. He could not specify what sort of noises they were, but agreed he heard no hull vibrations that might indicate that the ship was under attack by some underwater explosion.
33. Mr Graves could recall no incident when the Jeparit came under small arms fire. In any event the hull was of thick steel and so he thought there was little danger.
34. A stoker, Harold Harrison, provided a statutory declaration dated 3 April 2006, in which he wrote of Jeparit being under fire from enemy shore installations and that Hobart, their escort vessel, immediately opened fire on the installations, silencing them.
35. Earnest Summerton was aboard Hobart. He wrote, in a statutory declaration dated 25 June 2005, that on about 25 August 1968 Jeparit came under fire from a shore battery, and Hobart went to Jeparit’s aid and caused the shore battery to cease firing.
Divers/mines in Cam Ranh Bay:
36. Mr Neath said that at Cam Ranh Bay on 26 August 1968 two US Marines noticed bubbles coming from between the 100 ton floating crane and Jeparit. Jeparit was then placed on red alert, which he described in his evidence as the ‘emergency alarm’ which would signal a ‘major incident’. He was in the engine room at the time the red alert, and they were told to evacuate ship and run towards the end of the wharf, where they remained for about 20-45 minutes. From the wharf he noticed that the Marines were ‘collecting objects’ (which he later found out to be explosives) from under Jeparit. The explosives were collected in a cloth net and were taken by helicopter into the middle of the bay, where they exploded 15 minutes later; although he personally did not see the explosives taken off the crane and ship explode at Cam Ranh Bay. He was scared for his life and kept wondering if there were more explosives and that they could have been killed. His first thought was that he would have been ‘the first to go’ because he was in the engine room where he felt confined and like he had a lack of control, with no way to get out. It was afterwards he realised how close he had been and, if it weren't for the astute US Marines, he wouldn't be here. In cross-examination he said that explosives on the crane might have presented no danger to the ships, depending on where they were placed, but he was ‘led to believe’ that the explosives were on the inboard side. He also had no recollection that the (AV) Clive Steele was there. He said he was told the explosives were on the side of the crane and the side of the ship.
37. Mr Graves wrote of being told explosives had been found when they were unloading in Cam Ranh Bay, but thought they were on the floating cranes, although, at the hearing he explained that he thought they unloaded tanks at Vung Tau. He also gave evidence of an occasion when someone found a person in one of the holds ‘attaching something’ and killed him and explosives were later found. He himself saw nothing, but the Americans took charge and they all had to go onto the wharf. He admitted he was drunk at the time and it was night time. He said the only navy officer on board told them to forget all about it. He thought LT Tiffen might have come on board later.
38. Mr Lord wrote of explosives being found on the crane and under the jetty. He said in his evidence though it ‘was a surprise to him’ when he was recently told that explosives were found under the jetty. Mr Lord could not recall Clive Steele being alongside. He said that the explosives had been ‘mentioned’ in the ‘smoko’ room about mid–morning.
39. Mr Benjamin wrote of the crew being informed that people had been seen in the water. He said he was later informed that there had been an attempt to mine the crane unloading from Jeparit. In his evidence he said he was told a mine ‘popped to the surface’. The harbor boats were searching for ‘them’ and they had to go ashore for about 10 minutes. He did not know if any had been found on the crane.
40. Mr Harrison also wrote in his statutory declaration that the crane driver had seen frogmen in the water, near the vessel’s hull. Limpet mines were found to be attached to the hull but they were found to be inoperative.
Murder of US servicemen by ‘white mice’:
41. At the hearing Mr Neath mentioned, for the first time, an incident he had witnessed involving the South Viet Nam police (’the white mice’). He said that one night, after curfew, he and Bob Chard and two others were traveling down the ‘Perfumed Road’ past brothels, returning to the ship from Vung Tau where they had been to the mess for dinner. As their Landrover went down the road he saw two US service personnel come out of one of the brothels, and the white mice shouted for them to stop. One ran and the other one stopped and put his hands up, and they, the white mice, shot him in the back, killing him ‘right in front of [our] eyes’ – a distance of less than 100 yards away. The white mice approached Mr Neath’s vehicle but they were let go. He had never seen a person shot although he had plenty of experience with shooting animals since he was 14. He said he ‘couldn’t believe it’ and he was ‘shaking like a leaf’.
42. Mr MacDougall said that to be out after curfew would be likely to land someone in gaol as they would be picked up by the Military Police. Mr MacDougall had himself heard a shot and seen a dead Vietnamese person on the ground near some white mice. He had heard that they had shot US servicemen.
43. When cross-examined about not having mentioned the matter previously, Mr Neath said he had totally forgotten about it until Mr MacDougall had mentioned it on the morning of the hearing. He must have ‘blanked it out’. He believed there were many incidents of this kind that were not recorded.
44. In April 1969. Mr Neath attended a naval doctor and was diagnosed with anxiety. He was recorded as having ‘domestic worries ++’, in relation to his mother. He was given Librium tablets.
CONSIDERATION
45. The submission on behalf of the Applicant was essentially that, once PTSD is accepted as war-caused, it necessarily follows that Mr Neath’s other claimed conditions are also war-caused. For that reason I considered his PTSD first.
does mr neath suffer from ptsd as claimed?
46. Only after the Tribunal determines that a veteran is suffering from a particular condition does the question arise as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363; Benjamin v Repatriation Commission [2001] FCA 1879. The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96; Repatriation Commission v Budworth (2001) 116 FCR 200.
47. The SoP concerning PTSD, Instrument No. 5 of 2008, defines the condition as:
“…
(b)For the purposes of this Statement of Principles, "posttraumatic stress disorder" means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR): (emphasis added)
(A) the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (e.g., unable to have loving feelings);
(vii)sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
…”
48. As the SoP notes, this definition is derived from the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), “the accepted touchstone”: Drew v Repatriation Commission [2008] FCA 537. Statement of Principles are not relevant to the question of diagnosis: per Benjamin.
49. Dr Dinnen, in his report of 3 August 2007, was of the view that Mr Neath suffers chronic PTSD with alcohol abuse. In his evidence he proffered an alternative diagnosis of ‘anxiety state, probably not otherwise specified’.
50. Dr Dinnen also took a history from Mr Neath, and gave evidence that, one memory which causes Mr Neath stress is that ‘the Jeparit was subject to rocket attacks’. He also recorded that:
· Mr Neath had ‘witnessed’ the attack on Transnorthern. In his evidence however he was not sure if Mr Neath had said he had in fact witnessed the attack.
· On the way to Cam Ranh Bay, Jeparit was fired upon and HMAS Hobart fired back on the shore.
· Mines had been found on Jeparit while alongside in Cam Ranh Bay and Mr Neath had seen them taken into the middle of the bay and exploded.
· There was an attempted theft of goods en route to the sergeants’ mess in which shots were fired at the bandits. In his evidence he initially said that Mr Neath’s vehicle had been fired upon, but he withdrew that observation.
51. In his evidence he noted that, in relation to his three trips to Vietnam, Mr Neath said he had feelings about being in a war zone, and seeing military activity taking place and being fearful that it might, in some way, affect him. His account to Dr Dinnen was that Jeparit was subjected to rocket attacks, and that there were ‘some events’ that he saw occurring. Simply put, the doctor said, witnessing these combat operations was sufficient to cause a person to experience a severe stressor. It was unclear though as to whether Dr Dinnen was of the view that any one of these incidents sufficed in order to meet the diagnostic criteria, or if his diagnosis relied on some or all incidents. Dr Dinnen said that, what is important to a psychiatrist, is not so much the concrete facts of what happened, but ‘how the person describes their experience of those events in terms of their response to it, in terms of their recollection of the emotion they experienced at the time, and in terms of how they believe that that event or those events impacted on their life then, and now, and through the years’. In that respect, he thought there is always the potential of a disparity between a historical record of events and a person’s recollection of those events. Dr Dinnen conceded that he had not thoroughly examined the historical material that had been sent to him and, to the extent that he did, he did not place much weight on it, as against Mr Neath’s account of his experiences:
I know from the veterans … who I have treated … that their recollection of events, which are then subjected to historical research, do not often match up. … The historical record … may well be at odds with the account he gave to me. I don’t believe that makes him insincere or untruthful when he gave his account; that was his recollection. He may have been wrong in his recollection.
52. Dr Roberts referred to DSM-IV and broadly addressed the diagnostic criteria. He was not satisfied that Mr Neath met the diagnostic criteria for PTSD, nor for alcohol abuse/alcohol dependence. Dr Roberts was of the view that Mr Neath did not experience the physiological symptoms that might be expected if he suffered PTSD. He dismissed Mr Neath’s shortness of breath, palpitations and sweating as being more likely to be associated with Mr Neath’s heart condition because they were associated with exertion. He also dismissed Mr Neath’s nightmares because they were basically the same, whereas he would have expected some thematic variations. He was cross-examined, somewhat successfully in my view, that he had inappropriately overlooked or discounted the symptomatology described by Mr Neath.
53. Dr Roberts also considered that Mr Neath’s failure to obtain in-patient treatment, as had been recommended some time ago, seemed somewhat disingenuousness. Dr Roberts had some reservations about Mr Neath’s truthfulness because he did not think that someone could consume as much alcohol as Mr Neath ( 8-10 ‘stubbies’ per day, plus a bottle of wine with dinner for 30 years, and from 2001-2003, 20 ‘stubbies’ and a bottle of scotch a day), and continue to run a business.
54. Mr Neath told Dr Roberts that Jeparit was ‘a sitting duck’ because it was an unarmed merchant vessel. Mr Neath told him of watching gunshots, and seeing bombing in the Long Hai Hills and that he was in Cam Ranh Bay when Transnorthern was rocketed and ‘a few guys were killed’. He told Dr Roberts Jeparit had been fired upon and that there had been explosives placed on the side of the crane and his ship, and that he had witnessed them exploding in the bay. He also described a ‘foiled robbery attempt’.
55. Dr Roberts did not consider Mr Neath’s seeing bombing of the Long Hai Hills to be a significant stressor because he had ‘no connection with it’, and he was ‘8-10 miles away’. Similarly, he rejected the attack on Transnorthern because Mr Neath did not ‘witness’ the attack. He also rejected the Jeparit attack incident and the divers/mines incident because there was no official record of them.
56. Neither Dr Dinnen nor Dr Roberts is Mr Neath’s treating psychiatrist. Mr Neath was, at some stage, apparently referred to Dr Westerink, consultant psychiatrist, who provided a report dated 22 October 2002. Although he also did not address the diagnostic criteria, Dr Westerink diagnosed Mr Neath as suffering PTSD and alcohol dependence caused by his navy service. Dr Westerink had come to this view, it seems, on the basis of the history given to him by Mr Neath, that is, that Mr Neath had undertaken six trips to Vietnam on Jeparit and on the first trip ‘they carried bombs, and there were some real problems with these bombs and his life was in danger’. Mr Neath made no reference to this in his statement nor did he give any evidence about this ‘stressor’ and it does not appear to be pressed. Dr Westerink also came to his view on the basis of a history that Jeparit was ‘rocketed in the Mekong Delta’ and that Mr Neath was ambushed in the convoy at Baria.
57. The Respondent had arranged for a military historian to investigate the alleged stressors upon which Mr Neath relied, with the exception, of course, of the ‘white mice’ incident which was raised at the hearing for the first time.
58. The historian provided two reports dated 23 June 2009 and 29 June 2010. Mr Neath considered that the historian’s reports were ‘a lot of lies’ and that they were ‘a joke’. He was of the opinion that there were ‘so many cover-ups’ and that the ‘logs are a fabrication’.
59. I turned to consider the evidence, including the historical evidence, in relation to the matters upon which the Applicant relied, and particularly those upon which Drs Dinnen and Westerink had based their diagnosis of PTSD.
60. Jeparit was subject to rocket attack and on the way to Cam Ranh Bay Jeparit was fired upon. Mr Neath’s evidence was that Jeparit came under fire from the shore while en route to Cam Ranh Bay and HMAS Hobart fired at the shore, which stopped the attack.
61. Hobart’s Record of Proceedings for that day record that at 10:10 and at 14:30 it was called upon to fire - inferentially in the direction of the shore, having regard to the targets. The Report did not specify where the bombardments occurred. No mention was made of its encounter with the Jeparit. Hobart returned to Vung Tau and anchored at 18:26.
62. According to the Report of Proceedings, Jeparit left Vung Tau at 11:45 on 25 August and set course for Cam Ranh Bay. It was reported that HMAS Hobart, on operations in the area, steamed alongside to exchange greetings and to allow the ship’s company to take photographs. Jeparit anchored in Cam Ranh Bay at 02:00 on 26 August. CDR Tiffen, who had been the Officer-In-Charge of the naval contingent on Jeparit at the time, provided a statement in which he wrote that Jeparit did not come under fire, nor was HMAS Hobart steaming alongside for Jeparit’s protection, but to exchange greetings.
63. Jeparit’s Report, though, acknowledges that Hobart was in its vicinity on operations. Twice that day Hobart was called upon to fire at the shore, although on the first occasion the Jeparit was still in Vung Tau. The Reports, when read together, tend to support the view that Hobart was firing at the shore while in the general vicinity of the Jeparit: per Messrs Harrison, Sommerton and Lord. In particular, Mr Sommerton thought the firing was in the afternoon, and this would be consistent with the 14:30 firing session referred to in Hobart’s Record.
64. It is appropriate to consider this alleged incident in context. Jeparit had anchored in Vung Tau at 01:30 on 21 August and came alongside De Long Pier at 10:00 where it remained until leaving for Cam Ranh Bay on 25 August. Jeparit’s Record of Proceedings notes that Vung Tau was under red alert because intelligence indicated a possible attack between 20 and 26 August. The United States Air Force carried out bombing runs on an island in the Delta 16,000 yards from the ship; Hobart carried out a bombardment for 30 minutes on an island; and a hill 10,000 yards away was subjected to concentrated bombing. The historian’s report of 23 June 2009 included an extract from the United States Naval Forces Vietnam Monthly Historical Summary which confirms that Transnorthern was attacked on 25 August, the day the Jeparit left Vung Tau harbour for Cam Ranh Bay.
65. As it transpires, Mr Neath’s fears of a further attack were not without foundation as, according to the US records, another US civilian ship Transglobe was attacked twice five days later and one crew member was killed. A Japanese ship was also attacked that day.
66. I accept the account of the official Record of Proceedings and the evidence of CDR Tiffin in coming to the view that Jeparit did not actually come under fire. I have no doubt whatsoever that such an event would not only be memorable to the most senior naval officer aboard Jeparit, but would also have been recorded in the official record. Having said that, in the context of the red alert in Vung Tau while Jeparit was alongside, the increased bombing activity due to the imminent threat, the actual bombardment of Transnorthern - another unarmed civilian vessel - immediately before Jeparit’s departure, it is perhaps understandable that Mr Neath and others may have misconstrued the nature of Hobart’s 14:30 shore bombardment in their vicinity.
67. Criterion A of the diagnostic criteria for PTSD, referred to in DSM-IV, is expressed in terms that are closely reflected in the definition of “experiencing a severe stressor” in the SoP concerning PTSD. The interpretation, based on that definition, by decisions of Full Courts of the Federal Court were conveniently summarised by Heerey J in Repatriation Commission v Norton[2008] FCA 1132 at [20] as follows:
“1.The event must be one which
(i)the person actually perceived as involving actual or threatened death or serious injury and
(ii)which could reasonably be so perceived by someone with that person’s knowledge and experience. There are both subjective and objective elements: Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392 at [22], [30].
2.It is sufficient if a threat is (actually and reasonably) perceived, notwithstanding that there was in fact no threat: Stoddart at [31].
3.To be “confronted” with the event the person does not necessarily have to be physically present: Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473 at [123].
4.“Risk” is used in the sense of “an indication of probable evil to come: something that gives indication of causing evil or harm”: Stoddart at [36].”
68. I observe that the case articulated on behalf of Mr Neath identified a number of different events, each of which was said to be a severe stressor. As Moore, Emmett & Allsop JJ state in Benjamin:
“Proceedings before the Tribunal sometimes give the appearance of being adversarial but, in substance, a review by the Tribunal is inquisitorial. Each of the Commission, the Board and the Tribunal is an administrative decision-maker. Each is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it. An inquisitorial review conducted by the Tribunal is one in which the Tribunal is required to determine the substantive issues raised by the material and evidence advanced before it. In doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant – Grant v Repatriation Commission [1999] FCA 1629 paragraphs [17]-[18], 57 ALD 1 at 6 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.”
69.I do not consider it necessary to divide the events described as ‘being in a war zone’, ’attack on Transnorthern’ and ‘attack (sic) on Jeparit’ in that these together may describe one prolonged stressor that occurred over several days. I was prepared to accept, on the balance of probabilities, that Mr Neath experienced events that involved actual or threatened death or serious injury to others insofar as he was aboard Jeparit, an unarmed vessel, when another unarmed vessel (Transnorthern) was attacked while part of an escalation of activity and that, while in the vicinity of Jeparit, Hobart fired upon the enemy. The occurrence of these events is objectively documented.
70. I observe that, in Mines v Repatriation Commission [2004] FCA 1331, Gray J states at paragraph 46 and 48:
“[46] Finally, in Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 70 ALD 622, another Full Court followed Budworth. At [54] - [55], the Full Court said:
"Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war-caused. When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289.
The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question."…”
“ [48] It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, ie on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.”
I find this to satisfy the first limb of Criterion A in the diagnostic criteria.
71. I come then to the second limb of Criterion A, that is, whether the person’s response involved intense fear, helplessness, or horror. Determination of this issue is a question of fact: Gerzina v Repatriation Commission [2004] FCAFC 96.
72. Mr Neath gave evidence that it was ‘quite frightening’ to think that they were on an unarmed and unescorted merchant ship. He also said he felt fear that they might be rocketed from the Long Son islands. He realised and that he was in a war zone and the potential of an attack was imminent. He said there was ‘a war going on around [him]. And [he] was right in the middle of it’. He said as he was only 21, he was ‘quite scared’. He was worried he would be unable to get out of the engine room if something happened. When Transnorthern was attacked he said he felt in real fear for his life and extremely anxious and worried. He kept wondering whether Jeparit would be attacked too. He thought they were ‘sitting ducks’ while at the wharf. He said he was ‘very frightened’. Although he erroneously thought Jeparit had been fired upon, he thought they were lucky not to have been hit. He thought he was ‘pretty scared’, especially as the ship did not have waterproof compartments.
73. He said that that trip to Vietnam they sailed to Singapore and were given shore leave. He said he drank an excessive amount of alcohol - ‘from memory about 10 beers’ - that night in an attempt to drink his worries away.
74. Dr Dinnen agreed with Dr Westerink that alcohol use was subsequently used for self-medication, and that is the basis for his diagnosis of PTSD with alcohol abuse.
75. I accept that people express their feelings in many ways and with varying degrees of openness or inhibition: Delahunty v Repatriation Commission (2004) 38 AAR 511. I accept that Mr Neath had a reaction that encompassed intense fear, and helplessness, especially given his ongoing concern that Jeparit was unarmed (per Budworth and Repatriation Commission [2000] AATA 127). I observe that even ‘relief’ and ‘concern’ have been found to be capable of being appropriate responses: Renton v RC [2009] FCA 268. Therefore, the answer to the question of whether the diagnosis was one properly made having regard to DSM-IV must be answered in the affirmative, per Repatriation Commission v Warren (2007) 95 ALD 606.
Is Mr Neath’s PTSD war-caused?
76. Where a SoP exists, I must apply the test prescribed by s 120A(3) of the VE 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 tin ascertain whether tire 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 tin 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 tin 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?
77. The hypothesis is that Mr Neath experienced a severe stressor which resulted in him suffering PTSD with alcohol dependence and that that condition is therefore war-caused.
78. The current SoP concerning PTSD is No 5 of 2008. At the time‘s claim was first decided the SoP in force was No 3 of 1999. The Tribunal must apply the relevant SoP for the condition on the basis of the decision of the Full Court of the Federal Court in Gorton v Repatriation Commission [2001] FCA 286; that is, the relevant SoP is that currently in force, unless the SoP in force when the claim was first determined is more beneficial. As addressed in paragraph 12 above, the appropriate SoP to apply is No 3 of 1999, that is, the SoP in force at the time of Mr Neath’s claim.
Step 3: does the hypothesis conform to the template in the SoP?
79. Under clause 4 of the SoP No 3 of 1999, as amended by Instrument No 54 of 1999, 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).
80. The veteran’s hypothesis relied on factor 5(a), which is ‘experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder’. This is defined in clause 8 as follows:
“‘experiencing a severe stressor’ means 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 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;”...
81. This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. All the material before the Tribunal must be considered, 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.
82. At this stage, the material must still be considered, whether or not it 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 Elliot, 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.
83. A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
84. The question 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.
85. 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.
86. I accept that there is material pointing to Mr Neath having been confronted with an event that involved the threat of serious injury to his physical integrity, in that he was aboard Jeparit, an unarmed vessel, when another unarmed vessel (Transnorthern) was attacked, while part of an escalation of activity and that, while in the vicinity of Jeparit, Hobart fired upon the enemy.
87. Therefore, I have come to the view, without making a finding of fact, that every essential element of the hypothesis is pointed to by the material before me. A reasonable hypothesis therefore is raised.
Step 4: can I be satisfied beyond reasonable doubt that ptsd was not war-caused?
88. This step involves making findings of fact from the material before me. Section 120(1) of the VE 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 I am not so satisfied, Mr Neath’s claim must succeed: s 120(1) of the VE Act. In examining this question, I note that there is no onus of proof: s 120(6) of the VE Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
89. Recently, in Hunter v Repatriation Commission [2010] FCA 145 (25 February 2010) Mr Hunter was ‘confronted’ with a threat to his person in somewhat similar circumstances. Mr Hunter was “confronted” with a peril, which included being confronted “in the mind”: Woodward v Repatriation Commission[2003] FCAFC 160; (2003) 131 FCR 473.
90. It may be that Jeparit never came under fire as the Report of Proceedings records, but Mr Neath believed that it did. Jeparit had left Vung Tau when hostilities were escalating. Transnorthern, a vessel which was unarmed like Jeparit, had been hit by enemy fire and a crewman killed. When Mr Neath heard Hobart shelling the shore nearby, while the Jeparit was en route to Cam Ranh Bay, he thought Jeparit was under fire. Although Mr Neath had, by this time, made two other trips to Vietnam, there was no evidence that he had previously been in such relatively close proximity to live firing.
91. Applying the test in Stoddart v Repatriation Commission[2003] FCA 334 (2003) 197 ALR 283, I find that the event said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of, and with Mr Neath’s knowledge, did convey to him the risk of death or serious injury or to physical integrity.
92. I find that Mr Neath’s evidence as to the incident has not been disproved beyond reasonable doubt. Further, no other facts that are inconsistent with the hypothesis based on the incident have been proved beyond reasonable doubt. I therefore find that Mr Neath’s PTSD was war-caused.
93. Having come to that view it was unnecessary to consider the other alleged stressors. I observe that Dr Dinnen’s diagnosis of alcohol abuse being a co-morbid condition, that is, not a separate condition. It is therefore appropriate that the accepted condition be described as PTSD with alcohol abuse.
Hypertension
94. Mr Neath gave evidence in relation to his alcohol consumption.
95. Prior to his service he would, about once a month, drink a couple of schooners with his father, who was an extremely heavy drinker.
96. In his evidence, he said he started drinking as soon as he joined the Navy. While at sea, depending on the rations they would receive and what they could buy from others, he would have two to three cans of 750ml beer. Whilst on shore leave, he attended bars and spent many hours drinking, smoking and socialising. Whilst on HMAS Melbourne, he increased his level of drinking due to peer pressure – drinking up to six schooners at a time. When they had free time they were entitled to go to the wet canteen, where the schooners were extremely cheap. Whilst on exercise on HMAS Melbourne, there was rationing of one (750ml) can per day. He would buy from those in the mess who did not drink and would drink between one and five beers a day. While ashore he would ‘let his hair down’. He agreed he had started drinking at 18 and had a well established habit by the time he left Melbourne in 1967, because ‘sometimes you had to keep up with the boys’. He gave a history to Dr Butler, consultant physician, who provided a report dated 30 August 2007, that before Jeparit, he would drink 45-60 grams of alcohol three to four times a week, that is 135-240 grams a week (which is equivalent to 13.5 - 24 standard drinks per week).
97. On Jeparit there was a cafeteria with individual fridges for every crew member of the ship. There were no rations in place, as it was a civilian ship, and they were able to have their own supply of alcohol. The only limitation was that they were not permitted to go on watch intoxicated and he never did so. He would keep alcohol - mostly beer and Bacardi and Coke - in his fridge. He would drink at least half a bottle of Bacardi with Coke and six to seven beers in a day whilst not on duty. He told Dr Butler that on Jeparit he would consume 500-700 grams of alcohol weekly (ie 50-70 standard drinks a week).
98. Mr Neath told Dr Dinnen that he had been a heavy user of alcohol for the last 20 years – drinking eight to ten stubbies a day plus a bottle of wine. He told Dr Roberts that he had drunk in that manner for 30 years, and that from 2001-2003 he would drink 20 stubbies a day and a bottle of scotch. He told Dr Westerink that he drinks 8-9 schooners a day. He told Dr Butler that post-service he has continued to drink 240-270 grams most days, seven days a week (that is 22-27 standard drinks a day).
99. There was evidence from Mr Neath’s medical documents that he had been prescribed Lithium tablets for anxiety in 1969, although that was reportedly due to domestic concerns in relation to his mother. Dr Dinnen observed that Mr Neath had commenced experiencing flashbacks associated with PTSD only in 1978 while undertaking a business trip to Israel, when an apartment three blocks from where he was staying was shelled. His heavy drinking appears to relate to about that time; given the history of ‘20 years’ and ’30 years’ heavy drinking which he gave to the doctors.
Steps 1 and 2: is there a hypothesis and is there a SoP?
100. The hypothesis is that Mr Neath’s hypertension was due to his alcohol consumption and that that condition is therefore war-caused.
101. The current SoP concerning hypertension is No 35 of 2003. At the time Mr Neath‘s claim was first decided, the SoP in force was No 35 of 2003, as amended by No 3 of 2004.
Step 3: Does the hypothesis conform to the template in the SoP?
102. Under clause 4 of the SoP No 35 of 2003, 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).
103. The veteran’s hypothesis relied on factor 5(b) as follows:
“...
“(b)consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 200 grams per week of alcohol; or
...”
104. There was no clear evidence available to me as to the clinical onset of hypertension, in order to determine the six month period in which Mr Neath would have had to consume 200 grams of alcohol per week. Counsel for Mr Neath submitted that this was inconsequential since Mr Neath had been drinking at least that level consistently since his Jeparit service.
105. Dr Butler reports that in 2004 Mr Neath was found to be hypertensive, and this is the earliest information to hand. There is material that points to the clinical onset of hypertension in 2004. There is also material pointing to Mr Neath consuming 20 stubbies a day and a bottle of scotch a day in 2003, which is well in excess of 200 grams of alcohol per week. There was also material pointing to the inability to decrease his level of alcohol intake: He told Dr Butler in 2007 he has continued to drink 240-270 grams most days, seven days a week. Therefore, I have come to the view, without making a find of fact that every essential element of the hypothesis is pointed to by the material before me. A reasonable hypothesis therefore is raised.
Step 4: can i be satisfied beyond reasonable doubt that hypertension was not war caused?
106. Mr Neath blamed alcohol for the failure of his marriage. He also said he had been convicted for ‘Driving Under the Influence’ in the 1980s.
107. Dr Roberts raised some doubt as to whether Mr Neath could be consuming the amount claimed and still continue to work, but there was no evidence that Mr Neath did not consume the amount of alcohol he claimed during the relevant period.
108. I find that Mr Neath’s evidence has not been disproved beyond reasonable doubt. Further, no other facts that are inconsistent with the hypothesis, based on the incident, have been proved beyond reasonable doubt. I therefore find that Mr Neath’s hypertension was war-caused.
Neurodermatitis
109. Mr Neath said he experienced high temperatures and rashes, which he thought were from contaminated water in tanks supplied from a spring near an Agent Orange storage dump in Vung Tau.
110. He started to get rashes in 1969 and was treated with calamine lotion and aspirin. He continues to have intermittent rashes on his back, neck, chest and arms.
111. Dr Lobel, consultant occupational dermatologist, provided a report dated 11 October 2007. On examination on 10 October 2007, Mr Neath was found to have patches of neurodermatitis on his chest, and the doctor opined that the symptoms Mr Neath described in1969 were also neurodermatitis. The doctor reported that the condition is usually secondary to a psychiatric disorder such as PTSD.
112. Dr Nelly Zwatrzka, department medical officer, reported on 7 November 2002 that service conditions would not have caused the condition, but psychological factors would result in the condition worsening or recurring.
113. Where, as in this condition, no SoP is in force, the veteran’s application is to be determined in accordance with ss 120(3) and 120(1) of the VE Act, and in accordance with the approach explained in cases such as Bushell v Repatriation Commission (1992) 109 ALR 30 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
114. In Bushell the High Court said:
·the material will raise a reasonable hypothesis within the meaning of subsection 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true;
·the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge - conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable;
·a hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature, or if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous; and
·the decision‑maker will be satisfied beyond reasonable doubt within the meaning of subsection 120(1) if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.
115. In the decision of Byrnes, the High Court said, in effect that the claim will succeed unless:
·one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
·the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt;
116. There was no evidence that Mr Neath had suffered the condition prior to his service, but the first symptoms occurred soon after his Vietnam service. I prefer the evidence of the specialist as to aetilogy, that is, it is secondary to Mr Neath’s psychiatric condition.
117. I therefore find that Mr Neath’s hypothesis has not been disproved beyond reasonable doubt, and no other facts which are inconsistent with the hypothesis have been proved beyond reasonable doubt. I therefore find that Mr Neath’s neurodermatitis was war-caused.
CONCLUSION
118. For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the veteran’s conditions of PTSD with alcohol abuse, hypertension and neurodermatitis were war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Neath’s conditions were war-caused.
DECISION
119. I set aside the decision under review, and decide that the veteran’s PTSD with alcohol abuse, hypertension and neurodermatitis are war-caused, as defined in s 9 of the VE Act, with effect from 30 September 2005, the earliest date which can be set, having regard to the late lodgement of the application for review to the Veterans’ Review Board. The matter is remitted to the Repatriation Commission for assessment.
I certify that the 119 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed:.....................................................................................
Associate B. DhanasarDates of hearing 20 and 21 September 2010
Date of Decision 16 November 2010
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Ms H Ebrahimi, Vardenega Roberts Solicitors
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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