Parrotte and Repatriation Commission

[2003] AATA 735

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 735

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/608

VETERANS' APPEALS  DIVISION		)
Re		BRIAN PARROTTE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms G Ettinger  - Senior Member

Dr  M E C Thorpe – Member

Date              1 August 2003

Place            Sydney

Decision The Tribunal affirms the decision under review of the Veterans’ Review Board of 18 January 2002 which affirmed the decision of the Repatriation Commission of 2 June 2001 to find that the Post Traumatic Stress Disorder (“PTSD”) and Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol Dependence or Alcohol Abuse, as claimed by Mr Brian Parrotte, the Applicant in these proceedings, was not war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

Ms G Ettinger

Senior Member

catchwords

Veteran - operational service – whether Veteran suffers from PTSD – whether as a result of Monte Bello tests and HMAS Voyager incidents or Vung Tau experiences - exploding of scare charges and other defensive measures aboard HMAS Sydney – whether test of severe stressor met – whether objective or subjective test - other conditions claimed  - decision affirmed

legislation

Veterans’ Entitlements Act 1986 ss 9, 13(1), 120A, 120(1), 120(3)

Repatriation Medical Authority Statement of Principles Instrument No.3 of 1999  as amended by Instrument No.54 of 1999 Concerning Post Traumatic Stress Disorder

Repatriation Medical Authority Statement of Principles Instrument No.76 of 1998 Concerning Alcohol Dependence or Alcohol Abuse

Repatriation Medical Authority Statement of Principles Instrument No.73 of 1997 Concerning Chronic Airflow Limitation and Chronic Bronchitis and Emphysema

Repatriation Medical Authority Statement of Principles Instrument No.31 of 2001 Concerning Hypertension

Repatriation Medical Authority Statement of Principles Instrument No.87 of 1995 Concerning Atherosclerotic Peripheral Vascular Disease

American Psychiatric Association 1995 Diagnostic and Statistical Manual of Mental Disorders, 4^th edition, Washington DC

case law

Repatriation Commission v Budworth (2001) 66 ALD 285
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Benjamin v Repatriation Commission  [2001] FCA 1879; (2001) 34 AAR 270
ReBenjamin and Repatriation Commission  (2000) 61 ALD 565
Repatriation Commission v Binding [1999] FCA 974
Binding v Repatriation Commission (AAT 12886, 15 May 1998)
Re Powell v Repatriation Commission [2000] AATA 385
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 98 FCR 108
Stoddart v Repatriation Commission [2003] FCA 334
Repatriation Commission v Binding [1999] FCA 974
Re Mulvany and Repatriation Commission (2000) 59 ALD 602

REASONS FOR DECISION

1 August 2003 Ms G Ettinger - Senior Member
     Dr M E C Thorpe - Member

1. The decision under review before the Administrative Appeals Tribunal (“the Tribunal”) was the decision of the Veterans’ Review Board of 18 January 2002 which affirmed the decision of the Repatriation Commission of 2 June 2001 to find that the Post Traumatic Stress Disorder (“PTSD”), Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol Dependence or Alcohol Abuse, as claimed by Mr Brian Parrotte, the Applicant in these proceedings, were not war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”).

2. The Applicant was represented by Mr R Sherlock of the Legal Aid Commission, and the Respondent Repatriation Commission by its advocate Mr J Marsh.  The Hearing was adjourned after the hearing of evidence on 4 March 2003, and oral closing submissions were made when it resumed on 23 May 2003.

ISSUE BEFORE THE TRIBUNAL

1. The issue before the Tribunal was whether Mr Parrotte’s conditions of PTSD or clinical worsening of PTSD, Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol dependence or Alcohol Abuse as claimed, were war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

2. In considering this, the Tribunal had first to determine whether the Veteran suffered PTSD pursuant to the tests of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”) (4^th edition).

3. There was no disagreement that should Mr Parrotte be successful in his claim, the date of effect would be 1 September 2000.

LEGISLATIVE FRAMEWORK

1. The relevant legislation is the Veterans’ Entitlements Act1986, in particular sections 9, 13(1), 120(1), 120(3) and 120A. Section 9 provides that:

   “War-caused injuries or diseases

   (1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

   (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

   …”      

2. Section 13(1) of the Act provides 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. As relevant, section 13(1) of the Act follows.

   “13 Eligibility for pension

   
   
   

   (1)       Where:

   (a)       the death of a veteran was war-caused; or

   (b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   (c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or

   (d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

   in accordance with this Act.”

3. As Mr Parrotte had performed operational service, as defined in section 6 of the Act, the standard of proof applicable to assess whether his conditions of PTSD or clinical worsening of PTSD, Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol Dependence or Alcohol Abuse were war-caused, was that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act:

   “Standard of proof

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

   Note: This subsection is affected by section 120A.

   …

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

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

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

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

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

   Note:This subsection is affected by section 120A.

   …”

4. Section 120A of the Act also applied because Mr Parrotte’s application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority (“RMA”), Statements of Principles (“SoPs”) produced pursuant to section 196B of the Act applied.

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

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

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

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

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

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

   (2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

   (a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

   (b)has declared that it does not propose to make such a Statement of Principles.

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

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

   (b)a determination of the Commission under subsection 180A (2); that upholds the hypothesis.

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

   (4)   Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

   (a)the kind of injury suffered by the person; or

   (b)the kind of disease contracted by the person; or

   (c)the kind of death met by the person;

   as the case may be.”

5. The Tribunal noted that Instrument No.3 of 1999 as amended by Instrument No.54 of 1999 was the appropriate SoP to be applied in Mr Parrotte’s case with regard to his claimed condition of PTSD or clinical worsening or PTSD.  The tests for PTSD in the relevant SoP are derived from DSM-IV.

   “DSM-IV” means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;”

EVIDENCE BEFORE THE TRIBUNAL

1. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as Exhibit R1, and the following other Exhibits.

ITEM	DATE	EXHIBIT NUMBER
Statement from Mr Brian Parrotte	31 January 2003	Exhibit A1
Report from Dr Anthony Dinnen	9 September 2002	Exhibit A2
Dictionary Definition of “threat”	-	Exhibit A3
Medical records - Dr Peter Searson	Exhibit R2
Research Report - Commodore P Mulcare RAN (Rtd)	3 November 2002	Exhibit R3
Report - Dr Robert Haik	11 September 2002	Exhibit R4
Report - Dr Robert Haik	18 February 2003	Exhibit R5
Hansard	12 November 1985	Exhibit R6

1. Oral evidence was given by Mr Brian Parrotte, the Applicant and Commodore P Mulcare, of Writeway Research Service. Drs A Dinnen and R Haik gave concurrent evidence.

EVIDENCE OF MR BRIAN PARROTTE - THE APPLICANT

1. Mr Parrotte whose date of birth is 23 May 1932, and whose statement dated 31 January 2003 was before the Tribunal, gave oral evidence at the Hearing. He said that he joined the Royal Australian Navy (“the Navy”), in 1951, and went to the Monte Bello Islands when he was only 20 years old. He served for twenty years, became a Petty Officer in 1968, and Chief Petty Officer in 1971.  He then worked at Kermac Engineering from discharge, for 20 years, until 1992.

2. Mr Parrotte said that during service, cigarettes were available any time, duty free, and he commenced smoking after the Monte Bello Islands experience in 1952. Mr Parrotte’s smoking questionnaire dated 10 March 1995 was at T4 of the documents. Mr Parrotte said that from 1952 he smoked a packet of cigarettes which lasted for two days, but that after being on HMAS Voyager (“Voyager”), he smoked heavily, and it was a packet a day. He said that there was an increase between 1972 and 1995.

3. The Applicant told the Tribunal that he had been in a rewarding marriage for 44 years, but that he gets upset and irritable with his family now and then. He agreed that he was referred to as “Cranky Poppy” and said that he sometimes took things the wrong way.  Mr Parrotte said that he did not go out, but saw his neighbours from time to time, and said that his ex Navy friends would ring. He also said that he met people he used to work with at the pub, and just listened quietly to them.

4. There was some inconsistency in the evidence given regarding the number of trips Mr Parrotte made to Vung Tau during his service. He said in his oral evidence that he had made nine trips, seven on HMAS Sydney (“Sydney”) and two on HMAS Melbourne (“Melbourne”). The Tribunal noted records regarding Mr Parrotte’s trips at T3, but was not concerned at the slight discrepancy between the records and the Applicant’s oral evidence.

5. In his examination-in-chief, Mr Sherlock referred Mr Parrotte to the reports of psychiatrists, Drs Dinnen (Exhibit A2) , Wenden (T6), and Haik (Exhibits R4 and R5).  In that connection, Mr Sherlock asked Mr Parrotte to comment on the point made by Dr Wenden at page six of his report, where he had recorded Mrs Parrotte’s  statement to him about the Applicant, and where Dr Wenden recorded as follows: “depressed for many years and his memory and concentration have not been good recently. She has learned to live with her husband’s problems”.  By way of contrast,  Dr Haik had recorded that Mr Parrotte had a lot of friends. Mr Parrotte told the Tribunal that the interview with Dr Wenden was relaxed and that it “seemed to go all right”, and that his wife also spoke to Dr Wenden. He confirmed what she had told Dr Wenden about his nerves, that he “jumps out of his skin”.  He added that he was also comfortable with Dr Dinnen, but that he was not happy with Dr Haik, and that Vietnam had not been a pleasure trip. 

6. Mr Parrotte also felt that Dr Haik had misinterpreted the facts when he recorded a 24 hour stretch spent at Vung Tau. Mr Parrotte clarified this to inform the Tribunal that the ships left Vung Tau harbour after loading and unloading during the day for some seven or eight hours, that is they left before nightfall. Mr Parrotte also clarified for the Tribunal a statement made by Dr Wenden at T6/46 regarding responsibilities Mr Parrotte had, explaining that he was responsible for the flight deck, the hangar, the welfare and safety of junior personnel, and aircraft handling, but not cargo.

7. As to concentration; Mr Sherlock noted that Dr Wenden and Dr Dinnen had commented on the Applicant’s concentration. Mr Parrotte agreed his concentration was not good.

8. As to dreams; Mr Sherlock asked Mr Parrotte to comment on Dr Haik’s comments that the Applicant had no specific dreams, Dr Dinnen who recorded that Mr Parrotte suffered bad dreams in which he was afraid, and Dr Wenden who recorded nightmares and recurring war dreams. Mr Parrotte told the Tribunal that he dreamt of bombing, of scare charges being let off which he recalled were 100 yards from the shoreline at Vung Tau, and that he drank beer to put those thoughts out of his mind.

9. As to whether Mr Parrotte’s ship was under threat; the Applicant said he had been told by the flight deck officer of Sydney that there were underwater swimmers who threatened the ship. He said that he was in charge of the flight deck, and as recorded by Dr Dinnen, he was very afraid because the men were not told about the scare charges, and were afraid they were going to be blown up. He said that he could see aircraft banking and strafing, but agreed when questioned that they were American or Australian, and were not attacking his ship. 

10. Mr Parrotte agreed when asked in cross-examination by Mr Marsh, who referred him to Dr Wenden’s report at T6/48, that the “loud explosion” as recorded there did not occur, but said that the ship had been on alert in Singapore Harbour. He said that a dummy for which divers had gone into the water was part of a security exercise.

11. As to Operation Awkward; Mr Parrotte agreed when questioned, that as Chief Petty Officer, he knew there were routine safety procedures being conducted.  He agreed that at the time of his first trip to Vietnam, he was 38 years old, and experienced in the Navy. Mr Parrotte agreed in cross-examination that he knew what scare charges were, and knew they were dropped some way from the ship, but said that at the time they could have been mortar bombs or rockets. He agreed that he and his ship had never been under attack, but said that the threat was always present.

12. Mr Parrotte said that he had been present at the Voyager disaster, and had seen it from the flight deck. He said that he had flashbacks or nightmares about it one to three times a week. He could remember bodies, and men screaming, and said that two mates had been killed in the accident.

13. When referred in cross-examination to the opinion of Dr Wenden that Mr Parrotte’s PTSD and alcohol abuse were caused by his war experiences, “mostly by the experience aboard the Melbourne with the Voyager disaster”, Mr Parrotte replied that it was the combined effect of the whole Vietnam experience, including just being present in Vung Tau.

14. Mr Parrotte gave evidence of his drinking, saying that he had not been a heavy drinker, consuming only two cans a day before 1964, and that between 1970 and 1972, given his position, he was entitled to three to four cans a day at sea. He said that he drank much more ashore.

15. When asked about when he first consulted a psychiatrist, Mr Parrotte agreed he had not complained of “nerves” in the Navy over the twenty years he served, and that he first went to a psychiatrist when he was down at the coast with his wife in 2000 or 2001. Mr Parrotte told the Tribunal that he was treated for PTSD by Drs Searson and Tate, and that he had not told his present doctor, Dr Hannan, about the PTSD.

EVIDENCE OF COMMODORE P M MULCARE RAN (RETD) – WRITEWAY RESEARCH SERVICE

1. Commodore Mulcare, whose report was Exhibit R3 before the Tribunal, gave oral evidence.  He told the Tribunal that the reports of proceedings which were part of Exhibit R3, were a record of a ship’s monthly activities, and informed the Tribunal that any important events would be recorded therein. 

2. He was asked about Operation Awkward, as discussed in paragraph 13 of Exhibit R3, in particular whether Petty Officers would have had information about scare charges. His reply was that a Petty Officer was a senior person, and Chief Petty Officers such as the Applicant, were responsible for sailors, including their work, efficiency and welfare. He commented that Mr Parrotte had been in charge of the flight deck (with the attendant rank and responsibilities).

3. As to paragraph 16 of Exhibit R3, where he had stated that the records indicated  “SYDNEY’s ROPs covering each of the veteran’s visits do not mention any untoward incidents while the ship was at anchor off Vung Tau”,  Commodore Mulcare added that there had been attacks on the ships at various times, but none in the time Mr Parrotte spent in Vung Tau. (The Applicant agreed). Commodore Mulcare added however, that if there had been problems, there would have been broadcasts, and Chief Petty Officers would have been given information for the sailors, as they were responsible for their work and welfare. Commodore Mulcare said that Chief Petty Officers such as Mr Parrotte were well informed, and noted Mr Parrotte had been to sea before, had good relationships with the officers, and knew what was going on.

1. Commodore Mulcare also pointed out from page 174 of the ROP (May 1971) that serving members in the area visited relatives on board at Vung Tau, and that the ship’s band was flown off by helicopter to conduct goodwill concerts in the local area, with great success. This was done by way of indicating that there was no imminent danger at the time. 

2. Commodore Mulcare was referred to paragraphs 9 and 10 of Exhibit R3 where threats to safety (such as divers and floating mines), in Vung Tau, were mentioned. He replied that Operation Awkward which encompassed preventive measures, was in place to avoid threats. He said that there was a “slick routine” in place with the use of helicopters and patrol boats.  He agreed it was a very busy work area.

3. As to a Russian submarine; Commodore Mulcare said that there was no record of such submarine, and in any case Australia was not at war with Russia.

CONCURRENT EVIDENCE OF PSYCHIATRISTS DR A DINNEN AND DR R HAIK

1. The Tribunal had before it reports of Dr Dinnen dated 9 September 2002, (Exhibit A2), and the reports of Dr Haik dated 11 September 2002, (Exhibit R4), and 18 February 2003, (Exhibit R5).  In line with the Tribunal’s policy of hearing evidence concurrently when considered appropriate, the Doctors appeared together. The Tribunal first summarised Mr Parrotte’s evidence for the Doctors, and then asked for their comments. This was followed by questioning from the parties’ representatives.

2. Dr Dinnen commented on the Monte Bello Islands tests, saying that he had seen quite a few veterans who had been present at those, stating that it was a highly emotional experience. He opined that this set the stage for subsequent events which occurred some twenty years later. 

3. Dr Dinnen commented on “accumulative stresses” during Mr Parrotte’s 21 years of service, that is the Monte Bello Islands tests, trips with the Far Eastern Strategic Reserve, the Voyager collision, and trips to Vietnam over a period of 10 - 15 years.  Dr Dinnen commented that Mr Parrotte had been on deck during the Voyager collision, and that Mr Parrotte suppressed his feelings, and did not want to talk further about it.  Dr Dinnen said that Mr Parrotte suffered heightened anxiety in Vietnam, and perceived a threat. He was vulnerable by then. In fact Dr Dinnen opined that Mr Parrotte had PTSD by the time he went to Vietnam, that he was “hyper alerted”, and always felt under threat in Vietnam, mindful that there was no specific incident at Vung Tau.  Dr Dinnen described the Vietnam experience as “the final straw”.

4. Dr Dinnen described the accumulative experiences as having a magnifying effect, noting that during service the Applicant did not allow himself to let his feelings interfere with his functioning, which was capable and competent. He described Mr Parrotte as having exceptional ability to suppress and deny his emotional experiences.  Dr Dinnen opined that the heavy alcohol and cigarette consumption occurred in parallel, and that later in life the symptoms of the PTSD became more obvious. Dr Dinnen described Mr Parrotte as becoming more socially withdrawn, uptight with his wife and family, and suffering from concentration problems.

5. Dr Haik described the Voyager incident in 1964, which he recognised was not within Mr Parrotte’s operational service period, as a possible stressor, opining however that Mr Parrotte continued to function normally in his social and occupational life after that experience. Accordingly, he opined, there was no stressor, and no PTSD.  Dr Haik went on to describe Mr Parrotte functioning for a further 21 years as a respected Chief Petty Officer, that he had a “good life”, and that he subsequently worked for Kermac Engineering for another 20 years after leaving the Navy. He added Mr Parrotte had been married for 44 years, and had a good marriage.

6. Dr Haik said that Mr Parrotte first consulted a psychiatrist when his wife retired, and opined that there was no evidence in Mr Parrotte of physical, mental or social affect, adding that he did not find any impairment in cognitive or intellectual function due to alcohol. In summary, Dr Haik said that he could not make a psychiatric diagnosis. Dr Haik emphasised his understanding of Mr Parrotte leaving the Navy, that is to spend more time with his family, and because he was making a claim, noting that he joined the Reserves for another five years after discharge.

7. During the discussions when giving concurrent evidence, Dr Dinnen and Dr Haik discussed any impairment Mr Parrotte suffers, Dr Haik emphasising there was no impairment as a result of any war-caused stressors, while Dr Dinnen opined that Mr Parrotte suppressed his feelings and had symptoms over the last few years, opining that this was a delayed onset of PTSD.  Dr Dinnen emphasised that Mr Parrotte did not impress as disabled, but that he has a limited quality of life, and abused alcohol and smoking to cope.  He explained that even with severe PTSD, a person could function if he kept busy; however his quality of life would be diminished.

EVIDENCE OF DR R WENDEN – PSYCHIATRIST

1. Dr Wenden did not give oral evidence, but his report dated 28 March 2001 was before the Tribunal at T6. He examined the Applicant on 17 January 2000 and 7 February 2001.  Dr Wenden took a detailed history from both the Applicant and his wife, which included descriptions of Mr Parrotte’s experiences at the Monte Bello Islands, the Voyager collision and Vietnam.

2. Dr Wenden diagnosed PTD and alcohol abuse. He stated that:

   “These have been caused by his war experiences which were of a traumatic nature but mostly by the experiences aboard the Melbourne with the Voyager disaster. He has attempted to manage these traumatic experiences by the use of alcohol and avoidance but he suffers from re experiencing them in memories, flashbacks and nightmares and they cause distress and disability. He has withdrawn from life and his family relationships have suffered.”

3. Dr Wenden also noted that Mr Parrotte was not receiving any treatment, and recommended reducing alcohol intake, and undertaking cognitive behavioural treatment for the PTSD.

SUBMISSIONS AND CONCLUSIONS

1. In determining this matter, and deciding whether Mr Parrotte suffers PTSD, or clinical worsening of PTSD as claimed on his behalf by Mr Sherlock, and whether his Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease, Alcohol Dependence or Alcohol Abuse as claimed, were war-caused pursuant to section 9 of the Act, the Tribunal had to take into account the legislation, evidence, submissions, case law, and relevant SoPs to make the correct and preferable decision.

2. The Tribunal was mindful that Mr Parrotte served his country in the Royal Australian Navy from 1951 to 1972, and that various periods were on operational service, in the Far East Strategic Reserve, Vietnam, and Brunei/Sabah/Sarawak.

3. As Mr Parrotte had served on operational service, it was appropriate in considering whether his claimed conditions of PTSD or clinical worsening of PTSD, Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease, Alcohol Dependence or Alcohol Abuse were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

WHETHER MR PARROTTE SUFFERS PTSD

1. The Tribunal noted that Drs Wenden and Dinnen diagnosed Mr Parrotte as suffering PTSD, although Dr Haik did not. The Tribunal noted further that the Veterans Review Board (T9), noting the diagnosis of Dr Wenden, stated that: “The veteran meets the definition of the condition as per the Diagnostic and Statistical Manual of Mental Diseases fourth edition (DSM IV), which is reproduced in the Statement of Principles.”   However at the Hearing, the diagnosis was an issue, and hence the Tribunal had to make a decision based on DSM-IV, noting that the tests for PTSD as stated in Instrument No.3 of 1999 are derived from DSM-IV.

2. In deciding whether Mr Parrotte suffers PTSD or a worsening of it as claimed, the Tribunal considered the definition of “experiencing a severe stressor” and considered Mr Parrotte’s evidence. The definition of experiencing a severe stressor as expressed Instrument No.3 of 1999 was 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 people’s, physical integrity.”

3. Mr Parrotte told the Tribunal about his experiences at the Monte Bello Islands, being present on deck when the Voyager collision took place, and his eight to ten trips to Vung Tau. Mr Parrotte said in relation to the Voyager incident, that he saw fellow Navy personnel dead and in pieces, including two mates, even referring to a brain on deck. The Tribunal did not have a great deal of information with regard to Mr Parrotte’s involvement in the Monte Bello Islands tests, which it accepted however, from the medical reports, were likely to qualify as a severe stressor.

4. The Tribunal was mindful that with regard to the Monte Bello Islands tests, and in particular in relation to Voyager, Mr Parrotte experienced, witnessed, and was confronted with an event which involved actual death or serious injury, or a threat to his and other people’s, physical integrity, in satisfaction of the definition of experiencing a severe stressor. 

5. The Tribunal noted Mr Parrotte’s evidence that just being present at Vung Tau was a stressful experience. Mr Sherlock, accepting that the ship was not at Vung Tau after dark, submitted there was a constellation of defensive procedures undertaken, including patrols on the ship, helicopters, patrol boats, scare charges, and others, indicating that the ship was constantly under threat.

6. The Tribunal also considered Mr Parrotte’s experiences in Vietnam. He was involved in Operation Awkward, and by the very nature of his position he would have known what the scare charges and other defensive measures were about. It was not in dispute, and the Tribunal accepted, that his ship did not come under attack while at Vung Tau. Indeed the Tribunal noted from Commodore Mulcare’s report that serving members visited relatives on board at Vung Tau, and that the ship’s band was flown off by helicopter to conduct goodwill concerts in the local area.

7. The Tribunal noted from the decision of Stoddart v Repatriation Commission [2003] FCA 334, where Mansfield J concluded after canvassing the meaning of “threat” and considering the submissions of the parties, as follows:

   “In my judgment the language of the definition of “experiencing a stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively form the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death or serious injury to physical integrity.”

8. The Tribunal was not satisfied that the experience in Vung Tau could be described as that of the Monte Bello Islands or Voyager, because Mr Parrotte was already 38 years old on his first trip to Vung Tau, and was in a senior position, first of Petty Officer, and then Chief Petty Officer, in charge of the welfare and work of the sailors. The Tribunal considered that with his background and training as a Petty Officer and Chief Petty Officer, and given his age, Mr Parrotte would have known and indeed been informed that the measures being taken around the ship in Vung Tau, were defensive measures. Accordingly his experiences in Vung Tau did not qualify as a severe stressor.

9. The Tribunal noted that Repatriation Commission v Budworth (2001) 66 ALD 285, a decision of the Full Court of the Federal Court which binds this Tribunal, and was decided in particular in clarification of the standard of proof in Repatriation matters. However, the factual situation concerned Mr Budworth being subjected to scare charges. He served on HMAS Sydney, and in his case, the dropping of scare charges was held not to meet the tests in regard to the first limb of the stressor. Neither did he meet the tests in the second limb, which were his subjective reactions to the scare charges.

10. The Tribunal noted further that Mr Parrotte did not seek assistance from any Navy psychiatrist during his twenty years of service, noting also Dr Dinnen’s evidence that Mr Parrotte suppressed his feelings, suffered from “accumulative stresses” and that the Vietnam experience was “the final straw”.

11. The Tribunal was mindful of the tests in DSM-IV and those from Instrument No.3 of 1999 which are derived from DSM-IV.

    “For the purposes of this Statement of Principles, “post-traumatic stress disorder” means a psychiatric condition meeting the following description (derived from DSM-IV):

    (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 symbolize or resemble an aspect of the traumatic event; and

    (v)  physiological reactivity on exposure to internal or external cues that symbolize 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 (eg, unable to have loving feelings);

    (vii) sense of a foreshortened future (eg, 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.

    attracting ICD-9-CM code 309.81

12. In coming to a decision whether Mr Parrotte suffers PTSD, the Tribunal noted the evidence of the Applicant himself, which satisfied it that Mr Parrotte reacted to the Voyager collision with intense fear, and, that as a result of his war experiences, he re-experiences the traumatic events in terms of nightmares, and recurring war dreams (Drs Wenden, Dinnen and Haik). Mr Parrotte gave evidence of his avoidance of thoughts, feelings, or conversations associated with the trauma of war, and the Tribunal accepted Dr Wenden’s assessment that this was assuaged by the excessive drinking. The Tribunal noted also Mr Parrotte’s account of his increase in smoking, although it was concerned with inconsistencies in the evidence. The Tribunal accepted that Mr Parrotte has markedly diminished interest in any activities (Dr Dinnen), and irritability, evidenced by the fact the children call him “Cranky Poppy”. The Tribunal also accepted Mr Parrotte’s reports of sleep problems, difficulty concentrating and the disturbance which has caused him significant distress in his social being for quite some years.

13. As to impairment of concentration; Dr Haik told the Tribunal he did not think Mr Parrotte’s concentration was particularly impaired, and attributed any impairment to ageing.  The Tribunal’s views however, as expressed at the Hearing for comment  by Dr Thorpe, were as follows:

    “… his concentration was significantly impaired in the opinion of the Tribunal. This is based on the fact that at times he did seem reasonably lucid and at times was not lucid and at other times he seemed to completely lose the plot. This happened continuously and I think it would seem to the Tribunal that an explanation for this could be excess alcohol over a period of time. …”

14. The Tribunal has noted above the description of what constitutes PTSD, and finds that Mr Parrotte satisfies each of the criteria necessary to make that diagnosis, which it attributes to his experiences in either the Monte Bello Islands and/or the Voyager collision, as noted by Drs Wenden, Haik and Dinnen. The Tribunal accepted Dr Dinnen’s evidence that the Applicant was an individual who did not allow his feelings to interfere with his functioning, which was capable and competent.  In that regard, the Tribunal noted that Mr Parrotte served out his 21 years in the Navy, worked at Kermac Engineering for a further 20 years and enlisted in the Reserves for a further five years.

15. The Tribunal did discern some inconsistency in the evidence of Dr Dinnen who wrote in his report at Exhibit A2 that:

    “His account of his trips to Vietnam, taken in isolation, are sufficient to raise the hypotheses that this would have caused post traumatic stress disorder if the three previous matters had not occurred. The reality is that he already had severe post traumatic stress disorder as a direct consequence of the Voyager disaster. It is likely that this condition was aggravated by his operational service in Vietnam.

16. In his oral evidence, Dr Dinnen said that:

    “In the sense of aggravating a pre-existing post traumatic stress disorder, I would consider that his trips to Vietnam did constitute severe stressors sufficient to cause that to happen….”

17. Further on in his oral evidence, Dr Dinnen expounded further on his theory of a delay in developing an illness:

    “ … Certainly in PTSD and I don’t think there is any argument with this; it is a condition where it can surface many years after the events which caused it. What I’m suggesting is not that he had PTSD on the Sydney or the Melbourne, or that he had it when he left the Navy or that he had it 15 years ago, but it was developing, it was latent, it was there and it surfaced over the last few years …

    …

    …the problem is I can’t say that he had this condition after Montebello or that he had the condition after the Voyager or that he had the condition in 1980, all I can say is that now when we examine him, there are features which put together are consistent with the diagnosis of post traumatic stress disorder and I hasten to say that I agree with Dr Haik that this man doesn’t impress as being greatly disabled by this condition.”

18. The Tribunal noted that Dr Haik agreed with Dr Dinnen to a certain extent, as follows:

    “ … in the sense that maybe as he gets older and his ability to be able to distract himself with other matters has lessened, … maybe he gets more jittery and more anxious but I can’t see how Vietnam has been a problem when in fact, it is the Voyager disaster that was the real stress. He fulfils a criteria outlined by DSM. This was a major catastrophe, a major disaster – people died, body parts were – it is a situation where a lot of people would have suffered considerably. Comparing that with what happened at Vung Tau harbour, there is no comparison, therefore if he has PTSD, it would have been as a result of the Voyager and may well have bubbled to the surface as he has got older.”

1. However, the Tribunal noted that Mr Parrotte was not claiming that his PTSD was caused, but rather that it was worsened by his experiences in Vung Tau Harbour. The medical evidence with regard to worsening was that of Dr Dinnen, and it was not in dispute that Mr Parrotte first sought assistance for psychiatric illness when he consulted Dr Wenden in 2000.

2. Having considered the evidence of the Applicant, that of the doctors as outlined above,  and the case law, the Tribunal was reasonably satisfied applying the standard of proof as in Repatriation Commission v Cooke (supra), Repatriation Commission v Budworth (supra), and Repatriation Commission v Gosewinckel (supra), that Mr Parrotte experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat to him or other people’s physical integrity in witnessing the atomic explosions at the Monte Bello Islands and/or the Voyager collision. The Tribunal was satisfied from the evidence before it, including the evidence of Drs Wenden and Dinnen, as well as that of Mr Parrotte, that notwithstanding he did not seek assistance until much later, due as Dr Dinnen opined, to his capacity to suppress his real feelings, that he suffered PTSD as result of the Monte Bello Islands tests, and/or the Voyager collision. The Tribunal accepted that it only manifested itself in later life as social withdrawal, problems with concentration and being uptight with his family, following a successful career in the Navy and at Kermac Engineering.

3. The Tribunal was satisfied to the requisite standard that, on balance, Mr Parrotte experienced a severe stressor in relation to his experiences in the Monte Bello Islands, and/or in connection with the Voyager, but not in relation to his Vietnam experiences.

4. The Tribunal accepted Dr Dinnen’s evidence that Mr Parrotte had delayed onset of PTSD, and was accordingly satisfied that the diagnosis of PTSD could be made. (applying Repatriation Commission v Cooke (1998) 90 FCR 307, Repatriation Commission v Budworth (2001) 66 ALD 285 and Repatriation Commission v Gosewinckel (1999) 59 ALD 690).

THE APPLICATION OF THE TESTS IN DELEDIO

1. The Tribunal moved then to consider whether a reasonable hypothesis existed linking Mr Parrotte’s claimed conditions of PTSD or clinical worsening of PTSD, Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol Dependence or Alcohol Abuse to his war service. 

2. As the Veteran has operational service, the Tribunal in deciding this matter, was bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio (supra), which held that:

   “… the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:

   1The 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.

   2If 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

   3If 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.

   4The 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.”

1. With respect to determining when an hypothesis is reasonable, the Tribunal noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):

   “…

   Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

   (i)        contrary to proved or known scientific facts,

   (ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

   (iii)      (since 1994) inconsistent with (not upheld by) an applicable SoP.

   If the hypothesis is reasonable the claim will succeed unless:

   (iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or

   (v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”

2. The relevant SoPs to be applied were:

Repatriation Medical Authority Statements of Principle:

• Instrument No.3 of 1999  as amended by Instrument No.54 of 1999 Concerning Post Traumatic Stress Disorder

• Instrument No.76 of 1998 Concerning Alcohol Dependence or Alcohol Abuse

• Instrument No.73 of 1997 Concerning Chronic Airflow Limitation and Chronic Bronchitis and Emphysema

• Instrument No.31 of 2001 Concerning Hypertension

• Instrument No.87 of 1995 Concerning Atherosclerotic Peripheral Vascular Disease

WHETHER MR PARROTTE’S PTSD WAS WAR-CAUSED WITHIN THE TERMS OF THE LEGISLATION (CLINICALLY WORSENED)

1. The Tribunal turned then to decide whether, applying the “reasonableness” test from Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra), the material before it raised an hypothesis connecting Mr Parrotte’s condition of claimed PTSD or worsening of PTSD, with his war service. It was conformity with the relevant SoP, and the decision whether the PTSD was war-caused or worsened by having experienced a severe stressor pursuant to the relevant SoP, which were in issue. 

2. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Parrotte’s claimed condition of PTSD or worsening of PTSD with his war service, the Tribunal considered all the material before it. The Tribunal considered whether that material raised an hypothesis linking the clinical worsening of Mr Parrotte’s PTSD, with his war service.

3. In doing so, the Tribunal has taken into account all the material before it, including Mr Parrotte’s oral evidence about the Monte Bello Islands, the Voyager collision, the experiences in Vung Tau, the medical reports as detailed above, and the report of Commodore Mulcare (in the paragraphs above). The Tribunal finds that connecting all the material, an hypothesis can be raised linking Mr Parrotte’s claim that his PTSD or the worsening of his PTSD, was war-caused.  The Tribunal was mindful that no fact finding arises at this stage.

4. Having established that an hypothesis could be raised linking Mr Parrotte’s PTSD or the worsening of his PTSD with his war service, the Tribunal moved next to consider the appropriate SoP, Instrument No.3 of 1999 as amended by No.54 of 1999, to decide whether Mr Parrotte could meet the relevant Factor to consider in this case. The Tribunal noted that the Factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting the worsening of Mr Parrotte’s PTSD with the circumstances of service, were:

   “5.(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or

   (b)experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder; or

   …”

5. A severe stressor was defined in Instrument No.3 of 1999 as amended by No. 54 of 1999 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 another person’s, physical integrity.

6. If Mr Parrotte can be found to meet the tests in Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, then a reasonable hypothesis can be raised linking his claimed condition of PTSD or worsening of PTSD to his war service.  In that connection, the Tribunal considered all the evidence, case law and submissions with regard to Mr Parrotte “experiencing a severe stressor” within the terms of the SoP.

7. The Tribunal was mindful that to succeed in having a reasonable hypothesis established linking the claimed condition PTSD or clinical worsening of PTSD to war service, it would need to be satisfied that Mr Parrotte had suffered a severe stressor prior to the clinical worsening of PTSD, as described above. The Tribunal accepted from the evidence before it that Mr Parrotte experienced a severe stressor in connection with his experiences in the Monte Bello Islands and/or the Voyager collision, in that he experienced, witnessed, or was confronted with events, the explosions in the Monte Bello Islands and/or the Voyager collision which involved threat of death or serious injury, and that he suffered PTSD as a result (Drs Wenden and Dinnen). The Tribunal was mindful of Mr Parrotte’s account of having seen two mates killed, people blown up and a brain as an aftermath of the Voyager collision.

8. The Tribunal then considered Factor 5(b), “experiencing a severe stressor prior to the clinical worsening of post traumatic stress disorder”, which would have to be shown to exist as a minimum before it could be said that a reasonable hypothesis had been raised linking the Veteran’s conditions with the circumstances of his service.

9. The Tribunal noted the evidence given regarding Mr Parrotte’s experiences at Vung Tau, which was that only defensive measures were undertaken while his ship loaded and unloaded in Vung Tau harbour during daylight hours. There was no disagreement, and the Tribunal accepted that there was no enemy attack during Mr Parrotte’s visits to Vung Tau. The Tribunal took into account Mr Parrotte’s 18 years in the Navy which preceded his first trip to Vung Tau, his mature age of 38 years at the time of his first trip, the Applicant’s status as a Petty Officer and later Chief Petty Officer, when he went to Vung Tau, and the activities there, which included defensive measures, but no attacks or threats of attack by the enemy.

10. The Tribunal considered that any perceived threat was just that, and that given the extent of Mr Parrotte’s knowledge and experience, and his position as Petty Officer and later Chief Petty Officer, and with his responsibilities for personnel and cargo, he would have been accordingly aware. 

11. The Tribunal noted Dr Dinnen’s opinion that Mr Parrotte suffered PTSD, that Vietnam was “the last straw”, that the Applicant was in a state of “hyperalertness”, and his opinion that the stresses were accumulative. The Tribunal noted that Dr Dinnen opined in Exhibit A2:

    “His account of his trips to Vietnam, taken in isolation, are sufficient to raise the hypotheses that this would have caused post traumatic stress disorder if the three previous matters had not occurred. The reality is that he already had severe post traumatic stress disorder as a direct consequence of the Voyager disaster. It is likely therefore that this condition was aggravated by his operational service in Vietnam.

    His account of that aggravation is no more detailed than that he drank most heavily and smoked most heavily after the trips to Vietnam. That apparently, was the final straw, in causing what is likely to be the most noxious part of his psychiatric response traumatic experience.”

12. Dr Haik’s view was quite different in that he opined that he was unable to diagnose a psychiatric disorder or condition in the Applicant. Dr Haik referred to Mr Parrotte functioning well occupationally, and in his interpersonal life, both during the rest of his naval career after Vietnam, and after discharge, (including five years in the Reserves), and during Mr Parrotte’s following 20 years, working for Kermac Engineering.  Dr Haik also commented that Mr Parrotte did not seek or receive assistance for psychiatric symptoms or illness between 1972 and 2001.

13. The Tribunal was mindful that there was a large body of case law with regard to PTSD, and was mindful of the submissions of the parties with regard to assessing the nature of a “severe stressor” as required in applying the SoP. The parties referred to cases such as Powell v Repatriation Commission [2000] AATA 385, Repatriation Commission v Budworth (2001) 66 ALD 285, and others. Given the extensive case law in this area, and the recent case of Stoddart v Repatriation Commission [2003] FCA 334, the Tribunal was mindful that it was bound as follows by Mansfield J who stated at paragraph 55 of the judgment:

    “In my judgment the language of the definition of “experiencing a severe stressor” caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (i.e. are subjectively experienced) the risk of death of serious injury or to physical integrity.”

14. The Tribunal was mindful that Benjamin v Repatriation Commission [2001] FCA 1879, was a case where the Veteran was held by the Tribunal not to have experienced a traumatic event when an alert was issued that divers were attempting to attach mines to MV Jeparit. Mr Benjamin had been moved on to the wharf while the ship was checked. He had been drinking and said that he felt very confused and afraid. A later incident in which the Mr Benjamin was involved was also held not to have been a traumatic event when during the Tet Offensive, bombardments and rifle fire occurred in proximity of MV Jeparit, although a couple of kilometres away. Mr Benjamin did not therefore, meet the first limb of the test for the stressor in the relevant SoP, and also failed on the subjective count, his reaction to it. The Tribunal noted that Mr Benjamin was much younger than Mr Parrotte when he experienced the events described above.

15. The Tribunal noted also the case of Repatriation Commission v Budworth (2001) 66 ALD 285, a decision of the Full Court of the Federal Court which was decided in particular in clarification of the standard of proof in Repatriation matters. However, the factual situation concerned Mr Budworth being subjected to scare charges. In Mr Budworth’s case, the dropping of scare charges was not held to meet the tests in regard to the first limb of the stressor. Neither did he meet the tests in the second limb, which were his subjective reactions to the scare charges.

16. Repatriation Commission v Binding [1999] FCA 974, was a decision of a single Judge of the Federal Court, in which the appeal of the Repatriation Commission against the decision of the Tribunal was dismissed. In Binding v Repatriation Commission (AAT 12886, 15 May 1998), the Tribunal held that Mr Binding who also served in HMAS Sydney’s boiler room and for a period of only three days on operational service in 1965, was subjected to scare charges and met the tests. The Tribunal had decided that his PTSD was war-caused, and on appeal by the Repatriation Commission, the Federal Court did not find an error of law. The Tribunal was mindful that Mr Binding was very junior, that he worked in the boiler room where the sounds of scare charges were quite different from those on deck which Mr Parrotte heard, and that the ship’s records indicated that the families of service people were on board ship as guests on at least one occasion when Mr Parrotte’s ship was in Vung Tau Harbour, something the Tribunal believes would not have occurred if there had been acute danger at hand. 

17. Re Mulvany and Repatriation Commission (2000) 59 ALD 602 was another case mentioned at the Hearing. The Tribunal noted that the decision of the Respondent in that case was affirmed. The Tribunal in Mulvany [2000] AATA 535 held as follows at paras 21- 24:

    “…

    Adopting an objective interpretation of para (a) of the definition of the phrase “experiencing a stressor” in cl 4 of the SoP concerning PTSD, the Tribunal finds that the rats incident was an event that did not in fact involve “threatened death or serious injury” within the meaning of that definition, because there is no evidence to suggest that the probable or impending death of, or serious injury to, the applicant was indicated by that event.

    Alternatively, did the rats incident in fact involve a threat to the applicant’s “physical integrity”?  The phrase “physical integrity” is one of potentially wide connotation, its ordinary meaning being: bodily wholeness or soundness.  In the Tribunal’s opinion, however, the connotation of that phrase, as appearing in the definition of “experiencing a stressor” in cl 4 of the SoP concerning PTSD, is limited by the context in which it appears.  That context refers to events involving threatened interferences with physical integrity of an extreme kind, namely, death or serious injury.  Accordingly, the Tribunal is of the opinion that the phrase “threat to … physical integrity” in the abovementioned definition should be understood as referring to an indication of impending or probable harm to bodily wholeness or soundness of an extreme kind only.  Adopting that interpretation, the Tribunal finds that the rats incident was an event that did not in fact involve a “threat to the [applicant’s] … physical integrity”, within the meaning of the definition of “experiencing a stressor” in the abovementioned SoP, because there is no evidence to suggest that that event involved impending or probable harm of an extreme kind to the applicant’s bodily wholeness or soundness.  The only kinds of relevant bodily harm referred to by Mr Clarke in his submissions were the biting, scratching and spreading disease by rats but there was no evidence to suggest that any of those kinds of harm could be regarded as extreme.  Nor was there any evidence regarding the likelihood or probability of any such kind of harm being inflicted on the applicant in the rats incident.

    The Tribunal finds, therefore, that the factor referred to in para (a) of cl 1 of the SoP concerning PTSD does not exist, or is not satisfied, in the present case because the rats incident did not involve the applicant’s “experiencing a stressor” within the meaning of the definition of that phrase in cl 4 of that SoP.

    None of the other minimum factors referred to in cl 1 of the abovementioned SoP being relevant in this case, it follows that the raised hypothesis connecting the applicant’s diagnosed condition of PTSD with the circumstances of his operational service – specifically, the rats incident – is not a reasonable one, and the Tribunal so finds.

    …”

1. Re Powell v Repatriation Commission [2000] AATA 385, by way of contrast, was a case where, the Tribunal held that of the events recounted by the Veteran, the incident in which he led a patrol for the first and last time, and faced, over a cache of ammunition, six Viet Cong who pointed their guns at him and his patrol, to be a threat to Mr Powell’s physical integrity. The Tribunal found that it did not matter that Mr Powell and his patrol were able subsequently to withdraw from the situation unharmed, and that viewed objectively, the event could be classed to be a threat to Mr Powell’s physical integrity. That was however not the situation with regard to Mr Parrotte and Re Powell (supra), could accordingly be distinguished.

2. The Tribunal was mindful of the tests in DSM-IV, including Mr Parrotte’s detailed accounts of his problems with concentration, his nightmares and sleep disturbance, avoidance behaviour (Dr Dinnen), ill temper, and all the other relevant factors.

3. The Tribunal, applying Repatriation v Cornelius [2002] FCA 750, Robertson and Repatriation Commission (1998) 50 ALD 668took into account the tests for clinical onset, and accepted Dr Dinnen’s evidence with regard to delayed onset of PTSD as a result of the severe stressors Mr Parrotte experienced. 

4. The Tribunal noted that notwithstanding the fact that Mr Parrotte did not seek psychiatric assistance until the 2000, making clinical onset difficult to assess, the Tribunal could be satisfied that Mr Parrotte experienced a severe stressor prior to the clinical onset of PTSD. It was on balance, satisfied by the experiences the Applicant underwent in the Monte Bello Islands and in connection with the Voyager collision that he suffered PTSD as a result of these. However, clearly, these events did not take place in the periods of Mr Parrotte’s operational service. 

5. Taking all the above into account, the Tribunal considered that the events in Vung Tau did not qualify as a severe stressor in the terms of the SoP, and that there was no clinical worsening of Mr Parrotte’s PTSD in the Vung Tau experiences, or other parts of his operational service.

6. Accordingly, having considered the facts and the case law, the Tribunal was satisfied that Mr Parrotte did not meet the tests in Factor 5(b) of the SoP, Instrument No.3 of 1999 as amended by No. 54 of 1999, and accordingly, a reasonable hypothesis cannot be found linking either Mr Parrotte’s PTSD or the clinical worsening of his PTSD with his operational service.

7. The Tribunal took into account the indicia in section 120(3) of the Act, and found that on the basis of consideration of the whole of the material before it, the Tribunal was satisfied that the material relating to Mr Parrotte did not raise sufficient ground for determining that Mr Parrotte’s PTSD or clinical worsening of PTSD was war-caused. Accordingly, no reasonable hypothesis connecting his PTSD or clinical worsening of PTSD to his war service could be established.

8. The Tribunal found that applying section 120(1) of the Act, and taking into account all the evidence before it, the Tribunal was convinced beyond reasonable doubt that the Applicant’s PTSD or clinical worsening of PTSD cannot be said to have been war-caused. Therefore, as a result, the application of Mr Parrotte to have PTSD or clinical worsening of his PTSD accepted as war-caused must fail.

9. The Tribunal  was mindful of the submissions made that if Mr Parrotte met the tests in the SoP for PTSD, he would also satisfy the SoP for alcohol dependence. Because he could not satisfy the tests in the SoP for PTSD or clinical worsening of PTSD, the Tribunal decided to consider his alcohol abuse or dependence separately. The applicable SoP in relation to Mr Parrotte’s alcohol abuse or alcohol dependence was Instrument No.76 of 1998 entitled “Psychoactive Substance Abuse or Dependence and Alcohol Dependence or Alcohol Abuse”.  

WHETHER MR PARROTTE’S CONDITIONS OF ALCOHOL DEPENDENCE OR ALCOHOL ABUSE, OR CLINICAL  WORSENING OF ALCOHOL DEPENDENCE OR ALCOHOL ABUSE ARE WAR CAUSED

1. The Tribunal turned then to decide whether, applying the “reasonableness” test from Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra), the material before it raised an hypothesis connecting Mr Parrotte’s condition of Alcohol Dependence or Alcohol Abuse or clinical  worsening of either of those conditions with his war service. It was conformity with the relevant SoP, and the decision whether the Alcohol Dependence or Alcohol Abuse or clinical  worsening of either of those conditions was war-caused, which were in issue. 

2. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Parrotte’s claimed condition of Alcohol Dependence or Alcohol Abuse with his war service, the Tribunal considered all the material before it. The Tribunal considered whether that material raised an hypothesis linking the condition of Alcohol Dependence or Alcohol Abuse, or clinical  worsening of either of those conditions with his war service.

3. Alcohol Dependence is defined in the SoP No.76 of 1998 as:

   “the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.”

4. Alcohol Abuse is defined as:

   “the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.”

5. In deciding whether an hypothesis can be raised, the Tribunal has taken into account all the material before it, including Mr Parrotte’s statement at Exhibit A1, his oral evidence about the Monte Bello Islands, the Voyager collision, the experiences in Vung Tau, the medical reports as detailed above, and the report of Commodore Mulcare (in the paragraphs above).

6. The Tribunal finds that connecting all the material, an hypothesis can be raised linking Mr Parrotte’s claim that his Alcohol Abuse or Alcohol Dependence or clinical  worsening of either of those conditions, was war-caused.  The Tribunal was mindful that no fact finding arises at this stage.

7. Having established that an hypothesis could be raised linking Mr Parrotte’s Alcohol Dependence or Alcohol Abuse or clinical worsening of either of those conditions with his war service, the Tribunal moved next to consider the appropriate SoP, Instrument No.76 of 1998 to decide whether Mr Parrotte could meet the relevant Factor to consider in this case. The Tribunal noted that the factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Parrotte’s Alcohol Dependence or Alcohol Abuse with the circumstances of service, were Factors:

   “5.(a)suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or

   (b)…

   (c)suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or

   …”

1. If Mr Parrotte can be found to meet the tests in Instrument No.76 of 1998, then a reasonable hypothesis can be raised linking his claimed condition of Alcohol Abuse or Alcohol Dependence or clinical worsening of either of those conditions, to his war service.

2. The Tribunal was mindful that to succeed in having a reasonable hypothesis established linking the claimed conditions of Alcohol Dependence or Alcohol Abuse or clinical worsening of either of those conditions to war service, it would need to be satisfied that Mr Parrotte was suffering a psychiatric disorder at the time of the clinical onset of Alcohol Dependence or Alcohol Abuse, or was suffering a psychiatric disorder at the time of the clinical worsening of Alcohol Dependence or Alcohol Abuse.

3. The Tribunal accepted from the evidence before it including the diagnoses of Drs Wenden and Dinnen, that Mr Parrotte developed PTSD in connection with his experiences in the Monte Bello Islands and/or the Voyager collision.

4. In his statement (Exhibit A1), Mr Parrotte told the Tribunal that before he joined the Navy, he drank beer very moderately, but that as a part of Navy life, he began drinking regularly. Beer was issued, he stated, but noted that it was possible to obtain additional supplies. Mr Parrotte stated that between 1964 and 1966 he increased his consumption dramatically to forget about the Voyager and Vietnam experiences. He also stated that he increased his smoking from 20 cigarettes a day to 40 – 45 a day between 1964 and 1966.

5. The Tribunal noted Dr Dinnen’s evidence that Mr Parrotte smoked and drank to deny or suppress his anxiety and his PTSD.

6. Dr Wenden attributed both the PTSD and alcohol abuse to “mostly the experiences aboard the Melbourne with the Voyager disaster.” 

7. Dr Haik listed the indicia for Alcohol Abuse and Alcohol Dependence, and opined that Mr Parrotte did not meet the definitions of Alcohol Abuse or Alcohol Dependence in the relevant SoP.

8. The Tribunal noted that Mr Parrotte carried out his duties satisfactorily and gained promotion to Chief Petty Officer during his 21 years with the Navy, and for the 20 years afterwards worked at Kermac Engineering, retiring to spend more time with his family. He also joined the Reserves for another five years. The Tribunal noted that there was a culture of drinking and smoking in the Navy at the relevant time, and that Mr Parrotte accordingly participated.

9. The Tribunal noted also the agreement of the parties that should PTSD have been accepted as war-caused, then Alcohol Abuse or Alcohol Dependence or clinical worsening of Alcohol Abuse or Alcohol Dependence would have been accepted as war-caused. However the Tribunal has found that Mr Parrotte’s PTSD occurred due to events outside his operational service, and that the events he experienced in Vietnam do not qualify as severe stressors. Accordingly, the clinical onset of Alcohol Abuse or Alcohol Dependence or worsening of Alcohol Abuse or Alcohol Dependence are linked to those time frames.

10. Taking into account the indicia in section 120(3) of the Act the Tribunal found that on the basis of consideration of the whole of the material before it, the Tribunal was of the opinion the material did not raise a reasonable hypothesis connecting Mr Parrotte’s Alcohol Dependence or Alcohol Abuse or clinical worsening of Alcohol Dependence or Alcohol Abuse with his operational service.

11. The Tribunal found, applying section 120(1) of the Act that it was convinced beyond reasonable doubt that the Applicant’s condition cannot be said to have been war-caused.

WHETHER MR PARROTTE’S CHRONIC AIRFLOW LIMITATION AND CHRONIC BRONCHITIS AND EMPHYSEMA ARE WAR-CAUSED

1. The Tribunal turned then to decide whether, applying the “reasonableness” test from Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra), the material before it raised an hypothesis connecting Mr Parrotte’s conditions of Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with his war service. It was conformity with the relevant SoP, and the decision whether Mr Parrotte’s Chronic Airflow Limitation and Chronic Bronchitis and Emphysema were war-caused, which was in issue. 

2. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Parrotte’s claimed condition of Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with his war service, the Tribunal considered all the material before it. The Tribunal considered whether that material raised an hypothesis linking the conditions of Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with his war service.

3. The Tribunal noted that Dr Searson at T5/37 (7 November 2000), diagnosed Chronic Obstructive Airways Disease, and Mr Parrotte completed the questionnaire on the same page, stating that his smoking had commenced to suppress the stress of his service.

4. In deciding whether an hypothesis can be raised, the Tribunal has taken into account all the material before it, including Mr Parrotte’s statement at Exhibit A1, his oral evidence about the Monte Bello Islands, the Voyager collision, the experiences in Vung Tau, the medical reports as detailed above, and the report of Commodore Mulcare (in the paragraphs above).

5. The Tribunal finds that connecting all the material, an hypothesis can be raised linking Mr Parrotte’s claim that his Chronic Airflow Limitation and Chronic Bronchitis and Emphysema, was war-caused.  The Tribunal was mindful that no fact finding arises at this stage.

6. Having established that an hypothesis could be raised linking Mr Parrotte’s Chronic Airflow Limitation and Chronic Bronchitis and Emphysema, with his war service, the Tribunal moved next to consider the appropriate SoP, Instrument No.73 of 1997, to decide whether Mr Parrotte could meet the relevant Factors to consider in this case. The Tribunal noted that the Factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Parrotte’s Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with the circumstances of service, were Factors 5(b) and 5(e) which were as follows:

   “5(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or being exposed to mustard gas or Lewisite within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or

   (e)  smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; or

   …”

7. The Tribunal noted that in his statement (Exhibit A1), Mr Parrotte told the Tribunal that he began smoking in 1952 after the Monte Bello Islands experience. He stated that between 1952 and 1964, he smoked approximately 20 cigarettes a day which increased to 40 – 45 a day between 1964 and 1966. He attributed that to his experience with the Voyager incident and his Vietnam experiences. In his Smoking Questionnaire at T4, dated 10 March 1995, Mr Parrotte stated that he took up smoking in 1952, but that he went from smoking a packet every second day from 1952 to 1972, to a packet a day from 1972 to 1995.

8. The Tribunal noted the information regarding Mr Parrotte’s smoking habits, and the inconsistencies in his evidence about the amount smoked, as recorded by Dr Searson, as compared to his oral evidence, and the Smoking Questionnaire. The Tribunal noted also that Mr Parrotte commenced smoking as a result of stress suffered due to the Monte Bello Islands tests in 1952, which were outside the operational service period, noting also Mr Sherlock’s submissions that Mr Parrotte had intended to tell the Tribunal that his smoking increased in Vietnam.

9. The Tribunal found the evidence regarding Mr Parrotte’s smoking quite inconsistent. It could not find, on the basis of that evidence, that Mr Parrotte’s smoking and his Chronic Airflow Limitation and Chronic Bronchitis and Emphysema satisfied the indicia in the relevant SoP.  Accordingly, a reasonable hypothesis could not be found linking Mr Parrotte’s Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with his war service.

10. Taking into account the indicia in section 120(3) of the Act, the Tribunal found that on the basis of consideration of the whole of the material before it, the Tribunal was of the opinion the material did not raise a reasonable hypothesis connecting Mr Parrotte’s Chronic Airflow Limitation and Chronic Bronchitis and Emphysema with his operational service.

11. The Tribunal found, applying section 120(1) of the Act that it was convinced beyond reasonable doubt that the Applicant’s conditions of Chronic Airflow Limitation and Chronic Bronchitis and Emphysema cannot be said to have been war-caused.

WHETHER MR PARROTTE’S HYPERTENSION IS WAR-CAUSED

1. The Tribunal turned then to decide whether, applying the “reasonableness” test from Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra), the material before it raised an hypothesis connecting Mr Parrotte’s Hypertension with his war service. It was conformity with the relevant SoP, and the decision whether the Hypertension was war-caused, which were in issue. 

2. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Parrotte’s claimed Hypertension with his war service, the Tribunal considered all the material before it. The Tribunal considered whether that material raised an hypothesis linking Mr Parrotte’s Hypertension with his war service.

3. Hypertension is defined in SoP Instrument No. 31 of 2001 as:

   “(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmH; or

   (ii) the regular administration of antihypertensive therapy to reduce blood pressure”

4. Taking into account all the material, and the level of drinking Mr Parrotte reported, and his blood pressure, the Tribunal decided that an hypothesis could be raised linking Mr Parrotte’s Hypertension with his war service. The Tribunal was mindful that no fact finding arises at this stage.

5. Having established that an hypothesis could be raised linking Mr Parrotte’s Hypertension with his war service, the Tribunal moved next to consider the appropriate Factors in SoP, Instrument No.31 of 2001, to decide whether Mr Parrotte could meet the relevant Factors to be considered. The Tribunal noted that the factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Parrotte’s Hypertension with the circumstances of service, were Factors:

   “5.(b)  suffering from alcohol dependence or alcohol abuse, involving consumption of    an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical onset of hypertension; or

   (c)  ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension;

   (p) suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 200 grams per week of alcohol (contained within alcoholic drinks) at the time of the clinical worsening of hypertension; or”

6. In deciding whether an hypothesis can be raised connecting Mr Parrotte’s Hypertension with his war service, the Tribunal has taken into account all the material before it, including Mr Parrotte’s statement at Exhibit A1, his oral evidence about the Monte Bello Islands, the Voyager collision, the experiences in Vung Tau, the medical reports as detailed above, and the report of Commodore Mulcare (in the paragraphs above). In his statement (Exhibit A1), Mr Parrotte told the Tribunal that before he joined the Navy, he drank beer very moderately, but that as a part of Navy life, he began drinking regularly. Beer was issued he stated, but noted that it was possible to obtain additional supplies. Mr Parrotte stated that between 1964 and 1966 he increased his consumption dramatically to forget about the Voyager and Vietnam experiences. He also stated that he increased his smoking from 20 cigarettes a day to 40 – 45 a day between 1964 and 1966.  The Tribunal considered that the smoking and drinking were linked to the Monte Bello Islands and Voyager incidents, and the naval peer pressure of the times, and did not find the link to his operational service.

7. The Tribunal noted also that Mr Parrotte also stated in the written material that he was required to take a large amount of salt tablets daily or face discipline.

8. Taking into account the indicia in section 120(3) of the Act the Tribunal found that on the basis of consideration of the whole of the material before it, the Tribunal was of the opinion the material did not raise a reasonable hypothesis connecting Mr Parrotte’s Hypertension with his operational service.

1. The Tribunal found, applying section 120(1) of the Act that it was convinced beyond reasonable doubt that the Applicant’s Hypertension cannot be said to have been war-caused.

WHETHER MR PARROTTE’S ATHEROSCLEROTIC PERIPHERAL VASCULAR DISEASE IS WAR-CAUSED 

1. The Tribunal turned then to decide whether, applying the “reasonableness” test from Byrnes v RepatriationCommission (supra), and approved in Repatriation Commission v Deledio (supra), the material before it raised an hypothesis connecting Mr Parrotte’s condition of Atherosclerotic Peripheral Vascular Disease with his war service. It was conformity with the relevant SoP, and the decision whether the Atherosclerotic Peripheral Vascular Disease was war-caused, which were in issue. 

2. In applying Deledio (supra), and considering whether an hypothesis could be raised linking Mr Parrotte’s claimed condition of Atherosclerotic Peripheral Vascular Disease with his war service, the Tribunal considered all the material before it. The Tribunal considered whether that material raised an hypothesis linking the condition of Atherosclerotic Peripheral Vascular Disease with his war service.

3. Atherosclerosis is defined in SoP Instrument No.87 of 1995 as an “intimal disease characterised by fibrous plaques: the atheromatous plaque is a raised, localised lesion within the intima that has a central core of lipid, which is mostly cholesterol esters complexed with proteins and an overlying tissue plate. ..”  

4. In deciding whether an hypothesis can be raised, the Tribunal has taken into account all the material before it, including Mr Parrotte’s statement at Exhibit A1, his Smoking Questionnaire at T4, the Applicant’s statement (Exhibit A1), his oral evidence regarding smoking, his oral evidence about the Monte Bello Islands, the Voyager collision, the experiences in Vung Tau, the medical reports as detailed above, and the report of Commodore Mulcare (in the paragraphs above). The Tribunal finds that connecting all the material, an hypothesis can be raised linking Mr Parrotte’s claim that his Atherosclerotic Peripheral Vascular Disease was war-caused.  The Tribunal was mindful that no fact finding arises at this stage.

5. Having established that an hypothesis could be raised linking Mr Parrotte’s Atherosclerotic Peripheral Vascular Disease with his war service, the Tribunal moved next to consider the appropriate SoP, Instrument No.87 of 1995 to decide whether Mr Parrotte could meet the relevant Factor to consider in this case. The Tribunal noted that the factors that as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting Mr Parrotte’s Atherosclerotic Peripheral Vascular Disease with the circumstances of service, were:

   “1.

   (a)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or

   (c)suffering from hypertension before the clinical onset of atherosclerotic peripheral vascular disease; or

   (e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical worsening of atherosclerotic peripheral vascular disease and, where smoking has ceased, the clinical worsening has occurred within 15 years of cessation; or”

6. The Tribunal noted that in his statement (Exhibit A1), Mr Parrotte told the Tribunal that he began smoking in 1952 after the Monte Bello Islands experience. He stated that between 1952 and 1964, he smoked approximately 20 cigarettes a day which increased to 40 – 45 a day between 1964 and 1966. He attributed that to his experience with the Voyager incident and his Vietnam experiences. In his Smoking Questionnaire at T4, dated 10 March 1995, Mr Parrotte stated that he took up smoking in 1952, but that he went from smoking a packet every second day from 1952 to 1972, to a packet a day from 1972 to 1995.

7. The Tribunal noted the information regarding Mr Parrotte’s smoking habits, and the inconsistencies in his evidence about the amount smoked as recorded by Dr Searson, when compared with his oral evidence, and the information given in the Smoking Questionnaire. The Tribunal noted also that Mr Parrotte commenced smoking as a result of stress suffered due to the Monte Bello Islands tests in 1952 which were outside the operational service period, noting also Mr Sherlock’s submissions that Mr Parrotte intended to tell the Tribunal that his smoking increased in Vietnam.

8. Taking into account the indicia in section 120(3) of the Act the Tribunal found that on the basis of consideration of the whole of the material before it, the Tribunal was of the opinion the material did not raise a reasonable hypothesis connecting Mr Parrotte’s Atherosclerotic Peripheral Vascular Disease with his operational service.

9. The Tribunal found, applying section 120(1) of the Act that it was convinced beyond reasonable doubt that the Applicant’s condition cannot be said to have been war-caused.

DECISION

1. The Tribunal affirms the decision under review of the Veterans’ Review Board of 18 January 2002 which affirmed the decision of the Repatriation Commission of 2 June 2001 to find that the Post Traumatic Stress Disorder (“PTSD”) and Chronic Obstructive Airways Disease, Hypertension, Peripheral Vascular Disease and Alcohol Dependence or Alcohol Abuse, as claimed by Mr Brian Parrotte, the Applicant in these proceedings, was not war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986.

I certify that the  preceding 146  paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr M E C Thorpe, Member

Signed:         .......................................................................................

Associate

Date/s of Hearing  4 March 2003; 23 May 2003
Date of Decision  1 August 2003
Applicant’s Representative      Mr R Sherlock
Respondent’s Advocate           Mr J Marsh