Paul Gerard Paprotny and Repatriation Commission
[2014] AATA 573
[2014] AATA 573
Division VETERANS' APPEALS DIVISION File Number
2013/5585
Re
Paul Gerard Paprotny
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Lt Col R Ormston (Ret'd) (Member)Date 18 August 2014 Place Adelaide The Tribunal affirms the decision under review.
..............[Sgd]...................................................
Deputy President K Bean
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service in Vietnam – Whether veteran suffers from PTSD – Whether veteran suffers from depressive disorder – Whether veteran suffers from alcohol use disorder – Whether alcohol use disorder war-caused – Deledio steps – Decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 6, 9, 13(1), 120, 120A
CASES
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Bawden (2012) 206 FCR 296McKerlie v Repatriation Commission (2010) 52 AAR 535
SECONDARY MATERIALS
Statement of Principles Instrument No. 1 of 2009 (as amended by No. 29 of 2014)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, Washington DC, 2000)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Washington DC, 2013)
REASONS FOR DECISION
Deputy President K Bean
Lt Col R Ormston (Ret'd) (Member)18 August 2014
The applicant, Mr Paprotny, served in the Royal Australian Navy for 6½ years from January 1969 to May 1975. He deployed on operational service to Vietnam, between 16 March 1971 and 11 October 1971, aboard HMAS Brisbane.
In October 2010, Mr Paprotny lodged a claim for a disability pension, which the Repatriation Commission (the Commission) accepted in relation to sensorineural hearing loss, tinnitus and non-melanotic malignant neoplasm of the skin.
In April 2011, Mr Paprotny lodged a further claim for a disability pension for alcohol dependence and posttraumatic stress disorder (PTSD). The Commission addressed both of those conditions as well as a third condition of “depressive disorder”, and decided there was no incapacity to answer the claim for PTSD and that alcohol dependence and depressive disorder were not related to service. Mr Paprotny requested a review of the Commission’s decision. On 26 August 2013, the Veterans’ Review Board (the VRB) affirmed that decision.
On 1 November 2013, Mr Paprotny applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.
Before defining and addressing the issues arising from Mr Paprotny’s application, we will first outline the applicable legal framework.
LEGAL FRAMEWORK
Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that Mr Paprotny’s service in (or off) Vietnam from March to October 1971 was operational service.
Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether any psychiatric condition suffered by Mr Paprotny is war-caused. That section provides relevantly as follows:
120 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) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
Section 120A(3) provides relevantly:
(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
...
that upholds the hypothesis.
Subsection (4) of s 120A excludes the operation of subs (3) in certain circumstances which are not relevant to the present proceedings.
The application of ss 120(1) and (3) and 120A(3) of the VE Act was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where the Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to be proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”[1]
[1] The second sentence of Step 2 in Deledio was obiter and is not correct: Bull v Repatriation Commission (2001) 66 ALD 271. Where no SoP is in force, the veteran’s application will not necessarily fail, but must be determined in accordance with subs 120(1) to (3) on the basis of the medical evidence before the Tribunal.
It is also established by the authorities that an hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:
The material will raise a reasonable hypothesis within the meaning of s.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.[2]
[2] At [8].
THE ISSUES
It follows that in general terms the issues before us are as follows:
(a)whether Mr Paprotny suffers from any psychiatric conditions;
(b)if so, the diagnosis of those conditions; and
(c)whether any conditions from which Mr Paprotny is suffering are war-caused.
Accordingly, before proceeding to consider whether any condition suffered by Mr Paprotny is “war-caused”, we propose to first address the question of the conditions from which he is suffering and the proper diagnosis of those conditions.
DOES MR PAPROTNY HAVE PTSD?
Diagnostic criteria
In addressing this question, we note that the question of diagnosis is anterior to the application of any SoP. The effect of the authorities is that before determining whether any SoP applies, the Tribunal must first determine whether the “collection of symptoms” complained of by a veteran amounts to a disease, having regard to the medical evidence before it and the applicable diagnostic criteria[3].
[3] Repatriation Commission v Bawden (2012) 206 FCR 296 at [42].
The Federal Court has also acknowledged that when it comes to psychiatric conditions, this will generally involve reference to the applicable manual, which at the time of the most recent relevant Federal Court decision was DSM-IV[4]. As her Honour Justice Kiefel observed in Repatriation Commission v Warren (2007) 95 ALD 606 at [25]:
A clinical diagnosis of a condition classified under DSM-IV would necessarily have regard to that Manual and the criteria provided by it.
[4] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Washington DC, 2000).
However, subsequent to the applicable Federal Court decisions, and indeed subsequent to the psychiatric assessments of Mr Paprotny which are in evidence before us, DSM-5[5] has been published. As DSM-5 contains different diagnostic criteria from DSM-IV, we propose to make reference to both sets of diagnostic criteria in determining whether Mr Paprotny suffers from PTSD.
[5] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed Washington DC, 2013).
We note that DSM-IV relevantly defines PTSD as a psychiatric condition meeting the diagnostic criteria that “the person has been exposed to a traumatic event in which both of the following were present:
(1)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
(2)the person’s response involved intense fear, helplessness or horror.
…
By way of contrast, the diagnostic criteria for PTSD in DSM-5 relevantly require only:
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
…
2. Witnessing, in person, the event(s) as it occurred to others.
However, before addressing the application of these criteria more directly, we should first make reference to the traumatic events experienced by Mr Paprotny, and the most salient aspects of his evidence in relation to them.
The relevant events
In statements dated 31 January 2014 and 4 April 2014,[6] Mr Paprotny contended that he experienced three “traumatic events” during his operational service, namely involvement in Typhoon Freda off the Vietnamese coast; being physically present while a shipmate attempted suicide; and being on a ship whilst live rounds were fired onto the Vietnamese shore and realising that people were being killed as a result.
[6] Exhibits 2 and 3 respectively.
In his statement of 31 January 2014, Mr Paprotny also asserted that:
(a)“I was scared, worried and fearful for my life” [in relation to the typhoon];
(b)“I became fearful for my life” [in relation to the prospect that Vietnamese forces would fire at his ship in retaliation for its firing onto the mainland]; and
(c)“I was completely stunned and did not know what I should do” [in relation to his shipmate’s attempted suicide].[7]
[7] Exhibit 2.
In his oral evidence to the Tribunal, however, Mr Paprotny’s recollections of the typhoon and his reactions to the ship providing naval gunfire support to allied forces ashore did not support feelings of “intense fear, helplessness or horror” of the kind contemplated in DSM-IV, as was conceded by Mr Paprotny’s counsel, Mr Miller. Accordingly, Mr Miller did not press reliance on those events to support a diagnosis of PTSD.
In relation to the attempted suicide event, Mr Paprotny contends that he witnessed the threatened death or serious injury of a close friend, who jumped or fell overboard while HMAS Brisbane was underway off the coast of Vietnam in May 1971. There is no dispute that the incident occurred, as it is recorded in the ship’s log as “1712 [hours] man overboard port side; recovery effected by motor whaler. 1721 [hours] man recovered”.[8] What is not clear is why or how the man jumped or fell overboard.
[8] Exhibit 1, T16/151.
In his evidence, Mr Paprotny said he recalled being in a discussion with the individual immediately before the incident when they were both on the deck of the ship, and he remembers the man walking towards the ship’s side. However, he could not recall what was said and he did not see the man actually jump or fall overboard, although he did see him in the water a short time later. Shortly after the incident, Mr Paprotny said he was questioned by the ship’s coxswain, which included the accusation that Mr Paprotny or others had “dared” the individual to jump overboard.
Regardless of the man’s intention and the fact he was subsequently rescued without injury, Mr Paprotny contends that he genuinely thought the individual was attempting suicide or serious injury, either by drowning or being struck by the ship’s propellers. However, Mr Paprotny also acknowledged that in the days and weeks following this incident, he made no effort to discuss the incident further with his friend, who in the meantime had been moved to a separate work shift and mess area, because that “wasn’t the sort of thing you’d talk about”.
The medical evidence
Mr Paprotny was assessed initially by Dr Black, psychiatrist, in June 2011. Although Dr Black assessed Mr Paprotny as suffering PTSD and alcohol dependence (as well as major depression)[9], Mr Paprotny said in his evidence to the Tribunal that he “didn’t open up [to Dr Black]” and that he didn’t feel comfortable talking [to Dr Black].
[9] Exhibit 1, T10/106.
Mr Paprotny was subsequently assessed by Dr Atchison, psychiatrist, in May 2012, who assessed that Mr Paprotny “developed an Anxiety Disorder, best characterised as a Post Traumatic Stress Disorder, during his active service off Vietnam waters”, further concluding that “I would apportion 25% of his impairment to Post Traumatic Stress Disorder and 75% to his Alcohol Dependence”.[10]
[10] Exhibit 1, T11/122 and 125.
Mr Crowe, who appeared as advocate for the Commission, accepted Mr Miller’s contention that Dr Atchison’s assessment seemed more comprehensive and relevant than Dr Black’s. However, Mr Crowe contended that Dr Atchison’s assessment was flawed because she had relied on several statements from Mr Paprotny that were factually incorrect. In particular, Mr Paprotny had told Dr Atchison that his ship (HMAS Brisbane) had been sent to relieve HMAS Hobart, which had been hit by “friendly fire” during its deployment, and that “he knew of a fellow Tasmanian friend who had been killed aboard the Hobart”.[11] The inference was that the attack on HMAS Hobart had occurred only a short time before his ship had deployed to Vietnam, and that he personally knew the Tasmanian killed. Mr Crowe pointed out that Dr Atchison appeared to have placed reliance on this inaccurate information in arriving at her diagnosis, stating:
I also note that Mr Paprotny himself felt in danger during his service off Vietnamese waters, especially knowing that the ship that they had relieved, HMAS Hobart, had been hit by friendly fire.[12]
[11] Exhibit 1, T11/117.
[12] Exhibit 1, T11/122.
However, during his evidence, Mr Paprotny agreed that his recollection of certain events had blurred with the passage of time, and conceded that Brisbane had relieved Perth (not Hobart) and that his “Tasmanian friend” was Ordinary Seaman Butterworth, who had been killed aboard Hobart in June 1968, a year before Mr Paprotny joined the Navy.
Neither Dr Black nor Dr Atchison was called as a witness. However, we should add that it is clear from her report that Dr Atchison’s diagnosis was based on the criteria in DSM-IV.[13] We also note that with respect to the attempted suicide event, Dr Atchison appears to have been under the impression that Mr Paprotny actually saw his friend jump over the side of the ship.[14]
[13] Exhibit 1, T11/115.
[14] Exhibit 1, T11/118.
Consideration
As to the applicable diagnostic criteria, given that Dr Atchison clearly made reference to DSM-IV in reaching her opinion, and we have not had the benefit of any medical evidence relating to the potential application of DSM-5, we consider the criteria in DSM-IV to be the most appropriate for us to apply in this case. However, as we have indicated above, given that DSM-5 is now in force, and is potentially more beneficial to Mr Paprotny, we also propose to have regard to the revised diagnostic criteria in DSM-5 before reaching a conclusion on this question.
DSM-IV
In applying the criteria in DSM-IV, we note that a critical element is the affected person’s response to the traumatic event.
In her report, Dr Atchison says that Mr Paprotny “was completely stunned [and] didn’t know what to do” when his friend went overboard and that “he still wonders whether he could have done something to have helped”, implying both a sense of helplessness and remorse.[15]
[15] Exhibit 1, T11/118.
In his oral evidence to the Tribunal, however, Mr Paprotny stated that he only found out from others, many hours later, that his friend had survived. Although he said he was “numb” and “dumb founded” when he saw his friend in the water, he admitted that he had made no specific effort to ascertain the whereabouts or well-being of his friend afterwards, such as checking whether he was back in his bunk, which was located in the same mess area as Mr Paprotny’s, albeit on the opposite side of the ship. He further acknowledged that he had made no effort to discuss the incident with his friend afterwards as it “wasn’t the sort of thing you’d talk about.”
While we are appreciative of that sentiment, particularly in a military environment, on the basis of the evidence before us, we do not consider that Mr Paprotny’s response to his friend’s apparent attempted suicide could be construed as invoking “intense fear, helplessness or horror”. Accordingly, we are not satisfied that Mr Paprotny meets the criteria contained in DSM-IV for a diagnosis of PTSD.
We should add that we have given due consideration to the fact that Dr Atchison, being a qualified psychiatrist, made a diagnosis of PTSD. However, that diagnosis was made by reference to three events, two of which the applicant now accepts are not capable of supporting a diagnosis of PTSD. Further, by reference to the evidence before us, we are not satisfied that Dr Atchison had an accurate understanding of any of the three events, including the attempted suicide. Of course, it would have been helpful to have received oral evidence from Dr Atchison, which would have allowed us to clarify her opinion by reference to the evidence before us. On the state of the material before us, however, for the reasons we have given, we are not satisfied that Dr Atchison’s diagnosis of PTSD was accurate.
DSM-5
We note that the revised diagnostic criteria in DSM-5 do not require a response of “intense fear, helplessness or horror”. However on our reading, they do require, relevantly, “exposure to … threatened ... death … (or) serious injury”, including by “witnessing, in person, the event as it occurred to others”.
Mr Crowe has argued that because Mr Paprotny did not see his friend actually jump or fall, he did not “witness” a threatened death or serious injury. Mr Crowe’s argument is that by the time Mr Paprotny saw his friend overboard, the man was in the sea, clear of the ship’s side and propellers, and measures were underway to rescue him, with every prospect of success.
We are not entirely persuaded as to the need for continuity of visual observation in the act of “witnessing”. Nevertheless, on balance, we accept the thrust of Mr Crowe’s argument. Having regard to Mr Paprotny’s evidence, we note that what he actually witnessed was his friend walking over to the side of the ship, and next observing him afloat in the water a short time later. His evidence was that he did not see the man climb on to the railing or jump over the side of the ship, although he did see him in the water subsequently. He said it was only when he saw the man in the water, roughly alongside where he was sitting, that he stood up from where he had been seated on a bollard. Shortly after this he was led away and taken to the mess. We note that in the event, the man who went overboard was rescued and did not suffer serious injury.
In view of this evidence, we are not satisfied that Mr Paprotny “witnessed … threatened death (or) … serious injury” in the sense intended by DSM-5. We accept that one of the possible outcomes of Mr Paprotny’s friend jumping overboard was death or serious injury. However, Mr Paprotny did not witness his friend jumping overboard and by the time he saw him, as we understand it, the man was afloat in the water, well clear of the propellers, and rescue efforts underway. We consider that it was reasonable to assume at this stage that he would be rescued without serious injury, as he subsequently was.
For these reasons, even if we are obliged to apply the diagnostic criteria in DSM-5 in determining whether Mr Paprotny has PTSD, we would not be satisfied that he meets those criteria.
For completeness, we should also add that we consider Mr Miller’s concession as to the relevance of the other two events originally relied on by Mr Paprotny, namely Typhoon Freda and being present whilst rounds were fired, was properly made. Based on Mr Paprotny’s oral evidence, we do not regard either of those events as being capable of supporting a diagnosis of PTSD, under the diagnostic criteria in either DSM-IV or DSM-5.
We have accordingly concluded that Mr Paprotny does not have PTSD. We do not, therefore, intend to address the question of whether any such diagnosis is war-caused.
DOES MR PAPROTNY HAVE A DEPRESSIVE DISORDER?
We note that while Mr Paprotny’s claim made in April 2011 related to PTSD and alcohol dependence, subsequent to that claim Dr Black diagnosed him as also suffering from “Major Depression”[16], which was therefore addressed in the Commission’s decision of 12 July 2011. However, in her report of 31 May 2012, Dr Atchison stated:
The issue of Major Depression has been raised by Dr Black. At this point in time, given Mr Paprotny’s heavy alcohol use, I believe it is difficult to make an assessment of his underlying mood. I do believe there is a chance that he has a recurrent depressive illness but at this point in time I do not believe it is possible to confidently make this diagnosis.
[16] Exhibit 1, T10/106.
The VRB was accordingly satisfied that the appropriate diagnoses were PTSD and alcohol dependence[17], and at the hearing before us Mr Miller did not contend that Mr Paprotny was suffering a depressive disorder, or put forward any evidence in support of that proposition.
[17] Exhibit 1, T2/5.
In these circumstances, we have actively considered the possibility that Mr Paprotny may be suffering from a depressive disorder, notwithstanding Mr Miller’s implied concession that he is not.[18] However, in light of Dr Atchison’s opinion on this question, which we consider to be soundly based and which we therefore accept, we are not satisfied that Mr Paprotny is suffering from a depressive disorder. Therefore, we will not proceed to consider whether any such condition is war-caused.
[18] See McKerlie v Repatriation Commission (2010) 52 AAR 535 at [45].
DOES MR PAPROTNY SUFFER FROM ALCOHOL USE DISORDER?
The Commission has conceded, in its Statement of Facts, Issues and Contentions dated 23 May 2014, that Mr Paprotny suffers from the condition of alcohol use disorder (the nomenclature of which replaces the condition previously known as alcohol dependence or abuse),[19] and on the basis of Dr Atchison’s report of May 2012[20], we consider that concession to have been properly made.
[19] Statement of Principles Instrument No. 1 of 2009 (as amended by No. 29 of 2014).
[20] Exhibit 1, T11/125.
IS MR PAPROTNY’S ALCOHOL USE DISORDER WAR-CAUSED?
The answer to this question depends upon our consideration of the issues raised at each of the four Deledio steps outlined earlier. We accordingly propose to address each of those steps in turn, by reference to the material before us and the contentions of the parties.
Does the material point to an hypothesis connecting Mr Paprotny’s alcohol use disorder with his service?
Mr Paprotny’s hypothesis is that he did not drink prior to joining the Navy but was pressured to do so by his work environment during his operational service, which led to the development of his alcohol use disorder, either during or shortly after the end of his operational service.
Mr Paprotny contended, for example, that “he believed that [his heavy alcohol use] was partly due to the heavy drinking culture around him … [and that] he was feeling anxious and on edge about being in enemy waters”.[21] We are satisfied that the material points to facts which support this hypothesis and that the hypothesis is otherwise reasonable. Accordingly, we consider that step 1 of the Deledio test is satisfied.
[21] Exhibit 1, T11/118.
Is there an applicable SoP?
There is a SoP currently in force relating to alcohol use disorder, namely Instrument No. 1 of 2009 (as amended by No. 29 of 2014). That SoP relevantly provides as follows:
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol use disorder … with the circumstances of a person’s relevant service is:
(a)having a clinically significant psychiatric condition at the time of the clinical onset of alcohol use disorder; or
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol use disorder; or
…
(g)having a clinically significant psychiatric condition at the time of the clinical worsening of alcohol use disorder; or
(h)experiencing a category 1A stressor within the five years before the clinical worsening of alcohol use disorder; or
(i)experiencing a category 1B stressor within the five years before the clinical worsening of alcohol use disorder; or
...
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
…
“a category 1B stressor” means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b) …
Does the hypothesis fit the SoP?
Having regard to the terms of the SoP and the material before us, the answer to this question depends on whether the material points to Mr Paprotny:
(a)suffering from a clinically significant psychiatric condition at the time of the clinical onset or any clinical worsening of alcohol use disorder;
(b)experiencing a life-threatening event within the five years before the clinical onset or any clinical worsening of alcohol use disorder; or
(c)witnessing a person being killed or critically injured within the five years before the clinical onset or any clinical worsening of alcohol use disorder.[22]
[22] Paragraph 5 of the SoP also provides that the relevant factor must be related to service.
Putting aside the uncertainty as to the exact date of the clinical onset of Mr Paprotny’s alcohol use disorder, and the associated issue of whether the condition at any time “clinically worsened”, we have already discounted the diagnoses of PTSD and depressive disorder. Further, we do not consider that the material before us points to Mr Paprotny suffering from any other clinically significant psychiatric condition before the clinical onset of his alcohol use disorder, or before any clinical worsening of that condition. Indeed, the material before us does not point to Mr Paprotny suffering from any other clinically significant psychiatric condition at any time. Accordingly, factors (a) and (g) are not relevant and do not fit the hypothesis.
We have also concluded, as has been conceded by Mr Miller, that the incidents involving the typhoon and the ship providing gun fire support could not be construed as life-threatening, and nor do we consider that the attempted suicide of Mr Paprotny’s friend could be regarded as a “life threatening event” in the relevant sense. Therefore, factors (b) and (h) relating to a category 1A stressor also do not apply. Further, Mr Paprotny does not assert that the attempted suicide of his friend resulted in a person being killed or critically injured, or that either of the other two events involved him witnessing any person being killed or critically injured. So factors (c) and (i) relating to a category 1B stressor do not apply either.
It accordingly follows that the material does not point to the existence of any of the factors necessary to support a reasonable hypothesis connecting Mr Paprotny’s alcohol use disorder with his operational service. Therefore Mr Paprotny’s claim in relation to alcohol use disorder fails step 3 of the Deledio test, and for that reason we do not consider this condition to be war-caused.
CONCLUSION
We have decided that Mr Paprotny does not have PTSD or a depressive disorder, and that his condition of alcohol use disorder is not war-caused. We are therefore obliged to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean and Lt Col R Ormston (Ret’d) Member .........[Sgd].............................
Associate
Dated 18 August 2014
Date of hearing 3 June 2014 Counsel for the Applicant Mr J Miller Solicitors for the Applicant Tindall Gask Bentley Advocate for the Respondent Mr A Crowe
Rehabilitation & Compensation GroupDepartment of Veterans’ Affairs
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