Peter Robert Elton and Repatriation Commission
[2014] AATA 475
[2014] AATA 475
Division VETERANS' APPEALS DIVISION File Number
2012/4535
Re
Peter Robert Elton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 15 July 2014 Place Melbourne The Tribunal sets aside the decision under review and substitutes a decision that alcohol use disorder and cannabis use disorder are war-caused with effect from 28 November 2010.
.........................[sgd]...............................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – alcohol use disorder – stressful events – whether condition war-caused – cannabis use disorder – whether condition diagnosed and war-caused
Legislation
Veterans' Entitlements Act 1986 ss 9, 120(1)
Statement of Principles Instrument No 1 of 2009 (Alcohol Dependence and Alcohol Abuse)
Statement of Principles Instrument No 29 of 2014 (Alcohol Use Disorder)
Statement of Principles Instrument No 3 of 2009 (Drug Dependence and Drug Abuse)
Statement of Principles Instrument No 31 of 2014 (Substance Use Disorder)
Cases
Benjamin v Repatriation Commission [2001] FCA 1879
Border v Repatriation Commission (No. 2) [2010] FCA 1430
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Washington DC, American Psychiatric Association, 2013 (DSM-5)
REASONS FOR DECISION
G. D. Friedman, Senior Member
15 July 2014
Peter Elton served in the Royal Australian Navy from 7 July 1968 to 21 January 1972. His service on HMAS Sydney from 17 November 1969 to 5 December 1969 and from 16 February 1970 to 5 March 1970 in Vietnam constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
On 28 February 2011 he lodged a claim for incapacity from substance abuse drugs & alcohol arising from stressful events during his service. His claim for marijuana abuse (in full remission) and alcohol dependence was refused and the Veterans’ Review Board (VRB) affirmed the decision. Mr Elton seeks review of the decision.
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war‑caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Elton has rendered operational service, the issue of whether any diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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 [Statement of Principles] 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 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.
ISSUES
There was no dispute that Mr Elton suffers from alcohol use disorder (previously known as alcohol abuse or alcohol dependence) as defined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Arlington, VA, American Psychiatric Association, 2013 (DSM-5). The issues before the Tribunal are:
·Is alcohol use disorder war-caused?
·Does Mr Elton suffer from cannabis use disorder (previously known as: drug dependence and drug abuse)? If so:
·Is cannabis use disorder war-caused?
IS ALCOHOL USE DISORDER WAR-CAUSED?
Mr Elton stated that his operational service led to his alcohol use disorder. He told the Tribunal that he joined the navy at the age of 15 years in July 1968 and considered the navy to be a worthwhile career. He completed his initial training on the HMAS Leeuwin in Perth, Western Australia and he did well academically, finishing first in his class. After a brief posting to HMAS Parramatta he was assigned to HMAS Sydney in October 1969, when he had just turned 17 years old. He said that in November 1969 the ship sailed to Vietnam to transport troops and equipment. He explained that he was ill-prepared for service in a war zone and had received little training. He described his role on the ship as general dogsbody and he was the lowest-ranked sailor on board. A second voyage to Vietnam was undertaken in February 1970.
Mr Elton described three events during his operational service that were particularly distressing. The first event occurred during the first voyage to Vietnam when HMAS Sydney encountered a typhoon (the typhoon event). During the storm he was below the waterline in the bow of the ship and the vessel shuddered and lurched before everything seemed to be quiet and still for a brief moment. He stated that he was afraid that the ship may have been breached by a possible impact with the ocean’s swell and was in danger of sinking.
The second event occurred shortly after the typhoon event when he was asked to join a work party on the flight deck which was an open area (the flight deck event). He said that he was with another sailor and when the weather conditions worsened he decided to seek refuge in another part of the ship. He feared that he may be washed overboard while running to safety.
The third event occurred while anchored at Vung Tau (the Vung Tau event). He said that he had heard rumours that Viet Cong divers had planted mines in an attempt to attack allied shipping. Mr Elton acknowledged that he was aware of procedures to deter such action including the dropping of small explosive devices (known as scare charges) over the side of the ship. He heard charges detonating when he was below the water line, but nevertheless he feared that the explosions might have been mines. He said that he was in fear for his life because the compartments below the water line were sealed and he might drown.
In respect of the typhoon event, Mr Elton explained that the first voyage to Vietnam was uneventful until the ship left the Sunda Strait between the Indonesian islands of Java and Sumatra and encountered a typhoon. He stated that he had never experienced such weather and the ship rolled and listed in the huge swell. He was several decks below the flight deck in an enclosed area of the ship. As a general hand he was often required to perform duties such as painting and cleaning, and at the time he was on his own in the vicinity of the paint locker and may have been collecting or returning supplies. He said that he felt the ship moving erratically before it came to a halt. He had never before felt the sensation of stillness and quiet, and feared that he might drown because he believed that the bow had broken off. He said he was terrified and quickly sought to escape. He climbed the ladders to the upper deck, falling down a gangway in his haste. Mr Elton said that his overriding concern was to reach the deck as quickly as possible. He felt enormous relief when he arrived on the upper deck and discovered that the ship had not broken up. Mr Elton said that he has experienced nightmares in relation to the typhoon event and continues to do so.
Mr Elton told the Tribunal that he first consumed alcohol during his initial voyage to Vietnam in 1969. He explained that all personnel on HMAS Sydney received an entitlement to purchase one large can of beer (26oz or 750ml) per day and each evening a sailor would collect the beer ration from the mess and distribute the cans to the other sailors. On the initial voyage to Vietnam when he was offered a can he accepted and commenced to drink, even though he was under the legal age for consumption of alcohol, because of peer pressure and because he was told that drinking alcohol would reduce his anxiety. He said that he was aware of the regulation prohibiting underage drinking, but it was not enforced and he was never asked to produce his leave card (which identified him as being underage). Mr Elton estimated that on his return from Vietnam he was consuming alcohol regularly, and this increased to a rate of more than 20 standard drinks each day. He ceased drinking in February 2012 on the advice of his doctors.
In a report dated 11 March 2013 for Writeway Research Service Pty Ltd, Commodore P Mulcare stated that HMAS Sydney sailed from Brisbane on 17 November 1969 bound for Vung Tau. In respect of the typhoon event, he confirmed that the ship encountered a storm on 27 November 1969. He said that Mr Elton may not have previously experienced such weather conditions, where unexpected ship movement was not uncommon. The ship would have moved about as dictated by the weather and may have shuddered, but it would not have stopped. Commodore Mulcare stated that access to the paint locker would have been supervised by a Leading Seaman, and the paint locker would not have been left unattended if it was unlocked. He added that it is highly unlikely that a junior sailor would have been granted access on his own, and in such rough weather all painting activities would have ceased. Commodore Mulcare noted the layout of the decks on HMAS Sydney and told the Tribunal that on a ship with 500 to 600 navy personnel plus soldiers, Mr Elton would have encountered someone as he made his way up the ladders.
With regard to the availability of beer on navy ships, Commodore Mulcare emphasised that the regulations provided that beer was not to be sold to any person under the age of 18 years, and was not to be re-sold or given away. He said that Leading Seamen and below had to collect their beer issue and produce or hand in their leave card to confirm eligibility, and leave cards for underage sailors were marked distinctively. He asserted that it was unlikely that a sailor would collect a beer issue on behalf of others because personnel on both sides of the transaction faced disciplinary action for any breach of regulations.
Under cross-examination Commodore Mulcare agreed that in respect of the typhoon event, he had no actual knowledge of whether Mr Elton encountered any other person when climbing to the upper deck. He also agreed that in respect of the procedure for issuing beer on navy ships, it was possible that the regulations may have been breached on occasion, and that beer may have been provided to underage sailors.
The transcript of proceedings of the VRB hearing held on 25 September 2012 shows that Mr Elton stated in respect of the typhoon event, that he was below the water line after being sent down to do something, the details of which he could not remember. He told the VRB:
…All of a sudden, there was this absolute shudder – just a big, big shudder – and then immediately after, absolute silence and stillness, no sound, and this never, never happens on a ship, just impossible, and absolute stillness, which also doesn’t happen. And I thought to myself – well, I thought the ship – the front had fallen off, I really had, and I was absolutely petrified. And I remember thinking for a second, and I just took off and ran upstairs…And what had happened was that the ship had apparently hit a very, very large wave and then it stopped it and- but unbeknownst to me. So for a period of time, I was in a state of absolute panic and fear for my life.
Dr A Kaplan, consultant psychiatrist, stated in a report dated 16 August 2013 that he took a history of Mr Elton commencing to drink alcohol on HMAS Sydney during its first voyage to Vietnam due to encouragement from other sailors. Dr Kaplan noted that Mr Elton felt that drinking reduced his level of stress and anxiety and he drank on a daily basis. Over the years Mr Elton’s alcohol consumption reached in excess of 30 standard drinks each day until he gave up drinking in about 2012 on the recommendation of his general practitioner. Dr Kaplan expressed the view that alcohol use probably commenced in the social environment of HMAS Sydney and because of the easy availability of alcohol on the ship.
In respect of the typhoon event, Dr Kaplan took a history that Mr Elton was well below deck during the storm when the ship suddenly and inexplicably shuddered. This was followed by unusual silence, after which Mr Elton believed that the front of the ship had been breached and the ship was about to sink, causing him to fear that he was about to die so he raced up a gangway to the safety of an open deck.
Dr P Collier, consultant psychiatrist, stated in a report dated 9 November 2012 that he has been Mr Elton’s treating psychiatrist since 12 July 2012. He said that Mr Elton started to drink alcohol in late 1969 on HMAS Sydney when each member of the ship’s company was given a large can of beer every day. Mr Elton drank heavily when ashore and gave a history that he continued drinking after leaving the navy, before ceasing to drink in 2012. In respect of the typhoon event, Dr Collier said that he was told that during the first voyage to Vietnam HMAS Sydney encountered a typhoon and when Mr Elton was below deck the ship stopped dead. Mr Elton believed that the bow of the ship had fallen off. He thought he was going to die and ran up the gangway as fast as possible.
Dr A Velakoulis, consultant psychiatrist, stated in a report dated 11 December 2011 that he saw Mr Elton on three occasions since November 2010. He stated that Mr Elton’s naval service contributed to his alcohol dependence. Mr Elton had no history of prior alcohol intake and the first onset of significant alcohol use occurred during the initial voyage to Vung Tau by way of a daily alcohol ration and encouragement by other naval personnel. Dr Velakoulis said that naval service in itself and institutionalisation within the navy represents one factor of navy service influencing alcohol consumption. In respect of the typhoon event, Dr Velakoulis took a history that the ship suddenly became motionless and absolutely quiet. Mr Elton feared that something catastrophic had occurred, and thought the front of the ship had broken off and that the ship was sinking. He ran up the gangways as fast as he could. Dr Velakoulis concluded that the typhoon event and the Vung Tau event promoted a degree of anxiety that fuelled a high‑level alcohol intake.
Dr N Strauss, consultant & occupational psychiatrist, stated in reports dated 7 June 2013 and 17 September 2013 that Mr Elton told him that on the initial voyage to Vietnam everyone was drinking and he commenced consuming one large can of beer each day given to him by other sailors, despite being under the legal drinking age. This resulted in a habit of excessive drinking that lasted until recently. In respect of the typhoon event, Dr Strauss took a history that Mr Elton was in the front of the ship below deck when he felt that the ship was motionless and there was no sound to be heard, which was unusual. Mr Elton imagined that the front of the ship had broken off and was sinking. He was extremely distressed and ran to the top deck as fast as he could. Dr Strauss acknowledged that the stressful events were upsetting but concluded that Mr Elton began to drink because of peer pressure and the availability of alcohol rather than the stressful events experienced during operational service, as Mr Elton had already commenced to drink before the typhoon event occurred.
In relation to the first step from Deledio, the Tribunal accepts Mr Elton’s evidence that he was given a daily issue of beer, despite being under the legal drinking age and despite the regulation preventing him from obtaining alcohol. Although Mr Elton may have commenced drinking on HMAS Sydney in a social environment as a result of peer pressure shortly before the first voyage to Vietnam, the Tribunal is satisfied that Mr Elton proceeded to drink to excess as a consequence of his anxiety that arose from the typhoon event. After considering the evidence from him and the psychiatrists about his alcohol use disorder and operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Elton. Therefore, he satisfies the first step.
In relation to the second step from Deledio, there is a SoP in force, being SoP Nº 29 of 2014 concerning alcohol use disorder, which in paragraph 2 amended SoP Nº 1 of 2009 concerning alcohol dependence and alcohol abuse by:
…
(B)replacing the phrases "alcohol dependence and alcohol abuse" and "alcohol dependence or alcohol abuse" with the words "alcohol use disorder" wherever these phrases appear in this instrument, with the exception of clause 2(a);
(C)replacing the definition of "alcohol dependence and alcohol abuse" in clause 3 with the definition of "alcohol use disorder" as follows: '"alcohol use disorder" means a mental disorder that meets the following diagnostic criteria (derived from DSM-5):
…
Factor 6 in SoP Nº 1 of 2009 provides:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse; or
Paragraph 9 of the SoP states:
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;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"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) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
Therefore, Mr Elton satisfies the second step.
In relation to the third step from Deledio, the Tribunal notes that in Border v Repatriation Commission (No. 2) [2010] FCA 1430 Reeves J stated:
[66]… Here, the relevant SOP required that the appellant must have experienced a “life threatening” event before it could be said that a reasonable hypothesis had been raised connecting the PTSD with the appellant’s war service. In the absence of medical evidence, the Tribunal was left in much the same position as the Tribunal in Woodward – it had to interpret the SOP as best it could.
[67]…the answer to the question posed…in relation to the event described in subpara (a): “experiencing a life-threatening event” is this. The effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death…
In assessing the claimed stressors, the Tribunal finds Mr Elton to be a reliable and honest witness who gave evidence in a frank manner, doing his best to describe events that occurred more than 40 years ago. In respect of the typhoon event, the Tribunal takes into account that the descriptions given by Mr Elton to medical practitioners and the VRB have been consistent. There is no dispute that the storm occurred as and when described by him. The evidence from Commodore Mulcare that Mr Elton would have encountered someone while climbing the ladders is speculative and not based on any fact. The Tribunal accepts that Mr Elton was a 17 year old sailor who had had brief service at sea before his first voyage to Vietnam on HMAS Sydney. He had not experienced a typhoon or severe storm, and had received little, if any, training in dealing with such poor weather. He was on his own in an enclosed lower deck of the bow of a large ship. He felt vulnerable and scared. The ship appeared to shudder and stop. The Tribunal is satisfied that in the circumstances, Mr Elton’s fear that the bow had broken off and his perception that he would drown were reasonable and understandable, even if it later proved to be incorrect.
For these reasons the Tribunal considers that the hypothesis linking Mr Elton’s operational service on board HMAS Sydney with his alcohol use disorder is reasonable and fits the template in the SoP. Therefore, Mr Elton satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that the diagnosed condition of alcohol use disorder is not war‑caused. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
The Tribunal has accepted that Mr Elton was consistent in his evidence about the facts of the typhoon event and that he was a reliable witness. As none of the facts necessary to support the hypothesis has been disproved, the Tribunal is satisfied, on the whole of the material, that the typhoon event was life-threatening and constitutes a severe traumatic event as defined in SoP Nº 1 of 2009, and was a category 1A stressor. The Tribunal finds that the clinical onset of alcohol use disorder was after the first visit to Vietnam. Therefore, Mr Elton meets factor 6(b) of the SoP and satisfies the fourth step, and there is no need for the Tribunal to consider the flight deck event or the Vung Tau event. The Tribunal is not satisfied beyond reasonable doubt that Mr Elton’s alcohol use disorder is not war‑caused.
DOES MR ELTON SUFFER FROM CANNABIS USE DISORDER?
The Tribunal is required to determine to its reasonable satisfaction whether Mr Elton suffers from any particular injury or disease (Benjamin v Repatriation Commission [2001] FCA 1879, Repatriation Commission v Bawden [2012] FCAFC 176).
In DSM-5 the diagnosis criteria for cannabis use disorder are:
A.A problematic pattern of cannabis use leading to clinically significant impairment or distress, as manifested by at least two of the following, occurring within a 12-month period:
1.Cannabis is often taken in larger amounts or over a longer period than was intended.
2.There is a persistent desire or unsuccessful efforts to cut down or control cannabis use.
3.A great deal of time is spent in activities necessary to obtain cannabis, use cannabis, or recover from its effects.
4.Craving, or a strong desire or urge to use cannabis.
5.Recurrent cannabis use resulting in a failure to fulfil major role obligations at work, school, or home.
6.Continued cannabis use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of cannabis.
7.Important social, occupational, or recreational activities are given up or reduced because of cannabis use.
8.Recurrent cannabis use in situations in which it is physically hazardous.
9.Cannabis use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by cannabis.
10.Tolerance, as defined by either of the following:
a.A need for markedly increased amounts of cannabis to achieve intoxication or desired effect.
b.Markedly diminished effect with continued use of the same amount of cannabis.
11.Withdrawal, as manifested by either of the following:
a.The characteristic withdrawal syndrome for cannabis (refer to Criteria A and B of the criteria set for cannabis withdrawal,…)
b.Cannabis (or a closely related substance) is taken to relieve or avoid withdrawal symptoms.
Specify if:
In early remission: After full criteria for cannabis use disorder were previously met, none of the criteria for cannabis use disorder have been met for at least 3 months but for less than 12 months (with the exception that Criterion A4, “Craving, or a strong desire or urge to use cannabis,” may be met).
In sustained remission: After full criteria for cannabis use disorder were previously met, none of the criteria for cannabis use disorder have been met at any time during a period of 12 months or longer (with the exception that Criterion A4, “Craving, or a strong desire or urge to use cannabis,” may be present)…
Mr Elton told the Tribunal that on the return journey to Australia from the first voyage to Vung Tau he was offered his first joint of marijuana (or cannabis) by a soldier who was returning from service in Vietnam. He said that he continued to smoke cannabis regularly while in the navy. In 1972 naval authorities discovered him in possession of cannabis and he was discharged. He continued to smoke cannabis until he ceased the habit in the early 2000s because he realised that the cannabis was becoming stronger and he felt that his health was being placed at risk.
Dr Kaplan stated in his report that Mr Elton described using cannabis on the way back to Australia following his first visit to Vietnam and continued to use cannabis, initially daily and then irregularly, before giving up the habit in about 2003. Dr Kaplan diagnosed PTSD with a differential diagnosis of a generalised anxiety disorder associated with depression. He noted that Mr Elton also engaged in substance abuse, specifically in relation to alcohol, cannabis and tobacco, all of which he said are currently in remission. He said that Mr Elton would meet the diagnostic criteria for cannabis abuse disorder according to DSM-5.
Dr Collier stated that he took a history that Mr Elton’s cannabis use commenced on HMAS Sydney and that he soon became a heavy daily user, and continued to smoke cannabis constantly for many years before ceasing the habit in about 2002. Dr Collier stated that the condition met the diagnostic criteria for marijuana abuse in remission according to DSM-IV, which was in force when his report was written. Dr Collier told the Tribunal that Mr Elton would meet the diagnostic criteria for cannabis use disorder according to DSM-5.
Dr Velakoulis stated that factors applying to Mr Elton’s high level of alcohol use may also have operated in relation to his chronic use of cannabis over several decades. Consequently, Dr Velakoulis concluded that Mr Elton has suffered from marijuana abuse – full remission.
Dr Strauss noted that Mr Elton has significant physical problems but had not smoked cannabis for many years. He concluded: I do not believe that he suffers from marijuana dependence or abuse. Dr Strauss based his opinion on a clinical examination and a history given by Mr Elton. In a further report dated 17 September 2013 and in oral evidence, Dr Strauss stated that he disagreed with Dr Kaplan’s diagnosis of substance abuse because all of the substance abuse behaviours were in remission and concerned a past diagnosis rather than a present diagnosis, so were no longer relevant. He added that DSM-5 provides a framework and guideline for diagnosis and should not be relied upon without a global approach which would include clinical judgement and an assessment of the symptoms.
The Tribunal takes into account that Mr Elton has not smoked cannabis for more than ten years. However, he started smoking the drug at the age of 17 years and continued for more than thirty years. He ceased about ten years ago. The Tribunal accepts the evidence from Dr Kaplan, Dr Collier and Dr Velakoulis that the cannabis use is in remission because the use was for a period three times the length of time that Mr Elton has ceased, and there is a possibility of a relapse. Consequently, the Tribunal prefers this view to that of Dr Strauss, and accepts that that any diagnosis would be current and takes account of the cessation of the habit. The Tribunal is reasonably satisfied that Mr Elton meets the diagnostic criteria for cannabis use disorder, in sustained remission, as set out in DSM-5.
IS CANNABIS USE DISORDER WAR-CAUSED?
Mr Elton stated that his operational service led to his cannabis abuse disorder. He said that prior to the voyages to Vietnam he had not been a drug user but on the return trip from Vietnam in 1969 a number of the soldiers on board described disturbing accounts of witnessing casualties and exchanges of fire with the enemy. Mr Elton stated that many of the soldiers were distressed and he found this demoralising, and it added to the distress he already felt as a result of the three stressful events that occurred during his operational service. He explained that he was extremely agitated on his return to Australia and that he accepted a soldier’s offer of cannabis because he was told that the drug would calm him and make him feel good. This set off a long period of cannabis use which only ceased in the late 1990s or early 2000s.
In a report dated 7 June 2013, Dr Strauss took a history of Mr Elton being thrown out of the navy after being caught with cannabis, which he first used in the navy when a soldier gave him the drug and continued smoking for nearly twenty years. Dr Strauss concluded that the three stressful events described by Mr Elton might have been distressing for a young man but did not bring about the development of a psychiatric illness, and were not stressful enough to be categorised as Category 1A or 1B stressors. Dr Strauss noted that Mr Elton has not smoked cannabis for many years and said that he does not suffer from drug dependence or abuse or any psychiatric disability.
Dr Kaplan stated in a report dated 16 August 2013 that he took a history of the three stressful events and of Mr Elton commencing his cannabis use on board HMAS Sydney. Dr Kaplan added that the substance use probably commenced in the social environment on board HMAS Sydney and that the easy availability of the substances, together with PTSD and associated anxiety, probably contributed to his subsequent substance abuse. Dr Kaplan said that it is unclear whether Mr Elton’s cannabis abuse resulted in significant impairment or distress, given the effect of the concurrent use of alcohol.
Dr Collier stated in a report dated 9 November 2012 that he took a history of Mr Elton first smoking cannabis when returning from Vietnam in 1969, and soon becoming a heavy daily user of the substance until he ceased the habit in about 2002. Mr Elton was disciplined by naval authorities for possession and use of cannabis, but the navy did not provide any clinical assistance. Dr Collier said that the stressful circumstances that Mr Elton experienced on HMAS Leeuwin may have contributed to the cannabis abuse and to other psychiatric conditions, but the experiences on board HMAS Sydney made at least an equally significant, if not a greater, contribution.
Dr Velakoulis stated in a report dated 11 December 2011 that he took a history of the stressful events and that Mr Elton was first given cannabis on board HMAS Sydney in 1969 and became a heavy user until 1998. He noted that Mr Elton’s anxiety arising from the typhoon event and the Vung Tau event may well have been a factor that contributed significantly to the chronic cannabis use in a manner similar to the use of alcohol.
In relation to cannabis use, Commodore Mulcare stated that in the 1960s both the army and navy had a zero tolerance policy. He said that the soldier who allegedly gave Mr Elton cannabis was taking a severe risk and that if Mr Elton was stoned most of the time as he claims, then his peers and supervisors should have been aware. He noted that on 9 December 1971 Mr Elton received a suspended sentence of 21 days’ detention by the Commanding Officer after pleading guilty to a charge of possessing cannabis. The Commanding Officer subsequently recommended that Mr Elton be discharged after finding that Mr Elton had been smoking the substance for a considerable time.
In relation to the first step from Deledio, after considering all the material including evidence from Mr Elton and the psychiatrists about his cannabis abuse disorder and its connection to operational service, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Elton. Therefore, he satisfies the first step.
In relation to the second step from Deledio the Tribunal has ascertained that there is in force an SoP, being SoP Nº 3 of 2009 concerning drug dependence and drug abuse (as amended by SoP Nº 31 of 2014 concerning substance use disorder). Factor 6 in SoP Nº 3 of 2009 (as amended) provides:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of drug dependence or drug abuse; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of drug dependence or drug abuse;
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"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)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
In paragraph 2(F) of SoP Nº 31 of 2014:
…
'"substance" means any of the following substances, alone or in combination:
…
(b) cannabis and cannabis derivatives;
…
Therefore, Mr Elton satisfies the second step.
In relation to the third step from Deledio, the Tribunal has considered all the material, including the evidence from Mr Elton and the medical evidence. For reasons similar to those given in respect of alcohol use disorder the Tribunal considers that the hypothesis linking Mr Elton’s operational service with his cannabis use is reasonable and fits the template in the SoP. Therefore, Mr Elton satisfies the third step.
In relation to the fourth step from Deledio, for reasons similar to those given in respect of alcohol use disorder, as none of the facts necessary to support the hypothesis has been disproved the Tribunal is satisfied, on the whole of the material, that the typhoon event was life-threatening and constitutes a severe traumatic event as defined in SoP Nº 3 of 2009, and was a category 1A stressor The Tribunal finds that the clinical onset of cannabis use disorder was after the first visit to Vietnam. Therefore Mr Elton meets factor 6(b) of the SoP and satisfies the fourth step, and there is no need for the Tribunal to consider the flight deck event or the Vung Tau event. The Tribunal is not satisfied beyond reasonable doubt that Mr Elton’s cannabis use disorder is not war-caused.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that alcohol use disorder and cannabis use disorder are war-caused with effect from 28 November 2010.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for the decision of
G. D. Friedman, Senior Member..........................[sgd]..............................................
Associate
Dated 15 July 2014
Dates of hearing 14 and 15 April 2014, 7 July 2014 Counsel for the Applicant Ms F Ryan Solicitors for the Applicant Williams Winter Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
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3
0