Portakiewicz and Repatriation Commission
[2003] AATA 343
•19 March 2003
Administrative
Appeals
Tribunal
DECISION AND ORAL REASONS FOR DECISION [2003] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/440
VETERANS' APPEALS DIVISION ) Re RICHARD PORTAKIEWICZ Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date19 March 2003
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, only insofar as it determined that the diagnosis of alcohol dependence and alcohol abuse was appropriate, and it rejected the condition of tinnitus. The Tribunal substitutes a decision that the diagnosis of alcohol dependence is appropriate, that the condition of tinnitus was war-caused with effect from 1 June 2000. The Tribunal otherwise affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS - veterans' entitlements - Disability Pension - whether applicant’s conditions of PTSD, alcohol dependence and hypertension are war-caused – whether applicant experienced severe stressors during his operational service – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A
Statement of Principles No 76 of 1998
Statement of Principles No 3 of 1999
Statement of Principles No 54 of 1999
Statement of Principles No 31 of 2001ORAL REASONS FOR DECISION
19 March 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 4 May 2001, insofar as it rejected the applicant’s claim for acceptance of post traumatic stress disorder (PTSD), alcohol abuse and dependence, hypertension and tinnitus as war-caused. The Veterans’ Review Board (VRB) affirmed the decision on 30 August 2001. At the commencement of the Hearing, the parties advised that the condition of tinnitus was conceded now by the Commission.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Ower of counsel represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, Dr D Kelly, Psychiatrist, and Mr D Norman, a former Naval Engineer, as witnesses. Mr Crowe represented the Commission, which called Commodore P Mulcare, Historian, and Captain O Archer, former Engineer on HMAS Parramatta (the Parramatta). They gave evidence by way of telephone link up.
3. The applicant, who is 56 years of age, served with the Royal Australian Navy (the Navy) from 6 April 1964 to 5 April 1973, when he retired as Petty Officer Marine Technical Propulsion. He has operational service as follows:
· In South Vietnam aboard HMAS Sydney (the Sydney) from 27 May 1965 to 26 June 1965 (30 days, with 3 days in Vung Tau Harbour) and from 14 September 1965 to 20 October 1965 (36 days, with 3 days in Vung Tau Harbour, Tuesday 28 September 1965 to Thursday 30 September 1965).
· In Malayan waters aboard HMAS Supply from 24 March 1966 to 11 May 1966 (48 days) and from 26 May 1966 to 26 June 1966 (31 days).
· In South Vietnam aboard the Parramatta from 15 May 1971 to 24 May 1971 (9 days, with 4½ hours in Vung Tau Harbour on 22 May 1971).
4. On 1 September 2000 the applicant lodged a claim for pension in respect, in part, of emotional and behavioural problems, tinnitus and hypertension. He was examined by Dr Ewer, Psychiatrist, on 22 November 2000, and he diagnosed PTSD, hypertension and, in addition, the condition of alcohol abuse or dependence, all of which he considered were war-caused. On 4 May 2001 the Commission rejected the claim, and the VRB affirmed the decision on 30 August 2001.
5. The applicant maintains that his conditions relate to his operational service in South Vietnam, and the standard of proof is that of reasonable hypothesis in accordance with section 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard 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.
(2) …
(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.”
6. Section 120A of the Act provides:
“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.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(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.
…”
7. The hypothesis propounded by the applicant is that his conditions of PTSD and alcohol dependence or alcohol abuse relate to his operational service, in that on the whole of the material, the traumatic events which he experienced during his relevant service connect his conditions with his relevant service. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the Factors set out in clause 5 of the respective Statement of Principles, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
8. The appropriate Statement of Principles for the condition of PTSD is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that factor 5(a) of the PTSD SoP is satisfied "experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder". “Experiencing a severe stressor” is defined as:
“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
9. The appropriate Statement of Principles for the condition of alcohol dependence or alcohol abuse is Instrument No 76 of 1998 (the Alcohol Dependence SoP). The applicant contends that factor 5(b) of the Alcohol Dependence SoP is satisfied "experiencing a severe stressor within the 2 years immediately before the clinical onset of alcohol dependence or alcohol abuse”. “Experiencing a severe stressor” is defined as:
“… 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, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;”
10. The applicant contends in the alternative, that factor 5(a) of the Alcohol Dependence SoP is satisfied "suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse", the psychiatric disorder being "PTSD."
11. The appropriate Statement of Principles for the condition of hypertension is Instrument No 31 of 2001 (the Hypertension SoP). The applicant contends that factor 5(b) of the Hypertension SoP is satisfied "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".
12. The applicant submits that four incidents, which occurred during his two trips to South Vietnam in 1965, and his third trip to South Vietnam in 1971, constitute severe stressors and satisfy the PTSD and Alcohol Dependence SoPS.
13. The Commission contends that at no time during his operational service did the applicant experience a severe stressor as defined in the PTSD SoP, and in the Alcohol Dependence SOP. Factor 5(a) of the PTSD SoP is not met, and there is no evidence that any of the other factors in paragraph 5 of the PTSD SoP are met as a result of the applicant's operational service. The Commission concedes that the applicant may have been suffering from PTSD prior to the clinical onset of alcohol abuse and dependence, but contends that the applicant's PTSD is not war-caused. Factor 5(a) of the Alcohol Dependence SoP is not met therefore as a result of operational service.
14. The Commission argues that the evidence does not suggest that the applicant met the diagnostic criteria for alcohol abuse and dependence within 2 years of his last period of operational service. It contends that factor 5(b) of the Alcohol Dependence SoP is not met as a result of the applicant's operational service. In addition, the Commission contends there is no evidence that any other factor in paragraph 5 of the Alcohol Dependence SoP applies as a result of the applicant's operational service. As to the condition of hypertension, the applicant’s hypertension was diagnosed in 1998, and the Commission concedes that he may have been suffering from alcohol abuse and dependence involving consumption of an average of at least 300 grams per week of alcohol at that time, but contends that the alcohol abuse and dependence are not war-caused.
forklift incident
15. The applicant alleges that whilst the Sydney was in Vung Tau Harbour on his first voyage in May 1965, he as a member of the cargo party, was unloading pallets from the flight deck. They were to be lowered onto a waiting barge. The brakes on his forklift faded as it carried the load of pallets towards the crane. The Sydney was listing about 3 degrees to port. The applicant said that he was driving at an angle towards the edge of the flight deck. He dropped the load to the ground so that the friction of the forks on the deck would slow him down. He says that the forklift broke the barrier along the edge of the flight deck, and that one-third of the load overhung the 40-foot drop to the barge below.
flashback incident
16. The applicant alleges that on one of the two 1965 Sydney voyages to South Vietnam he was in the boiler room. To gain entry to the room a person enters the “citadel", a 1½ metre by 1 metre space with pressurised entry doors at each end, which should be alternatively opened and closed to maintain pressure in the boiler room, and not affect flames in either of the two boilers. Someone allowed both doors to be opened at the same time, thus causing a change in pressure which momentarily drew flame into the boiler, causing a "flashback". The petty officer standing beside the applicant had his facial hair singed, and slight burns to his lower arms. The petty officer swore loudly, doused himself with water and completed his shift. The applicant says that he was fearful that he could have been the person burnt.
shaft tunnels/scare charges incident
17. The applicant says that he heard scare charges being exploded around the Sydney on his first trip to South Vietnam. He knew their purpose, and they could be heard above the other noises on the flight deck, but the sound was muffled. He maintains however, that on his second trip in September 1965, one of his major duties was checking the plumber block and regreasing the stern grand, which necessitated him travelling three decks below the water line, through shaft tunnels, about 50 feet long. He knew that the prime target for enemy mines was the ship's shaft and when he heard the first explosion it was loud and he was startled initially. He says that he felt trapped, scared and vulnerable.
parramatta "full speed" incident
18. The applicant maintains that in May 1971, soon after Parramatta sailed for Bangkok, it was steaming at half speed, at 15-18 knots, when another ship crossed its bow, and the order was given from the deck for "full astern". This required dramatic action. The applicant says that he had by now been promoted to the rank of Leading Seaman in charge of the boilers, and responsible for four other sailors. He had been attached to the Parramatta for 12 months. He says that as a result of the evasive action, the water levels in the boiler room were exceedingly low. He says that he thought that the pipes in the boiler room were going to melt due to lack of water, and if the pipes melted a large amount of steam would be expressed at very high pressure. This would have resulted in the entire boiler room being saturated in high-pressurised hot steam. He had to start up another pump to put water into the boiler. As a result of not having enough air pressure, and because of the drop in steam pressure, the fans lost power considerably. The imbalance between the oil going into the boiler and the air pressure meant that the boiler pulsated for a period of time, as a result of a series of rapid explosions within the boiler. The pulsating continued on for some 10 to 20 seconds approximately. He says that he was frightened for his life, and for everyone around him. He did not know whether to turn off the fires and leave. He chose to stay.
19. The applicant said in evidence that he had to make another quick decision to drop the fuel pressure down as well. The engines were then moved to stop which resulted in an excessive amount of water in the boilers. This resulted in losing sight of water levels in the steam drum, and could have resulted in water carrying over into the super heated tubes and into part of the turbine. He had to take quick action to ensure that the other machinery was not flooded with water. If this had occurred the boiler components and engine would have been ruined. The whole process involved a number of pressurised decisions that the applicant had to make quickly. They were all decisions which affected the safety of people in the boiler room. The wrong decision could have meant that the boiler exploded which would have killed those people in the boiler room. He says that during this time the ship was also shaking and vibrating excessively, which resulted in lagging and other items falling from the walls and the roof. He says that after this incident he thought about a lot of things. The worry of whether he had done the right thing preyed on his mind.
20. The applicant gave evidence that before he entered the Navy at the age of 17, he did not drink. After recruit school he began to drink a few beers - but his intake increased dramatically after his trip to Vietnam. He began "binge drinking", and would smuggle alcoholic spirits on board the ship. After he left the Navy he had easy access to alcohol. As he said in evidence "it was all there", and led to his admission to Kahlyn Private Hospital in October 2001 for alcohol detoxification.
21. The applicant gave lengthy oral evidence in relation to the 4 incidents. It must have been difficult for him to recall the details of events which occurred more than 38 years ago, but I gained the impression that he deliberately reconstructed events and exaggerated their importance, and the level of stress they engendered at the time. I consider also, that on the whole of the evidence, he provided to Dr Ewer, and to his treating psychiatrist, Dr Kelly, a selective history of traumatic events in his life in a deliberate attempt to bolster his claim, that his present psychiatric problems and alcohol dependence resulted from his operational service in 1965 and 1971. This does not mean that I disregard the whole of his testimony, but that I prefer other more reliable evidence in areas of dispute in the evidence.
22. Doctors Ewer and Kelly relied upon the voracity of the applicant's account of events, and their assessment of his conditions, and I have taken that into account in assessing the weight to be given to their evidence and opinions. Mr Norman did his best to outline graphically the level of responsibilities and the importance of the duties of a Leading Seaman/Petty Officer in charge of the boilers. Commodore Mulcare and Captain Archer provided helpful evidence, and I accept them as witnesses of truth.
23. The applicant said in evidence that the most distressing incident - the worst stressor he experienced in his whole life - was working within the machinery spaces ie "the shaft tunnels/scare charges" incident; this, despite his outlining in the course of his cross-examination, incidents that have occurred during his more than 30 years' subsequent service as an officer of the South Australian Fire Service. He said that since the late 1990s he had:
(a) seen a man decapitated;
(b) seen a person cut in halves, and been obliged to carry the body away;
(c) attended the accident scene of his own son in 1990;
(d)found a dead baby strapped in the rear seat of a car where the force of the impact had stretched the restraint forward, and the child's head was impaled on the gear stick; and
(e) removed burnt bodies from accident and fire scenes.
24. The applicant said in evidence that coming upon his dead son's vehicle accident did not increase his drinking, and that none of these incidents caused him the distress that being in confined spaces on the Sydney in 1965 caused him. As he said in evidence, being on the Sydney “topped all those”. I do not accept his evidence that this incident on the Sydney was the most distressing of his life. As he outlined the details of these events in the fire brigade, he became increasingly distressed, and unable to continue the description of his son's accident. It was patently clear that these incidents disturbed him greatly, and continue to do so.
25. The applicant did not outline any of these incidents to Dr Ewer during his consultations, but more surprisingly, Dr Kelly has seen the applicant on more than 25 occasions since October 2001, as his treating psychiatrist, and although Dr Kelly understood the applicant would undergo the usual pressures experienced by firemen, he did not know about the applicant's son's accident, nor any of the other incidents the applicant outlined in such an agitated and distressed manner at the Hearing.
26. Dr Ewer said in evidence that the Fire Service incidents, as outlined to him by counsel in the course of his oral evidence, were significant stressors, and given the extreme nature of the stressors, he would have expected the applicant to mention them. He said also that on the basis that the applicant was suffering from PTSD, which came on immediately after his first trip to Vietnam in 1965, as to his alcohol dependence, then any experiences in the Fire Service would be aggravating factors. Dr Kelly was of a similar view that, on the history provided by the applicant, the PTSD and alcohol dependence arose immediately after his first trip to Vietnam, then, in Dr Kelly's view, any experiences during his subsequent working life would perpetuate the disorders. He considered that the clinical onset of the applicant's alcohol dependence had its origins in the Navy, and progressed from there. The clinical onset of PTSD began during or soon after the Navy, and was kept in abeyance in the Navy. As I have said earlier in these Reasons for Decision, both of these medical practitioners have accepted the applicant's version of events in reaching their conclusions.
27. Turning again to the specific incidents:
forklift incident
28. Dr Ewer said in evidence that the applicant did not mention to him that he was driving a forklift, and that it came to rest with one-third of the load overhanging the deck. Dr Ewer was under the impression that the applicant was manhandling pallets, and started rolling off the deck. Dr Ewer considered this to be the third most significant incident. If the applicant was driving the forklift, one would have thought he could have taken some evasive action, such as turning the wheel and guiding the forklift away from the edge of the flight deck. He did not assert there was any fault in the forklift steering, only that the brakes faded. In any event, whether the applicant was driving the forklift or not, I do not accept that the incident satisfies the description of a "severe stressor" in the relevant Statement of Principles. I am satisfied, beyond reasonable doubt, that this incident does not satisfy the definition.
flashback incident
29. Dr Ewer said in evidence that he considered this the most significant incident, and that he understood that the other sailors suffered significant burns in the incident. He did not know that the sailor was the Chief Petty Officer whose arms were singed, and who was able to continue his shift. The applicant was not faced in my view with threat of serious injury or death. I do not consider that this incident satisfies the definition of a "severe stressor" in the relevant Statement of Principles. I am satisfied, beyond reasonable doubt, that the incident does not satisfy the definition of a "severe stressor".
shaft tunnels/scare charges incident
30. Dr Ewer said in evidence that although the applicant maintained to the Tribunal that this was the worst experience of his life, Dr Ewer did not consider this a significant stressor. In any event, on his evidence, the applicant had been aware before the first trip to South Vietnam of the necessity for the explosion of scare charges. On the second trip he says when he heard the scare charges, whilst in the shaft tunnel, it was like "someone walking behind you dropping a rubbish bin on the ground". I accept that he may have been startled initially by the noise, but that this is not sufficient to satisfy the definition of “experiencing a severe stressor” in the relevant Statement of Principles. I am satisfied, beyond reasonable doubt, that this incident does not satisfy the definition.
parramatta full-speed incident
31. Dr Ewer said in evidence that he regarded this as the second most significant stressor. The applicant maintains that the emergency giving rise to the call for "full astern" arose after the Parramatta left Bangkok in May 1971. Captain Archer, who was the Engineer on the Parramatta at the time, remembers the order for "full" (whether ahead or astern) being given on only two occasions while he was on the Parramatta. The Captain of the Parramatta, Rear Admiral Kennedy, later is noted as recalling a further occasion in September 1971 before the ship entered Jakarta. In his emails to Commodore Mulcare of 27 January 2003 and 29 January 2003, Captain Archer described an incident in March 1971 (not May 1971) which he described in part in the following terms:
“…
As I mentioned to you this morning, I do recall an incident off Singapore not Bangkok, but without reference to logs etc, I could not be certain it was in that particular time frame in which you are interested. I do recall the name but can’t remember the man or anything in particular about him.
At the time we were off Singapore and were asked to render assistance to an injured seaman on a nearby merchant ship.
While manoeuvring near the vessel to see if our assistance was necessary, Phil Kennedy suddenly became aware of another large merchantman bearing down on us. I was on deck midships (I think) and could see this second vessel was going to be close (or inboard). I think we went Full Ahead and hard over (if pressed I would say to Port). I think I dropped down to the MCR to check all was OK – I do not recall any particular concern. There was a sense of heightened excitement, an adrenaline [sic] rush, but not anxiety.
‘Full’ Ahead of Astern was known by all machinery watchkeepers to be used only in emergency or extreme circumstances, but it is something that everyone was trained to handle. The EOOW in the MCR would have been watching the integrity of all machinery to ensure maximum power was applied without risking losing power by breakdown. There was certainly no risk of boiler meltdown or explosion. Violent or abrupt changes in power certainly caused boiler levels to jump up and down, more so in rapid reductions in power.
…” [Exhibit R1]
The Report of Proceedings of the Parramatta for the month of March 1971 records the incident at paragraph 16:
“PARRAMATTA and DUCHESS entered the Singapore exercise areas at 2000 (GH), Tuesday 30th March. A night encounter exercise was scheduled for 2100 with HMS ESKIMO, the fleet tug TYPHOON and opposition from seven RMN Patrol Craft. However at 2005 (GH), a signal was received from Commander Far East Fleet reporting that a seaman in the Indian merchant ship, RATNA JYOTI in the eastern approaches to Singapore Strait, had suffered a heart attack and directing PARRAMATTA to investigate. Due to an error of twenty miles in the RATNA JYOTI’s reported position and a large amount of shipping in the area, PARRAMATTA did not locate her until 2205 (GH). Regrettably the patient had died some little time before.”
Captain Archer's email of 29 January 2003 reads in part:
“…
I was going to say Russian freighter in my previous account, then thought there were always a number of run ins with them in that area and era, and I may have had a lapse of memory. (I would even say it had a light grey hull!)
The activity described in the boiler room was fairly typical of hard manoeuvring, but not that out of the ordinary. It would have been a few hectic moments for a relatively inexperienced boiler watchkeeper, as more normally when such occasions where [sic] encountered, Special Sea Dutymen would have been closed up and the Chief Stoker would have been in the boiler room.
Violent boiler pulsation was not uncommon with those boilers, which were manually controlled, when large changes in power were required, and were the result of mismatching fuel and air requirements. They certainly would give everything a great shake, right through to the uptakes and could be heard and felt on the upper deck. There would have been some hectic activity of getting the standby feedwater pump on, to quickly recover the water level on the sharp reduction from Full to Slow or Stop.
…” [Exhibit R1]
32. In the course of his oral evidence, Captain Archer said that it was his recollection that the order was "full ahead" and "to port", with the other ship bearing down on the Parramatta.. He said also, that whether the order was "ahead" or "astern", the boilers would know no difference. It is a change for the vessel, not really for the boilers. The effect on the boilers would be the same. He had full confidence in the applicant and that is why the applicant was in charge of the boilers. He said that a competent trained boiler watchkeeper should be expected to know how to react - to in effect "pull out all stops" when such an order was given. He would not be in charge of the boiler room if he did not know that - a statement with which Mr Norman agreed, and Mr Norman said that with a competent operator there should not be a lack of steam in any emergencies. The possible "disasters" Mr Norman outlined so vividly in his evidence, would only occur if, in effect, the operator was not competent. Captain Archer said also, that there was no risk of a boiler meltdown, "the pulsation" which was referred to by the applicant could damage the casing of the boiler, but not cause a meltdown. I accept Captain Archer's evidence.
33. I am satisfied on the evidence that the incident referred to by the applicant and Captain Archer occurred on 30 March 1971, and not therefore during the applicant's operational service. Had it occurred during operational service, I consider that the incident did not occur in the manner in which the applicant described it. I prefer Captain Archer's evidence that after the incident he went to the machinery control room, and nothing untoward had occurred, and he was not informed of any problems or anxiety. I do not consider that this incident would satisfy the definition of a "severe stressor" in the relevant Statement of Principles. I am satisfied, beyond reasonable doubt, that this incident would not satisfy the definition of “experiencing a severe stressor” in the relevant Statement of Principles.
34. As to the applicant's alcohol abuse or dependence, there are only his own assertions that his pattern of drinking changed as a result of his operational service. With the selective history the applicant provided to both psychiatrists, their views of the time of the onset of both PTSD and alcohol dependence could not be relied upon. It would be mere speculation in absence of evidence of the applicant's symptoms in the intervening 30 years from 1971 until November 2000 when PTSD was diagnosed, and October 2001 when he presented with alcohol dependency. Both Dr Ewer and Dr Kelly diagnosed alcohol dependency and not alcohol abuse, and at the conclusion of the Hearing the parties agreed that the diagnosis should be amended accordingly.
35. The applicant's hypertension was diagnosed in 1998, and by this time he may well have been suffering from alcohol dependence, but that alcohol dependence was not, in my view, related to his operational service. Factor 5(b) of the Hypertension SoP has not been satisfied.
36. I have examined the whole of the evidence carefully and in detail, and I have taken into account the parties' submissions. I am satisfied on the evidence, beyond reasonable doubt, that none of the incidents outlined by the applicant satisfy the definitions of suffering a “severe stressor” in either the PTSD or the alcohol dependence Statements of Principles. I am satisfied, beyond reasonable doubt, that factor 5(a) of the PTSD Statement of Principles is not satisfied, nor are factors 5(a) and 5(b) of the Alcohol Dependence Statement of Principles, nor is factor 5(b) of the Hypertension Statement of Principles satisfied.
37. I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant's conditions of PTSD, alcohol abuse, alcohol dependence and hypertension are war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting these conditions with the circumstances of the particular service rendered by the veteran.
38. For these reasons, the Tribunal sets aside the decision under review, only insofar as it determined that the diagnosis of alcohol dependence and alcohol abuse was appropriate, and it rejected the condition of tinnitus. The Tribunal substitutes a decision that the diagnosis of alcohol dependence is appropriate, that the condition of tinnitus was war-caused with effect from 1 June 2000. The Tribunal otherwise affirms the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 13/14 & 19 March 2003
Date of Decision 19 March 2003
Counsel for the Applicant Mr S Ower
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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