Re Boardman and Repatriation Commission - [2001] AATA 764

DECISION AND REASONS FOR DECISION [2001] AATA 764

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/968
VETERANS' APPEALS DIVISION )

Re KERRY BOARDMAN
Applicant

And REPATRIATION COMMISSION
Respondent
DECISION

Tribunal Mr M Sassella, Senior Member Ms N Bell, Member

Date 6 September 2001

Place Sydney

Decision      The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant's chronic alcoholism is war-caused and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 7 February 1997.
  ..............................................
  [sgd]            Mr M J Sassella

Senior Member

CATCHWORDS

VETERANS' AFFAIRS – disability pension – whether Applicant's chronic alcoholism is war-caused – whether material before the Tribunal points to a hypothesis connecting Applicant's chronic alcoholism to war service – whether hypothesis raised is reasonable – "stressful event" – whether Tribunal is satisfied beyond reasonable doubt that the Applicant's condition was not war-caused – special rate – whether Applicant has incapacity to undertake remunerative work for periods aggregating more than eight hours a week – whether that incapacity alone prevents the Applicant form continuing to undertake remunerative work that the Applicant was undertaking – whether the Applicant is suffering a loss of salary or wages, or earnings on his own account that he would not be suffering if he were free of that incapacity

Veterans' Entitlements Act 1986 – ss 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A

Statement of Principles Instrument No 5 of 1994 (Psychoactive Substance Abuse or Dependence)

Re Kelly and Repatriation Commission [2001] AATA 254

Banovich v Repatriation Commission (1986) 69 ALR 395

Re Biscoe and Repatriation Commission [2001] AATA 605

Re Howe and Repatriation Commission (1999) 59 ALD 309

Repatriation Commission v Binding [1999] FCA 974

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission (2000) 62 ALD 174

Arnott v Repatriation Commission (2001) 106 FCR 83

REASONS FOR DECISION

Mr John Boardman ("the Applicant") lodged an application for service pension with the Department of Veterans' Affairs ("DVA") on 7 May 1997 for "eyesight, ringing in ears, smoking and alcohol" (T8). The Applicant lodged a further claim on 16 June 1998 in respect of anxiety state and personality disorder. In a decision dated 20 April 1998 the Applicant's claim for "eyesight, ringing in ears, smoking and alcohol", reworded so that the claim was for refractive error, tinnitis, chronic alcoholism and retinoschesis, was refused by the Repatriation Commission ("the Respondent"), except that the claim for tinnitis was deferred pending further medical investigation (T13A).
On 9 October 1998 the Applicant's claim for "anxiety state and personality disorder and shortness of breath", reworded as post traumatic stress disorder and chronic airways inflammation, was accepted with effect from 16 March 1998. In addition it was decided to increase the Applicant's disability pension to 100 per cent of the general rate with effect from 16 March 1998 (T22).
On 17 August 1999 the Respondent decided to revoke the determination of 9 October 1998 that post traumatic stress disorder is war-caused. It was also decided by the Respondent to reduce payment of pension to 90 per cent of the general rate with effect from 26 August 1999 (T35).
On 16 June 1998 the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the Respondent's decision of 20 April 1998,(discussed in paragraph 1 above) (T16).
On 18 November 1998 the Applicant lodged with the VRB an application for review of the Respondent's decision of 9 October 1998,(discussed in paragraph 2 above) (T23).
On 25 November 1999 the Applicant lodged with the VRB an application for review of the Respondent's decision of 17 August 1999,(discussed in paragraph 3 above) (T37).
In its decision dated 8 March 2000 (T40) the VRB decided to:
"Consent to the withdrawal of refractive error and retinoschisis;
Affirm the decision under review in relation to the revocation of post-traumatic stress disorder;
Affirm the decision under review in relation to chronic alcoholism;
Set aside the decision under review as amended by a section 31 review decision of 17 August 1999 which reduced pension to 90 per cent of the General Rate and substitute its decision that pension be assessed at 100 per cent of the General Rate to operate from and including 26 August 1999."
The VRB wrote to the Applicant on 3 May 2000 to advise him of its decision (T40). On 20 June 2000 the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal")(T1).
At the commencement of the hearing of this appeal, on 2 July 2001, the Applicant's representative informed the Tribunal that he would not be pressing the claim in relation to post traumatic stress disorder and that it had been agreed between the parties that the Applicant suffers from chronic alcoholism. In addition, the conditions of sensory neural hearing loss with tinnitis and chronic airways limitation have been accepted by the Repatriation Commission.
Background
The Applicant was born on 29 June 1945. He grew up in Lithgow and left school at the age of 15. He told Professor Breslin (Exhibit R2) that he joined the Navy for the next 20 years, becoming a petty officer/coxswain. He reported to Dr Bell (Exhibit R1) that he had no problems with either of his parents; while his father drank he was not an alcoholic and his mother was "an absolute tea-totaller". He has two other siblings but does not talk to either of them. The Applicant told Dr Bell that he had been healthy as a child, had an average standard at school and left school after attaining the Intermediate Certificate.
The Applicants' service records at T5 show that he joined the Royal Australian Navy on 26 August 1962 and was discharged on 25 August 1982 after 20 years service. He was deemed to have been allotted for service in an operational area (Vietnam) as follows:
"HMAS SYDNEY: from 8 June 1965 to 11 June 1965
from 28 September 1965 to 30 September 1965
from 4 May 1966 to 6 May 1966"
The Applicant told Professor Breslin that after leaving the Navy he worked as a labourer at an Army camp at Narrangaroo, doing gardening and tree-lopping for approximately two years. He was then unemployed for two years, and became a security guard/nightwatchman at Coles Supermarket in 1987 for five years. In 1991 or 1992 he was retrenched from this job because the Coles store where he was working was to open 24 hours a day and no longer needed a nightwatchman. The Applicant told Dr Breslin that he then tried a few odd labouring jobs, but has not done any work at all since 1997.
The Applicant has never married.
Hearing and appearances
The Tribunal convened a hearing on 10 July 2001. Mr Dawson represented the Applicant and Ms Pacey represented the Respondent.
Relevant legislation
The relevant legislation is found in the Veterans' Entitlements Act 1986 ("the Act") at sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), 14(1),(3),(4), 20(1), 21A, 23, 24, 28, 120(1),(3),(4), 120A:
"6C Operational service—post World War 2 service in operational
areas
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…
7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…
…
9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…
14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)).
…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…
20 Dates of effect that may be specified in respect of grant of claim
for pension
(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia.
…
21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
…
23 Intermediate rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war-caused injury or war-caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full-time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking—if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
24 Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…
28 Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
…
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.
…
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) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."

Documentary Medical and Other Evidence

The following documents were admitted into evidence:
Exhibit No             Description       Date
T1-T44 pp1-302      Documents pursuant section 37 of the Administrative Appeals Tribunal Act 1975   20 April 2001
A1      Statement by the Applicant 30 April 2001
A2      Report Dr Schmidtman, psychiatrist       20 March 2001
A3      Clinical notes signed by Dr Schmidtman 15 November 2000
A4      Applicant's amended statement of facts and contentions       10 May 2001
R1      Report Dr Bell, psychiatrist 14 February 2001
R2      Report Professor Breslin, thoracic physician     10 May 2001
R3      Report Dr Mark Burns, occupational physician 26 April 2001
R4      Respondent's amended statement of facts and contentions   14 May 2001
R5      Transcript of VRB hearing          8 March 2000
R6      Report by Writeway Research Service    17 December 2000
R7      Clinical notes from Lithgow Health Service
The Applicant's service records contain some reference to his alcohol consumption. In particular, on 18 June 1969 Mr Boardman was treated following vomiting after consuming 10 to 12 stubbies. He was advised to stop drinking. Other records in the Applicant's service medical documents mention a history of pancreatitis and alcohol abuse. (T5)
A report by Dr Ahmed dated 27 February 1998 (T13) noted the Applicant's account that he did not drink alcohol before the age of 17 and started drinking alcohol at the age of 19 on a regular basis. The Applicant also reported to Dr Ahmed that in 1968 he had an attack of acute pancreatitis and was treated at Tarangau Hospital for several weeks. After this attack he gave up drinking spirits and only drank beer, but in very large quantities. The Applicant also reported to Dr Ahmed that in 1975, while serving on HMAS Penguin he had another attack of pancreatitis and he was transferred to Neramba for treatment. Some eight months later he had a further attack and was again treated. The Applicant reported to Dr Ahmed that over the years while he was in the Navy he had suffered from morning shakes, patchy amnesiac periods, delerium tremens, pancreatitis, pathological jealousy, impotency, polyneuritis and impaired memory for recent events.
Dr Ahmed concluded in his report that the Applicant has chronic alcoholism with multiple physical and neurological complications. He said that the Applicant's cognitive impairment encompasses poor short-term memory while his past memory largely remains intact but patchy. He said (T13, p92):
"The Naval subculture passively encourages alcoholism. The vulnerable appear to become victims of alcoholism and clearly that is the case … In conclusion his alcoholism is related to his Naval service".
At T10 the Applicant's general practitioner, Dr Kumarasinghe provided comment on the Applicant's claim form, noting alcoholism as a continuing condition with a poor prognosis. He also expressed the view that the Applicant would be unable to do any work on account of this. At T15, in the course of completing a pathological substance abuse medical impairment assessment, Dr Kumarasinghe noted that the Applicant has a tremor in both hands, polydipsia and nervous state. He reported that there are no physical stigmata of pathological substance abuse and described the Applicant's level of stress as caused by alcohol, and making the Applicant feel anxious, angry, upset and isolated. Dr Kumarasinghe then answered two questions as to the effect of the Applicant's condition on his ability to cope in basic everyday situations and on his capacity to work as "none". He also stated that the Applicant "gets on well with his parents" and has no friends but associates with acquaintances. It appears that although an "alcohol questionnaire dated 25 June 1998" is included in the index to the Section 37 statement as T18, no such questionnaire appears in the T documents.
In a report dated 26 August 1998, Dr Girgis states the following (T20, p132-133):
"Other than his trips to Singapore and Borneo, he went to Vietnam three times. After anchoring in Vung Tau Harbour they will offload pontoons; secured to ship sides during very rough weather (choppy seas). They will unload dead bodies – cows, dogs, pigs, and push them back into the water. Very traumatic experience.
Other traumatic incidences followed, one worse than the other:
…
On 17 June 1968 Hobart hit (three missiles – US fighter). Two killed and five wounded (Subic Bay).
On 3 June 1969: F E Evans hit by Melbourne (sunk).
During all this time (and starting at a very young age) Mr Boardman was drinking heavily. Accordingly he has suffered from:
1) chronic alcoholism, 2) chronic alcoholic gastritis, 3) hiatus hernia, 4) acute pancreatitis (on two occasions), 5) hepatomegaly, 6) haematemesis, 7) anxiety/depression state, 8) hallucination and tremors, 9) flashbacks, 10) sensoneural deafness, 11) hypertension."
Dr Malcolm Dent, psychiatrist, in a report dated 17 November 1999 said (T39, p250):
"He told me, indeed, when aboard HMAS SYDNEY in October 1964 while unloading stores for RAAF Butterworth that he found it frightening being told by older sailors what the communists did to their prisoners; he remembers having his first beer, a pint of Tiger beer at Singapore, and encouraged to do so by older sailors."

Dr Dent thereafter detailed the Applicant's report to him of having to go down and clean dead bodies off the pontoons which had been washed up in the water, and of again going to Singapore for "R and R" and drinking heavily. The Applicant also reported to Dr Dent how in Vung Tau Harbour every two hours there were charges put over the side for divers as well as "spraying bullets in" which he said was his duty as an ordinary seaman.

Dr Dent linked the events reported to him by the Applicant with a range of physiological symptoms of anxiety including palpitations, difficulty breathing, abdominal disease, sweaty palms, tremulousness and tightness in his throat and noted that the Applicant could recall these physiological symptoms of anxiety right back through his days in the Navy. Dr Dent said (T39, p252):
"Hence his abuse of alcohol over the years, and particularly since he's left the Navy his usual intake has been half a carton of beer a day and/or 10 to 15 schooners of beer a day."
The report of Dr Schmidtman dated 9 August 1999 (T40, p258) also details the report of the Applicant of having witnessed traumatic incidents whilst in Vung Tau Harbour, the most prominent being of dead bodies (both human and animals) in the water which would be brought by the waves on to the pontoons located at the side of the ship and used for off-loading the cargo.
The Applicant also reported to Dr Schmidtman the constant danger of mines and the continued gunfire which made the Applicant feel that his life was under threat at the time. According to Dr Schmidtman these incidents form the content of the current distressing intrusive memories and nightmares which occur several times per week. The Applicant frequently wakes up at night sweating; his sleep is poor and interrupted. The Applicant also gave Dr Schmidtman a history of having started drinking heavily during his Navy service and continued abuse of alcohol since then. Dr Schmidtman gave a diagnosis of chronic post traumatic distress disorder with associated alcohol abuse/dependence and depression, his condition being related to his Navy service in the Vietnam War. In a report of 2 March 2000 (T40, p256) Dr Schmidtman referred to "clinical post traumatic stress disorder with associated secondary alcohol abuse and depression". Dr Schmidtman stated:
"In my opinion Mr Boardman remains totally and permanently incapacitated for work in any type of paid employment (be it part-time or full-time), due to his war-related psychiatric illness, ie, chronic post-traumatic stress disorder and secondary alcohol abuse".
Exhibit R1 is a report by Dr David Bell dated 13 February 2001. In this report, the Applicants' documented statements to Dr Bell include that he had been subjected to "no particular stress" during his service. He said that "the whole situation" caused his stress. He said that he joined the Navy because "it was the thing to do" and that he wanted to join and liked the work. He said that his main problems began on a trip to Borneo late in 1964 during the confrontation with Indonesia. At that time he was aged 19 years. Dr Bell concluded in his report that various statements the Applicant has made to others, and the history he gave to him, indicate that he began drinking heavily from age 17 years after he joined the Navy. In Dr Bell's view the event that the Applicant specifies as stressful, occurred after he began drinking heavily.
Professor Breslin's report dated 10 May 2001 was Exhibit R2 and dealt with the Applicant chronic airflow limitations. Professor Breslin concluded that there is no reason why the Applicant should have stopped work because of his chest, that he currently has moderate airflow limitations but is fit for light manual or sedentary work and will be so fit until normal retiring age.
Exhibit R3 is the report of Dr Mark Burns dated 26 April 2001. Dr Burns is an occupational physician and reports that the Applicant told him that he commenced drinking soon after he joined the Navy. He stated that it was during a trip to Borneo, when he stopped off in Singapore in 1964. The Applicant told Dr Burns that he was drinking a large amount of alcohol as this was normal in the Navy at the time; that he had not drunk alcohol in Australia prior to joining as he was below the legal drinking age which was at that time 21. The Applicant told Dr Burns that following his return from Malaysia, he continued to drink. Dr Burns said he noted to the Applicant that he had told several psychiatrists as well as other doctors that he had seen dead bodies of both humans and animals during his service in Vietnam, but that even though Dr Burns questioned him about his experiences, the Applicant did not remember ever having seen dead bodies of animals or people. The Applicant did report to Dr Burns that he disliked being locked down in a blacked-out ship on his trips to Vietnam and was also upset by the scare charges that were put over the side of the ship regularly. The Applicant also recounted one occasion when he startled another sentry who pointed a gun at his face. He stated that it upset him that he was told to fire at boxes in the water as they may have contained explosives. Dr Burns agreed with a diagnosis of chronic alcoholism. Dr Burns concluded that the history given to him by the Applicant did not contain a severe stressor, and that his alcohol abuse or dependence appears to have commenced prior to his service in Vietnam. He also concluded that the Applicant's main reason for being unable to work is a mixture of his breathing problems and also his chronic alcoholism.
Exhibit R6 was the historical report of PM Mulcare of Writeway Research Service dated 17 December 2000. The report confirms the Applicant's periods of operational service and the program for each of the HMAS SYDNEY's voyages on which the Applicant served. Under the heading "Threats in Vung Tau" the report says:
"The principal threat to ships at anchor off Vung Tau was that of attack by enemy divers or floating mines. The tidal range in Vung Tau was about ten feet, the tidal stream ran at four to six knots and the outflow of the local river system contained a lot of debris, including vegetation. The tidal stream made the task of attack by free-swimming enemy divers very difficult, just as it made it difficult for ship's divers to search the ship's bottom except during periods of slack water i.e. approximately 30 minutes either side of high or low water. One concern was that swimmers could approach under cover of debris while another was that semi-submerged or submerged mines, attached together by line, could be hidden under debris, float down on ships, snag the anchor cable and end up on either side of the ship. These threats did not materialise over the years RAN ships visited Vung Tau but they were always taken very seriously and defensive measures, known as Operation Awkward, were put in place when ships anchored."
The report also notes that other possible threats included attack from small craft filled with explosives, or mortar or rocket attack from positions ashore. The report then details a number of measures implemented on the HMAS SYDNEY including the posting of armed sentries, scare charges thrown overboard at random intervals, searches by ship's divers and the ship remaining in Damage Control State.
The report describes a scare charge as a 1lb (450 gram) demolition charge fitted with a percussion fuse that could cause death or serious injury to divers in the near vicinity. The sound of a scare charge is described as typically a loud thud but varying with distance from the ship, depth of water, depth of explosion and the characteristics of the seabed, with the sound being much sharper and louder in compartments below the waterline.
In relation to the Applicant's specific contentions, the report confirms that the ship, on its first voyage, would have been at Defence Watches and therefore darkened, with external doors, hatches and scuttles closed and with living conditions below decks hot and uncomfortable. The report stated that there are no entries in the ship's log to support the contention of the Applicant that a US helicopter crashed on board HMAS SYDNEY at 11.00pm on a night in 1966. Nor, according to the report, is there any recollection of this event by a number of officers of the ship who were interviewed by the author of the report.
In relation to the Applicant's contention that he was required to sweep bodies off pontoons, the same officers have, according to the report, no recollection of bodies being washed up on pontoons secured alongside the ship. However, this conclusion appears to be premised on the assumption that the Applicant asserts that he was required to perform this task on 2 occasions and then refused to perform it again and that this, in turn, implies that it was a regular occurrence. On this basis it is assumed by the author of the report that the occurrence would have become common knowledge in the ship and the officers interviewed "would almost certainly have heard of such an event". The Applicant, at the hearing, gave evidence that this occurred on one occasion.
As to the Applicant's contention that he had a rifle "shoved up his nose", the report states that this may well have happened but that "it should not have been loaded". As to the Applicant's visit ashore with the mailman, the report allows for the possibility of this having happened but expresses doubt that the Applicant would have seen "starving children" as he had reported to the VRB. The report accepted, in relation to the contention by the Applicant, that the scare charges he heard made him fearful, and that he had probably not heard the sound of scare charges before the ship arrived in Vung Tau Harbour, but said that he and the rest of the ship's company would have become familiar with the sound shortly after HMAS SYDNEY anchored. The report also stated that the Applicant was probably woken up at times by nearby scare charge explosions.
Applicant's evidence and submissions
The scope of the Applicant's case is set out in the Amended Statement of Facts and Contentions dated 10 May 2001 (Exhibit A4).
The Applicant contends that he suffers from a war-caused disability of chronic alcoholism and in that respect relies on the reports of Dr Ahmed dated 27 February 1998 (T13) and on the report by Dr Schmidtman dated 20 March 2001 (Exhibit A2). The Applicant also contends that he is entitled to a pension at special rate.
The Applicant and Respondent were in agreement that the relevant Statement of Principles to be applied is number 5 of 1994, concerning Psychoactive Substance Abuse or Dependence (T41). The Respondent conceded that the Applicant has chronic alcoholism and the Applicant indicated at the beginning of the hearing that he did not wish to pursue the condition of post traumatic stress disorder. The Applicant gave evidence based on his statement of 30 April 2001 (Exhibit A1). The Applicant's evidence was, in essence, that he first went to sea on the HMAS SYDNEY in the Far East Strategic Reserve in 1964 and experienced stress and constant fear of attack by "communist infiltrators". He said that while there, he became aware of an incident that involved an exchange of fire between an Australian mine-sweeper and a communist vessel. The Applicant said that he started drinking alcohol in 1964, once he was 19, while in service in the Far East, due to stress. He said he began with a few pints while on shore leave in Singapore. He maintains that he had not consumed alcohol before this time. The Applicant said that on his first trip to Vietnam in 1965 his recollection is that they were not told where they were going and they simply snuck out of Sydney Harbour at about midnight. He remembered arriving in Vung Tau Harbour and that he began to get scared when they were issued with ammunition and told to watch for strange things in the water.
The ship was at Defence Stations with two watches doing eight-hour shifts each. The ship was blacked out. The Applicant said that it was constantly on his mind that enemy divers might lay a mine under the ship as the ship was loaded with ammunition and petrol. The Applicant said that he had to sweep some dead bodies off pontoons next to the ship in the morning. He said that he and some others went ashore on the first day on a mail escort and at the end of the stay in Vung Tau he went to Singapore for two days "R and R" but only had a couple of beers. He was then out of operational waters for about three months.
The Applicant said that on his second trip to Vietnam, also in 1965, things were much the same as on the first trip but he felt particularly apprehensive because he had been there before and knew what to expect. He said that divers were searching under the ship for mines and scare charges were thrown at various intervals, and that while off watch he was located below deck and the ship was locked down and blackened. He said that he constantly feared that in the event of an explosion they would never have escaped. The Applicant said that on this trip he accidentally startled a watchman on deck and "had a gun shoved up his nose". He said that this scared him enormously and the combination of being at defence stations, the darkened ship and the use of scare charges every ten minutes made everybody feel scared and nervous.
The Applicant said that he had "R and R" in Singapore again after this trip to Vietnam and drank very heavily on that occasion.
The Applicant's third trip to Vung Tau Harbour was in May 1966. He said that this trip was much like the first two but that the war had "heated up" and he often saw helicopters flying out to the United States nursing ships. He said he also saw rocket tracer lights all around Vung Tau Harbour. By this time he was extremely stressed and when he came back to Sydney after the third trip he was targetted by university students who called him a child killer and child rapist.
The Applicant said that he began drinking a great deal after the third trip, trying to forget and feeling stressed about coming back. He remembered being in hospital on two occasions with pancreatitis in 1973 and that he had been told to cut down his drinking (patient's records at page 29 of the T documents confirm this advice). The Applicant said that he is able to stay off alcohol for about two months and then something will trigger him and he will start again. He said that in 1978 he had an attack of acute pancreatitis after a drinking binge.
The Applicant said that he currently drinks approximately 16 stubbies per day and tends to begin drinking at about 1.30pm. He said he has been drinking at that level since he left the Navy. He was admitted to St John of God Hospital recently and went off alcohol cold turkey for about one month.

In cross-examination some inconsistencies between the evidence given to this Tribunal by the Applicant and evidence given by him or reported of him before the VRB were pointed out to the Applicant. He explained those inconsistencies variously as the result of some confusion and agitation on his part. Importantly he denied ever having a drinking habit before going to Vietnam. He said that the only time he had ever drunk before going to Vietnam was in Singapore on "R and R" after Borneo.
The Applicant was also referred to a passage in Dr Girgis' report (T20, p132), which refers to his having started drinking "at a very young age". The Applicant stated that he did not mean younger than 19 years of age. The Applicant was also referred to the list of stressful events enumerated in Dr Girgis' report. The Applicant agreed that he was never near any of the events listed but noted they had happened to his mates and therefore had an effect on him.
The Applicant stated that he began to drink heavily because of "boredom and peer pressure" and that his drinking had a great deal to do with stress but that some other factors had an impact on him as well. He said that he drank to forget Vietnam and that, as an example of his continuing stress, when helicopters fly overhead, "I lose it"; he remembers the helicopters flying overhead on their way to the United States nursing ships. Similarly, when he hears fireworks or firecrackers he is reminded of naval gunfire and becomes nervous.
The Applicant said that he told Dr Girgis that there is no one particular event which has given rise to his stress but he said that he was severely stressed by having a rifle "shoved up his nose". He insisted that he did not know that the rifle was not loaded, as all on board the ship carried their own ammunition.
The Applicant was also questioned in cross-examination about the alleged crash of a helicopter on board the HMAS SYDNEY. He said that it was night time and that the ship was darkened, that the United States helicopter wanted to land, came down too early and its wheels slipped.
The Applicant said that he never got used to the sound of the scare charges and would lie awake waiting for the next one to go off. He said that he did not know what the charges were being dropped on and that it could have been Vietcong. The Applicant's attention was also drawn to a reference from Michael Inzitari, the owner of the Grand Central Hotel in Lithgow, dated 21 October 1994 (T40, p262), stating that the Applicant was given a two-week trial period but he terminated his employment after one week. He stated:
"He simply couldn't cope with the job. He was unreliable, very moody, rude to customers and on one occasion turned up to work intoxicated. The patrons of the hotel found him to be a very unpleasant barman".

The Applicant agreed that this had not been a successful work trial. He agreed that the reference may have been backdated and had no recollection of when he received it.

Dr Schmidtman gave oral evidence which confirmed the contents of her reports dated 15 November 2000 (Exhibit A3) and 20 March 2001(Exhibit A2). The earlier of those reports indicates that the Applicant was admitted to St John of God Hospital on 24 September 2000 (with discharge on 25 October 2000):
"… in crisis, with deterioration in mood, increased depression, poor sleep with nightmares, high arousal levels, agitation, irritability, social withdrawal and increase in alcohol abuse. Also presented with history of recurrent vomiting over the previous few months".

In her report of March 2001 Dr Schmidtman wrote that the Applicant:

"… continues to experience a constant, high level of distress, with depressed moods, with anhedonia, loss of interest in almost all activities and social isolation. He also continues to drink heavily, on a regular daily basis, consuming on average over 150 grams of alcohol per day."

She noted the history reported to her by the Applicant as having started to drink heavily whilst in the Navy, at approximately 19 years of age, after his first overseas trip to Borneo. Prior to this he was not a drinker, having joined the Navy at age 17, and he had not started using alcohol at that stage as he was under age. According to the Applicant's report to Dr Schmidtman he continued to drink heavily throughout his Navy service and afterwards. Despite the very noxious affects of alcohol upon his health he has not been able to stop and maintain abstinence, except for rare and very brief spells of up to three to four weeks duration.

Dr Schmidtman expressed the opinion that the Applicant's history is consistent with a diagnosis of alcohol abuse and dependence, this condition being related to his Navy service. She stated that even if post traumatic stress disorder/depressive symptoms are put aside, his alcohol abuse alone is severe enough to render the Applicant incapable of working in any form of paid employment.
In cross-examination Dr Schmidtman was questioned on some inconsistencies between the accounts given by the Applicant to various medical practitioners. Dr Schmidtman noted that his memory is likely to be unreliable owing to alcohol abuse. She also noted that it is not surprising that the Applicant has failed to mention some incidents to some medical practitioners because he is very guarded, may have been distracted at the time and has difficulty trusting people, particularly people who he sees only on a one-off basis.
Dr Schmidtman expressed the view that the Applicant would have stayed with the Navy for the lengthy period of 20 years because the structure of such organisations can be supportive. She stated that she is unable to conclude whether the Applicant has "false memories", but that she had seen no sign of confabulation.
Dr Schmidtman confirmed that she currently sees the Applicant approximately once a month and that he has been an inpatient at St John of God Hospital on three or four occasions. She stated that the Applicant had been consistent in his reports to her in broad terms. She maintained that she had been able to assess his reaction to various things accurately because physical signs of distress are difficult to fake on a consistent basis. She accepts that the Applicant was extremely fearful in Vung Tau harbour when he was there.
Dr Schmidtman was shown the Statement of Principles ("SoP"), Instrument No 5 of 1994, concerning Psychoactive Substance Abuse or Dependence, and her attention was directed to paragraphs 1 (a) and (c) of the SoP. Dr Schmidtman stated her opinion that the "stressful event" referred to in those paragraphs does not have to mean a discrete moment in time and that three days in Vung Tau Harbour could meet the criteria.
Mr Dawson for the Applicant submitted each and every person on the HMAS SYDNEY in Vung Tau harbour would be capable of satisfying an SoP requirement for a "stressful event". He argued that in the Applicant's case there had been a constellation of events including scare charges, having a gun "shoved up his nose" and the other events recounted by the Applicant. Mr Dawson submitted that the Tribunal would have to be satisfied beyond reasonable doubt that the Applicant's chronic alcoholism was not war caused and submitted that the Applicant's treating psychiatrist, Dr Schmidtman, has said that he consistently told her the same story about his experiences aboard the HMAS SYDNEY.
In relation to SoP No 5 of 1994, Mr Dawson submitted that the "stressful event" required by paragraph 1(a) does not require combat. He referred to the Tribunal's decision in Kelly and Repatriation Commission [2001] AATA 254 in which it was held that simply being told stories of frightening events was sufficient to constitute a "stressful event" within the meaning of the relevant SoP.
Mr Dawson also argued that any problems with the Applicant's inconsistent reports to his medical practitioner arise not from issues of credibility but from his alcoholism and associated memory loss. He noted that it had never been put to the Applicant by the Respondent that the alleged events did not take place, and he was therefore given no opportunity to respond to such allegations.
In relation to the Applicant's claim for a pension at the special rate, Mr Dawson directed the Tribunal's attention to the decision of the Full Federal Court in Banovich v Repatriation Commission (1986) 69 ALR 395 and argued that the evidence of Professor Breslin for the Respondent, to the effect that the Applicant's chronic airflow limitation would not prevent him working at light manual or sedentary work for greater than 20 hours per week, supported the conclusion that it is the Applicant's chronic alcoholism alone which prevents him from working.
Respondent's Evidence and Submissions
Dr Bell gave oral evidence for the Respondent and confirmed the opinions expressed in his report dated 13 February 2001 (Exhibit R1). He diagnosed alcohol abuse but stated that the Applicant does not satisfy any of the factors in the relevant SoP that would relate his alcoholism to operational service. He stated that, in his opinion, the Applicant (Exhibit R1, p16):
"began drinking heavily from the time that he bagan drinking at all, that is, at age 17 years after he joined the Navy. The event he specifies as stressful occurred after he began drinking heavily."

He said, in oral evidence, that in a person with a heavy alcohol intake, pancreatitis, as suffered by the Applicant, takes from 10 to 20 years to appear. He also said that drinking is twice as high among seamen as among others in the population and ventured the opinion that seamen have a predisposition towards alcohol abuse and select that lifestyle as a result. It is not, in Dr Bell's view, the lifestyle itself that gives rise to alcohol abuse.

Dr Bell maintained that the Applicant's current physical symptoms are consistent with him being a heavy drinker from age 17, but conceded that the onset of heavy drinking could be two or three years either side of that. He was of the view that the Applicant's memories of events (including the bodies on the pontoon, the helicopter crash, and wounded Vietcong) are false and appear to have begun in 1998. He considered that these memories may be a lie or that they may have developed in response to the stimulus of his claim.
In cross-examination, Dr Bell conceded that the point in time of the Applicant's development of pancreatitis does not necessarily determine the onset of his alcohol abuse. He also conceded that it was impossible for him to determine whether the Applicant was telling him the truth in his interview. When it was put to Dr Bell that the Applicant had cried in that interview, he said "lots of people can cry when it suits them". He maintained his opinion that "many of the things the Applicant says happened did not happen" and pointed out that in the interview the Applicant had provided little detail and that he, Dr Bell, saw no authenticity in the Applicant's account.
Finally, Dr Bell conceded that it is possible that three days in Vung Tau Harbour could constitute a stressor within the meaning of the SoP but that particular three day period was not a stressor. Dr Bell said that he based this opinion on what he has read about Vung Tau.
Ms Pacey, for the Respondent, submitted that the Applicant had a long drinking history which was well established prior to his operational service. Further, she submitted that the Applicant was not exposed to stressful events of the kind contemplated in SoP 5 of 1994. She referred in this respect to the report of Mr P. Mulcare, Writeway Research Service (Exhibit R6) and noted that this report dealt with a range of incidents that had been raised by the Applicant, including continuing scare charges, having a gun "shoved up his nose", and the ship being darkened and at defence stations. The report did not refute these contentions but did take issue with the Applicant's assertions that he went ashore with the mail delivery in Vung Tau, that a US helicopter crashed on board HMAS SYDNEY and that the bodies of humans and animals were washed up on pontoons secured alongside the ship.
Ms Pacey argued that all of the incidents which had been raised by the Applicant can be disputed or dispensed with. For example, scare charging would have been a new experience but one to which the Applicant would have quickly become accustomed. Similarly it may be that the Applicant had a 303 "shoved up his nose", but it should not have been loaded given an instruction to sentries that rifles were only to be loaded and fired if the ship was being directly menaced by an observed swimmer and on instruction from an officer. Ms Pacey submitted that the Applicant had three years military experience prior to his first trip to Vietnam and this experience would have lessened the effect of incidents such as scare charging and the incident with the 303 rifle. She submitted that incidents reported by the Applicant, in particular to Dr Girgis, involving other ships would have had no impact on the Applicant at all and that it would not have been a stressful situation for him to have been reviled by university students as he recounted.
Ms Pacey submitted that the "stressful event" required by the SoP must be one of equal magnitude to the example given in the SoP, that is, combat. She referred the Tribunal to its decision in Re Briscoe and Repatriation Commission [2001] AATA 605 in which, she submitted, it was held that scare charges were insufficient to constitute a "stressful event" within the relevant SoP.
In relation to the issue of whether the Applicant should be paid at the special rate of pension, Ms Pacey submitted that the Applicant had left his employment at Coles in 1991 only because he was retrenched owing to a change in the hours of operation of the store.
In reply, Mr Dawson noted that the Tribunal's decision in Briscoe [supra] is distinguishable on the basis that the conclusion reached in that case was based on a finding against the credibility of the Applicant. He referred the Tribunal to its decision in Re Howe and Repatriation Commission (1999) 59 ALD 309 which applied the decision of the Full Federal Court in Repatriation Commission v Binding [1999] FCA 974. He argued that the incidents reported by the Applicant concerning other ships were simply incidents he had heard of and which contributed to his stress. Mr Dawson argued that there is nothing routine about the use of scare charges and that it was entirely to be expected that they would produce fear.
Findings on material questions of fact with reference to the evidence and other material in support of the findings
The Tribunal finds that the Applicant rendered operational service for the following periods (T5):
". HMAS SYDNEY from 8 June 1965 to 11 June 1965
. HMAS SYDNEY from 28 September 1965 to 30 September 1965
. HMAS SYDNEY from 4 May 1966 to 6 May 1966."
The Tribunal finds that the Applicant was born on 29 June 1945.
There is no dispute that the Applicant lodged a valid claim under the Act.
The Tribunal finds that the Applicant entered the Royal Australian Navy on 26 August 1962 and was discharged on 25 August 1982 (T5). The Tribunal finds that the Applicant was born on 29 June 1945.
The Tribunal notes that this is a case where the standard of proof, in relation to the issue of whether the Applicant's chronic alcoholism was war-caused, is that of reasonable hypothesis, pursuant to sections 120(1) and (3) of the Act.
The Tribunal finds that the relevant SoP is SoP No 5 of 1994.
Is the Applicant's chronic alcoholism war-caused?
The Tribunal observes that in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused.
According to the decision of the Full Federal Court in Repatriation Commission vDeledio (1998) 49 ALD 193 at 206, the first step is to consider whether the material before the Tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the Applicant.
The Applicant has put forward material which points to a hypothesis that he commenced to drink heavily after his third trip to Vietnam and that he did so as a result of stressful incidents that occurred during his operational service in Vung Tau Harbour. These incidents are said by the Applicant to include continuing scare charges, having a gun "shoved up his nose", the ship being darkened and at defence stations, a US helicopter crashing on board HMAS SYDNEY, the bodies of humans and animals being washed up on pontoons secured alongside the ship and the ship's company being locked inside at night.
The second step, according to Deledio [supra], is to ascertain whether there is a relevant SoP in force. The Tribunal has already found that SoP No 5 of 1994 applies.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP, which the SoP says must exist, and that factor must be related to the Applicant's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185:
"It is important to bear in mind that the Tribunal, when dealing with stage three of Deledio, was concerned not with the proof or disproof of the various SoP factors, as such in Mr Harris' case, but with whether the material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the Applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld, notwithstanding that "one of the disputed facts happened also to be a component of an SoP".
In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility, etc. that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it could not justify any different answer to the question the Tribunal ought to have addressed.
Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) "acute signs and symptoms of altered mobility etc", Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an "acute sign or symptom" of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."
Again, in Arnott v Repatriation Commission (2001) 106 FCR 83 the Federal Court put the matter succinctly at FCR 90-91:
"However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the "particular claim" fits the "template" laid down in the SoP. As was stated by the Full Court …in Deledio, the question at that stage is whether 'the facts raised by the claimant' give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

As the Tribunal understands it, its obligation at step three is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of, the Applicant, in the opinion of the Tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP. The SoP contains the following factors, relevant to the Applicant's application:
"1. …that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service… :
(a) experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(c) experiencing a severely stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
…
4. "stressful event" means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress."
It is difficult not to engage in a fact-finding exercise in step three of Deledio [supra]. There is an account given by the Applicant, and there is a rebuttal by the Respondent wherein the Respondent refers to evidence before the Tribunal. However, the Tribunal considers that the correct approach to take is to have regard to the Applicant's version in step three and decide whether that meets the SoP template.
In short, the Applicant's contention is that he suffered a stressful event, being a constellation of incidents – including continuing scare charges, having a gun "shoved up his nose", the ship being darkened and at defence stations, a US helicopter crashing on board HMAS SYDNEY, the bodies of humans and animals being washed up on pontoons secured alongside the ship and the ship's company being locked inside at night – during his service in Vung Tau, and that he then commenced and maintained alcohol abuse.
The Respondent contends that the incidents alleged by the Applicant do not amount to "a stressful event" within the meaning of the SoP, that is, "an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress". Ms Pacey submitted that scare charges, incidents involving other ships and having an unloaded gun pointed at one, do not satisfy the requirement in the SoP, particularly given that the Applicant had three years training prior to his operational service. She submitted that the SoP calls for an event of the magnitude of combat.
The Applicant gave evidence of a collection of incidents he experienced at Vung Tau. In particular, the incident of having a rifle "shoved up his nose" and of the continued use of scare charges, would, in the Tribunal's view, "result in psychological stress". In reaching this conclusion the Tribunal had regard to the Tribunal's decision in Briscoe [supra] in which it was held, in relation to the definition of "stressful event" in SoP 5 of 1994, (at paragraph 98):
"The Tribunal does not accept the Respondent's submission that the example of combat given in that definition is indicative of the level of severity of the external stimuli…It is the Tribunal's view that on some occasions, for some people, the circumstances in which scare charges are dropped may constitute a "stressful event" for the purpose of the Statement of Principles."
The Applicant also gave evidence of his consequent feelings of fear, nervousness and stress following these incidents. In addition, Dr Dent's report detailed the physiological symptoms of anxiety including palpitations, difficulty breathing, abdominal disease, sweaty palms, tremulousness and tightness in his throat that he linked with the incidents reported to him by the Applicant. Dr Schmidtman also gave evidence that she accepted that the Applicant was extremely fearful when he was in Vung Tau Harbour. On this basis, the Tribunal concludes that the hypothesis put forward by the Applicant matches the template set out in the SoP, and in particular satisfies factor 1(a) of SoP No 5 of 1994.
The Tribunal's conclusion that step three has been satisfied means that the hypothesis raised by the Applicant is a "reasonable" hypothesis within the terms of section 120(3) of the Act.
Moving on to consider step four of Deledio [supra], the Tribunal must decide whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the Respondent come into play. The Tribunal will assess each of these, and any other relevant matters, to ascertain whether one, some or all serve to satisfy the Tribunal beyond reasonable doubt that the Applicant's chronic alcoholism was not war-caused.
The Respondent made much of the inconsistency in the reports given by the Applicant to various examining medical practitioners and suggested that this was an indication of the Applicant's unreliability as a witness and the consequent unreliability of his evidence. The Tribunal considers, however, that this conclusion is prevented by the evidence of Dr Schmidtman, the Applicant's treating psychiatrist; that such inconsistency is likely to be the product of the Applicant's alcohol abuse and its effects on his ability to recall facts and his reluctance to trust people he has seen only on a one-off basis.
The Respondent's argument that the Applicant began drinking heavily before operational service was based on the reports of Drs Bell and Burns (Exhibits R1 and R3) and on a passage in the report of Dr Girgis (T20) that he had begun drinking at "a very young age". The Applicant's firm evidence at the hearing, however, was that he had not begun drinking heavily before his operational service and that by the term "a very young age" he had meant no younger than age 19. Dr Bell, in cross examination, made concessions to the effect that it is not possible to pin point, by reference to the onset of pancreatitis, the commencement of the Applicant's heavy drinking.
The Tribunal does not consider that the evidence of Drs Burns and Bell serves to establish, beyond reasonable doubt, that the Applicant commenced to drink heavily before his operational service.
The Respondent has also argued that some of the incidents alleged by the Applicant to have occurred during his operational service, did not occur. In support of this argument, the Respondent relied on the historical report of P M Mulcare of Writeway Research Service to establish that the incidents relating to the bodies on the pontoons, the US helicopter crash and the Applicant's visit ashore did not occur. The Tribunal notes that in this report the basis for the conclusion that bodies were not washed up on to the pontoon alongside the ship was that several officers interviewed about this incident could not recall it. This conclusion is, in turn, based on the assumption that, if such an incident occurred on a regular basis, then the officers in question would "almost certainly have heard of such an event" as common knowledge in the ship. At the hearing, the Applicant did not contend that the washing up of bodies was a regular event. The Tribunal considers that there remains a strong element of doubt as to whether this incident did or did not occur and is prevented by this from finding, beyond reasonable doubt, that the incident did not occur.
As to the alleged crash of the US helicopter on board HMAS SYDNEY, the Tribunal is impressed by the absence of any mention of such a significant event in the ship's log and by the lack of recall of the event by the officers interviewed for the purposes of the report. The Tribunal concludes that there is some doubt as to whether the event occurred as recounted by the Applicant to the VRB, however, the absence of a formal record of the event and of a recollection by officers on the ship at the time does not place the matter beyond reasonable doubt in the face of evidence to the contrary from the Applicant.
In relation to the Applicant's alleged visit ashore, the historical report appears to allow that such a visit could have taken place.
In any event, the Tribunal has concluded that the incidents of scare charging and having a rifle pointed at his face amount to "stressful events" within the meaning of factor 5(a) of SoP No 5 of 1994, that is, they qualify the hypothesis as "reasonable" by bringing it in line with the template in the SoP. Step three of Deledio [supra] having been satisfied in this way, there is no evidence before the Tribunal to establish, beyond reasonable doubt, that these incidents did not take place.
The Respondent also submitted that the historical report of Mr Mulcare (Exhibit R6) establishes that the incidents of scare charges and having a rifle "shoved up his nose" would not, as a matter of fact, have had the effect on the Applicant that is contemplated in the SoP, that is, they would not have resulted in psychological stress. The Tribunal is mindful of Dr Schmidtman's evidence that the Applicant was, in her opinion as his treating psychiatrist, extremely fearful in Vung Tau, and of the following evidence of Dr Dent (T39, p252):
"We should also emphasise that in these events that he has described that have occurred during his service and where they are associated with flashback to the stated events in his period of eligible service, then there will be clearly attendant physiological symptoms of anxiety.
That is, palpitation, difficulty breathing, abdominal dis-ease, sweaty palms, tremulousness and tightness in his throat; in fact he can recall these physiological symptoms of anxiety right back through his days in the Navy."
In the face of this evidence, the Tribunal cannot conclude, beyond reasonable doubt, that the incidents experienced by the Applicant did not result in psychological stress or that no subjective symptoms of stress were present.
It follows that the Tribunal is not satisfied beyond reasonable doubt that the Applicant's condition is not war-caused.
Special Rate of Pension
Section 24 of the Act imposes the following requirements in respect of the payment of pension at the special rate:

the Applicant must have made a claim under s 14 of the Act (s 24(1)(aa));
the Applicant must have been under 65 years of age when the claim was made (s 24(1)(aab));
the Applicant's degree of incapacity as determined under 21A of the Act must be at least 70% (s 24(1)(a)(i));
the Applicant must have an incapacity from a war caused injury or a war caused disease, or both (s 24(1)(b));
the incapacity must be of such a nature as, of itself alone, to render the Applicant incapable of undertaking remunerative work for periods aggregating more than eight hours a week (s 24(1)(b) and s 28);
that incapacity must, alone, prevent the Applicant from continuing to undertake remunerative work that the Applicant was undertaking (s 24(1)(c));
the Applicant must, by reason of the Applicant's prevention from continuing to undertake remunerative work, be suffering a loss of salary or wages, or of earnings on his or her own account, that the Applicant would not be suffering if he or she were free of that incapacity (s 24(1)(c)); and
the Applicant must not be in receipt of a temporary payment at the special rate (s 24(1)(d)).

A number of the requirements for the Applicant to be paid at the special rate of pension are uncontroversial. The Tribunal has found that the Applicant has made a valid claim and that he is under the age of 65. His degree of incapacity has been determined under s 21A of the Act as 100 per cent. Section 24(1)(aa), (aab) and (a) are therefore satisfied. The Applicant has a number of incapacities that have been accepted as war caused. These are sensorineural hearing loss with tinnitus, chronic airways limitation and, following the conclusion reached earlier in this statement of reasons, chronic alcoholism. The Applicant also has several disabilities not accepted as war-caused. These are refractive error, retinoschisis and post traumatic stress disorder. The first part of s 24(1)(b) and (c) is therefore satisfied. There is no evidence to suggest that the Applicant is in receipt of a temporary rate payment under s 25 of the Act.
The disputed issues are set out in bullet points 5, 6 and 7, in paragraph 100 above.
The Applicant's capacity to undertake remunerative work for periods aggregating more than EIGHT hours a week (s 24(1)(6) of the act)
Section 28 limits the Tribunal to considering only the following matters:
·     the vocational, trade and professional skills, qualifications and experience of the veteran;
·     the kinds of remunerative work a person with those skills, qualifications and experience might reasonably undertake; and
·     the degree to which the veteran's physical or mental impairment as a result of the veteran's injury or disease, or both has reduced his capacity to undertake those kinds of remunerative work.
The evidence available as to the Applicant's trade or professional skills, qualifications and experience is that he has worked as a labourer and as a security guard or nightwatchman since leaving the army. His qualifications and experience are therefore limited to those areas.
Dr Burns, occupational physician, in his report dated 26 April 2001 (Exhibit R3), said:
"I believe that Mr Boardman is currently unfit to work even eight hours per week. I believe that the main reason he cannot work is a mixture of his breathing problems and also his chronic alcoholism."

Dr Schmidtman, in her oral evidence, stated that even if post traumatic stress disorder or depressive symptoms are put aside, the Applicant's alcohol abuse alone is severe enough to render him incapable of working in any form of paid employment.
On the basis of this evidence, and in the absence of any contradictory evidence, the Tribunal finds that the Applicant is unable to undertake remunerative work for even eight hours per week.
The Tribunal notes that, following its conclusions in relation to this application, both the Applicant's breathing problems (chronic airways limitation) and he is chronic alcoholism, are accepted disabilities.
It remains for the Tribunal to consider whether, pursuant to s 24(1)(b) the accepted disabilities of the Applicant alone constitute such an incapacity as renders the Applicant unable to work. On the basis of Dr Burns and Dr Schmidtman's evidence, noted above, the Tribunal is reasonably satisfied that the Applicant's chronic airways limitation and his chronic alcoholism, both accepted disabilities, have that effect and that s 24(1)(b) of the Act is satisfied.
Does that incapacity, alone, prevent the applicant from continuing to undertake remunerative work that the applicant was undertaking (s 24(1)(e) of the Act)?
The Applicant told Dr Breslin that after leaving the Navy he worked as a labourer at an Army camp at Narrangaroo, doing gardening and tree lopping for approximately two years. He was then off work for two years and became a security guard/nightwatchman at Coles supermarket in 1987 for five years. In 1991 or 1992 he was retrenched from this job because the Coles store where he was working was to open 24 hours a day and no longer needed a nightwatchman. The Applicant told Dr Breslin that he then tried a few odd jobs labouring but has not done any work at all since 1997. In a reference dated 21 October 1994 from Michael Inzitari, the owner of the Grand Central Hotel in Lithgow (T40, p262), it was stated that the Applicant was given a two-week trial period but he terminated his employment after one week. Mr Inzitari stated:
"He simply couldn't cope with the job. He was unreliable, very moody, rude to customers and on one occasion turned up to work intoxicated. The patrons of the hotel found him to be a very unpleasant barman".

The Applicant agreed that this had not been a successful work trial. He agreed that the reference may have been backdated and had no recollection of when he received it.

The Respondent has submitted that the Applicant was not prevented from continuing to undertake remunerative work by reason of his incapacity alone. Ms Pacey argued that the Applicant has ceased work because he was retrenched.
The Tribunal had regard to the decision of the Full Federal Court in Banovich [supra] on the question of at which time an Applicant must comply with the criteria in section 24(1)(c). The Court said at ALR 404:
"The task of the Administrative Appeals Tribunal, in reviewing a decision relating to an application for a pension, is to make the decision which the primary decision maker ought to have made, upon the basis of the evidence before the tribunal. Subject to any change in the relevant law, the tribunal should put the applicant in the position in which he or she was entitled to be put at the time of the primary decision. It follows, we think, that the question whether a particular applicant complies with the criteria in para [1] (b) of the Schedule should be considered as that the time of his or her application to the primary decision-maker for the grant of a special rate pension."

The Tribunal notes that paragraph (1)(b) referred to by the Court is in the same terms as section 24(1)(c). At the time of the Applicant's claim for grant of the special rate of pension, his work at Coles as a security guard/nightwatchman was many years earlier. His evidence was that he had done no remunerative work since 1997. Therefore, the Tribunal considers that it is not appropriate to take into account the Applicant's retrenchment from Coles so many years previously when considering the range of matters which prevent the Applicant from continuing to undertake remunerative work at the time of his claim.
There is no evidence of any other matter, which may have served to prevent the Applicant from continuing to undertake remunerative work. It follows that the Applicant's incapacity alone, prevents him from continuing to undertake the remunerative work that he was undertaking.
Is the applicant, by reason of being prevented from continuing to undertake remunerative work, suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity (s 24(1)(c) of the Act)?

The Applicant's only income is a pension. While the Tribunal has before it no direct evidence as to the precise amount of the pension received by the Applicant, or the precise amounts of earnings he received when he was employed, as a matter of common sense and common knowledge, the Tribunal concludes that the amount of the pension he currently receives is less than the amount that he would receive if he was in employment. The Applicant is therefore suffering a loss of salary or wages that he would not be suffering if he were free of his incapacity.
While the Applicant ceased his work at Coles due to being retrenched in 1992, he did undertake some odd job labouring work following that. There is also evidence of the Applicant having attempted work in a hotel in 1994 and of him having done no work at all since 1997. The Tribunal finds, on this basis, that the Applicant did not cease work for reasons other than his incapacity. This finding carries the consequence that the Applicant is not disqualified from the special rate of pension under section 24(2)(a)(i) or (ii) of the Act.
Conclusion
The Tribunal concludes that the Applicant's condition of chronic alcoholism is war-caused and that he merits payment of his disability pension at the special rate. This means that the decision under review is set aside.

The date of effect of the decision is 7 February 1997, the Applicant's claim in respect of chronic alcoholism having been lodged on 7 May 1997.
Decision
The decision under review is set aside. In substitution for that decision the Tribunal decides that the Applicant's chronic alcoholism is war-caused and that the Applicant qualifies for payment of disability pension at the special rate with effect from the first pension payday on or after 7 February 1997.

I certify that the 119 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Sassella, Senior Member and Ms N Bell, Member
Signed: M.Dunkel    .....................................................................................
  Associate
Date/s of Hearing  10 July 2001
Date of Decision  6 September 2001
Solicitor for the Applicant         Mr Dawson
Solicitor for the Respondent    Ms Pacey