Rogers and Repatriation Commission

[2003] AATA 241

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/484

VETERANS' APPEALS DIVISION		)
Re		GARY LESLIE ROGERS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member
Rear Admiral A R Horton, AO, Member

Date14 March 2003

PlaceSydney

Decision The tribunal sets aside the decision under review and substitutes its own decision that the applicant suffers from war-caused diseases diagnosed as generalised anxiety disorder and alcohol dependence.  The date of effect of this decision is 19 May 1999.  The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension.

..................[Sgd].................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Disability Pension – generalised anxiety disorder – alcohol dependence – depressive disorder – attempted suicide – experiencing a severe psychosocial stressor – stressful event – whether suicide attempt was genuine attempt

Veterans’ Entitlements Act 1986 ss 120(1), (3), (4), 157(2)(a)(ii), 177(2)(a)

Statement of Principles 76/98 concerning alcohol dependence or abuse

Statement of Principles 58/98 concerning depressive disorder

Statement of Principles 1/2000 concerning anxiety disorder

Statement of Principles 71/96 as amended by 177/96 concerning suicide or attempted suicide

Statement of Principles 48/94 as amended by 275/95 concerning generalised anxiety disorder

Bull v Repatriation Commission (2001) 66 ALD 271

Deledio, Repatriation Commission v (1998) 49 ALD 193

Gorton, Repatriation Commission v (2001) 33 AAR 370

O’Neil, Repatriation Commission v (2001) 34 AAR 290

Smith, Repatriation Commission v (1987) 74 ALR 537

Williams, Repatriation Commission v [2001] FCA 1195

REASONS FOR DECISION

14 March 2003 Mr M J Sassella, Senior Member
Dr M E C Thorpe, Member
Rear Admiral A R Horton, AO, Member

APPLICATION

1.      Gary Leslie Rogers (“the applicant”), born on 5 November 1953 (T1), has applied to the Administrative Appeals Tribunal (“the tribunal”) for review of a decision of the Repatriation Commission (“the respondent”) dated 10 February 1999 (T14) and which the Veterans’ Review Board (“the VRB”) affirmed on 5 February 2001 (T17).  The decision was to reject Mr Rogers’ claim for a Disability Pension under the Veterans’ Entitlements Act 1986 (“the Act”)[1] in respect of conditions of anxiety, alcohol dependence and post-traumatic stress disorder.  Mr Rogers already receives a Disability Pension paid at 30% of general rate in respect of bilateral sensori-neural hearing loss (T10).

[1] tribunal convened a hearing in this matter in Sydney on 4 December 2002.  Mr M Vincent of counsel represented the applicant.  Ms P Hook of the Department of Veterans’ Affairs Advocacy Service represented the respondent.  The tribunal heard evidence from the applicant and Dr L Schmidtman (a psychiatrist).  The tribunal took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (T1 – T25) provided by the respondent.

Exhibit TD2 – Applicant’s service records.

Exhibit A1 – Applicant’s further amended statement of facts and contentions, 1 August 2002.

Exhibit A2 – Statement of applicant, 12 August 2001.

Exhibit A3 – Report by Dr Schmidtman, 18 September 2001.

Exhibit A4 – Report by Dr Schmidtman, 30 July 2002.

Exhibit R1 – Respondent’s statement of facts and contentions, 25 November 2002.

Exhibit R2 – Additional documents from departmental file.

Exhibit R3 – Documents from departmental file.

Exhibit R4 – Report by Dr J Shand, 4 October 2001.

Exhibit R5 – Report by Mr J Tilbrook, 19 October 2001.

Exhibit R6 – VRB transcript, 5 February 2001.

Exhibit R7 – Dr B Keshava’s clinical notes.

Exhibit R8 – Dr D Chamberlain’s clinical notes.

Exhibit R9 – Dr Schmidtman’s clinical notes.

UNCONTROVERSIAL FINDINGS

3.      The tribunal makes the following uncontroversial findings.

4.      The applicant served in the army and rendered operational service in Vietnam from 1 to 30 November 1972 and rendered defence service from 7 December 1972 to 18 August 1978 (T2). 

5.      The applicant lodged a valid claim on 28 January 1999 (T12).

6. The date of effect of any decision favourable to the applicant would be 19 May 1999 because the applicant did not seek review by the VRB within 3 months after service of the respondent’s primary decision (ss 157(2)(a)(ii) and 177(2)(a) of the Act).

7. The standard of proof in relation to whether his claimed conditions are war-caused diseases is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to other issues is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

THE HYPOTHESES

8.      By the time of the hearing, in his statement of facts and contentions (ex A1), the applicant was claiming Disability Pension in respect of:

·Alcohol abuse or dependence.

·Adjustment disorder.

·Generalised anxiety disorder.

·Depressive disorder.

·Attempted suicide.

9.      By the end of the hearing the applicant no longer pressed for coverage for adjustment disorder.  The applicant’s counsel was also reticent in advancing the applicant’s case for attempted suicide as a war-caused disability. 

the deledio principles

10.     The full Federal Court has held 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.  The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

11.     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.

12.     So far as a hypothesis was concerned, Mr Vincent, for the applicant suggested the following.  Mr Rogers journeyed to Vietnam on a naval ship.  He was not a sailor and was unfamiliar with the ways of sailors.  He was unfamiliar with the risks and responsibilities of such a position.  He was young and unprepared by appropriate training for the journey and its implications.  He knew, however, that he was entering a war zone.  He became worried and suffered physiological effects, eg clammy hands, suggesting he was suffering stress.  This led to immoderate drinking behaviour in Singapore.  He was stressed and frightened in Vietnam by doing guard duty, inspecting debris, working on barges, witnessing the strafing of nearby islands and feeling the effects of scare charges emanating from his ship.  He dealt with this by drinking alcohol.  An alcohol problem then persisted and became a major drinking habit on return to Australia.

13. The second step is to ascertain whether there is a relevant Statement of Principles (“SoP”) as issued by the Repatriation Medical Authority under s 196B of the Act in force. In the present case there is a potential plethora of SoPs in force:

·For alcohol dependence or alcohol abuse there is SoP 76/98[2].

·For depressive disorder there is SoP 58/98[3].

·For anxiety disorder there is SoP 1/2000[4].

·For suicide or attempted suicide there is SoP 71/96[5] as amended by 177/96[6].

[2] the hypothesis fails in relation to the current SoPs then a SoP in force at the time of the primary decision (10 February 1999) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195). There was a variant SoP in force at that time relating to generalised anxiety disorder (SoP 48/94[7] as amended by 275/95[8]).

[7] 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. 

15.     The applicant’s counsel commended the following analysis to the tribunal in advancing Mr Rogers’ case.  It was suggested that the applicant’s raised facts were consistent with the SoP template for an anxiety disorder.  Once that was accepted, the pre-existence of an accepted disability in the form of anxiety disorder would serve to satisfy the requirements in the SoP on alcohol dependence or abuse. 

anxiety disorder

16.     The relevant factor in the anxiety disorder SoP was factor 5(a)(ii):

“experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”

17.     This SoP is applicable only if Mr Rogers suffers from anxiety disorder.  Clause 8 of SoP 1/2000 defines the requirements for generalised anxiety disorder:

“generalised anxiety disorder” means a psychiatric disorder with the following features:

A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and

B. The person finds it difficult to control the worry; and

C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:

(1). restlessness or feeling keyed up or on edge

(2). being easily fatigued

(3). difficulty concentrating or mind going blank

(4). irritability

(5). muscle tension

(6). difficulty falling or staying asleep, or restless unsatisfying sleep; and

D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and

E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;

18.     The material before the tribunal includes Dr Keshava’s opinion on 24 November 1998 (T11) that Mr Rogers had a chronic anxiety state with depression and alcohol dependence.  Psychiatrist Dr Schmidtman (T17/53, T17/66, ex A3) diagnosed post-traumatic stress disorder, one of the anxiety-related diseases in DSM-IV, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4^th ed, 1995).  Psychiatrist Dr J Shand (ex R4) on 4 October 2001 diagnosed a personality disorder. 

19.     Mr Rogers provided a statement (ex A2) in which he said that he was always full of fear and anxiety on the HMAS Sydney, the ship that conveyed him to and from Vietnam.  He said that he was “terrified” when scare charges went off.  He said that, on the Sydney, his heart was always in his throat, he was full of adrenaline, fear and anxiety.  He wrote that from 1972 he was depressed, had sweats, clamminess, could not talk about things and abused alcohol. 

20.     In oral evidence Mr Rogers said he was anxious, jumpy and experienced erratic sleep in Vietnam.  The Sydney was in Vietnam waters for two days, 23-24 November 1972.  Mr Rogers said he felt very relieved when he left the war zone.  He said he drank heavily on the way back to Australia to numb his feelings.  He said he still felt much anxiety despite the dangers of Vietnam having passed.  He said that drinking made him feel better and relieved his anxiety. 

21.     After Mr Rogers returned to Australia, he said, his “nerves” were “bad”..  He had totally erratic sleep.  He always felt fear and anxiety.  He was wary in shopping centres among crowds of people.  This was a constant condition, he said.  He described a claustrophobic feeling.  This was said to have emerged immediately from when he returned from Vietnam. 

22.     Mr Rogers told the tribunal that he had been depressed from when he entered the ship.  His mood changed and he was very quiet.  His earlier mood never returned.  The depression worsened in the early 1970s for no particular reason.  Drinking made Mr Rogers feel better.  When those effects wore off, he said the depression would return.  He would then drink more alcohol.  He takes Effexor, anti-depressant.  Since 2000 Mr Rogers has spent discrete periods as an inpatient at St John of God Health Centre engaged in detox treatment.  This has assisted him to cope with his depression and control his mood swings better. 

23.     Dr Shand (ex R4) diagnosed a disease of chronic alcohol dependence.  He saw the possibility of a personality disorder.  He did not comment on generalised anxiety disorder but concentrated on post-traumatic stress disorder, the disease diagnosed by Dr Schmidtman.  He did not find post-traumatic stress disorder because the required stressors were not present in Vietnam.  He then addressed the DSM-IV list of post-traumatic stress disorder symptoms.  On the basis of Mr Rogers’ history and presentation he observed that:

·Criterion A, exposure to a traumatic event, was not satisfied.

·Criterion B, re-experiencing of a traumatic event through recollections, dreams, sense of reliving the experience, distress at exposure to cues symbolising the traumatic event and physiological reaction to cues symbolising the traumatic event was not satisfied.  This is scarcely surprising given that Mr Rogers did not, according to his own account, experience a severe stressor as defined for post-traumatic stress disorder.  There was not in the alleged stressors in Vietnam the requisite threat of death or serious injury to Mr Rogers or others. 

·Criterion C, avoidance, was said not to be satisfied.  There was no history presented by Mr Rogers of efforts to avoid thoughts, feelings or conversations associated with a trauma.  There were no efforts to avoid activities, places or people that aroused recollections of trauma.  There was no inability to recall important aspects of the trauma.  Dr Shand found several pieces of history bearing on criterion C that were arguably present but which were unconvincing or attributable to alcohol dependence.  These were diminished interest or participation in significant activities, a feeling of detachment from others, restricted range of affect and a sense of a foreshortened future. 

·As regards criterion D, increased arousal, the presence of three elements (sleep disorders, irritability, outbursts of anger, difficulty concentrating) were answered by alcohol dependence.  There was alleged hypervigilance and exaggerated startle response but Dr Shand saw these as consistent with alcohol dependence. 

24.     It may be noteworthy that Dr Shand did not ostensibly consider generalised anxiety disorder as a diagnosis. 

25.     There is material before the tribunal suggesting that Mr Rogers has satisfied the diagnostic criteria for generalised anxiety disorder as cited above in paragraph 17.  This is as follows:

·He has had excessive anxiety and worry on more days than not for at least six months about a number of events or activities.

·He has found it difficult to control the worry.  He has suggested in his statements that he has self-medicated with alcohol.

·He has the following symptoms from the list in paragraph C of the definition of generalised anxiety disorder in SoP 1/2000.  He has restlessness or a feeling of being keyed up or on edge.  He has been irritable and prone to sleep problems.  He has experienced such symptoms on more days than not for over six months.

·There is no other Axis I disorder that speaks entirely for these symptoms.

·The paragraph C symptoms can be said on the evidence to cause clinically significant distress or impairment in social, occupational or other areas of functioning.  He said, for example, in ex A2 that he eventually lost his last job because he was moody, irritable and abusive to other workers and customers.  His marriage also broke down in 1994, although there is not much about why this occurred.

·Paragraph F is probably satisfied.  Although Dr Shand might disagree, the anxiety and worry seem on the evidence to be due to factors other than the substance abuse.  Dr Shand’s omission of comment on generalised anxiety disorder has served to make his report less useful than it might otherwise be.  No one has said that the anxiety and worry occur exclusively during a mood disorder, psychotic disorder or pervasive developmental disorder.

26.     The tribunal therefore finds on the balance of probabilities that an appropriate diagnosis of Mr Rogers’ disease is generalised anxiety disorder.

27.     The tribunal considers that the material before it relating to factor 5(a)(ii) within the SoP on anxiety disorder (see paragraph 16 above) would appear inconsistent with the SoP requirements.  The definition of a severe psychosocial stressor in the SoP is:

“an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”

28.     Mr Rogers’ identified stressors were as follows. 

·The men had been told to be very careful as the North Vietnamese were still infiltrating barges.  Mr Rogers was one of a number using barges to offload cargo.

·Every time Mr Rogers saw debris in the water he would think that there could be a bomb or something else noxious hidden within it.

·Mr Rogers wrote that he was always full of fear and anxiety on the Sydney as he just did not know what they were going into.  He described that as the main fear, the fear of the unknown.  He emphasised that he was not trained to fight at sea.

·He said that he used to watch "Puff the Magic Dragon", a huge American bomber, firing on Long Son Island.  He understood that the Americans used this bomber only when there was heavy enemy activity around.

·Scare charges were dropped from the side of the ship to frighten enemy divers.  Mr Rogers said that he found this terrifying and commented that there would be a big "boom".

29.     Some of these matters were enlarged upon in oral evidence.  Mr Rogers said that when posted to the HMAS Sydney he was apprehensive and excited.  However, he said that he had not had training before joining the Sydney.  There had been briefing on activity in Vietnam which concentrated on activity in South Vietnam occurring at that time.  He told the tribunal that there was a concentration of Vietnam regulars and Viet Cong in the south of Vietnam at the time.  The soldiers were told to watch out for debris in the water in Vietnam and to watch the barges coming up alongside.  The barges were used for the loading and unloading of the HMAS Sydney.  Mr Rogers said that this increased his apprehension about going to Vietnam.  He said on a scale of 10 his level of apprehension was six out of 10.  He said that he had a fear of the unknown, although he understood that the army recruits were to be general ship staff and were to help with unloading and were to offer protection.  When sailing on the Sydney a Lieutenant Commander briefed them and told them they would be doing menial tasks such as cleaning.  When approaching Vietnam there was a subsequent briefing during which they were told to be very vigilant.

30.     Mr Rogers told the tribunal that he began to feel fearful about two days out before arrival in Vung Tau.  He said that he had sweaty hands and resorted to drinking very heavily.  Mr Rogers was in Singapore at this time, ie two days prior to arrival in Vung Tau.  He said that he had been trained in land-based drills for when he might be attacked.  He was ignorant of the equivalent drills applicable on ships.  He had some discussion of his fears with some others and ascertained that the soldiers tended to be more dubious than the sailors about travelling to Vietnam.

31.     In oral evidence Mr Rogers said that he was inside the hangar after the ship arrived in Vung Tau.  He was very fearful. He unloaded cargo onto barges, having been on the flight deck when the barges pulled alongside.  He worked a four-hour shift.  He was then on watch for four hours.  He had been told to check debris for anything suspicious such as enemy divers or mines hidden in the debris.  There was a large amount of debris coming down the river.  He was very anxious whilst on watch.  After finishing watch he had some alcohol.

32.     Concerning scare charges Mr Rogers said that the sound was a worry.  It was like a great thud.  It was very close.  He was below decks when the charges were exploded.  He said that he had not been briefed about scare charges at this stage.

33.     In oral evidence Mr Rogers referred to having seen Puff the Magic Dragon and associated that with something big happening.  He could not say how far away this "something big" was.  However, the bomber seemed to direct itself at Long Son Island.

34.     On the second day Mr Rogers was on patrol again and saw debris in the water.  He again felt fear because the debris could have harboured enemy divers.  He was then on watch for three hours and he also assisted with unloading.  Soon after that the ship sailed out and Mr Rogers felt very relieved.

35.     These stressful events do not appear to meet the required description of a severe social stressor in SoP 1/2000 (paragraph 27 above).  The relevant examples listed in that definition emphasise some sort of actual threat to a person’s life or physical integrity.  It seems that no such threat is said to have materialised in Mr Rogers’ case according to the material before the tribunal. 

36.     However, as noted above in paragraph 13, recourse can be had to the equivalent definition in SoP 48/94 which was in force on the date of the primary decision.  The definition in clause 4 of that SoP was a definition of “stressful event” and that was “an occurrence which evokes feelings of anxiety or stress”.  So long as the occurrence is put forward as related to a veteran’s operational service it will suffice for the purposes of the SoP.  North J in Repatriation Commission v O’Neil (2001) 34 AAR 290 confirmed that the test within this definition is wholly subjective. The applicant told the tribunal that he did in fact suffer feelings of anxiety and stress as a result of his exposure to these occurrences in Vung Tau during operational service.

37.     The particular factor in SoP 48/96 was factor 1(b), “experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder”.  The material before the tribunal suggests that the clinical onset of any generalised anxiety disorder suffered by the applicant was at the time of his Vietnam service or immediately after. 

38.     There is material, therefore, before the tribunal that suggests that the hypothesis advanced is consistent with SoP 48/96 as amended by SoP 275/95 concerning generalised anxiety disorder.

39.     However, the Federal Court has held that, even if the hypothesis as raised appears consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis.  In the full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271 Emmett and Allsop JJ said at pages 276-277, 282:

“18 It is important to understand the following about East.. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …

…

“21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

“22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …

…

“41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:

‘A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.’”

40.     There are several vulnerabilities in the raised facts.  The only stressful events recorded by Dr Shand as recounted to him by Mr Rogers were the fear of losing his life when barges were alongside the Sydney.  He saw a Vietnamese man who was darker than the others and kept looking at Mr Rogers and the Sydney.  He told Dr Shand he thought the Vietnamese man was “casing” him.  He referred to Puff the Magic Dragon also in his session with Dr Shand.  None of the other matters were recorded.

41.     The respondent relied also on material from the military research report by Mr Tilbrook (ex R5).  The major issue thrown up by ex R5 relates to scare charges.  In R5/9 it is said that these were not employed on this particular voyage by the Sydney.  Also, these were thrown from ship’s boats sailing around the ship, not from the ship itself as suggested by Mr Rogers. 

42.     Exhibit R5/11 refers to the training of the army personnel sailing on the Sydney.  Mr Tilbrook wrote that it could be assumed that army personnel aboard the Sydney were informed about the procedures and drills aboard ship prior to embarking from Australia.  The ship's report of proceedings for November 1972 stated that “Six New Entry Instructor Officers and a platoon of soldiers had joined for familiarization training prior to departure."  It was said that, had the army personnel had any concerns or queries during the voyage after this familiarisation training, then Major Ahern was available to provide any necessary advice or guidance.  In addition, the host navy crew always welcomed any questions from travelling soldiers.  It was also suggested that general announcements were made before the commencement of a period of the dropping of scare charges.  In cross-examination Mr Rogers said that he had been on the Sydney for two weeks before they reached Vietnam.  He said that there was not enough familiarisation training.  He was not made aware of any drills regarding the protocol that applied if the ship were attacked.  He did, however, have some discussion with naval personnel.

43.     Tribunal member, Rear Admiral Horton, identified that the applicant had had the benefit of 3 ½ weeks of training before reaching Vietnam.  It was suggested that Mr Rogers would have absorbed a lot in that time.  Mr Rogers responded that it was all very strange and confusing.  He had a role in handling cargo and in performing sentry duty.  He said that he was fine doing these duties.  However, the difficulty flowed from different navy customs and language.  He saw the preparations for an emergency as the concern.  The tribunal noted also that Mr Rogers had said that he was in the hangar after the ship arrived in Vung Tau.  To the tribunal’s knowledge the hangar is above the water line, is enclosed and is a place where a person would not hear anything above the ambient machinery noise.

44.     The researcher had spoken to Commodore James Merson, the commanding officer of the HMAS Sydney in 1972.  The Commodore recalled the final visit to Vung Tau as being quite relaxed.  He had no recollection of any Allied airborne activity in the vicinity of the Vung Tau Peninsula.  He could recall no helicopter gunships or fixed wing gunships, such as Puff the Magic Dragon, targeting Long Son Island or any episodes of tracer fire being visible from the ship at Vung Tau on 23 or 24 November 1972.  This was confirmed by another retired senior navy officer who was on the ship on 23 November 1972.

45.     In the tribunal’s view there was not a great deal in the research report to cast doubt on the version of events as presented by the veteran.  It is likely that the veteran’s recollections regarding scare charges and the use of American gun ships were inaccurate.  However, in many respects the research report verified the veteran’s expressed recollections.  The tribunal finds that the hypothesis connecting the veteran’s operational service with his generalised anxiety disorder is not fanciful, impossible, incredible, too remote or too tenuous.  The hypothesis was, therefore, reasonable.

46.     Moving on to consider step four of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant’s incapacity did not arise from a war-caused injury.  The tribunal could not make this finding.  There was no evidence sufficient to allow it to do so.  The tribunal therefore finds that Mr Rogers suffers from a war-caused disease of generalised anxiety disorder.

alcohol dependence or abuse

47.     The hypothesis is that there is a link between the war-caused generalised anxiety disorder and Mr Rogers’ alcohol dependence.  The parties before the tribunal both accept that Mr Rogers suffers from alcohol dependence (ex A1, ex R1).  The tribunal agrees that the applicant suffers from this disease.  There is much medical evidence to support this finding in opinions from Dr Subhas (psychiatrist) (T9), Dr Keshava (psychiatrist) (T11), Dr Schmidtman (psychiatrist) (T17/53, T17/66) and Dr Shand (psychiatrist) (ex R4).

48.     The hypothesis before the tribunal was that Mr Rogers suffered from a psychiatric disorder at the time of the clinical onset of alcohol dependence.  This reflects factor 5(a) of SoP 76/98 concerning alcohol dependence or abuse. 

49.     The raised facts as presented by Mr Rogers were (ex A2):

·Before joining the army he drank two middies of beer a week.

·He drank no alcohol during initial training (10 weeks).

·He began to drink excessively when on the Sydney in Singapore and it “hit” him that he was going to Vietnam.  He drank six to eight cans of beer a night on the Sydney, he said.  A can weighed 26 ounces.  He said he got drunk “every night” in Vietnam, however he spent only one night in Vietnam on the Sydney. 

·After leaving Vietnam the ship stopped at Subic Bay in the Philippines for an estimated two or three days.  Mr Rogers claimed to have got drunk every day there.  Mr Rogers then said he drank excessively en route back to Australia. 

50.     At face value the raised facts indicate a clinical onset of alcohol abuse or dependence at about the time Mr Rogers served in Vietnam.  Dr Shand (ex R4/12) arrived at that conclusion.  The onset of this disease appears to have coincided with the onset of generalised anxiety disorder, as Mr Rogers saw it.

51.     There is in this hypothesis the required conformity with factor 5(a) of the SoP.  The alleged connection with war-caused generalised anxiety disorder would suffice to satisfy clause 4 of the SoP requiring that the satisfaction of factor 5(a) be related to Mr Rogers’ operational service.

52.     However, it is necessary to query whether, considering all the material before the tribunal, this hypothesis is fanciful, impossible, incredible, too remote or too tenuous.  Some statements by Mr Rogers suggest that he drank two to three middies of beer a day (T17/59) or two to three middies a week (T7) before leaving for Vietnam.  In oral evidence Mr Rogers said he had little to drink early in the army.  He drank only one day a week on average and consumed a couple of middies as a maximum.  The various accounts, although inconsistent as to detail, are consistent in suggesting a steep rise in consumption from Singapore to Vietnam and thereafter. 

53.     There is some scepticism in the material as to the level of Mr Rogers’ beer consumption on the Sydney.  The research report (ex R5) stated the following:

·Alcohol was not freely available to sailors or soldiers serving on the HMAS Sydney or any other navy ship.

·The sailors and soldiers over 18 years of age serving on navy ships were allowed to purchase one 26 ounce can of beer each day for personal consumption in the sailor's mess when the ship was at sail or at anchor in port, provided they were not on duty or warned to mount duty watch.

·If the ship was on operational service or undertaking sea exercises the consumption of alcohol and sale of beer was not permitted.

·There would not have been beer issued on navy ships the night before arrival in Vung Tau because the ship's company was posted to defence watches.  Nor would there have been a beer issue when the ship was anchored in Vung Tau Harbour.  Beer issues would have resumed as normal after the ship left Vietnam and cleared the 100 nautical mile Special Area (Vietnam).

·In the case of junior sailors or soldiers such as the applicant, the sale of beer was strictly regulated.  The 26 ounce steel cans of beer sold in the sailor's mess were opened at the point of issue so as to avoid the possibility of the stockpiling of supplies of beer by individual sailors for binge drinking.  The practice of trading or purchasing beer entitlements from other persons on board ship was prohibited.  Both parties, if caught, were subject to strong disciplinary action.

·"Given that the beer sales and the general behavior and sobriety of the crew at sea and when berthed was closely monitored by the ship's Master at Arms or duty watch crew, CDRE James Merson ... cannot support the Veteran's claim that he was afforded the opportunity of 'obtaining non-drinkers tickets and was able to consume 6 to 8 cans of beer at a time and got drunk every night on HMAS SYDNEY'".

54.     The applicant sought to rebut this material by stating that 50% of the army contingent on board the ship gave up their beer rations.  He said that he and another soldier operated a network.  On an ordinary day they could get an extra 15 cans.  There were 43 army people on the ship at the time.  He said that they bribed the men who pierced cans by giving those men an extra can.  Mr Rogers said that he was very successful in obtaining extra cans.

55.     The tribunal considered that this material bordered on rendering the hypothesis fanciful, impossible, incredible, too remote or too tenuous.  In other cases the tribunal has heard accounts by seagoing veterans of their access to excess rations of beer.  Thus, it may be necessary to discount to some extent Commodore Merson’s understanding as communicated to the researcher.  However, it stretched credibility that Mr Rogers was able to drink up to eight cans a night with impunity when such beer consumption was discouraged or forbidden. 

56.     The tribunal has engaged in some mathematics.  A can was 26 fluid ounces, or 738 ml in volume. Thus, six cans in an evening amounted to 4,428 ml.  A standard drink of full strength beer is 285 ml.  Thus six cans a night of beer amounted to about 16 standard drinks.  Put another way, a NSW “schooner” is 426 ml.  Six cans of beer amounted to over 10 schooners.  As far as blood alcohol content (“BAC”) is concerned, the 0.05% BAC figure is reached with two standard drinks in the first hour of drinking and maintained with a standard drink each hour thereafter.  If Mr Rogers engaged in drinking for four hours he was consuming 16 standard drinks when he should have consumed only five to remain at 0.05 BAC.  While it is beyond the tribunal’s scientific abilities to attach to that consumption a likely BAC, commonsense suggests that it would be extremely high.  The tribunal considers it unlikely that such a consumption level would have gone unnoticed on the ship.

57.     Commodore Merson’s information also suggests that Mr Rogers did not have access to beer on the night spent in Vung Tau.  However, it appeared that beer rations were available when the ship sailed from Singapore towards Vietnam, a period of operational service.  The same seemed accurate as the ship sailed from Vietnam, even if consumption within Vietnamese waters was forbidden.  The tribunal considers, therefore, that it is likely that the veteran has exaggerated his level of beer consumption on the Sydney.  However, the tribunal considers that the suggestion that Mr Rogers’ beer consumption rose in the conditions described was not clearly fanciful, impossible, incredible, too remote or too tenuous. 

58.     The tribunal recognised a degree of unreliability in the veteran’s account of his beer consumption in the army before embarkation on the Sydney.  These inconsistencies go more to the quantity drunk which, on all accounts, was not great, than to whether his beer consumption rose during operational service.  That such an increase occurred was a consistent theme in each account. 

59.     For somewhat similar reasons the tribunal has not been able to find itself satisfied beyond a reasonable doubt that Mr Rogers’ alcohol dependence was not war-caused.  The tribunal therefore finds that Mr Rogers’ alcohol dependence was a war-caused disease.

depressive disorder

60.     Several medical experts have diagnosed a depressive element in Mr Rogers’ presentation, secondary to post-traumatic stress disorder or anxiety state (T11, T17/53, T17/66).  This claim does not survive long once the Deledio (above) analysis is applied.  Factor 5(b) of SoP 58/98 concerning depressive disorder requires a veteran to have experienced a severe psychosocial stressor defined as for anxiety disorder in SoP 1/2000.  The tribunal has already found that the raised facts do not satisfy the requirements of this definition (see paragraph 35 above). 

61.     Factor 5(c) is not satisfied on the raised facts.  It requires “having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder”.  The depressive disorder seems to have emerged when Mr Rogers entered the ship (see paragraph 22 above).  This predated the generalised anxiety disorder and alcohol dependence. 

62.     No other factor in the SoP was relevant to the hypothesis or raised facts.  In accordance with step 3 of Deledio (above) the tribunal therefore finds that any hypothesis relating any depressive disorder to Mr Rogers’ operational service was not a reasonable hypothesis.

attempted suicide

63.     SoP 71/96 concerning suicide or attempted suicide presented only one factor that might be satisfied by a hypothesis in this case.  That was factor 5(d), “suffering from psychoactive substance abuse and dependence involving alcohol at the time of the … attempted suicide”..  The attempted suicides in this case were said to have occurred on 20 January 1973 (ex A2) and around Christmas 1999.  The applicant was suffering from war-caused psychoactive substance abuse and dependence involving alcohol on both dates.  The hypothesis was therefore apparently reasonable.  However, the tribunal is not at all convinced that these were genuine suicide attempts. 

64. The tribunal sees this as a matter of diagnosis to be decided to reasonable satisfaction in accordance with s 120(4) of the Act. The tribunal, for reasons given below, was not reasonably satisfied as to the genuineness of the relevant actions as suicide attempts when considering the entirety of the material.

65.     Mr Rogers said that his first suicide attempt occurred when he was in a pub and was "copping a lot of flak from civilians about Vietnam".  He said that he was drunk on ouzo at the time, that he “lost it” and smashed a glass down on the table.  Further, he smashed his hand down on the glass, cutting his hand and wrist.  He said that he had had enough and could not cope.  He said that he did not tell anyone at the time that it was a suicide attempt because he was a career soldier and it was an offence to try to commit suicide while in the army.

66.     In oral evidence Mr Rogers enlarged on this and said that his mother had told him that another person had called him a baby killer because of his service in Vietnam.  He also said that friends in the peace movement in Melbourne had confronted him in the part.  He told the tribunal that he was probably not thinking when he slammed the glass down after throwing the alcohol that had been in the glass.  The applicant after this event was taken by ambulance to Box Hill Hospital where he had four operations on his left hand..

67.     As part of the second alleged suicide attempt the applicant was using a saw at the time.  He said he had had enough of everything and was feeling bad.  He said that "shrinks [were] getting into [his] head".  He said he just ran a saw across his wrist.  He went to hospital to have stitched up but did not tell them that was a suicide attempt.

68.     In oral evidence the applicant said that he had been drinking and was depressed when he ran a saw over his wrist.  He said that there was not much injury and the wound was stitched up.  At the time he was making a shadowbox for a householder.  He told the householder that he had had an accident with a saw.  He said it was this incident that prompted him to see Dr Schmidtman. 

69.     The tribunal was not convinced on the balance of probabilities that Mr Rogers performed these acts with the intention of ending his life.  This was essentially because of the nature of the acts.  The tribunal finds that the incident involving the glass was far more likely to have been an act done in anger than an act done to try and end his life.  It was not apparent to the tribunal that it was an intentional attempt to cut the blood vessels in his wrist. 

70.     The incident with the saw had about it the hallmarks of an accident.  This act was even less consistent with an act done in an attempt to sever blood vessels.

71.     The tribunal finds that there was no attempted suicide by the applicant which could constitute a war-caused injury.

CONCLUSION

72.     The above analysis means that the tribunal has found that Mr Rogers suffers for war-caused diseases known as generalised anxiety disorder and alcohol dependence.  It is likely that this will lead to an increase in Mr Rogers’ Disability Pension with effect from the first pension payday on or after 19 May 1999.  The matter will be remitted to the respondent for it to assess the appropriate rate.

DECISION

73.     The tribunal sets aside the decision under review and substitutes its own decision that the applicant suffers from war-caused diseases diagnosed as generalised anxiety disorder and alcohol dependence.  The date of effect of this decision is 19 May 1999.  The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member, Dr M E C Thorpe, Member and Rear Admiral A R Horton, AO, Member

Signed:         .......................................................................................
           D Reed         Associate

Date of hearing  4 December 2002
Date of decision  14 March 2003
Counsel for the applicant          Mr M Vincent
Solicitor for the applicant          Vardanega Roberts Solicitors
Counsel for the respondent      Ms P Hook, DVA Advocacy Service
Solicitor for the respondent      DVA