Ryan and Rapatriation Commission

[2001] AATA 44

DECISION AND REASONS FOR DECISION [2001] AATA 44

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1557

VETERANS' APPEALS  DIVISION       )       
           Re      SYDNEY  EDWARD  RYAN      
  Applicant

And    REPATRIATION  COMMISSION          
  Respondent

DECISION

Tribunal       Senior Member M D Allen

Date29 January 2001

PlaceSydney

Decision      The decision under review is affirmed.            
  ..............................................
  M D ALLEN
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS  -  Claim for post traumatic stress disorder.  Not reasonably satisfied PTSD exists but rather alcoholism with associated depression.  Neither of these conditions caused or contributed by eligible service. 

Veterans' Entitlements Act 1986 - s120 and s120A

Repatriation Commission and Deledio 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Repatriation  Commission v Cooke 160 ALR 17

REASONS FOR DECISION

29 January 2001     Senior Member M D Allen

1. By application lodged 18 October 1999 the Applicant sought review of a determination by the Respondent as amended by the Veterans' Review Board that determined that the condition then diagnosed as "generalised anxiety disorder with alcohol abuse" was not attributable to his service in the Royal Australian Air Force (RAAF).

2. In the Statement of Facts and Contentions lodged on behalf of the Applicant, his solicitors claimed that the Applicant suffered from a chronic post traumatic stress disorder with chronic alcohol abuse and dependence together with depression, and that the said condition being attributable to his service, his incapacity was such that he should be paid the Special Rate Pension pursuant to s24 of the Veterans' Entitlement Act 1986  as amended (the VEA).

3. The Applicant served in the RAAF from 3 June 1958 to 25 August 1978.  He had operational service in the period 5 January 1963 to 20 January 1965 in Malaya and from 12 July 1966 to 31 January 1967 in Ubon, Thailand.  He also rendered defence service as defined in Part IV of the VEA from 7 December 1972 to 25 August 1978.

4. In respect of the Applicant's periods of operational service, any question of entitlement to pension is to be determined pursuant to the provisions of subs120(1) and subs120(3) of the VEA.  Those particular subsections state inter alia that the Respondent, Repatriation Commission, (and hence this Tribunal) shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination, however, the Tribunal shall be so satisfied if, after the consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.

5. The reasonable hypothesis standard is affected by s120A of the VEA which states inter alia that a hypothesis connecting an injury or disease with circumstances of any particular service rendered by an applicant is reasonable only if it conforms with a Statement of Principles, as determined by the Repatriation Medical Authority, that upholds the said hypothesis.

6. So far as relates to any claim in relation to defence service and to the claim for an increase in Disability Pension, subs120(4) applies which states that the Tribunal must determine the matter to its "reasonable satisfaction".  This term was discussed by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 and that court determined that the phrase "reasonable satisfaction" equates to the civil standard of proof, namely that of proof on the balance of probabilities. Subsection 120(6) provides that no party to this review bears any onus of proof.

7. In this matter the applicable Statements of Principles for the conditions claimed by the Applicant as being attributable to his service are:

   Post Traumatic Stress Disorder:        Instrument Nos 15 and 16 of 1994 as amended by Instrument Nos 225 and 226 of 1995

Depressive Disorder:  Instruments Nos 3 and 4 of 1994;  and

Psychoactive Substance Abuse

or Dependence:  Instruments Nos 5 and 6 of 1994.

1. As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532, the Applicant is entitled to have the decision in this matter determined by reference to the Statements of Principles that were current at the time the Respondent made its initial decision in this matter.

2. The relationship between the Statement of Principles regime and the provisions of subs120(1) and subs120(3) of the VEA was explained in the Full Court decision of Repatriation Commission v Deledio 83 FCR 82. There the court said at p97 that the course which the Tribunal is to take is as follows:

   "1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

   2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  …

   3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.

   4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved."

1. In this matter the Applicant's evidence to the Tribunal was that he joined the RAAF at age 21 after having completed his period of compulsory National Service.  After recruit training he was posted to Sydney, as a driver for some 17 months, and was then posted to Darwin. 

2. Although he had drunk alcohol in minute quantities before service and when he was first in the service, he commenced drinking far more heavily in Darwin.  After Darwin, he was then posted for 15 months to Canberra and again there did not drink a lot as he was playing football and had broken hours.  He was then transferred to Malaya.  In Malaya he was, as was everyone else, a social drinker.  He would have a beer at lunchtime and then would drink two or three nights out of a seven day week.  In contrast to earlier evidence given by him, he said that he did have a bottle of Bacardi Rum on the shelf at the Yacht Club but that that bottle would last two to three weeks.  After returning to Australia he was at Operational Command, Penrith for some 15 months and there drank virtually nothing as the bulk of his work was on night shift.  After Penrith he was transferred to Ubon in Thailand.  At Ubon, which in evidence in chief he likened to being confined to barracks, he drank a "fair bit" when off duty.  He did not drink every day but certainly drank every second day.  He would start after lunch and finish about 10pm.

3. In particular he referred to an incident at Ubon, which has been confirmed by a historian engaged by the Respondent, where a US fighter bomber crashed, burst into flames and its crew was killed.  The historian also confirmed another incident where the base was placed upon a "red alert" when an unidentified aircraft was noted as approaching the base.

4. After Ubon the Applicant was again transferred to Canberra and he stated that he was there drinking again quite a "fair bit".  He estimated he would have 8-10 beers after work.  It was at Canberra he got married and his drinking decreased somewhat but it again increased after the break-up of his marriage.  After he left the RAAF in 1978 he had a variety of jobs including working with his brother in the construction of swimming pools.  That business went into liquidation.  His final employment was as a labourer for a firm undertaking lift maintenance.  He stated that he was dismissed from that job because an electrician complained that he was too "dicey" to work with as he couldn't hear properly.  The Applicant does have the condition of sensori-neural deafness accepted as a service-caused condition.  After being dismissed from the elevator maintenance company he attempted to find work at the town where he was residing, namely Nowra, but was unable to find employment.  He is now in receipt of a Service Pension on the grounds of his permanent unemployability.

5. The history given by the Applicant as to his commencing drinking and the effect which the aeroplane crash in Ubon had upon him was challenged in cross-examination.  Much of the challenge to the Applicant's evidence in cross-examination was based on material in a prior decision of this Tribunal on 23 December 1993.  Unfortunately, the file relating to that application has been destroyed and enquiries at the Commonwealth Reporting Service have been unable to locate any recording of the transcript of the hearing.  The Applicant has, in reality, no memory of the prior Administrative Appeals Tribunal (AAT) hearing and in the absence of the actual transcript, care must be taken with the decision of the Tribunal as the particular wording of the reasons for decision may not accurately reflect the evidence in fact given by the Applicant.  I am, however, prepared to put full credence in statements in the reasons for decision which are the words of the Applicant.

6. At paragraph 7 of its reasons for decision the Tribunal notes the Applicant as stating:

   "He said that in Darwin his drinking 'got pretty heavy.  We'd drink till we didn't have enough money to buy any'.  …

The Tribunal then stated that the Applicant gave evidence of drinking five to six middies of beer each evening at the Darwin Airbase for the whole time he was there. 

1. At paragraph 28 the Tribunal notes:

   "Dr. G.A. Robbie, Consultant Psychiatrist, reported on behalf of the Respondent (exhibit 3).  The history of the Applicant's drinking pattern recorded by Dr. Robbie at p.6 of his report is consistent with the evidence given by the Applicant at the hearing.  This reflected little or no variation in his alcohol consumption from one period of service to another."

In evidence before me the Applicant stated that Dr Robbie's report was "all wrong" but, on the other hand he stated that whilst he could not remember what he told the AAT in 1993, he would have told the truth.  If, as the Tribunal says, the Applicant's evidence to it was consistent with Dr Robbie's report, I do not accept the Applicant's now evidence that Dr Robbie's report is "all wrong". 

1. The Tribunal, in 1993, also dealt with the Applicant's drinking in Malaya.  The Tribunal stated at paragraph 37:

   "At the hearing the applicant was asked (transcript p.14) –

   'What was your drinking like in Malaya?  ….  It was the same but I started – started drinking spirits then'.

   He explained that he drank spirits in order to avoid a bloated feeling which he got from drinking beer in the heat, and because he could buy spirits cheaply." 

The Tribunal also added at paragraph 38:

"We find that the applicant already had a sustained pattern of heavy drinking by the time he commenced his operational service in Malaya, and that by then he had what he now admits to be a 'drinking habit' (transcript p.25)."

1. The above quoted passages show that in 1993 the Applicant, in his evidence to the Tribunal, stated that he started drinking spirits in Malaya and admitted to having a "drinking habit" prior to service in Malaya.

2. Before me the Applicant was cross-examined about his drinking in Darwin.  The following occurs in transcript at page 6 for Thursday 2 November 2000:

   Question:"Whether of not you remember it, would you have told the truth to the Tribunal back them?"

   Answer:"I did tell the truth."

   Question:"So I can accept that in Darwin your drinking got pretty heavy?"

   Answer:"If that's why I said, yes."

However, he was then asked:

Question:"You drank five to six middies of beer each evening at the Darwin Air Base?"

Answer:"Well, I've obviously lied there because I did not drink five middies of beer."

Later he was asked about Malaysia as follows (at page 7):

Question:"From there you went to Malaysia and you told the Tribunal that in addition to beer you started drinking spirits.  Is that the truth?"

Answer:"Yes."

1. The Applicant was also taken to a document prepared by him which became Document T49 in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975. That document, which the Applicant conceded was in his handwriting and bore his signature, is dated 10 March 1992 and states at p262:

   "During the years in Malaya I would consume at least 1 bottle of Bicardi (sic) Rum a day, off duty." 

He was asked if he recalled making that statement and stated "no".  Later in the same statement he said:

"During the time in Malaya I saw a number of aircraft crash.  The crew burnt to death, although on duty on fire tanker I could not save them…"

In these proceedings it is conceded that the reference to the crew being burnt to death etc actually took place in Ubon.  I am aware that at the time the Applicant made this statement in 1992, his service in Ubon was not recognised as operational service.  I find that the Applicant, therefore, deliberately transposed events in Ubon to Malaysia so as to bring them within a period of operational service.  The Applicant was also cross-examined about his statement that he drank a bottle of Bacardi Rum a day off duty and denied that it was a truthful statement, however, he could not explain why, if it was untruthful, he put it in his statement in 1992. 

1. My impression of the Applicant, following cross-examination, is that he is quite prepared to tailor his evidence so as to put him in whatever position he perceives as being to his advantage at any particular time. 

2. I therefore place much more weight on contemporaneous records and histories taken by specialists than on the Applicant's evidence to me.

3. There is set out in the decision of the Veterans' Review Board (at pages 9 and 10) a chronological history of diagnoses of the Applicant's conditions.  The table reads:
   27/11/75        reactive depression Dr G Conroy            
   05/09/88        no current psychiatric disorder (but heavy drinker)      Dr J Grady    
   31/10/90        anxiety disorder       Dr A B Pettigrew     
   15/07/91        depression    Dr G R W Davies    
   12/12/91        alcoholism dysthymia        Dr G A Robbie         
   08/04/92        endogenous depression/alcoholism        Dr A Hordern           
   19/04/93        alcoholism     Dr H Burns   
   11/02/95        alcoholism chronic anxiety state   Dr P Jenkings         
   25/02/98        post traumatic stress disorder depression alcohol abuse       Dr Jill Pettigrew       

To those diagnoses can be added the following:
10/4/00          chronic post traumatic stress disorder associated with chronic alcohol abuse and dependence and depression        Dr Anthony Dinnen
14/2/00          alcoholism    Dr Leonard Lee       

1. Exhibit R5 in these proceedings are the clinical notes of Dr Anthony Hordern, Psychiatrist.  In a report to the Applicant's then solicitor dated 8 April 1992, Dr Hordern notes inter alia:

   "The report that follows is based on a scrutiny of the above documents, two interviews that I had with Mr. Ryan, the first on 10.1.92 lasting two and a half hours and the second on 6.2.92 lasting two and a half hours; and an interview with Mr. Ryan's next oldest brother John, born 12.6.35, on 6.2.92 lasting three quarters of an hour."

In that report Dr Hordern notes:

Mr. Ryan impressed me as a truthful, honest informant who gave as full and accurate an account of his depressive illness and his life in the RAAF as he was able within the limitations of his memory…"

At page 8 of his report Dr Hordern notes, after referring to the Applicant being transferred from Darwin to Canberra:

"He told me that he had got involved with football and with parties after this.  His drinking had continued."

And he adds on the same page:

He said that his period in Butterworth had not been too bad, commenting that 100 per cent duty free alcohol had been available there.  He told me that he had got to drinking Bacardi at the Yacht Club.  He recalled that he had used to pass out.  When he had become moody, he had had 'plenty of friendly ears around', he stated."

At page 9 of his report Dr Hordern notes:

"In response to my query Mr Ryan said that his lifestyle at the time had been very different from his pre-service life i.e. whilst stationed at RAAF Penrith he had had more cameradarie (sic) and more mateship but the price of this had been a lot of drinking."

Then added:

"Mr Ryan said that conditions at RAAF Ubon had not been too bad, but as it had been a combat base there had been round-the-clock flying and a great deal of noise polution (sic).  …  He had continued to drink and smoke whilst at RAAF Station Ubon…"

Later, at page 10 of his report Dr Hodern again refers to the Applicant stating that he had been a heavy drinker upon return from Ubon.

1. At pages 23-24 of his report, under the heading "Comment", Dr Hordern notes:

   "Mr. Ryan's career in the RAAF was quite eventful.  He found his early 15 month tour of duty in Darwin in or about 1960 to 1961 stressful in terms of the adverse living conditions there and the pervading boredom.  Mr. Ryan consumed the plentiful cheap alcohol that was available…  Mr. Ryan was then posted to Canberra, where he was exposed to 'heaps' of noise from aircraft engines and where his considerable consumption of alcohol continued."

1. At page 27 of his report Dr Hordern states:

   "Mr. Sydney Ryan's perception that his service in the RAAF had contributed to his illness(es) through his 'detachments away' when he was married is probably partially correct, but it seems likely that his constant exposure to readily available alcohol with peer pressure to drink, together with his bordeom (sic) and homesickness whilst serving in Darwin, laid the seeds of it …"

1. Document T54 is a report by Dr Harding Burns whom I know has an expertise in alcohol related diseases.  In that report he states at page 4, regarding the Applicant:

   "All Mr Ryan's medical disabilities are alcohol related.  I agree with Dr Robbie's opinion that alcoholism has been the issue all along, and this may have also explained his recurring depression and anxiety."

1. Document T4 is a lengthy report by Dr Robbie, Psychiatrist, to the Respondent dated 12 December 1991.  In that report he states at page 6:

   "He was honest about his drinking.  He said he first had a drink at 15.  By 18 he would have been having 3 middies a month.  At 20 it was the same.  At 22 he joined the RAAF and his drinking started then.  He said he spent more time in the Club, and quoted at the age of 22 6 schooners a night, i.e. 9 standard drinks.  At 25 he was in Darwin, and drank 'like a fish' he said, having around 15 schooners a day, or 22 drinks.  At 30 it was the same.  At 40 he would have 15 schooners a day, drinking at lunch time and in the afternoon, and then at home he might have whiskey as well, perhaps having an entire bottle on Saturday night, as a substitute for the 15 schooners a day.  A bottle is 26 standard drinks.  He seems to have been 38 when his marriage failed.  …"

An interesting comment in Dr Robbie's report is at page 8 where he said:

"He explained how before his wife left him he loved being with his children at home and doing all the cooking.  He drank all the time while he was cooking.  He liked playing host, and having people around for barbeques."

The comment regarding barbeques also occurs in the report by Dr Hordern where at page 12 of his report (Exhibit R5) he refers to the Applicant having gone to a barbecue.  These comments are in contrast to the history taken by Dr Dinnen, Psychiatrist, who at page 6 in his report (Exhibit A3), after commenting upon the crash and burning of the US plan at Ubon:

"He left with the 'uncomfortable feeling' that there were 'two guys frying there'.  He told me that since, he has learned to steer away from barbecues because meat cooking reminds him of the incident.  He says that he just eats cold meat'.  …"

This history is of course in total contradiction to the history taken by Dr Robbie.  The incident regarding the US fighter crashing and burning is dealt with by Dr Hordern in that he makes a note of it happening but does not implicate it in any way in any psychiatric condition suffered by the Applicant.  Dr Robbie took no history of this incident at all and I find it difficult to understand why, if the incident affected the Applicant as much as he now claims it did, it was not mentioned to Dr Robbie and not stressed to Dr Hordern.

1. What is clear is that the Applicant suffered from depression in 1976 after the failure of his marriage.  The service medical documents there contain a diagnosis of depression and note that he was granted 10 months long service leave in order to assist recovery.

2. Having regard to the various reports in this matter I am satisfied, on the balance of probabilities, that the Applicant does not suffer from a post traumatic stress order but does suffer from depression and alcoholism.

3. His depressive state clearly, on the material before me, is connected with his alcoholism and also with the break up of his marriage in 1976.

4. It is clear from the earlier reports in this matter, particularly the report of Dr Robbie and the evidence the Applicant gave to the Administrative Appeals Tribunal in 1993, that the foundation of his alcoholism was in a non eligible period of service, namely that of the time he was in Darwin. 

5. The Applicant increased his drinking in Thailand but, on the evidence before me, he already had an established drinking pattern.  So far as service in Ubon is concerned, the Applicant conceded that to say that the conditions were such as being confined to barracks is an exaggeration and again it seems that his drinking simply occurred because he had an established drinking habit and there was nothing else better to do. 

6. In Repatriation  Commission v Cooke 160 ALR 17 it was pointed out the issue of whether a disease or injury existed was to be decided to the reasonable satisfaction of the Commission and hence the Tribunal. In this matter I am not reasonably satisfied that the Applicant does suffer a post traumatic stress disorder and find that the preponderance of the medical evidence points to his suffering alcoholism and associated depression. Neither of these conditions are attributable to service for the reasons outlined above. As the Applicant does have conditions of alcoholism and depression together with a condition of dyshidrotic eczema which contribute to his being unable to obtain employment, the claim for any increase in pension above 100% of the General Rate cannot succeed. The decision under review is therefore affirmed.

   I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of:

   Senior Member M D Allen

   Signed:         .....................................................................................
     Associate

   Dates of Hearing  2 November 2000 and 10 January 2001
   Date of Decision  29 January 2001
   Counsel for the Applicant             Mr N Dawson
   Solicitor for the Applicant             R L Whyburn & Associates
   Advocate for the Respondent      Mrs M Doggett,
     Department of Veterans' Affairs