Sly and Repatriation Commission - [2002] AATA 1326

DECISION AND REASONS FOR DECISION [2002] AATA 1326

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/103

VETERANS' APPEALS DIVISION          )
           Re      JOHN SLY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date23 December 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution therefor determines: (a)        that the applicant suffers from war-caused PTSD; (b)           that the applicant suffers from war-caused alcohol dependence; and (c) that the matter be remitted to the respondent for assessment of the rate of pension payable to the applicant on and from 9 March 1997, in accordance with these reasons for decision.
  ...................(Sgd)......................
  Mr I R Way
  Member
CATCHWORDS
VETERANS' AFFAIRS – pension – whether applicant's PTSD and alcohol dependence are war-caused conditions – whether reasonable hypothesis established
Veterans' Entitlements Act 1986
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Keeley [2000] FCA 532
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvany and Repatriation Commission [2000] AATA 535
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

23 December 2002 Mr I R Way, Member

On 25 July 1997 the Repatriation Commission refused John Sly's claim for Post Traumatic Stress Disorder (PTSD) because the diagnosis of this condition could not be confirmed. The Commission also refused his claim for psycho active substance abuse.
On 16 December 1998 the Veterans' Review Board (the VRB) determined that the applicant suffered from PTSD but otherwise affirmed the Commission's decision to refuse Mr Sly's claim for PTSD and psycho active substance abuse.
This is an application by John Sly (the applicant) for review of the Repatriation Commission's decision of 25 July 1997, as varied by the VRB on 16 December 1998.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and the following documentary evidence:
·     A1  Report of Dr Freed dated 31 August 1998;
·     A2  Report of Dr Freed dated 17 August 1998;
·     A3  Report of Dr Freed dated 29 October 1997;
·     A4  Report of Dr Freed dated 15 October 1999;
·     A5  Report of Dr Freed dated 18 January 2000;
·     A6  Report of Dr Freed dated 4 October 2001;
·     R1  Report of Dr Kingswell dated 3 December 1999;
·     R2  Report of Dr Kingswell dated 8 January 2000;
·     R3  Report of Dr Kingswell dated 28 January 2000;
·     R4  Department of Defence letter dated 15 July 1999; and
·     R5  Report of Assoc Prof J McCarthy dated 6 February 2001.
The applicant was represented by Mr R J Clutterbuck and the respondent was represented by Mr B Williams. The applicant gave oral evidence. Dr Freed, Psychiatrist, gave evidence by telephone and Dr Kingswell, Consultant Psychiatrist, gave oral evidence.
The applicant was born on 12 May 1943 and joined the Royal Australian Navy on 1 July 1960 at age 17 years. The applicant was discharged from the Navy at his own request, on 30 June 1972. The applicant rendered eligible war service (which is also operational service) with the Navy on a number of occasions as follows:
·     25 January 1962 – 29 January 1962;
·     29 January 1962 – 24 February 1962;
·     2 March 1962 to 27 March 1962;
·     8 February 1963 to 1 March 1963;
·     10 March 1963 to 29 March 1963; and
·     15 April 1963 to 8 May 1963.

Additionally, he had service with the RAN in the waters contiguous to the former Republic of South Vietnam, in the periods:

25 April 1966 to 6 Mary 1966;
30 May 1966 to 9 June 1966; and
22 December 1967 to 1 January 1968.

The applicant's accepted disabilities are malignant melanoma of the skin and bilaterial sensorineural hearing loss. And his non service-related disabilities are osteoarthritis left hip, osteoarthrosis of both knees, post traumatic stress disorder, psycho active substance abuse, refractive error, and sacroilitis.
The issues to be determined in this application are:
(a)whether the applicant's claimed psychiatric condition of PTSD, accepted by the VRB, exists and if so whether it is war-caused; and
(b)whether the applicant's claimed psychiatric condition of alcohol abuse or alcohol dependence exists and if so whether it is war-caused.

Legislative Framework

This matter is to be determined pursuant to the provisions of the Veterans' Entitlements Act 1986 (the Act).
Whether the applicant suffers PTSD and/or psycho active substance abuse requires the Tribunal to determine whether it is reasonably satisfied that the diagnoses of these conditions in the applicant are established (see Repatriation Commission v Cooke (1998) 160 ALR 17).
If the applicant suffers from either or both PTSD and psycho active substance abuse the disease is war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
The relevant provisions of the Act are as follows:
"Injury/disease definitions
5D(1) In this Act, unless the contrary intention appears:
blinded in an eye has the meaning given by subsection (3).
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)     the normal physiological state; or
(ii)     the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
War-caused injuries or diseases
9(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;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
Standard of proof
120(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.
…
(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.
…
Commission not bound by technicalities
119(1) In considering, hearing or determining, and in making a decision in relation to:
(a)   a claim or application; …
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)     the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)     the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A(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.
(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.
(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.
…
Establishment of Authority
196A(1) A Repatriation Medical Authority is established. …
Functions of Authority
196B(1) This section sets out the functions of the Repatriation Medical Authority.
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service."
The RMA has, pursuant to section 196B(2), determined a Statement of Principles (SoP) in respect of psycho active substance abuse or dependence (Instrument No 76 of 1998). It is common ground between the parties and the Tribunal accepts that this SoP is relevant in the consideration of this matter.
The RMA has, pursuant to section 196B(2) of the Act, determined an SoP in respect of PTSD, namely Instrument No 3 of 1999 (as amended by No 54 of 1999). This Instrument revokes and replaces Instrument No 15 of 1994 and Instrument No 225 of 1995. In Repatriation Commission v Keeley [2000] FCA 532 a Full Court of the Federal Court held that a claimant for a pension under the Act had an accrued right to have his entitlement determined by the SoP in force at the time of the claim, not withstanding that that SoP had been revoked by another SoP which was in force at the time of the decision. The parties agreed and the Tribunal accepts that the question of whether the applicant suffers war-caused PTSD should be considered at first instance, within the provisions of Instrument No 3 of 1999 and if the applicant's claim fails under these provisions, then the provisions of the earlier relevant SoP are to be considered. (In this case Instrument No 15 of 1994).
With respect to alcohol dependence or alcohol abuse Instrument No 76 of 1998 relevantly provides as follows:
"2. (b) For the purposes of this Statement of Principles:
'alcohol dependence' means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1)   tolerance, as defined by either of the following:
(a)a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b)markedly diminished effect with continued use of the same amount of alcohol
(2)   withdrawal, as manifested by either of the following:
(a)the characteristic withdrawal syndrome for alcohol
(b)the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3)   alcohol is often taken in larger amounts or over a longer period than was intended
(4)   there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5)   a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6)   important social, occupational or recreational activities are given up or reduced because of alcohol use
(7)   alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
'alcohol abuse' means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows:
A.    A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-month period:
(1)recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2)recurrent alcohol use in situations in which it is physically hazardous
(3)recurrent alcohol -related legal problems (4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303 or 305.0.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
(a)   suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or
(b)   experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
…
Other definitions
8. For the purposes of this Statement of Principles: …
'DSM-IV' means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
'experiencing a severe stressor' means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror.
In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include:
(i)    threat of serious injury or death; or
(ii)   engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence; …"

With respect to PTSD Instrument 3 of 1999 as amended by Instrument 54 of 1999 relevantly provides as follows:
"Kind of injury, disease or death
2.(a)   This Statement of Principles is about post traumatic stress disorder and death from post traumatic stress disorder.
(b)For the purposes of this Statement of Principles, "post traumatic stress disorder" means a psychiatric condition meeting the following description (derived from DSM-IV):
(A) the person has been exposed to a traumatic event in which:
(i)    the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)   the person's response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)    recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)   recurrent distressing dreams of the event;
(iii)   acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event;
(v)   physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)    efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)   efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)   inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v)   feeling of detachment or estrangement from others;
(vi) restricted range of affect (eg, unable to have loving feelings);
(vii) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)    difficulty falling or staying asleep;
(ii)   irritability or outbursts of anger;
(iii)   difficulty concentrating;
(iv) hypervigilance;
(v)   exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning, attracting ICD-9-CM code 309.81.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.    Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person's relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; …"

The Tribunal notes that the description of the psychiatric condition of PTSD (derived from DSM-IV) in Instrument 3 of 1999 is identical to that in Instrument 15 of 1994. The Tribunal also notes that, within the context of this application, both SoPs require that the applicant experience a stressor prior to the clinical onset of PTSD with the latter SoP requiring that the stressor be a severe stressor and that in the earlier SoP "experiencing a stressor" is defined in the following terms:
"Experiencing a stressor means the following (derived from DSM IV)
(a)the person experienced, witnessed, or was confronted with an event that involved actual threat of death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the persons' response to that event involved intense fear, helplessness or horror."

Section 120(6) of the Act provides that no onus of proof lies upon either party to this review.
Applicant's Evidence

After joining the Navy on 1 July 1960 and undergoing recruit training the applicant served as an ordinary seaman on HMAS Warrego for one year before joining HMAS Vampire in which ship he served from 9 September 1961 to 23 November 1963, gaining promotion to Leading Seaman (fire controller, gunnery).
It was during this period of service while the ship was along side in Saigon (at which time the applicant was on operational service) that the applicant said that he was subjected to a sexual assault.
It was the applicant's evidence that he and three crew mates were ashore in Saigon on 27 January 1962, drinking in a local walk-in bar. He said there were a number of other servicemen present including US Marines and Air Force members. He said that, after he and his mates had been at the bar for about ten minutes, he went to get a round of drinks and was approached by a very large, six foot tall, US Marine Sergeant who was rubbing his own penis. The applicant said he told the Marine "to flick off", at which the Marine laughed and moved off. Mr Sly told the Tribunal that he made some comment about this to his mates and that shortly thereafter, the US Marine Sergeant approached him again, whereupon the applicant "really told him to flick off" and called him a "big American c---"
Not long after this the applicant went to the toilet. He said he was wearing a white Navy uniform and had unbuttoned his trouser flap at the urinal when the American Marine who had accosted him earlier suddenly appeared and grabbed him from behind pinning his arms and saying "now I'm going to fuck you boy". He said that although there was no penetration of his body he could feel the American's huge erect penis on him as "just a warm pressure" and he described his feelings and thoughts at this time as ones of horror, and being in an emergency situation where he thought the Marine was going to kill him or rape him and kill him.
He said he panicked and reverse head butted the Marine, grabbed his "crown jewels", hit him on the nose and kicked him in the crutch. The applicant told the Tribunal the American went down on the floor in some pain and the applicant, after rearranging his clothing, went back to the bar "grabbed his hat" told his mates "see you later" and returned to his ship. He said that at the time he was also concerned that the Marine's mates might "beat the crap out of me"; or his mates might do likewise to the Marines. The Tribunal notes that on entry to the Navy the applicant's height is recorded at 5'6", weight at 10st 6lbs and the applicant being of muscular development. The Tribunal also notes that the applicant at the time of the incident in Saigon had a nick name "pretty boy" and that this later on became "Mr Immaculate".
On return to his ship the applicant said he took off his uniform and threw it over the side, had a shower, got into blues and just sat on one of the ship's decks. He told the Tribunal that he had another shower later on because he could not sleep.
The Tribunal notes that the VRB records the applicant as having said:
"The veteran said that during a brief period of shore leave one evening he and his colleagues were having a few beers at a bar in Saigon when he needed to go to the toilet. He said that whilst at the urinal, he was approached by a very large white male American Marine whom he identified as a sergeant who made sexual advances to him. He told the Board the Marine had removed his own trousers and told the veteran something to indicate he was going to commit a homosexual act upon him. The veteran said that upon realising the gravity of the situation he 'reverse head butted' the Marine, grabbed him on the testicles and kicked him to the floor of the toilet He said he noted that the Marine was obviously in pain with one hand clasping his head and the other one clasping his groin area. The veteran said he quickly rearranged his own clothing and beat a hasty retreat back to HMAS Vampire.
In answer to a question he said he was extremely angry about the whole situation and did not want to discuss it with anybody, least of all his mates with whom he had been drinking that evening. He said he went straight back to HMAS Vampire to his billet and had a shower. …
… [T]he veteran described in detail his actions which followed as a consequence of the interference with him by the American Marine. In particular he told the Board that once he felt he was certain of the American's intentions, he was able to 'be in control' having head butted the Marine, grabbed him by the testicles then kicked him in the groin inflicting pain to at least his groin and his head. After seeing the American lying the floor of the toilet and noting that he appeared to be incapable of any further interference, the veteran rearranged his own clothing and left the toilet, but instead of going back to his colleagues at the bar, he went back to HMAS Vampire."
It was the applicant's evidence that he did not officially report the incident because he thought he would be thrown out of the Navy (which was his life). He explained further that he was concerned that the Navy would think he was a homosexual and that he had led the other fellow on. The applicant told the Tribunal that the incident was something he would never forget and something that affected his life thereafter. He said that after the incident he was scared to be with male persons and could never get too close to anyone; liked to be segregated; had to sleep on a top bunk, this giving some form of protection through early warning of others trying to get up to his bunk; always used a cubicle in the toilets; and had to shower between watches to avoid communal showering. Later when he was Boson on HMAS Melbourne in 1965 he said he was able to convert a small rope locker into a place where he could sleep alone.
The applicant recalled another incident where, on 12 December 1997 when he was on HMAS Yarra, he was involved in an exercise firing of a Sea Cat missile. He said he had to sit on a fold away seat and control the firing. He said the missile was locked on to a towed target when he hit his rump on a seat protrusion, which brought memories of the sexual assault such that he "shit myself" and inadvertently fired the missile. He said the missile did not hit the target and there was no report of the incident as the firing was probably seen as a miss. However, he said that as a result of this incident he was finished in gunnery.
With respect to his use of alcohol, the applicant told the Tribunal that he was not a drinker before joining the Navy, however on joining the Navy he had to be one of the boys and would drink two or three pots of beer daily. After the incident in Saigon he said his drinking increased ten fold and he would just drink and drink to the point that his previous consumption of two cans per day went to twenty or thirty per day over a period of about six months. He said that his drinking did not affect his duties or work and that he only got into trouble on HMAS Melbourne when he missed duty resulting in thirty days stoppage of leave. In answer to questions from the Tribunal the applicant subsequently recalled being disciplined for drinking, resulting in stoppages of leave, when he was on HMAS Yarra in 1967 (four occasions) and HMAS Attack in Darwin in 1969 (one occasion).
The Tribunal notes that it was the applicant's evidence that he liked the Navy and that he rose to the rank of Petty Officer at age 24 and was at this time in line to become a Chief Petty Officer but he was considered to be too young. He said he had aspirations to become a Commissioned Officer in the Navy. The Tribunal also notes that in 1969 when he was stationed in Sydney awaiting refit of his patrol boat and posting to Darwin, the applicant said he was trying to have a good time and along with two or three mates he felt he could trust, would just get drunk every night in Nelsons Bar in the Rocks area. It was at this time the applicant said he was having trouble with his marriage, his wife being in Melbourne and he in Sydney and she thought he was spending too much time drinking with the boys instead of going home.
The Tribunal notes that it is recorded that in September 1969 the applicant sought to see a psychiatrist because his wife thought he was "a bit touched" and he was concerned that he was "a bit mad" (T4/45). He was seen by John McGeorge, Consultant Psychiatrist, who on 6 September 1967 reported:
"In last 12 months he has felt different towards his family and not as responsible as he should be. Many disagreements about petty things. Finds he cannot talk to his wife. His wife will not go to Darwin until he 'sorts himself out'. He will not be going there until next month.
I would like the Naval Social Worker to interview the wife and find out just what her grievance is. When her report is available I would like to see him again."
There is no record of any further consultation with a Navy Psychiatrist.
The applicant said he left the Navy in 1972 because his wife wanted him to as she thought he was drinking too much, but the applicant said he divorced his wife in 1974. He told the Tribunal that he considered his marital problems were related to the sexual assault in January 1962. He said he had lost interest in sexual relations with his wife and at that time had a fear that he might be a homosexual. He said that that fear has now ceased and he is not homosexual. He never told his first wife about the incident in Saigon.
It was the applicant's evidence that he had lived with the memories of the incident in Saigon, but over the years the stress of doing so built up and he knew he was drinking too much. It was after talking to another veteran and on that veteran's advice he first saw Dr Freed, a Consultant Psychiatrist, in 1997. He said that he found Dr Freed to be very fair and that he had been able, for the first time, to discuss with someone else what happened to him in Saigon in 1962 and the fact that he always had with him a memory of the smell of the Marine's bourbon and tobacco breath and his voice.
He said he remarried and now has two twin boys in their early twenties and a teenage daughter. He told the Tribunal that he had at last been able to discuss his problems with his family and all of them were very supportive. He said he was concerned he could not stop drinking and had been admitted voluntarily, on 1 April 2002, to the psychiatric ward at St Andrew's Private Hospital Ipswich, under the care of Dr Freed. He said he had been discharged from hospital in October 2002, but after three weeks had again been admitted on his request to the same hospital. He told the Tribunal that he had not touched alcohol while in hospital but did so in the three weeks between hospital admissions. He said he was on medication to try to reduce his alcohol consumption and to control his stress. He said he had once had suicidal thoughts while he was on HMAS Melbourne but he really did not think he could now go through with such an action.
In cross-examination Mr Williams took the applicant to two other incidents that the applicant had reported to Dr Freed.
The first incident concerned the applicant seeing one of his crew mates "Laurie" (who was a stoker) lying in the road after he had obviously been assaulted, his head "smashed like a boiled egg". The applicant said that this occurred, in May 1963 while HMAS Vampire was in Hong Kong, early one morning, at 2.00am, after he and some mates including "Laurie" had been drinking in a bar with some "pommy" sailors. He said he probably was too drunk to take in all of the situation. He recalled that when he saw "Laurie" the Chinese police were in attendance and told him to move on, which he did returning to the bar and having a few more drinks.
The second incident related by the applicant was when he was on HMAS Vampire during the annual Commonwealth Maritime Ex JET. It was his evidence that during this exercise HMAS Vampire was despatched to search for a missing aircraft following a Mayday call. He said that after two days searching the ship found a raft in which there were three survivors and two bodies. He said the bodies were lifted on board and when one of the bodies was put on deck the blanket covering the body slipped and he saw the face of a young ginger haired fellow with blue eyes. He said he got a bit of a start and still has very faint recollections of this event when he sees anyone with ginger hair. He said the three survivors were treated by the ship's doctor and eventually transferred to HMS Centaur for treatment. The Tribunal notes that the alleged incident of HMAS Vampire finding the casualties from an aeroplane crash during exercise JET in March 1962 has been thoroughly researched by Associate Professor McCarthy and the Department of Defence (Exhibits R4 and R5) and there are no official records of any such event. The Tribunal also notes that a similar incident occurred, involving HMAS Yarra in October 1967 (at which time the applicant was serving with HMAS Yarra) and that this incident is fully reported. The Tribunal put to the applicant that he may be confused about the incident on HMAS Yarra, thinking this was when he was serving on HMAS Vampire. The applicant said he had a clear recollection of the incident happening while he was serving on HMAS Vampire and could only think the lack of any official record was because the aeroplane in question was not on an official trip and the crash was being concealed.
With respect to employment after discharge from the Navy in June 1972, the applicant said he had worked as a coxswain on a pilot boat in Western Port Bay for three months; had undertaken cray fishing with two other fellows in Tasmania; had engaged in dairy and piggery farming with his wife in Victoria for nine months; and in share dairy farming until 1973; with a golf/bowls club and various other jobs for two years; and as a prison officer with Queensland Prison Service. He ceased work in 1997 (when he became eligible for a Disability Pension) his last employment being with Community Corrections and teaching at a TAFE College.
The applicant also told the Tribunal that he had been undertaking work as a Veterans' Advocate for three and a half years until recently, involving welfare work, advising about disability claims and helping to complete applications and forms for veterans' entitlements.
Medical Evidence
Dr J McIntyre, Psychiatrist, saw the application on 31 October 1995 and provided a written report of the same date to the Department of Veterans' Affairs. (T4/15-15A).
In his report Dr McIntyre stated:
"Mr Sly has no feature of current depressive illness but is appropriately anxious as he is aware of the possible diagnostic implication on his melanoma. …
In his past history are admission for alcohol detoxification in 1985, herpes zoster and multiple injuries in a road accident 20 years ago including a fractured right femor, fractured pelvis and 9 fractured ribs. He has no previous psychiatric contact and currently takes only naprosan for arthritic pains in his hip and knee… Mr Sly told me he drinks up to 10 pots of beer daily having had a much higher alcohol consumption over the years. He has occasional nocturnal muscle cramps, a morning tremor, and increased alcohol tolerance and one drink driving conviction. Other social damage has included the loss of some jobs related to his drinking…. On this occasion there were no feature of post traumatic stress disorder nor could he recall any appropriate traumatic life events during his life or otherwise. He is alcohol dependent and appropriately anxious about the outcomes of his surgery for melanoma earlier this year. I could detect no other psychiatric disability."

The Tribunal notes that the applicant told the Tribunal that he had no rapport with Dr McIntyre when he saw him on 31 October 1995, and did not get as far as telling him about the sexual assault in Saigon. The applicant said he was unhappy with the way the interview was being conducted, got up, walked out and rang John Hughes of DVA who told him to pick another doctor of his own choice. Eventually he saw Dr Freed.
Dr McIntyre makes no mention of the applicant walking out of the consultation.
Dr W Kingswell, Consultant Psychiatrist, saw the applicant on 17 November and provided a written report dated 3 December 1999 (Exhibit R1). In his written report Dr Kingswell concluded:
"Mr Sly is a 56 year old, twice married man with an almost 40 year history of alcohol abuse and more recently alcohol dependence. During his time in the Navy Mr Sly was clearly abusing alcohol, however, his dependence did not emerge until after 1972. Mr Sly's alcoholism has occurred on a background of prominent dependent personality traits possible frank personality disorder. His dependency is evidenced by his inability to live independently relying for support either on his family of origin, the Navy or his two wives. It is also illustrated by his acceptance of others making decision for him, such as his wife's decision that he should leave the Navy. It is further evidenced by his habitual reliance on alcohol abuse to cope with life's stressors.
Mr Sly does not in my view suffer from other mental disorder. I do not believe that he suffers from post traumatic stress disorder for a number of reasons. Mr Sly has not described an event that would satisfy the A Criterion of the DSM-IV: 309.81- post traumatic stress disorder category. He has not as noted by the Veterans' Review Board satisfied the necessary subjective elements of the A Criterion. His response to a homosexual attack was to disable the assailant. The other incidents described by Mr Sly involve him viewing dead bodies. I do not believe that this fits within the intention of the A criterion. There is no evidence that Mr Sly was confronted with an event that involved actual threatened death or serious injury to himself or others. Further, Mr Sly does not describe any form of avoidance or sense of shortened future. He does not experience heightened arousal.
Mr Sly clearly meets the criteria for alcohol dependence (DSV-IV: 303.90). Although his investigations have been returned normal, this is some days into a period of detoxification and his CDT result is not yet to hand. The history is highly supportive of the diagnosis. The chornology of the disorder given to me by Mr Sly suggests that he had evidence of substance abuse during his period in the military. He was on one occasion disciplined for intoxication. He did not by his account fail socially or occupationally as a result of his drinking which suggests to me that he was not at that time dependent. Mr Sly's alcohol use began immediately on his entry into the Navy. There was no evidence that he experienced severe stress within the two years immediately before the clinical onset of alcohol abuse. It is possible that his abuse was worsened at times of stress as it has been throughout his adult life. Mr Sly's alcohol dependence has in my view emerged as a consequence of his failed first marriage and mounting disappointment following the premature termination of what Mr Sly had hoped would be a promising Naval career.
Mr Sly's recent progress in detoxification and his optimistic view of his chances of achieving stable sobriety are hopeful indicators that this will occur.
Mr Sly need continued psychiatric supervision to assist him achieve stable abstinence. Mr Sly has been able to work as recently as two and a half years ago and has indicated he would do so again if a suitable position were available. Referral to organisations such as Commonwealth Rehabilitation would in my view be appropriate."

The Tribunal notes the documents available to Dr Kingswell included the VRB reasons for its decision and one page of Dr Freed's report dated 29 October 1997. Dr Kingswell has not recorded any history taken from the applicant with respect to the Saigon incident apart from "Mr Sly detailed the traumatic events as noted in the text". The Tribunal also notes that Dr Kingswell records the applicant saying that he experiences nightmares every night about the sexual assault; keeps seeing the bodies retrieved from the crashed aeroplane all the time; and experiences suicidal ideas on a daily basis.
In a further report dated 8 January 2000 (Exhibit R2) Dr Kingswell (after reading all of Dr Freed's report dated 29 October 1997), affirmed his opinion that the applicant has not described a stressor within the meaning of the SoP with respect to PTSD.
He said that he agreed with Dr Freed that the probability that the applicant is prone to alcohol abuse and alcohol dependence is high. And finally he said (at Exhibit R2):
"I have in my earlier report referred to Mr Sly having dependent personality traits if not frank personality disorder. I have used the terms as they are intended in any standard textbook ie an enduring pattern of inner experience and behaviour, evident by late adolescence and persisting into adult life, that causes significant disturbance in social and or occupational functioning. I have not confused transient alterations in functioning arising from illness with personality disorder."

In his oral evidence Dr Kingswell reinforced his view that while the applicant has a personality disorder and alcohol problems the applicant does not meet the criteria for PTSD in that if one accepted the applicant's account of events, the subjective criteria simply are not met and further more while the applicant complains of nightmares there are no symptoms of arousal or avoidance.
In answer to questions in cross-examination Dr Kingswell said that he considered the applicant was abusing alcohol after 1962 and had become alcohol dependent in 1972. Further with respect to experiencing a stressor Dr Kingswell agreed that the sexual advance made by the US Marine, as alleged by the applicant, could have involved a danger and that how a person might react to that situation would differ for each individual.
Dr Alan Freed Psychiatrist is the applicant's treating specialist and he has provided five written reports (Exhibits A1, A2, A3, A4 and A5).
In his written reports Dr Freed diagnoses the applicant as suffering from PTSD due principally (80%) to the homosexual assault in Vietnam on 27 January 1962 and the aeroplane incident in March 1962 (20%). Dr Freed also diagnoses the applicant as suffering from alcohol abuse since the incident in Vietnam and being now alcohol dependent.
Dr Freed first saw the applicant in October 1997 and in his report dated 29 October 1997 (Exhibit A3) he records a history of homosexual assault as follows:
"I was ashore with fellow sailors and American marines in Saigon. … I went to the toilet where this big American embraced him. His penis (the Americans) was erect, ie pinned him from behind and said he would have him. Mr Sly headbutted him (in reverse), squeezed his testicles, broke his grip, and kicked him in the groin. Mr Sly ran off.
If he hears an American in real life, it upsets him. He avoids American movies and anything American.
At interview he gets upset as he recalls the horrors, averts his gaze and gets tearful, but recovers quickly and gets on with his story."

With respect to the Post Traumatic Stress Disorder criteria (as outlined in paragraph 16 above) Dr Freed opined that the applicant satisfies these with respect to the homosexual rape attempt as set out below. (Dr Freed has considered the applicant's circumstances in relation to DSM-IV criteria (which are the same as contained in the relevant SoP) and has underlined the criteria that he believes are true for the applicant and makes comments in italics).
"DIAGNOSTIC CRITERIA FOR 309.81 POSTTRAUMATIC STRESS DISORDER
Due to homosexual rape attempt
A.The person has been exposed to a traumatic event in which both of the following were present:
(1)the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (His penis was huge. He thought he'd been bashed up.]
(2)the person's response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganised or agitated behaviour.
B.the traumatic event is persistently re-experienced in one (or more) of the following ways:
(1)recurrnet and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2)recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
(3)acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specified re-enactment may occur.
(4)Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.
(5)Physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event. (B4B5 can proceed to panic.
C.Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1)efforts to avoid thoughts, feelings, or conversations associated with the trauma
(2)efforts to avoid activities, places, or people that arouse recollections of the trauma [avoids toilets, lifts.]
(3)inability to recall an important aspect of the trauma
(4)markedly diminished interest or participation in significant activities [Anything to do with men.] [He does not allow himself to act on his interests if they bring him anxious contact with men]
(5)feeling of detachment or estrangement from others ["I feel at times I am not part of this world."]
(6)restricted range of affect (eg unable to have loving feelings) [No problems even with sex.]
(7)sense of a foreshortened future (eg does not expect to have a career, marriage, children, or a normal life span)
D.Persistent symptoms of increased arousal (not present before the trauma) as indicated by two (or more) of the following:
(1)difficulty falling or staying asleep
(2)irritability or outbursts of anger
(3)difficulty concentrating
(4)hypervigilance
(5)exaggerated startle response
E.Duration of the disturbance (symptoms in Criteria B,C, and D) is more than one month.
FThe disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
Specify if:
Acute:if duration of symptoms is less than 3 months
Chronic:if duration of symptoms is 3 months or more"

Dr Freed then concludes that the applicant satisfies criteria A, B, C and D of the criteria as set out in the relevant SoP.

With respect to alcohol abuse Dr Freed reports that the applicant "began to drink abusively when he became intolerably anxious and after the assault and found his Post Traumatic Stress Disorder based conflicts increasing with time and were beyond his control".
In his report dated 18 January 2000 (Exhibit A5) Dr Freed notes that the applicant's admission to hospital in 1999 was for withdrawal from alcohol and that the applicant's PTSD syndrome is continuously a focus of treatment.
Dr Freed in his oral evidence referred to the applicant disclosing to him for the first time in 1997 information about a sexual assault in Saigon in 1962. He said that this avoidance of discussion of the incident with others was quite common in cases of severe trauma and in this case the applicant was fearful of being seen as less masculine and ashamed on what others might make of his sexuality to the point where he would be totally rejected as a homosexual.
With respect to the missile firing incident Dr Freed expressed the view that the applicant could have been suffering somatoform symptoms in that he had a pseudo hallucination about a penis pressing into him, a form of hysteria where the body language says what the mouth does not.
With respect to the aircraft crash incident, Dr Freed said the applicant was obsessed with proving the incident and that he was certain he had seen bodies. Dr Freed expressed the view that the applicant was focussing on this to overshadow and focus away from his sexual assault. In the same vein, Dr Freed said the applicant had until recently taken on an enormous number of advocacy cases to focus away from his own situation.
Dr Freed when taken to Dr Kingswell's reports (Exhibits R1 and R2) noted that Dr Kingswell is not the applicant's treating specialist (as he is) and he disagreed with Dr Kingswell's conclusions that the applicant does not meet the criteria for PTSD particularly in regard to the applicant not being exposed to a traumatic event as described in the relevant SoP; in regard to the applicant not having flashbacks of the incident; and in regard to the applicant not avoiding stimuli associated with trauma. In answer to questions in cross-examination Dr Freed said that his notes added nothing more to what was in his reports about the stressful incident suffered by the applicant and that he knew nothing about the applicant being comfortable going out "drinking with the boys", while he was in Sydney prior to his posting in Darwin. Dr Freed said that he had noted that the applicant was drinking a great deal at this time and this affected his first marriage. Furthermore Dr Freed said he had not taken a detailed history of the applicant's jobs post his discharge from the Navy but he (Dr Freed) noted that the applicant mixed socially only with family and not mates and the applicant avoided contact with other men.
Submissions
Mr Clutterbuck, for the applicant, submitted that as a result of the sexual assault incident the applicant clearly meets the relevant criteria for war-caused PTSD and in this respect the Tribunal should be persuaded to this point of view based on the evidence of the applicant's treating psychiatrist, Dr Freed. It was submitted that the medical evidence of Dr Freed showed that the rape incident accounted for 80% of the applicant's PTSD and that the "Laurie" incident and the aeroplane crash incident were not inconsistent with PTSD and accounted for 20% of the applicant's PTSD.
It was submitted that the applicant's actions subsequent to the sexual assault incident were consistent with the symptoms of PTSD in that he took special precautions to safeguard himself while sleeping and while showering; that he had marital problems and knew something was wrong with him (and his first marriage), to the point he sought a consultation with a Navy psychiatrist; that on leaving the Navy his employment up to 1997 (when he became eligible for a Disability Pension) was spasmodic and he avoided contact with other men as much as possible.
With respect to alcohol abuse or dependency it was submitted that the applicant was alcohol dependent and that this had arisen from his PTSD and as such the applicant satisfied Factor 5(a) or 5(b) of the relevant SoP. Therefore it was submitted that the Tribunal should find that the applicant suffers from war-caused alcohol dependence or alcohol abuse.
Mr Williams for the respondent submitted that, on the evidence before the Tribunal, Dr Kingswell is correct in concluding that the applicant does not meet the diagnostic criteria for PTSD as stipulated in the relevant SoP, in particular the criteria where the applicant must have been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person's response involved intense fear, helplessness or horror.
With respect to other criteria to be satisfied for a diagnosis of PTSD, Mr Williams submitted that the applicant's post-service employment and his own evidence of having a good time drinking with his mates after the sexual assault are inconsistent with the applicant's claim of avoidance of male persons ever since the sexual assault in Saigon.
If the Tribunal were to find that the applicant does suffer from PTSD it was submitted that this condition is not war-caused because the applicant does not meet the stressor Factor 5(a) of Instrument No 3 of 1997 (or Factor 1(a) of Instrument No 15 of 1994), and that therefore the applicant's PTSD is not war-caused.
With respect to alcohol abuse it was submitted that Factor 5(a) of Instrument No 76 of 1998, namely "Suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse" is not satisfied for the reasons already submitted and that the applicant could not satisfy Factor 5(b), "experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse". Therefore it was submitted that the applicant is not suffering from war-caused alcohol abuse or alcohol dependence.
Consideration
The first question to be addressed by the Tribunal is whether the applicant suffers a psychiatric condition meeting the description provided in paragraph 2 of Instrument No 3 of 1999 (as amended by No 54 of 1999), concerning PTSD.
As is often the case in matters such as this, there is conflicting medical opinion about the applicant's psychiatric condition, if any. On the one hand Dr Freed, the applicant's treating psychiatrist is of the view that the applicant suffers from PTSD. On the other hand, Dr Kingswell, Consultant Psychiatrist, is of the view that the applicant does not suffer from PTSD, rather he suffers from personality difficulties.
Central to assessing the weight to be given to these conflicting reports is the acceptance or otherwise of the applicant's history of the stressful events he claimed he experienced during his operational service with the Royal Australian Navy, and his description of his feelings and responses to these events.
The principal stressful event to be considered in the first instance is the claimed sexual assault in a Saigon bar in 1962.
In Re Budworth and Repatriation Commission [2000] AATA 127, the Tribunal undertook a review of the diagnostic criteria in DSM-IV A to F, (which are identical to the criteria in the relevant SoPs) and concluded:
"62. …[T]he nature of the traumatic stressor envisaged by the authors is that of a grave or serious experience. The authors use the adjective 'extreme'. The second feature of the discussion is that the stressors must have an objective existence. In the above terms there is no scope for personal assessment of stressors except in A(2). That diagnostic criterion requires the presence of 'intense fear, helplessness or horror'. This is an extremely high level of reaction to extremely traumatic stressors.
The types of incidents in the minds of the authors which could amount to such objective stressors include military combat, violent personal assault, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp and so on. All of these incidents readily suggest the necessary level of 'extreme traumatic stressor'. …
64. The response to the stressor must be not merely a general apprehension or a relief to be out of a perceived dangerous situation. The response must be so intense as to cause the symptoms appearing in criteria B, C and D."
The Tribunal notes that although not included in Budworth in describing types of stressors, the authors of DSM-IV in their consideration of diagnostic features included "sexual assault" as an example.
This matter was also considered by the Tribunal in Re Mulvany and Repatriation Commission [2000] AATA 535, where the Tribunal, agreeing with Budworth, said that criterion A(1) of the diagnostic criteria for PTSD stated in DSM-IV refers to objective stressors and that only criterion A(2) of those criteria is concerned with subjective reactions thereto.
In its consideration of this matter the Tribunal adopts the approach as set out in Budworth and Mulvany. Turning then to whether the applicant experienced or was confronted with an event that involved actual or threatened death or serious injury, or a threat to his personal integrity. The applicant has described the sexual assault incident in terms which, if true, clearly, on any objective assessment, meet the criterion A(1) of paragraph 2(b) of Instrument 3 of 1999. The applicant has given uncontroverted and consistent evidence of the assault and the Tribunal accepts his account as truthful. The Tribunal is therefore reasonably satisfied that the applicant satisfies criterion A(1) in that he experienced an event that involved actual or threatened death or serious injury or a threat to his personal integrity.
Turning then to criterion A(ii), "the person's response involved intense fear, helplessness or horror".
It is here that the medical opinion diverges. Dr Kingswell who saw the applicant once for two hours, does not think that the applicant meets the criteria. In cross-examination Dr Kingswell was reluctant to entertain consideration of any change to his opinion although he did agree that responses would vary with different persons.
The Tribunal is somewhat troubled by the fact that the applicant recounted to the VRB his response to the sexual assault as principally one of anger and certainly not one of helplessness. This response is consistent with the evidence the applicant gave to the Tribunal about his reaction to the two approaches made by his assailant while he was still in the bar. However his uncontroverted evidence is that the actual assault caused him to not only fear he was about to be raped but also he would be raped and killed. He said he had a feeling of horror, realised he was in an emergency situation and reacted physically against his assailant. The applicant's feeling of horror is borne out by the history taken by Dr Freed, the applicant's treating specialist.
After careful consideration of the material before it the Tribunal is reasonably satisfied that the applicant's emotional state at the time of the assault was one of intense fear and horror and therefore the Tribunal accepts Dr Freed's opinion and is reasonably satisfied that the applicant was exposed to a traumatic event which meets the criteria in paragraph 2(b)A of the relevant SoP.
In arriving at this view the Tribunal has given no weight to the alleged aircraft crash incident, the "Laurie" incident or the missile firing incident. With respect to the aircraft crash incident the Tribunal is satisfied that it is highly unlikely, if not inconceivable, that the incident, if it did occur, would not have been reported in HMAS Vampire's Record of Proceedings for the relevant month. At the relevant time HMAS Vampire was taking part in an annual fourteen day Commonwealth maritime exercise along with ships from the Royal Navy and the Indian Navy and it would have been an exceptional and reportable situation which would have taken the ship out of the exercise for two days and where bodies and survivors were recovered and where survivors were treated and subsequently transferred to HMS Centaur. In the absence of any corroborating official report the Tribunal is satisfied that HMAS Vampire, in March 1962, was not involved in a crashed aircraft incident.

With respect to the "Laurie" incident the Tribunal is mindful, on his own evidence, that the applicant was probably too drunk to be fully aware of the situation when "Laurie" was found and in any event the applicant was quickly moved on and he returned to the bar for further drinks. The Tribunal also notes that Dr Freed has categorised the applicant's feelings about this incident as one of sadness only. As such the Tribunal is satisfied that the "Laurie" incident is not a relevant consideration in this matter.
Insofar as the missile firing incident is concerned, on the applicant's own evidence, his accidental firing of the missile was possibly seen as a miss and apart from him getting a verbal "rocket" and being finished in gunnery, no disciplinary action was taken nor was there any report of a misfire. In view of this the Tribunal is satisfied that the firing of the missile cannot be seen as a stressor, within the meaning of the term in the relevant SoP. Whether the applicant was suffering somatoform symptoms, within the context of the opinion expressed by Dr Freed, is a matter that the Tribunal is satisfied does not impact on consideration of whether the applicant meets criterion 2(b)A of the SoP. Turning then to the other criteria in paragraph 2(b) of the relevant SoP.
In this regard Dr Kingswell is of the view that the applicant does not describe symptoms of PTSD other than nightmares; that he has not described any form of avoidance or sense of shortened future and he does not experience heightened arousal. Dr Freed on the other hand gives a very detailed assessment of the applicant's symptomology and concludes that the applicant does meet all of the criteria.
The Tribunal is mindful that the respondent has expressed concerns about the applicant enjoying nights out with the boys, post the sexual assault, and seeking and gaining employment where other men are involved. However the Tribunal accepts the applicant's evidence that during employment post Navy, he was able to distance himself from other men and on the occasions he went out with the boys it only involved a very small number of mates who he knew he could trust.
After consideration of all of the material before it the Tribunal accepts Dr Freed's opinion and is reasonably satisfied that the applicant meets all of the criteria for PTSD pursuant to paragraph 2(b) of Instrument 3 of 1999. The Tribunal therefore finds that the applicant suffers from PTSD.
Turning then to the applicant's hypothesis that the applicant's PTSD is war-caused. Following the steps in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, the Tribunal is satisfied that all of the material before it points to the hypothesis that the applicant suffered a severe stressor, related to the circumstances of his operational service, prior to the clinical onset of Post Traumatic Stress Disorder; that there is in force a relevant SoP (Instrument No 3 of 1999), as amended by 54 of 1999; and that the hypothesis is reasonable, being consistent with the template to be found in the SoP with respect to Factor 5(a), namely "experiencing a severe stressor (as that term is defined in the SoP) prior to the clinical onset of Post Traumatic Stress Disorder".
After consideration of all of the material before it and the submissions of both parties the Tribunal is satisfied beyond a reasonable doubt, pursuant to section 120(1) of the Act, that the applicant's PTSD is war-caused and finds accordingly.
With respect to the applicant's alcohol consumption, both Dr Kingswell and Dr Freed have expressed the view that the applicant has abused alcohol from 1962 and now has been suffering from alcohol dependence for many years. In view of this and on all of the material before it the Tribunal is satisfied that the applicant suffers from alcohol dependence within the meaning of that term as defined in Instrument No 76 of 1998. There is evidence that the clinical onset of the applicant's alcohol dependence was as early as 1972, at which time the Tribunal is satisfied that the applicant was suffering from war-caused PTSD. In arriving at this conclusion the Tribunal is mindful that the applicant was first diagnosed as suffering from PTSD in 1997, however, Dr Freed has expressed the view that the applicant's PTSD principally arose from the sexual assault in 1962 and the Tribunal is satisfied on the material before it that the clinical onset of PTSD was such that at the time he became alcohol dependent in 1972 he was suffering from PTSD.
Again, following the steps set out in Deledio, the Tribunal is satisfied that all of the material before it points to the applicant's hypothesis that the applicant's alcohol dependence is war-caused in that the applicant was suffering from war-caused PTSD at the time of the clinical onset of alcohol dependence. The Tribunal is satisfied that SoP Instrument 76 of 1998, is the relevant SoP in force and that the hypothesis fits the template of this SoP with respect to Factor 5(a), "suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse".
It follows from the above that the Tribunal finds that the hypothesis raised by the applicant is a reasonable one.
After consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied beyond reasonable doubt, pursuant to section 120(1) of the Act, that the applicant suffers from war-caused alcohol dependence and so finds.
The Tribunal sets aside the decision under review and in substitution therefor determines:
(a)that the applicant suffers from war-caused PTSD;
(b)that the applicant suffers from war-caused alcohol dependence; and
(c)that the matter be remitted to the respondent for assessment of the rate of pension payable to the applicant on and from 9 March 1997, in accordance with these reasons for decision.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  13 November 2002
Date of Decision  23 December 2002
For the Applicant  Mr Clutterbuck
For the Respondent                 Mr Williams