Sunderland and Repatriation Commission
[2006] AATA 1104
•20 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1104
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/452
VETERANS' APPEALS DIVISION ) Re RUSSELL JOHN SUNDERLAND Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate20 December 2006
PlacePerth
Decision The Tribunal varies the decision of the Veterans’ Review Board, dated 6 September 2004, by amending the diagnosis of the applicant’s psychiatric condition from post traumatic stress disorder to alcohol dependence (in remission), but otherwise affirms that decision (as so varied).
..........[Sgd S D Hotop]...............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1966 to 1973 – applicant rendered operational service in Vietnam in 1968 and 1969 – Veterans’ Review Board decided that applicant suffers from post traumatic stress disorder (“PTSD”) but that applicant’s PTSD not a war-caused disease – applicant suffers from alcohol dependence (in remission) – applicant does not suffer from PTSD – material before Tribunal raises reasonable hypothesis connecting applicant’s alcohol dependence (in remission) with circumstances of his operational service – Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s alcohol dependence (in remission) war-caused – applicant’s alcohol dependence (in remission) not a war-caused disease – decision under review varied
Veterans’ Entitlements Act 1986 (Cth), s 5D, s 9, s 120 and s 120A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
20 December 2006 Deputy President S D Hotop
Dr D Weerasooriya, Member
Introduction
1. Russell John Sunderland (“the applicant”) served in the Royal Australian Navy (“RAN”) from 1966 to 1973. His service included service on board HMAS Sydney in Vietnamese waters for certain periods in 1968 and 1969.
2. The applicant suffers from various physical conditions which have been accepted by the Repatriation Commission (“the respondent”) as war-caused and, on that basis, he receives a disability pension in accordance with the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The applicant claims, however, that he also suffers from a psychiatric condition which is war-caused but the respondent, and the Veterans’ Review Board (“VRB”), while accepting that the applicant suffers from a psychiatric condition, have determined that that condition is not war-caused.
The Issues and the Tribunal’s Determination
3. The issues for the Tribunal’s determination are as follows:
·whether the applicant suffers from one or more psychiatric conditions; and, if so,
·the appropriate diagnosis of each such condition; and
·whether each such condition is war-caused.
4. For the reasons which follow, the Tribunal has determined that:
·the applicant does suffer from a psychiatric condition;
·the appropriate diagnosis of that condition is alcohol dependence (in remission); and
·that condition is not war-caused.
The Factual Background
5. On the basis of the “T Documents” (T1-T20, pp 1-211) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), the Tribunal finds the background facts to be as follows.
6. The applicant, who was born on 12 December 1949, enlisted in the RAN as a Junior Recruit on 6 April 1966.
7. During his RAN service the applicant rendered “operational service”, pursuant to s 6C of the Act, during the following periods in which he served on HMAS Sydney on voyages to and from Vietnam:
·from 13 November 1968 to 28 November 1968;
·from 8 February 1969 to 25 February 1969;
·from 8 May 1969 to 30 May 1969.
He also rendered “defence service”, for the purposes of Pt IV of the Act, from 7 December 1972 to 31 December 1973.
8. On 10 September 2003 the applicant, who had previously been granted a disability pension under Pt II of the Act with effect from 27 March 2000, applied for an increase in the rate of his disability pension on the basis that he was suffering from specified additional war-caused disabilities, including “PTSD (suspected)” which he claimed had been caused by “stressful events at sea – tour of Vietnam”.
9. On 17 February 2004 a delegate of the respondent determined that the appropriate diagnosis of the applicant’s claimed psychiatric condition is “personality disorder” but decided that that condition is not war-caused.
10. On 6 September 2004 the VRB varied the delegate’s determination by amending the diagnosis of the applicant’s psychiatric condition from “personality disorder” to “post traumatic stress disorder”, but otherwise affirmed the delegate’s decision that that condition is not war-caused.
11. On 10 December 2004 the applicant applied to the Tribunal for review of the VRB’s decision.
12. The application was heard by the Tribunal, constituted by Brigadier RDF Lloyd, Member, and Dr D Weerasooriya, Member, on 20 and 21 June 2006, and the Tribunal then reserved its decision. Brigadier Lloyd, however, subsequently became unavailable for the purposes of the proceeding, and on 10 October 2006 the Tribunal was reconstituted, pursuant to s 23(4) of the AAT Act, to consist of Deputy President S D Hotop and Dr D Weerasooriya, Member. With the agreement of the parties, the Tribunal, as so reconstituted, for the purpose of completing the proceeding, has, in accordance with s 23D of the AAT Act, had regard to the record of the proceeding before the Tribunal as previously constituted (including a record of the evidence taken in that proceeding), and has not held a further hearing.
The Evidence
The applicant’s evidence
13. The applicant’s evidence may be summarised as follows:
·he made 3 trips to Vietnam on HMAS Sydney, when he was 18-19 years of age;
·before he went to Vietnam he did not drink alcohol but, by the end of the first voyage to Vietnam, he was “a moderate drinker” (2 cans per day) and, by the end of the second voyage, he was “drinking quite heavily” (10 middies per day) during shore leave;
·the reason for the increase in his drinking was that he had “some bad experiences” on HMAS Sydney while in Vietnam;
·during his second trip to Vietnam, 1-2 days into the return voyage from Vietnam, 2 soldiers from a battalion which was being transported from Vietnam “bailed [him] up” with a bayonet held to his throat and threatened him in the soldiers’ mess, one of the soldiers saying to him that “he doesn’t like commos” and that “he’s trained to kill commos” (“the bayonet incident”);
·he reported the bayonet incident to the mess deck Leading Seaman but he heard no more about it;
·the following night, while he was on lifebuoy sentry duty, the soldier, who had previously threatened him, on this occasion threatened to wrap him in chains and throw him overboard;
·he was “pretty terrified” and he immediately reported that incident to the Petty Officer on watch, and he was then relieved of his lifebuoy sentry duties and returned to the watchkeeper’s area;
·the following day, while at sea, he was transferred from HMAS Sydney to HMAS Duchess and, after a few days, he was then transferred to HMAS Supply for the remainder of the return voyage to Australia;
·during the third trip to Vietnam, while HMAS Sydney was at anchor in Vung Tau harbour, he saw what he thought at the time were rockets flying towards the ship from the shore (“the rockets incident”);
·he felt “really frightened” by that experience, but what “really frightened [him] more” was that there was no response or concern about this by anyone else on board the ship and he “just felt like a sitting duck”;
·after he returned from the third trip to Vietnam his drinking habit was “quite heavy” and that drinking pattern continued up until about 2002 when he gave up drinking because his partner was going to leave him on account of his snoring;
·he started drinking again on ANZAC day in 2003 but not as heavily as before, and since then he has been drinking a couple of glasses of wine and 2-3 stubbies of beer per day;
·he consulted Dr Carter, Psychiatrist, in the early 1990s “mainly because of paranoia”, and he had 20 consultations with Dr Carter but he did not tell him about his experiences in Vietnam;
·he saw Dr Risbey, Psychiatrist, in 2003 and Dr Fellows-Smith, Psychiatrist, in 2004, and, although he told them about the rockets incident on the third trip to Vietnam, he did not tell them about the bayonet incident or the threat to throw him overboard on the second trip to Vietnam because he had suppressed the memory of those incidents and had no memory of them when he saw them;
·he recovered the memory of the bayonet incident in December 2004 during a trip to New Zealand when a cousin of his partner, whom they were visiting and who was also a Vietnam veteran, “pulled out a bayonet out of his cupboard and started playing with it”;
·he subsequently recovered the memory of the threat to throw him overboard when, during that trip to New Zealand, he was on an inter-island ferry and saw a plaque on the wall of the bulkhead which said that no rubbish was to be thrown over the side;
·he did not recover the memory of the rockets incident until 2003 at about the time when he started attending the Vietnam Veterans’ Counselling Service.
The medical evidence
Report of Dr L Risbey, Consultant Psychiatrist
14. In his report dated 14 January 2004 (T5) Dr Risbey noted that he had interviewed the applicant on 4 occasions in October- November 2003. He recorded the relevant service history given to him by the applicant as follows:
“Whilst serving on HMAS Sydney, in particular during 1970 (sic), he felt very threatened on occasions. In particular, during 1970 (sic) he said that at times when aboard HMAS Sydney, moored two or three kilometres from the Vietnamese shoreline, he could see rockets approaching the ship. These rockets were sent from enemy positions on the hills near Vung Tau, and the missiles were rocket-powered explosive shells. While the ship was probably out of range, he and others felt helpless seeing these rockets approach, whilst manning the guns. There was nowhere to run on a ship and movements were thus restricted. Further, there were no orders to react and they were not even informed as to what was going on, leaving him feeling abandoned. He said that he became ‘quite infuriated that we weren’t even told to “stand to”’. The orders to ‘stand to’ would leave them in a ‘relaxed mode’ as far as duties were concerned (although he would still not feel relaxed inside). He added ‘what really got to me was that nothing was done’ (ie they were not told anything and their situation was not recognised apparently).” (T5, p 149)
15. As regards the appropriate diagnosis of the applicant’s psychiatric condition, and its aetiology, Dr Risbey concluded:
“The history of heavy drinking from 1970 to January 2003 (and in particular, from 1974 to 1998) in the wake of stressful events during overseas naval service, suggest an alcohol dependence disorder secondary to stress-related insomnia. Whilst he does not appear to suffer a full-blown post-traumatic stress disorder, there are some suggestions of a sub-clinical PTSD but this is somewhat debatable in the strict terms of post-traumatic stress disorder. His is a case where usual diagnostic boundaries are less helpful and it is difficult at this stage to be certain of a full diagnostic formulation...
...
In summary, I would diagnose him as having undergone enduring personality changes associated with (but not restricted to) excessive alcohol consumption in the wake of stress-related insomnia; the stress concerned, from the timing of onset of his condition, appears from the history to clearly be restricted to his period of service aboard HMAS Sydney, whilst moored off the Vietnam coast.
...” (T5, pp 153, 154)
Report of Dr J Fellows-Smith, Psychiatrist
16. In his report dated 5 April 2004 (T12) Dr Fellows-Smith noted that he had assessed the applicant on 3 occasions in March-April 2004, and that the applicant had presented with “anxiety symptoms directly related to his wartime service serving as an able seaman on HMAS Sydney for three tours to Vietnam 1968-1970 (sic)”. He then considered the diagnostic criteria for post traumatic stress disorder (“PTSD”), as described in the Diagnostic and Statistical Manual of Mental Disorders (4th ed) (“DSM IV”), and the history given to him by the applicant regarding the rockets incident, and concluded:
“OPINION
Mr Sunderland presents with Post Traumatic Stress Disorder and Alcohol Dependence Syndrome currently in remission directly due to his wartime service in Vietnam. His condition is complicated by a comorbid paranoid tendency making diagnosis of his condition difficult. Furthermore it is likely that he has repressed his traumatic memories and used alcohol as a way of managing his symptoms.” (T12, p 176)
Dr Fellows-Smith also opined that the likely date of clinical onset was on the applicant’s return from his first tour of Vietnam.
Report of Dr A Mander, Consultant Psychiatrist
17. In his report of 21 May 2005 (Exhibit R2) Dr Mander noted that he had interviewed the applicant on 3 occasions in April 2005 and that he had read the abovementioned reports of Dr Risbey and Dr Fellows-Smith. He recorded the relevant service history given to him by the applicant as follows:
“The veteran told me that he was transferred from HMAS Sydney to HMAS Duchess for four days and he had no idea why this was. He said that he lived in the electricians’ mess and after he had gone on watch his beer ration was taken. He was very angry about this. He told me that his political views were known and as he was entering the mess on 2 Deck he was grabbed by two soldiers outside of the battalion mess and had a bayonet put to his throat. They said ‘we kill commos’. He said that one was large and red-headed and the other ‘a bushy’. He said that he reported this to the mess leading hand. On the same evening or the evening after he was the outer deck lifebuoy sentry when one of these individuals came up to him and said ‘big boy, we’re going to get you and lock you in chains’. He says that he reported this to the Petty Officer on watch and was transferred to supply (sic) after that. He told me that since seeing a ferry sign this had all been coming back to him and it was ‘quite disturbing’ and ‘unnerving’.”
He concluded as follows:
“Opinion
The veteran gave a quite different history to me in terms of what he sees as the precipitating event for his psychological problem from that he had discussed with previous psychiatrists. This makes the interpretation of his history somewhat difficult. He now says that being threatened by fellow servicemen when on board ship, was the reason for his difficulties. His description of being threatened by fellow servicemen with a knife is certainly sufficient to satisfy the criteria for severe psychosocial stressor.
I still have difficulty with the diagnosis of post traumatic stress disorder by Dr Fellows-Smith (and for that matter of personality change by Dr Risbey). Firstly, the veteran’s predominant obvious problem over many years has been alcohol. He has had a severe problem which was manifest not only as he so beautifully put it, as him drinking ‘fucking gallons’ but by ongoing difficulties with his wife, which led to their separation, and may well have led to the periodic difficulties that he experienced in the work situation where he would fall out with employers and be asked to leave. He has also been less than truthful in stating that he had given up alcohol. He now says that as recently as two months ago he was drinking again, which casts doubt on his abstinence. In addition, he has had medical problems likely related to alcohol such as a stomach ulcer. It is known that people with severe drinking problems can manifest what appears to be a personality change and certainly his description of being ‘paranoid’ and what appears to be a convincing description of being briefly psychotic when in church, are both consistent with alcohol abuse and alcohol withdrawal. This would also substantiate that he has exhibited alcohol dependence as well as abuse.
I don’t agree with Dr Fellows-Smith on the issues of post traumatic stress disorder. For a start his symptoms are better accounted for by a past history of alcohol abuse and dependence. Secondly he now does not satisfy the D group criteria for PTSD following treatment, although [he] did in the past. He does not satisfy the B group criteria either currently or in the past. Although he says that he gets distressed on being reminded about the war and that he no longer marches because in the past he would be disturbed for weeks after the ANZAC parades and would be extra jumpy and ‘worked up in my stomach’ this is not directly related to what he now claims is the precipitating event of having a knife pulled on him and he has never had dreams about that. With regard to dreams, he says only that they don’t make sense but are somewhat frightening.
Conclusion
Alcohol abuse and dependence in the past not directly related to service. The veteran has given a conflicting history on a number of important issues but if it is true he continues to drink, then these remain current problems.”
The evidence of Commodore P Mulcare
18. Commodore Mulcare confirmed that, at the request of the Department of Veterans’ Affairs, he had prepared a report dated 11 October 2005 (on behalf of Writeway Research Service) regarding the applicant’s RAN service and, in particular, the 3 voyages of HMAS Sydney to Vietnam in November 1968, February 1969 and May 1969 on which the applicant rendered operational service. Commodore Mulcare’s report was tendered in evidence (Exhibit R3). Attached to Commodore Mulcare’s report were extracts from the Reports of Proceedings (“RoP”) of HMAS Sydney and the escort ships in respect of each of those voyages.
19. As regards the voyage in May 1969, the RoP of HMAS Sydney records that the ship anchored at Vung Tau at 0655 (am) on Monday 19 May 1969, the disembarkation and embarkation of troops was completed without incident, and the ship sailed at 1225 (pm). The RoP of the escort ship, HMAS Vampire, likewise records that no incidents occurred whilst in the Vung Tau area, apart from dropping scare charges and opening fire with small arms on some “suspicious” looking floating boxes. Commodore Mulcare’s report concluded:
“7. If a rocket or rockets had been fired at ships at anchor off Vung Tau in November 1968, February 1969 or May 1969, it would have triggered a response that would have interfered with the unloading/ loading operation. Such an incident would have been recorded and would be well known. However there is no record that even remotely suggests that HMAS SYDNEY was fired at while at anchor off Vung Tau when the veteran was onboard, or at any other time between 1965 and 1972. There is no evidence to corroborate the veteran’s contention.”
20. As regards the voyage in February 1969 the relevant RoPs confirm that the escort ship was HMAS Derwent (not HMAS Duchess). Commodore Mulcare confirmed that the applicant’s service record, which lists the ships on which he served and the periods of his service on each of those ships, makes no mention of his having been transferred from HMAS Sydney to HMAS Derwent and then to HMAS Supply during that period. He added that, according to RAN records, HMAS Supply was in fact at Garden Island dockyard, Sydney, undergoing a refit from 24 October 1968 to 14 April 1969.
The Legislation
21. Section 5D(1) of the Act contains the following relevant definition:
“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;
…”
Section 9 relevantly provides:
“(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;
…”
The standard of proof on which it is to be determined whether a “disease” is a “war-caused disease” is prescribed by s 120 of the Act which relevantly provides:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(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.
…”
Analysis and Findings
Does the applicant suffer from a psychiatric condition?
22. The issue whether the applicant suffers from a psychiatric condition (being a “disease” as defined in s 5D(1) of the Act) and, if so, the matter of the appropriate diagnosis of that condition, are, in accordance with s 120(4) of the Act, to be determined to the Tribunal’s reasonable satisfaction: Repatriation Commission v Cooke (1998) 90 FCR 307. On the basis of the medical evidence, the Tribunal is reasonably satisfied, and finds, that the applicant suffers from a psychiatric condition (being a “disease” as defined in s 5D(1) of the Act).
What is the appropriate diagnosis of the applicant’s psychiatric condition?
23. Although the 3 psychiatrists, whose reports are in evidence, agree that the applicant suffers from a psychiatric condition, their opinions regarding the appropriate diagnosis of that condition differ markedly. The applicant, relying on the report of Dr Fellows-Smith, submits that he suffers from PTSD and alcohol dependence (in remission), whereas the respondent, relying chiefly on the report of Dr Mander, submits that the applicant suffers from alcohol dependence and/or abuse (in remission) but not from PTSD.
24. The Tribunal notes that all 3 psychiatrists opine that the applicant suffers, or has suffered, from alcohol dependence and/or abuse. On the basis of that evidence, and having regard to the applicant’s own evidence in respect of his past and present consumption of alcohol, the Tribunal is reasonably satisfied, and finds, that the applicant presently suffers from alcohol dependence (in remission).
25. As regards PTSD, whereas Dr Fellows-Smith opined that, on the history given to him by the applicant, all of the DSM IV diagnostic criteria are met, Dr Risbey and Dr Mander opine that, on the history given to each of them by the applicant – which differed, as noted by Dr Mander – some of the DSM IV diagnostic criteria are not met. On that basis alone, the Tribunal could be reasonably satisfied that the applicant does not suffer from PTSD. There is, however, a further, and more compelling basis for that conclusion, namely, that, for the reasons explained below (see paragraphs 33 and 34), the Tribunal does not accept that the history regarding exposure to a “traumatic event” (namely, the bayonet incident and/or the rockets incident) given by the applicant either to Dr Risbey and Dr Fellows-Smith, or to Dr Mander, is true, and, accordingly, the Tribunal is not satisfied that DSM IV diagnostic criterion A is met. The Tribunal, therefore, is reasonably satisfied, and finds, that the applicant has not suffered, and presently does not suffer, from PTSD.
Is the applicant’s alcohol dependence (in remission) a “war-caused disease”, within the meaning of s 9 of the Act?
26. For the purpose of considering and answering that question the Tribunal must, pursuant to s 120A(3) of the Act, have regard to any relevant Statement of Principles (“SoP”) determined under s 196B(2) of the Act.
27. The Repatriation Medical Authority (established by s 196A(1) of the Act) has determined, under s 196B(2) of the Act, the following relevant SoP which has, at all material times, been in force:
·Statement of Principles concerning Alcohol Dependence or Alcohol Abuse (Instrument No 76 of 1998).
That SoP relevantly states:
“…
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; or
…
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;
…
‘psychiatric disorder’ means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
…”
28. For the purpose of determining whether the applicant’s alcohol dependence (in remission) is a “war-caused disease”, within the meaning of s 9 of the Act, the Tribunal will proceed in accordance with the approach laid down by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
The raised hypothesis
29. There is material before the Tribunal – in particular, the applicant’s evidence and the report of Dr Fellows-Smith – which raises the hypothesis that:
·the applicant, in the course of his operational service on HMAS Sydney during voyages to and from Vietnam in February 1969 and May 1969, experienced or was confronted with certain events – namely, threats made against him by a soldier (including the bayonet incident) during the voyage in February 1969, and the rockets incident during the voyage in May 1969 – that involved the threat of death or serious injury and which evoked intense fear and helplessness; and that
·as a result of those events the applicant shortly thereafter contracted PTSD and began to engage in excessive alcohol consumption resulting in his contracting alcohol abuse and alcohol dependence, and he continues to suffer from PTSD and from alcohol dependence (in remission).
The SoP
30. As previously mentioned, there is in force a SoP determined under s 196B(2) of the Act in respect of alcohol dependence or alcohol abuse.
Is the raised hypothesis a reasonable hypothesis?
31. In the Tribunal’s opinion the abovementioned raised hypothesis is consistent with the relevant SoP in that it contains the factors specified in paras (a) and (b) of cl 5 of that SoP, and it is, therefore, a reasonable hypothesis.
For the purposes of s 120(1) of the Act, is the Tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s alcohol dependence (in remission) is a war-caused disease?
32. The Tribunal’s consideration of this issue necessarily focuses on the applicant’s evidence in relation to the bayonet incident and the rockets incident, and on the report and evidence of Commodore Mulcare in relation to those alleged incidents.
33. As regards the alleged rockets incident, the Tribunal, having regard to the report of Commodore Mulcare, and to the contents of the contemporaneous RoPs of HMAS Sydney and HMAS Vampire attached thereto, is satisfied, beyond reasonable doubt, that no such incident in fact occurred.
34. As regards the alleged bayonet incident and the other alleged incident regarding a threat by a soldier on board HMAS Sydney to throw the applicant overboard in chains, the Tribunal has serious reservations regarding the credibility of the applicant’s evidence in relation to those alleged incidents for the following reasons:
·each of the alleged incidents involved a very serious threat against the applicant which he claimed he reported to the relevant person in charge, yet there is no reference to either of those incidents in the applicant’s service records which are before the Tribunal, and there is no other material before the Tribunal which corroborates either of those alleged incidents;
·the applicant’s evidence in relation to those incidents included evidence that he was subsequently transferred to HMAS Duchess, and then to HMAS Supply on board which he returned to Australia, yet the applicant’s service record makes no mention of his having been transferred from HMAS Sydney to any other ship during that voyage (or, indeed, during any of his voyages to Vietnam), and, furthermore, according to Commodore Mulcare’s evidence (which the Tribunal accepts) HMAS Supply was undergoing a refit at Garden Island dockyard in Sydney at that time;
·in the Tribunal’s opinion, the applicant’s evidence that he only recovered the memory of those incidents in December 2004 during a trip to New Zealand when he saw his partner’s cousin playing with a bayonet, and when he saw a sign on an inter-island ferry that no rubbish was to be thrown overboard, is, to say the least, unconvincing.
Having regard to these considerations and to the whole of the evidence, the Tribunal is satisfied, beyond reasonable doubt, that neither the alleged bayonet incident, nor the alleged incident regarding a threat to throw the applicant overboard from HMAS Sydney, in fact occurred.
35. It follows that the Tribunal is satisfied, beyond reasonable doubt, that the raised hypothesis connecting the applicant’s alcohol dependence (in remission) with the circumstances of his operational service is disproved, and that, pursuant to s 120(1) of the Act, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s alcohol dependence (in remission) is a “war-caused disease”, within the meaning of s 9 of the Act: see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
Finding
36. Accordingly, the Tribunal finds that the applicant’s alcohol dependence (in remission) is not a “war-caused disease”, within the meaning of s 9 of the Act.
Decision
37. For the above reasons, the Tribunal varies the decision of the VRB, dated 6 September 2004, by amending the diagnosis of the applicant’s psychiatric condition from PTSD to alcohol dependence (in remission), but otherwise affirms that decision (as so varied).
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: [Sgd S da Motta].............
AssociateDates of Hearing 20-21 June 2006
Date of Decision 20 December 2006
Representative of the Applicant Mr P LofdahlRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans’ Affairs
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