Ware and Repatriation Commission
[2004] AATA 472
•13 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 472
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/145
VETERANS' APPEALS DIVISION ) Re JAMES ALBERT WARE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date13 May 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Disability Pension – war-caused conditions of PTSD, malignant neoplasm of the colon, and hypertension – applicant experienced severe stressor during operational service – reasonable hypothesis
Veterans’ Entitlements Act 1986 ss 5, 68, 120, 120A
Safety Rehabilitation and Compensation Act 1988
Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999
Statement of Principles Instrument No 58 of 2002
Statement of Principles Instrument No 35 of 2003REASONS FOR DECISION
13 May 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) of 13 October 1999 which rejected a claim for payment of Disability Pension for the conditions of post-traumatic stress disorder (PTSD), hypertension, and malignant neoplasm of the colon. The Veterans’ Review Board (VRB) affirmed the decision on 12 February 2002.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents) together with exhibits tendered by the Commission. Mr Coxon, advocate for the Vietnam Veterans’ Association, represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Doube appeared for the Commission, which called Commodore P Mulcare, Historian, as a witness. Commodore Mulcare gave evidence by way of telephone link-up.
3. The applicant, who is 65 years of age, served with the Royal Australian Navy (the Navy) from 1 June 1956 at the age of 16, until 13 November 1962 when he was discharged because of his “inadequate personality” at 24 years of age. He has operational service in the Far East Strategic Reserve aboard HMAS Warramunga (the Warramunga) and HMAS Melbourne (the Melbourne) as follows:
21 January 1958 to 3 April 1958 - Warramunga
23 April 1958 to 12 May 1958 - Warramunga
15 May 1958 to 1 July 1958 - Warramunga
22 July 1958 to 19 August 1958 - Warramunga24 March 1961 to 17 April 1961 - Melbourne
4. The applicant maintains that his conditions relate to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with s 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(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.”
5. Section 120A of the Act provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that his three conditions relate to his operational service. In relation to the condition of PTSD, the traumatic event which he experienced during his relevant service, connects his PTSD condition with his relevant service. In relation to his malignant neoplasm condition, the experience of the traumatic event, the “severe stressor”, led to an increase in the applicant’s smoking, which is in turn connected to the condition, and his smoking is related to his relevant service. In relation to the applicant’s hypertension condition, Mr Coxon, in his opening address, outlined the hypothesis that the experience of the severe stressor led to the applicant suffering PTSD prior to the clinical onset of the hypertension condition; and that his consumption of alcohol is connected to the condition, and is related to his relevant service.
7. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the conditions were war-caused. There are Statements of Principles in force, and in accordance with those Statements of Principles at least one of the factors set out in clause 5 of the respective Statement of Principles, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the conditions with the circumstances of the applicant’s relevant service.
8. The appropriate Statement of Principles for the condition of PTSD is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999 (the PTSD SoP). The applicant contends that Factor 5(a) of the PTSD SoP is satisfied:
"(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;"
“Experiencing a severe stressor” is defined as:
“… 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 another person’s, physical integrity.
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;”
9. The appropriate Statement of Principles for the condition of malignant neoplasm of the colon is Instrument No 58 of 2002 (the Malignant Neoplasm SoP). The applicant contends that Factor 5(b) of the Malignant Neoplasm SoP is satisfied:
"(b)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the colorectum, and
(i)smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum, and
(ii)where smoking has ceased, the clinical onset has occurred within 30 years of cassation;”
10. The appropriate Statement of Principles for the condition of hypertension is Instrument No 35 of 2003 (the Hypertension SoP). The applicant contends that Factor 5(n) of the Hypertension SoP is satisfied:
"(n)suffering from a clinically significant anxiety disorder for the six months immediately before the clinical onset of hypertension;”
The applicant maintains that the “clinically significant anxiety disorder”, is PTSD.
11. The applicant submits that during his operational service aboard the Warramunga, in July 1958, off the shores of Malaya, he experienced a severe stressor (the turret incident). They were on bombardment practice, and the applicant was a member of the selected A gun crew. He was 2nd gun loader on the left-hand gun in A turret. A number of shells had been fired and he was standing behind the gun. This he says, was his first, and the only bombardment practice that took place while he was aboard the Warramunga. He had received training in gunnery and shells, but this was his first live firing. He had been handed the shell by the person who had taken the shell previously from the ammunition locker. He put the shell on the tray, and then another seaman put the shell in the breech. He was wearing anti-flash gear, a cotton hood and covering over his arms and upper chest. The applicant says that the turret swung to starboard, just as the backflash happened, and smoke and flames seemed to come from the breech with the strong smell of cordite. He saw the smoke and flames come in through the open muzzle port. He found himself on his back against a cargo net, which was lashed to the guardrail to catch spent shells. He was frightened by the heat, and was also surrounded by hot spent cartridges.
12. The applicant maintains that although he was uninjured; and the event was of no consequence to others around him, it held great significance for him. He had suffered severe burns to his leg when he was 5 years of age, and been hospitalised for 2 months, and the “turret incident” frightened him. He was ashamed that he was frightened by the heat; and this shame led to the onset of his PTSD, and to an acceleration in his smoking habit, and development of his conditions of colon cancer and hypertension.
13. The Commission contends that the applicant did not experience “a severe stressor” as defined in the PTSD SoP during his operational service, and he cannot satisfy Factor 5(a) of the PTSD SoP. In relation to the applicant’s malignant neoplasm of the colon, the Commission contends that the applicant’s smoking habit was firmly established before his operational service aboard the Warramunga, and was not related to his relevant service. Factor 5(b) of the Malignant Neoplasm SoP is not satisfied. In relation to the applicant’s hypertension condition, the Commission submits that the applicant’s PTSD is not related to operational service, and Factor 5(n) of the Hypertension SoP is not satisfied.
14. The applicant gave lengthy oral evidence. He was an unsatisfactory witness. Much of his evidence was contradictory, and he impressed me as a person prepared to change the tenor of his testimony according to the benefit he was attempting to obtain; and to tailor his evidence in an attempt to satisfy the relevant Statements of Principles. This does not mean that I disregard the whole of his testimony, but that I prefer to rely on more acceptable evidence in areas of dispute.
15. Dr Ewer proceeded on the assumption that the applicant’s version of events was reliable. I take that into account when deciding upon the weight to be given to his evidence and opinions. I consider Commodore Mulcare to be a witness of truth, and prefer his evidence to that of the applicant in any area of dispute in the evidence.
16. In his opening address, Mr Coxon stated that the alternative hypotheses propounded by the applicant in relation to his malignant neoplasm of the colon and hypertension, were that the experience of the severe stressor led to an increase of alcohol intake, which in turn is connected to these conditions. Factor 5(c) of the Malignant Neoplasm SoP would be satisfied:
“(c)Drinking at least 250 kilograms of alcohol within a 25 year period within the 40 years immediately before the clinical onset of malignant neoplasm of the colorectum;”
In relation to the condition of hypertension, Factor 5(b) of the Hypertension SoP would be satisfied:
“(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension;”
17. In the course of his final submissions, Mr Coxon conceded that in the light of the evidence which unfolded in the course of the Hearing, the applicant’s alcohol abuse or dependence was not related to his relevant service. The applicant however, had given such extensive oral evidence in relation to his alleged drinking pattern during his relevant service, and in the history he provided to Drs Truman and Ewer, that of necessity, some of the body of evidence relating to the applicant’s drinking pattern will be included in these Reasons for Decision.
18. Turning to the claimed conditions. The applicant completed a claim for Disability Pension for “alcoholism and nerves” on 6 February 1993, in which he stated that he first became aware of the disability in 1962 [the first claim]. The delegate determined on 11 March 1993 that the applicant was not a “veteran” or a “member of the forces” within the meaning of the definitions in ss 5 and 68 of the Act, and thus he was not eligible to claim pension under the Act [T7/106]. At about the same time, the applicant lodged a similar claim under the Safety, Rehabilitation and Compensation Act 1988, and on 13 April 1993, the delegate determined that the Department of Defence was not liable to pay compensation to the applicant.
19. The applicant lodged a further claim for Disability Pension on 7 July 1997 for various conditions including “alcoholism” and “hypertension” [the second claim]. He attributed his alcoholism to “peer pressure” and his hypertension to his alcoholism [T10/113]. On 31 July 1997 the delegate rejected the claim on the basis that the applicant was not a “veteran” or a “member of the Forces”.
20. On 23 December 1997 the Minister for Defence, Industry, Science and Personnel, determined that the applicant’s service in the Far East Strategic Reserve on the Warramunga from 21 January 1958 to 3 April 1958, 23 April 1958 to 12 May 1958, 15 May 1958 to 1 July 1958, and 22 July 1958 to 19 August 1958; and on the Melbourne from 24 March 1961 to 17 April 1961 was to be taken now to be operational service for the purposes of the Act. The delegate, on 10 February 1998, decided to intervene, and determined that the applicant was now a “veteran” as defined in the Act; and referred the applicant’s second claim, lodged on 7 July 1997, for determination.
21. On 5 March 1998 the applicant was interviewed by Dr Truman, Psychiatrist, who reported as follows:
“Thank you for referring this 59 year old ex seaman whom [I saw] on the 4th March 1998 in regard to his claim of “Alcoholism”.
HISTORY: After leaving school at the age of 15 he worked for the Post Office then as a truck driver. At the age of 17 joined the Navy in 1956. He was discharged six and half years later due to drunken, immature behavior [sic]. He considered at the time he was a full-blown alcoholic although he did not receive that insight for another 20 years.
Whilst in the Navy he began to drink for the first time because of “peer pressure” it was the culture to drink as much as possible, and at sea it was very easy to acquire other men’s beer.
Whilst in the navy he spent time locked up. He would refuse to return to the ship and the patrols would have to go out to get him and on one occasion he threatened suicide and disappeared for awhile. On another occasion he went 14 days AWOL just to drink. He was charged with sleeping on watch. He said all his mates indulged in similar behavior [sic].
After discharge from the navy he returned to his home town of Cobar where he drank excessively with the result that his marriage of two years failed and he has not seen his son since the age of four. The marriage failed after a period of five years due to his constant drinking and being out at the local Hotel.
He continued drinking until 15 years ago when he was admitted to the Langton Clinic in Sydney and realized he had an alcohol problem. He has not drunk alcohol since that day and regularly attends Alcoholic [sic] Anonymous.
He has lived an itinerant life driving trucks and heavy plant machinery all over Australia. Currently he lives in the far north of South Australia at Mintabie driving heavy machinery.
Whilst in the Navy in [sic] was in Malayan waters between 1957-1958 firstly on a destroyer escort duties and later on the Melbourne. He was never under fire.
CONCLUSIONS: This man up until 15 years ago suffered from Chronic Alcohol Abuse which developed after he joined the Navy and was caused by peer pressure and the culture of the Naval life, but not caused by traumatic experiences.”
[T17/126-127]
22. On 29 April 1998 the delegate refused the applicant’s claim for the conditions, including his alcohol condition and hypertension. The delegate stated in relation to the alcohol condition, that the applicant’s contention that the condition was caused by peer pressure during his service did not meet any factor identified in the relevant Statement of Principles. The delegate referred to a “stressful event” in the following terms:
“A stressful event is defined in the Statement of Principle as “an incident in which there were external stimuli [such as combat] that would result in psychological stress, and where there were subjective symptoms of increased stress”. In this case there is no history of a stressful event.” [T19/132]
23. As to the condition of hypertension, the delegate stated, that as the applicant’s alcoholic abuse or dependence was not due to operational service, the Statement of Principles for hypertension was not satisfied.
24. On 3 May 1998 the applicant sought review of the delegate’s decision, and some time later, sought the assistance of Mr Coxon. Mr Coxon requested a report from Dr Ewer, and on 19 October 1998 Dr Ewer interviewed the applicant and provided a report, which Dr Ewer understood would be provided to the VRB. Dr Ewer noted that in the course of the interview the applicant outlined the following experiences:
“1.The first experience Mr. Ware told me about occurred whilst he was serving on the HMAS Warramunga off the shores of Malaya. Mr. Ware was acting as a loader on the right hand gun turret which was firing four and a half inch shells. A shell had just been fired and then there was a “caudite backflash”. Mr. Ware told me the backflash was particularly frightening because of the intense heat. He told me “I thought I was gone”. He went on to explain that he thought he was going to be killed by the backflash. He told me that the heat particularly troubled him because of a burn he sustained to his leg when he was a child. Mr. Ware went on to say that after this incident he was “very gun shy”.
2.Around the same time another distressing event occurred. Mr. Ware told me that one of the allied ships was hit by an American shell. Mr. Ware told me that he was frightened and horrified to learn that two men were killed by this accident. He went on to say “for a long time after I thought that would happen to us too”.
3.On another occasion a dummy torpedo broke loose. Mr. Ware was involved in recovering it. In the process another seaman was almost squashed. Mr. Ware said “I had to save him by pulling him out from the torpedo”. Mr. Ware found this experience frightening and he noted that after it he was “trembling”.
4.On another occasion Mr. Ware was serving on the HMAS Melbourne. This incident occurred during a period of active service. Another sailor got his hand caught in a snatch block. A number of the sailor’s fingers were traumatically amputated. Mr. Ware had to cut a rope to free the man. Mr. Ware was horrified by the blood that he saw and by witnessing the man in such pain.
5.On another occasion Mr. Ware saw a close friend of his squashed between a boat and a wharf at Jervois Bay.” [T21/139]
25. The only experience which is relevant for the purposes of this review, is that numbered 1, the “turret incident”, which allegedly occurred during operational service. Dr Ewer reported also, that the most usual flashback the applicant experiences is to the incident when the man had his fingers amputated. This incident did not occur during operational service.
26. Dr Ewer reported also:
“…
Mr. Ware did not smoke cigarettes prior to entering the Navy. He smoked up to forty cigarettes a day in the Navy and he continued this after discharge until fourteen years ago.
Mr. Ware told me that he did not consume alcohol at all prior to entering the Navy. Once in the Navy he told me that he started to drink heavily “to settle my anxiety”. He told me that he also drank alcohol “to be one of the boys”. When his alcohol consumption was at its worst in the Navy he told me that he would drink “as much as I could get”. He told me that after the Navy he had “twenty years of alcoholism”. His drinking resulted in three drink/driving offences and many days of missed work. He was often fighting in the hotel when intoxicated. He eventually gave up drinking sixteen years ago with the assistance of Alcoholics Anonymous.
…” [T21/141]
27. Dr Ewer diagnosed chronic PTSD. He reported that the applicant was exposed to a number of highly traumatic experiences in the Navy, which evoked intense feelings of helplessness, fear and horror. He reported also, that the applicant has continued to re-experience the traumatic events, and has demonstrated persistent avoidance behaviour over many years. Dr Ewer diagnosed also, general anxiety disorder, alcohol abuse and dependence until 16 years ago; nicotine abuse until 14 years ago; and concluded that the applicant had dysfunctional personality traits which are best characterised as avoidant in nature.
28. The applicant attended the VRB Hearing on 6 May 1999, with the assistance of his advocate, Mr Coxon. The VRB affirmed the delegate’s decision, as it was satisfied that the applicant had an established maladaptive pattern of alcohol use which began soon after entry to the Navy, and was well developed before his periods of operational service. A perusal of the Transcript of Proceedings [Exhibit R3] discloses that the applicant provided extensive evidence to the VRB regarding his drinking habits, which the VRB summarised at page 4 of its Reasons for Decision:
“… The veteran conceded he had been shy and “a worrier” but didn’t think he had been any more anxious than others had. His recruit training had lasted about six months at Crib Point in Victoria. The veteran said he started drinking as soon as he joined the Navy. While alcohol was somewhat restricted for recruits if sport was played alcohol was available after the games. During this period the veteran told the Board that after a game he would get “drunk as a lord” vomit and then go back and drink more. He said that after games he would drink “as much as you could get into you.” Recruits, he said, drank to get drunk. Peer pressure established this drinking pattern. About every second weekend during recruit training the group would stay at the Shore Club in Melbourne. According to the veteran they started drinking as soon as the bar opened and stayed until it closed. They would drink “until they passed out”.
For most of 1957 he served aboard HMAS Sydney. During this period of non eligible service he would drink his daily ration of beer while the ship was at sea together with any other “client’s” allowance he could get hold of. When he was ashore he drank “as much as possible as quickly as possible”. If leave continued over several days he would drink until he passed out. After shore leave at Port Lincoln he had been charged with being asleep on duty and had been confined in (Navy) cells. This was a direction result of drinking to excess the day before. He had been charged and convicted of DUI toward the end of his tour aboard this ship. He told the Board he drank mostly beer and would spend “a fair bit” of his pay on drink. He was one of the younger members of the crew and his friends were older. Drinking in the way he described was “a part of Navy life”.
In December 1957 he joined HMAS Warramunga. When he joined this ship he was drinking “as much as he could as often as he could”. During 1958 the ship spent some months as part of the Far East Strategic Reserve and these periods constitute operational service for the purposes of the Act. He said his drinking increased during this period because he had greater access to alcohol. Alcohol was readily available and was cheap. Bar prices were low. Whenever he went ashore he got drunk. He would get “fighting and passing-out drunk”. This pattern of drinking continued from mid August 1958 until mid March 1961 when he again saw three weeks of operational service aboard HMAS Melbourne.
…” [T22/150]
29. The VRB was satisfied also, that none of the five incidents the applicant recounted satisfied the definition of a “severe stressor” in the respective Statements of Principles.
30. On 11 May 1999 the applicant lodged another claim for Disability Pension in relation to his conditions of PTSD, malignant neoplasm of the colon, and hypertension [the third claim]. He stated that the disabilities were caused by his experiences in the Far East Strategic Reserve, and that he first became aware of the PTSD and hypertension conditions in 1962, and malignant neoplasm in 1999. On 13 October 1999 the delegate refused the claim, and the applicant applied for review of the decision. The VRB heard the application on 12 February 2002 and affirmed the delegate’s decision. The applicant has applied to this Tribunal for review of the Commission’s decision.
the alleged stressor the “turret incident”
31. In its Reasons for Decision in relation to the applicant’s second claim, the VRB on 6 May 1999, outlined the applicant’s description of the event in the following terms:
“…
The first event was described as a “cordite backflash” while he was loader of a 4.5 inch gun on HMAS Warramunga during live firing off Penang, Malaysia in early 1958. The Board established that a round comprising both a base containing propellant and a projectile were loaded as one piece. The projectile and the propellant (in bags) were not loaded separately. The veteran told the Board of flame and smoke and the ejection of a hot brass cartridge case. It is within the knowledge of the Board that the burning material in the breech was most likely to have been residual incompletely burnt cordite or other propellant which was exposed as the fired shell case was automatically ejected from the breech. The veteran also spoke of flame and smoke from the muzzle which would have blown back over the top of the twin turret which was open to the elements at the rear. The gun crew hit the deck for “a few seconds or minutes”. No one was injured. No one reported to the sick bay. Thereafter he stayed away from the turret preferring to man the bofors or other guns.
…” [T22/151]
32. The applicant said in evidence that when the guns fired there was a significant amount of smoke from the breech and the cordite smell. He recalled heat, flame and smoke, and when he found himself on his back and against the net, he remembers spent shells bouncing around him, and that he was frightened by the heat because of his experience of being burnt as a child. He said that he got up, hung on to the guardrail, and that no one else seemed interested or concerned about the event. He said that he continued his allotted duty, and picked up the spent shells for some 20-30 minutes, and when he went below deck he did not tell anyone of the incident. He recalls that there was some discussion among the crew regarding the number of fittings and pieces of the bulkhead which had come loose during the firing. He said in evidence that he had a change of personality, because of the guilt he experienced in being frightened of the heat. This experience he said in examination-in-chief, accelerated his drinking. He said that he smoked and drank very little prior to the “turret incident”, as he was “into a lot of sport”. He gave evidence that after the “turret incident” on the Warramunga, he smoked and drank as much as possible – he drank to oblivion because of the guilt he felt in being frightened by the heat.
33. In the course of his cross-examination however, the applicant’s attention was drawn to the two VRB transcripts [Exhibits R2 and R3], and to the inconsistencies between the evidence he gave at those Hearings and his oral evidence before this Tribunal. He said that he had exaggerated to the VRB, the level of his smoking and drinking habit early in his service. He said that at the time he was undergoing initial training, it took only 2-3 drinks to make him drunk, and that in effect, he thought that if he exaggerated to the VRB and showed how significant his level of drinking was from the beginning of his career, this would impress the VRB as to how much he was drinking eventually, and that the VRB would give him some benefit for the last 20 years since he gave up alcohol, and during which he received no treatment for his drinking problem, whereas other sailors who continued to drink received benefit from the Commission and treatment. He received no such treatment. He expressed great bitterness that he was not told in 1962, that he had alcohol problems. He was offered no treatment by the Navy, but simply informed, that he had an inadequate personality.
34. It became patently clear in the course of the applicant’s evidence that his bitterness towards the Navy has been a significant motivator of his various claims. He has been determined to pursue benefits to which he believes he is entitled because of the Navy’s perceived lack of care towards him. This has led, regrettably, to a plethora of inconsistencies and patent exaggerations in an attempt to gain a benefit.
35. In the course of his final submissions, the applicant’s advocate, Mr Coxon, stated that he believed that the applicant had exaggerated a lot of things “all the way”. He said that the smoking and drinking has been exaggerated all the way through and “there is nothing we can do to change that”, and that the applicant “wanted his day in the sun”. In the light of the inconsistencies between the evidence the applicant gave at the Hearing, and the evidence he provided to the VRB, Mr Coxon, in effect, abandoned reliance on the applicant’s smoking habit being related to his malignant neoplasm condition, and relied only on the applicant suffering a “severe stressor”.
36. When the applicant outlined in his evidence in detail the circumstances of the “turret incident” he did not say that he perceived it as a life threatening incident, one which involved actual threat of death or serious injury; but that he felt shame, guilt and embarrassment about his fear and overreaction to an incident which occurred during his normal duties. His overreaction was due to his childhood experience. No one else reacted to the incident. The applicant did not discuss the incident with anyone else, nor did he seek any medical treatment of any kind.
37. Dr Ewer said in evidence that the applicant’s significant symptoms giving rise to the diagnosis of PTSD related not to the “turret incident”, but to other incidents which did not occur during the applicant’s operational service, in particular the incident when another sailor’s fingers were amputated. He said that the applicant had told him that he thought he was going to be killed by the flashback; but he would not regard the outline the applicant gave in evidence to the Tribunal as satisfying the objective criterion of a “severe stressor”. He said in evidence also that the definition required that the person’s subjective reaction be more than worry, concern or foreboding. He considered that the applicant’s evidence as outlined to the Tribunal would not satisfy this criterion.
38. Dr Ewer said in evidence that he was not aware of the earlier psychiatric report of Dr Truman, nor of the conflicting evidence the applicant gave to the VRB on two occasions. Dr Ewer said that if he had been aware, he would have asked the applicant for an explanation of the inconsistencies, and reviewed his conclusions as to causation of the condition. I accept Dr Ewer’s evidence.
39. Commodore Mulcare gave evidence that an incident as described in the applicant’s earlier statement with flames streaming back from the barrel, either over the top of the mounting or through the open port, and injuring personnel behind the mounting, would have been quite remarkable. It would have required detailed investigation, and would almost certainly have been mentioned in the ship’s Report of Proceedings; but there is no mention of anything of this nature in Warramunga’s Report of Proceedings. I accept Commodore Mulcare’s evidence.
40. I am satisfied on the evidence and find as a fact, that the applicant did not suffer a “severe stressor” during his operational service, and that Factor 5(a) of the Post-Traumatic Stress Disorder Statement of Principles is not satisfied. His PTSD is not related to his relevant service, and therefore Factor 5(n) of the Hypertension Statement of Principles is not satisfied. In relation to the applicant’s malignant neoplasm of the colon, I am satisfied on the evidence, and find as a fact, that the applicant’s smoking habit is not related to his relevant service; and Factor 5(b) of the Malignant Neoplasm Statement of Principles is not satisfied. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the conditions with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s conditions of post-traumatic stress disorder, malignant neoplasm of the colon and hypertension were war-caused.
41. For these reasons the Tribunal affirms the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 20/21 January 2004
Date of Decision 13 May 2004
Counsel for the Applicant Mr R Coxon
Solicitor for the Applicant Vietnam Veterans' Association
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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