Warner and Repatriation Commission
[2007] AATA 1756
•13 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600283
VETERANS’ APPEALS DIVISION ) Re ROBERT WARNER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD Date13 September 2007
PlaceBrisbane
Decision The Tribunal:
(1) varies the decision under review and decides that the alcohol abuse condition of the veteran is war-caused, the date of effect being 26 May 2002; and
(2) affirms the decision in relation to anxiety disorder and depressive disorder that these conditions are not war-caused; and
(3) remits the matter to the Repatriation Commission to determine the rate of pension.............[Sgd].............
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – operational service in Royal Australian Navy – applicant claims his conditions are war-caused – applicant claims he experienced two stressful events while on operational service – medical evidence – statements of principles
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 9, 13, 120, 120A, 196A, 196B
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 197 ALR 283REASONS FOR DECISION
13 September 2007 Senior Member P McDermott, RFD Introduction
1. Mr Robert Warner served with the Royal Australian Navy in Vietnam. He has claimed that various medical conditions that he suffers from are related to his service in Vietnam. I have to decide whether he has these medical conditions, and, if so, determine whether they are service related conditions.
Decisions
2. On 3 January 2003 a delegate of the Repatriation Commission (“the Commission”) made a decision that that alcohol dependence or alcohol abuse, anxiety disorder and depressive disorder were not related to service. The delegate accepted a claim for bilateral sensorineural hearing loss with tinnitus. Mr Warner was granted a disability pension at 10% of the general rate.
3. On 21 January 2003 Mr Warner sought a review of this decision from the Veterans’ Review Board. On 14 February 2006 the Veterans’ Review Board diagnosed a condition of post traumatic stress disorder instead of anxiety disorder and affirmed the decision as varied.
4. Mr Warner has now applied to this Tribunal to review the decision of the Veterans’ Review Board.
Issues before the Tribunal
5. I have to decide whether the claimed conditions of Mr Warner are war-caused for the purposes of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). These claimed conditions are generalised anxiety disorder/post traumatic stress disorder, depressive disorder, and alcohol abuse/dependence.
Date of Effect
6. If Mr Warner is successful in his application, the date of effect of this decision is 26 May 2002.
Service
7. Mr Warner served in the Royal Australian Navy from 13 March 1965 until 12 March 1974.
8. For the purposes of the Act Mr Warner has two periods of operational service.
9. His first period of operational service was on a voyage to Vietnam on HMAS Sydney from 14 September 1965 to 20 October 1965.
10. His second period of operational service was on a voyage to Vietnam on HMAS Brisbane from 16 March 1971 to 11 October 1971. His service as a member of the crew of the HMAS Brisbane was recognised by a commendation by the Naval Board.
11. Mr Warner also has eligible defence service as a member of the Defence Forces from 7 December 1972 to 12 March 1974.
Background
12. Mr Warner, who gave evidence before me, verified the contents of his statement that was admitted into evidence: statement, 11 September 2006 [ex. A4]. A statement of his wife was also admitted into evidence: statement, 11 September 2006 [ex. A5].
13. Mr Warner gave evidence that prior to his service with the Royal Australian Navy he had experience as an apprentice electrician. He joined the navy as an ordinary seaman. Because of his technical background he decided to become a radar technician. He underwent training at Watson’s Bay, Sydney where he gained expertise in being an air intercept controller.
14. As an air intercept controller Mr Warner was trained to hunt and track enemy aircraft. He trained in radar and was able to detect enemy positions and targets. He could guide aircraft on bombing runs as well as providing guidance for ships to enable the destruction of enemy targets. He gained experience in the use of torpedos and missiles. He also gained expertise in sonar. His responsibilities as an aircraft controller was summarised by his counsel as being in charge of the theatre of operations involving a number of aircraft. Mr Warner clearly held a position of some responsibility.
15. Mr Warner was on board HMAS Sydney when it was a troop carrier. On HMAS Sydney he had various duties including that of an aircraft controller. After his service on HMAS Sydney he served on HMAS Duchess where he furthered his qualifications and qualified as an able seaman plotter. As a plotter he was involved in the detection of enemy submarines and aircraft.
16. Mr Warner then returned to Watson’s Bay and undertook further courses. He became a leading seaman, instructor and undertook training in nuclear warfare.
17. Mr Warner also did further training in the United States of America where he participated in an airline interceptor controller’s course. After undergoing further service at Watson’s Bay, he was then posted to HMAS Brisbane as a leading seaman. He served on HMAS Brisbane for a period of two years where he worked closely with the US 7th Fleet. He directed aircraft from the USS Kitty Hawk aircraft carrier. Mr Warner described that work to Dr Mulholland as being “very intense” and “nerve-wracking”. As a controller Mr Warner had to make split-second decisions.
18. After Mr Warner was discharged from the navy he worked in the liquor industry for about 20 years. When he retired he was an account executive. In 2004 he ceased employment because he had lost his sense of smell as a result of a head injury. That head injury is now the subject of litigation.
Stressors
19. Mr Warner asserts that certain stressful events occurred during his operational service in Vietnam and caused the conditions on which his claim is based. No contention was made concerning his period of eligible defence service.
20. Two stressors have been discussed by Mr Warner.
“Civilian airliner incident”
21. Mr Warner mentioned an incident that occurred while he was serving on HMAS Brisbane. He directed a “lock on” of a number of US interceptors to an aircraft which had failed to identify itself when challenged electronically. Fortunately the incident occurred during the daytime. The pilot that was sent to intercept the target was able to identify the target as a civilian 747 airliner which had strayed into the combat zone. Mr Warner said he was under pressure at the time. He chain smoked when he was on duty.
“Sampan incident”
22. On HMAS Brisbane Mr Warner served as a naval gunfire support (NGS) net operator who communicated with a spotter directing fire. As a consequence a sampan was blown up. There were no survivors. After the engagement there were secondary explosions which indicated that the sampan was carrying explosives.
23. Mr Warner felt responsibility for the death of those people. This is because he was responsible for giving the instruction to direct fire to the sampan. Mr Warner remarked that he was horrified that what he had done resulted in the death of 13 people who were believed to be on board the sampan. This was the first time that he was aware that he had killed somebody.
Medical Evidence
24. At the hearing of this application neither party called any medical witnesses. As counsel for the applicant submitted: “Medical issues are to be decided on the material”.
25. Dr Peter Mulholland, a psychiatrist, interviewed and examined Mr Warner in his rooms on 28 September 2006. On that day he also separately interviewed Mrs Iris Warner (the applicant’s wife). The interviews were for a total period of 2 hours and 5 minutes. On 1 November 2006 Dr Mulholland provided a report of those examinations which was tendered into evidence [ex. R1]. Dr Mulholland did not give evidence before me as he was not required for cross-examination.
26. Dr Mulholland has diagnosed Mr Warner as having chronic dysthymic depressive disorder, chronic generalised anxiety disorder, and chronic alcohol abuse. Dr Mulholland also considered that Mr Warner had some features of post traumatic stress disorder but did not make a diagnosis of this condition because it was doubtful whether there has ever been a category A experience.
27. Dr Mulholland commissioned pathology tests. Dr Mulholland reported that the biological markers for current or recent excessive intake of alcohol such as MCV and GGT were normal. Dr Mulholland reported that the pathology results are not convincingly consistent with the history of long term chronic excessive intake of alcohol assuming that the history from Mr and Mrs Warner is correct. Dr Mulholland, however, recognised that Mr Warner has memory impairment which could have been associated with the long term excessive intake of alcohol and may have been aggravated by the head injury of 2003.
28. In 2002 Dr Hargreaves had diagnosed Mr Warner as having major depressive episode, generalised anxiety disorder, and alcohol abuse [T4, fol 29]. Later, in 2004 Dr Hargreaves revised his diagnosis to one of chronic post traumatic stress disorder rather than generalised anxiety disorder but he retained the diagnoses of depressive episode and alcohol abuse.
Legislative Background
29. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(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; …”
30. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she has rendered continuous full‑time service in an operational area. There is no issue that the applicant has not rendered operational service.
31. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
32. As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
“120 Standard 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.
…
(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.”
33. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which 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.
Note: See subsection (4) about the application of this section.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
34. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides that if the RMA 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 operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and 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 the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to operational service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
Consideration
35. I must initially give consideration as to the appropriate diagnosis of the claimed conditions of Mr Warner.
36. In considering this application I mention that the Full Court of the Federal Court of Australia has held that the issue of whether a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke (1998) 52 ALD 1 at 6. This is the standard that is prescribed by s 120(4) of the Act, which is the civil standard of proof: see RepatriationCommission v Smith (1987) 15 FCR 327 at 334 and 335.
37. I am reasonably satisfied that Mr Warner has generalised anxiety disorder, depressive disorder and alcohol abuse. There is specialist psychiatric opinion from Dr Mulholland which confirms these diagnoses. Dr Mulholland has provided the most recent report on Mr Warner.
38. The initial diagnosis of Dr Hargreaves in 2002 was that Mr Warner has generalised anxiety disorder. In 2004, Dr Hargreaves made a later diagnosis of post traumatic stress disorder instead of generalised anxiety disorder largely on the basis of the history provided by the veteran.
39. Dr Mulholland has been fair in acknowledging that Mr Warner has some of the features of post traumatic stress disorder. However, I have relied upon his conclusion that Mr Warner does not have post traumatic stress disorder. This is not a case where diagnostic criterion A (i) and (ii) are satisfied. Dr Mulholland gave his report in 2006. That report has not been contradicted by any other psychiatrist.
40. I must apply the test prescribed by s 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
“First Deledio step”
41. The evidence before me points to a hypothesis connecting the medical conditions of Mr Warner with his operational service. Accordingly, the “first step” in Deledio is satisfied.
“Second Deledio step”
42. The “second step” in Deledio requires me to ascertain whether there is a SoP which has been determined by the RMA.
43. SoPs have been determined by the RMA pursuant to s 196B(2) of the Act in respect of the conditions in question:
·Alcohol Dependence or Alcohol Abuse: Instrument No 76 of 1998;
·Depressive Disorder: Instrument No 17 of 2007; and
·Generalised anxiety disorder: Instrument No 1 of 2000.
“Third Deledio step”
44. I now turn to the “third step” in Deledio which requires me to determine whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.
- Alcohol Dependence or Alcohol Abuse
45. Under clause 4 of the Alcohol Dependence or Alcohol Abuse SoP: Instrument No 76 of 1998 at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran.
46. In Clause 5 the relevant factors which are in contention are factors 5(a) and (b).
47. I firstly consider the application of factor 5(a). I mention that while Mr Warner did indeed suffer from psychiatric disorders, there is no evidence that such disorders occurred before the time of the clinical onset of alcohol abuse.
48. I have also considered whether certain events that Mr Warner has outlined in his evidence fits into the category of a “severe stressor” within the meaning of that expression in that SoP. Factor 5(b) of the Alcohol Dependence or Alcohol Abuse SoP (Instrument No 76 of 1998) requires that there must be evidence of an applicant “experiencing a severe stressor” within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.
49. For the purposes of the Alcohol Dependence or Alcohol Abuse SoP, the expression in factor 5(b) “experiencing a severe stressor” has be interpreted having regard to the definition in clause 8. I have concluded that Mr Warner was “confronted” with an event that involved a threat of death which might evoke intense fear, helplessness or horror. The event was the civilian aircraft incident.
50. I have had regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55]. I appreciate that the decision, as pointed out by the advocate for the respondent, is concerned with the meaning of “threat”: submissions, 6 June 2007, para 19. However, I have found the decision helpful in reminding me to have regard to the mental state of the veteran. I consider that the civilian aircraft incident has to be judged objectively from the point of view of a reasonable person in the position of the veteran.
51. This was a case where Mr Warner was “confronted” with an event that could have resulted in the death of many innocent civilians. The advocate for the respondent has quite properly pointed out that one can be “confronted” with an event if we “hear about it on the news”: submissions, 6 June 2007, para 20. In this case Mr Warner heard about the incident on the radio. Dr Hargreaves remarked that had the airliner been fired upon “a civilian catastrophe would have occurred” I consider that a reasonable person in the position of the veteran would have appreciated that this event would have caused him intense fear, helplessness or horror.
52. I am also mindful that this was a stressful time for Mr Warner who was conscious of the possibility that his ship was under threat of attack. As Dr Mulholland relates: “The ship was not actually attacked but was under the threat of attack and his experience was that it was a possibility. Not unimportantly a sister ship, the Hobart, was attacked and damaged by US aircraft”. It is noteworthy that Dr Mulholland considers that the history of Mr Warner has some features of post traumatic stress disorder from the time that HMAS Hobart was serving off Vietnam.
53. Dr Mulholland has recognised the stress that Mr Warner was under. Dr Mulholland made the following observations in his report: “It is readily understood that his job as air interceptor-controller would have been quite stressful at times given the importance and the speed with which it was necessary to act. It is also understandable that the near-miss incident could have been worrying however once again the fact is that nothing actually happened and like so many events in life it remained a near-miss”.
54. I accept that Mr Warner did have a heavy consumption of alcohol from the time that he was in Vietnam. I consider that this alcohol consumption was related to service as required by clause 4 of the SoP. It is clear from the material before me that Mr Warner was distressed from his experiences in Vietnam. Mrs Warner remarked in her statement that his consumption of alcohol had increased on his return from Vietnam. She mentioned that he was a moderate drinker before he joined the navy. Mrs Warner was not required for cross-examination. It is upon this evidence that I have come to the conclusion that it is a reasonable hypothesis that the alcohol condition of this veteran is war-caused.
55. I therefore consider that factor 5(b) of the Alcohol Dependence or Alcohol Abuse SoP is established in this application.
56. I next consider the application of the Anxiety Disorder SoP.
- Anxiety Disorder
57. Under clause 4 of the Anxiety Disorder SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) by the veteran.
58. In Clause 5 the relevant factor which is in contention is factor 5(a)(ii) which refers to the veteran “experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”. “Severe psychosocial stressor” is defined, in clause 8, as follows:-
. “…an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury...”
59. I have had regard to the stressors that have been outlined by Mr Warner. I consider that the civilian airliner incident would be a “severe psychosocial stressor” within the meaning of the SoP.
60. Having regard to the observations of Mansfield J in Stoddart v Repatriation Commission (2003) 197 ALR 283 at [55], I consider that the civilian airliner incident judged objectively from the point of view of a reasonable person in the position of the applicant was capable of and did convey (on a subjective basis) the risk of death or serious injury. This is because Mr Warner had issued an order that, if executed, would have resulted in the death of many civilians. When he issued the order he did not appreciate that the target was a civilian airliner. He was operating in a tense environment where he was constantly chain smoking.
61. I have given some consideration to the sampan incident. Mr Warner did not refer to this incident when he was initially interviewed by Dr Hargreaves in November 2002. In September 2004 Dr Hargreaves remarked: “I am not sure why he didn’t bring this up in the earlier assessment sessions”.
62. The sampan incident is also not mentioned in a statement that was written by Mr Warner in about November 2003. That statement was “a summary of incidents, circumstances and events of which I consider to have contributed towards my condition in relation to my service in Vietnam as an Air Intercept Controller and Spot Net Operator aboard HMAS Brisbane, March to September 1971” [T4, fol 50].
63. Mr Warner in his later statement of about 7 February 2005 described his reaction to the sampan incident. He remarked: “The size of the explosion indicated the craft was carrying munitions of sorts either destined to re-supply the enemy or possibly mines meant to target friendly forces such as ourselves. Having destroyed this vital enemy target gave rise to those of us on watch in the CIC (Combat Information Centre) to celebrate and toast each other with coffee” [T4, fol 69].
64. A requirement of the “severe psychosocial stressor” is that the veteran must experience feelings of substantial distress (clause 8 of the SoP). The fact that those in the CIC then had occasion to “celebrate” and “toast” each other with coffee is, in my opinion, quite inconsistent with that event being regarded as a “severe psychosocial stressor”.
65. I have concluded that the civilian airliner incident was a severe psychosocial stressor. I have also concluded that the sampan incident was not a severe psychosocial stressor. However, even if both events had constituted a severe psychosocial stressor, the “template’ in the Anxiety Disorder SoP is not satisfied. This is because there is also a requirement that there must be the clinical onset of the condition within two years of experiencing the “severe psychosocial stressor”.
66. Dr Mulholland has given his opinion that the date of clinical onset of the condition was in about 2000. This is consistent with the evidence of Dr Hargreaves who, in 2002, mentioned: “There is no indication he was a worrier of long standing prior to the development of recent work place stressors” [T4, fol 29]. There is no medical evidence that contradicts the opinion of Dr Mulholland as to the time of clinical onset of the psychiatric condition. There is also no other evidence which points to an earlier time of clinical onset of the condition.
67. I have also felt it necessary to give consideration to factor 5(a)(iii) of the Anxiety Disorder SoP. I have already found that the veteran had an Axis 1 condition (namely a substance related disorder) at the time of his service in Vietnam. However, it is necessary that the veteran should have a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder. There is no material before me that his alcohol condition could be regarded as a clinically significant psychiatric condition. Clause 8 of the Anxiety Disorder SoP requires that there be ‘ongoing management by a psychiatrist, clinical psychologist or General Practitioner. There is no such ongoing management prior to the clinical onset of anxiety disorder.
68. I have therefore come to the conclusion that the material before me does not satisfy the “template” for the Anxiety Disorder SoP.
- Depressive Disorder
69. I next have to consider the Depressive Disorder SoP: Instrument No 17 of 2007. I mention that Mr Warner chose not to rely upon the former SoP: Instrument No 58 of 1998.
70. On behalf of Mr Warner it is contended that factor 6(f) of the Depressive Disorder SoP is in issue. This factor requires that the veteran experienced “a category 2 stressor” within the one year before the clinical onset of his depression. However, I have concluded that the events in question could not be regarded as a “negative life event” within the definition of “a category 2 stressor” in clause 9 of the SoP. The various negative life events are specifically defined. It would seem that the case for Mr Warner may have been based on social isolation. However, Dr Mulholland has reported that Mr Warner socialises with his friends and family.
71. I have also considered factor 6(g) of the Depressive Disorder SoP. There is no material before me which shows that there was ongoing management of his alcohol condition prior to the clinical onset of Depressive Disorder. See clause 9 of the SoP – definition of ‘a clinically significant psychiatric condition’.
“Conclusion of Third Deledio step”
72. For these reasons I consider that the “third step” in Deledio is satisfied for alcohol abuse.
“Fourth Deledio step”
73. I now have to proceed to consider the “fourth step” in Deledio. I am required, under s 120(1) of the Act, to consider whether I am satisfied beyond reasonable doubt that the condition of Mr Warner did not arise from a war-caused injury. I must decide whether I am satisfied beyond reasonable doubt that the veteran’s condition was not war-caused within the meaning of s 9 of the Act. The claim of the veteran will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
74. I have outlined the material that I have considered. I mention that this is a case where the veteran already has a condition accepted as due to his war service. I do not know when the airliner incident occurred. There appears to be no official record of the incident. There was no contention in this case that the airliner incident did not occur. The veteran has been consistent in his account that he has been troubled by that incident. I am not satisfied beyond reasonable doubt that the veteran’s alcohol abuse condition was not war caused within the meaning of s 9 of the Act.
75. It is not necessary for me to make a ruling on the sampan incident.
Need for treatment
76. I make the final observation that Dr Mulholland has recommended that Mr Warner be referred for specialist alcohol treatment. Dr Mulholland reported that if Mr Warner continues to drink at his current reported levels then he will only hasten his memory impairment.
Decision
77. For the above reasons, I vary the decision under review and decide that the alcohol abuse condition of the veteran is war-caused, the date of effect being 26 May 2002. I also find that the veteran has anxiety disorder and depressive disorder which are not war-caused. The matter is remitted to the Repatriation Commission to determine the rate of pension.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD
Signed: Fiona Kamst
Legal Research OfficerDate of Hearing 9 May 2007
Date of Decision 13 September 2007
Counsel for the applicant Mr R Clutterbuck
Solicitor for the applicant Compass Legal Solutions
For the respondent Mr M Smith, departmental advocate
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