Weyling and Repatriation Commission - [2000] AATA 248

DECISION AND REASONS FOR DECISION [2000] AATA 248

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1339

VETERANS' APPEALS DIVISION )

Re CORNELIUS HENDRICK GEORGE WEYLING
Applicant

AndREPATRIATION COMMISSION
Respondent

DECISION

Tribunal Senior Member M D Allen Dr P D Lynch, Member

Date31 March 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd)                  M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Applicant's claimed post traumatic stress disorder caused or aggravated by operational service. Rejection of diagnosis of post traumatic stress disorder. Reliance upon Statement of Principles to reject diagnosis. Claim for psychoactive substance abuse rejected as Applicant's evidence re causation disbelieved.

Veterans' Entitlements Act 1986 - ss9, 120 and 120A
Instruments Nos 5 of 1994, 15 of 1994

Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 160 ALR 17
Keeley v Repatriation Commission [1999] FCA 1103
Repatriation Commission v Smith (M J) 15 FCR 327
McGlynn v Repatriation Commission 1 RPD 210

REASONS FOR DECISION

31 March 2000 Senior Member M D Allen Dr P D Lynch, Member

By application made 21 September 1998 the Applicant sought review of a decision by a Veterans' Review Board made 7 July 1998 which decision affirmed a prior determination by a delegate of the Respondent rejecting the Applicant's claim to have the condition described as "anxiety/stress" recognised as a war-caused illness.
The Applicant's original claim was lodged with the Respondent on 7 February 1996, consequently sections 120 and 120A of the Veterans' Entitlements Act 1986 applied to the Applicant's claim. So far as is relevant section 120 reads inter alia:
"(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.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:     This subsection is affected by section 120B.
(5)     …
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."

Whereas section 120A reads inter alia:

"(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)…

(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)   a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:     See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)   the kind of injury suffered by the person; or
(b)   the kind of disease contracted by the person; or
(c)   the kind of death met by the person;
as the case may be."

In this matter, two Statements of Principles (SOPs) are relevant to the Applicant's claim. The first is Instrument No 15 of 1994 entitled "Post Traumatic Stress Disorder". The second is Instrument No 5 of 1994 which is entitled "Psychoactive Substance Abuse or Dependence". Those SOPs read:
"Instrument No.15 of 1994
Statement of Principles
concerning
POST TRAUMATIC STRESS DISORDER
ICD CODE: 309.81
Veterans' Entitlements Act 1986
subsection 196B(2)
1.Being of the view that there is sound medical-scientific evidence that indicates that post traumatic stress disorder and death from post traumatic stress disorder can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of that service, are:
(a)experiencing a stressor prior to the clinical onset of post traumatic stress disorder; or
(b)experiencing a stressor prior to the clinical worsening of post traumatic stress disorder; or
(c)inability to obtain appropriate clinical management for post traumatic stress disorder.
2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(c) must be related to any service rendered by a person.
3.The factors set out in paragraphs 1(b) and 1(c) apply only where:
(a)the person's post traumatic stress disorder was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the post traumatic stress disorder and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4.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 stressor' means the following (derived from DSM-IV):
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response to that event involved intense fear, helplessness or horror;
'post-traumatic stress disorder' means a psychiatric condition meeting the following description (derived from DSM-IV):
(a)the person has been exposed to a traumatic event in which:
(i)     the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)     the person's response involved intense fear, helplessness, or horror; and
(b)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)     recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)     recurrent distressing dreams of the event;
(iii)     acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)    intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)     physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(c)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)     efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)     efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)     inability to recall an important aspect of the trauma;
(iv)    markedly diminished interest or participation in significant activities;
(v)     feeling of detachment or estrangement from others;
(vi)    restricted range of affect (eg, unable to have loving feelings);
(vii)    sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(d)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)     difficulty falling or staying asleep;
(ii)     irritability or outbursts of anger;
(iii)     difficulty concentrating;
(iv)    hypervigilance;
(v)     exaggerated startle response; and
(e)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(f)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
Instrument No.5 of 1994
Statement of Principles
concerning
PSYCHOACTIVE SUBSTANCE ABUSE OR DEPENDENCE
ICD CODES: 303, 304
Veterans' Entitlements Act 1986
subsection 196B(2)
1.Being of the view that there is sound medical-scientific evidence that indicates that psychoactive substance abuse or dependence and death from psychoactive substance abuse or dependence can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence or death from psychoactive substance abuse or dependence with the circumstances of that service, are:
(a)experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(b)having a psychiatric condition prior to the clinical onset of psychoactive substance abuse or dependence; or
(c)experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
(d)having a psychiatric condition prior to the clinical worsening of psychoactive substance abuse or dependence; or
(e)inability to obtain appropriate clinical management for psychoactive substance abuse or dependence.
2.Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(e) must be related to any service rendered by a person.
3.      The factors set out in paragraphs 1(c) to 1(e) apply only where:
(a)the person's psychoactive substance abuse or dependence was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the psychoactive substance abuse or dependence and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.
4.      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;
'ICD code' means a number assigned to a particular kind of injury or disease in the International Classification of Diseases 9th Revision, US Department of Health and Human Services, Pub. No 80-1260;
'psychiatric condition' means any psychiatric illness that attracts a diagnosis under DSM-IV;
'psychoactive substance abuse or dependence' means a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:
(a)     continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b)    recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated);
'stressful event' means 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."

Heerey J in Keeley v Repatriation Commission [1999] FCA 1103 determined that the Statement of Principles applicable to a veteran's claim is that SOP which existed at the time that the Repatriation Commission made its original decision on the said claim. That a more up to date SOP incorporating more recent medical knowledge had been issued by the Repatriation Medical Authority prior to this Tribunal dealing with the matter is, according to Heery J, irrelevant and this Tribunal must proceed to hear and determine the matter upon the superseded SOP which was in force at the time of the original determination.
The manner in which the Tribunal must proceed to hear and determine the matter was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97, namely:
"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."

The statement in paragraph 2 above is incorrect in that, if no SOP exists then the matter is to be determined simply according to whether a reasonable hypothesis exists or not.

As to the diagnosis of the particular injury or disease suffered by a veteran, the Full Court of the Federal Court in Repatriation Commission v Cooke 160 ALR 17 determined as to whether an injury or disease existed or not was to be determined by applying the standard of proof laid down by subsection 120(4), that is to say to the Tribunal's reasonable satisfaction. As was pointed out in Repatriation Commission v Smith (M J) 15 FCR 327, this equates to proof on the balance of probabilities.
The SOP has another part to play in that, in ascertaining whether a particular morbid condition exists or not, regard must be had to the criteria for that condition as laid down in the relevant SOP.
Evidence by the Applicant was that he joined the Royal Australian Navy direct from secondary school, in 1959, at age 17. In February 1964, while serving on HMAS Hawk, a minesweeper, that vessel was tasked to go to the site of the collision between HMAS Voyager and HMAS Melbourne. When HMAS Hawk arrived at the site, the stern section of HMAS Voyager was still afloat and the Applicant could hear the screaming of sailors who were trapped in the stern as it sank.
Because of doubts that arose regarding the Applicant's evidence, the Tribunal requested the Respondent to obtain further information regarding the sinking of HMAS Voyager. When the hearing of this matter resumed on 24 March 2000, the following documents were tendered, namely:
Exhibit A4 - Extract from the book "One Minute of Time" by Frame;
Exhibit A5 - Statement of R H Pollack dated 5 March 2000; and
Exhibit R5 – Copy report of Greg Curnow, Historian.

In addition, the Tribunal received oral evidence from Mr Pollack by telephone.

Mr Pollack impressed us as attempting to give an honest recollection, but his evidence was imprecise in that he was recounting events of long ago and of which he did not have first hand knowledge. He conceded the story of the crewman who was unable to exit the escape hatch could have referred to the forward section of HMAE Voyager. He also conceded that he did not have a direct knowledge of the sinking of the aft section.
The transcript of the Applicant's evidence in chief records him as stating:
Question: "What was the situation with the rear section?"
Answer:"There was a lot of screaming from the sailors who were trapped and we could do nothing about it."
Question:"What happened to the rear section eventually?"
Answer:"It sunk."
Question:Were they got off?"
Answer:"No."

In his report of 11 November 1997 (T22), Dr Wade, Psychiatrist, records a history as follows:
"He said he started out on a mine sweeper and was caught up in the Voyager disaster, he said he dived in and pulled bodies out of the sea, he pulled the body of the Skipper of the Voyager out, he said when the Hawk arrived at the scene the stern section of the Voyager was still afloat, he could still hear people cry out for help and he said none of these people who were crying out got rescued and the boat sank, he said he still hears the screams of these men both in waking and sleeping states."

And at page 2 of his report, Dr Wade states:

"… he said he still dreams about that as well as the Voyager and especially the screams of the men on the Voyager as the ship sank."

A similar history was given to Dr Hordern (Exhibit A2 p4):
"Case said that he and his comrades had been able to hear the screams of the crew members of the Voyager who had been trapped in the sinking hull. He and his comrades on the Hawk had been able to do nothing about it."

Both Exhibit R5, which examined the report of the First Royal Commission into the sinking of HMAS Vogager, and Exhibit A4, the extracts from the book on the collision by Frame, state that all survivors in the aft section of HMAS Voyager were rescued.
Whereas we can understand that a seaman may experience negative emotions at seeing the aft section of a vessel sink, and imagine the fate of anyone still trapped, for the Applicant to say that he heard the screams of those sailors still trapped, as the aft section sank, is an attempt to "guild the lily".
The exaggerated evidence as to the sinking of HMAS Voyager, together with the Applicant's evidence regarding his non-drinking of alcohol prior to Borneo service (discussed later in these reasons), results in the Tribunal rejecting him as a witness of the truth unless his evidence is corroborated.
During the period 6 May 1964 to 18 September 1964, HMAS Hawk was allotted for duty in the area of Borneo during confrontation. As a member of the ship's crew, the Applicant was involved in stopping and searching shipping in the Malacca Straits. On one occasion the Applicant was below decks in a vessel, with an interpreter, searching for arms and ammunition, which may have been secreted beneath a load of copra, when a shot was fired on deck. The Applicant got quite a scare from this and thought at the time that he might be shot at next. Later he found out that the shot was in fact an accidental discharge by another Royal Australian Navy sailor, but at the time he had feared for his own safety.
That the accidental discharge of the rifle led to any psychological trauma is difficult to accept. The interpreter (rank not specified) told the Applicant, then a Leading Seaman, to "just keep on looking, keep on searching" and, on being asked, why would he say that, the Applicant replied "Well, probably because of everything (sic) upstairs, was well armed."; and the Applicant added that the interpreter said "There are armed people up there and we just do our job here.". Also at that time it was obvious that the vessel was alongside HMAS Hawk with its ship's compliment. All in all, it does not seem to be a substantial threat, and in any event matters were resolved within "a couple of minutes" (see Transcript p18).
After returning from active service off Borneo, the Applicant was given a choice of postings and chose HMAS Sydney as it was in Sydney Harbour and was "a ship that went no-where". This posting was believed by the Applicant to be one where he would see his wife and child more often than if posted to another vessel. Unfortunately his plans did not eventuate as HMAS Sydney was tasked to transport Australian troops to South Vietnam. The Applicant was a crew member of HMAS Sydney for two voyages to Vietnam. Both of those voyages are recognised as periods of operational service.
On the first of those voyages the Applicant alleged he experienced two stressful events. The first was when two soldiers jumped overboard. The Applicant did not witness this event and was told later that the two soldiers had jumped overboard in order to commit suicide.
The Applicant did not observe the "attempted suicides" from the HMAS Sydney but says he did see them picked up by life boats and taken back to the Sick Bay. The comment as to suicide was by a Petty Officer who apparently only said: "a couple of silly buggers tried to commit suicide". This episode could be checked as people jumping overboard would require the HMAS Sydney to stop and initiate rescue procedures which would definitely be in the ship's log, but no such evidence was adduced. Even if two soldiers did go overboard, it is difficult to say that this would constitute any form of psychological trauma to the Applicant, as he did not see it happen.
Whilst in Vung Tau Harbour, the Applicant claims that he saw a fixed wing aircraft and a helicopter shot down. As conceded by his counsel, this was unlikely but it was submitted on behalf of the Applicant that this was a matter of perception by him and it was not necessary for him to show that the aircraft had in fact been shot down as opposed to a tactical landing.
The events outlined above are also referred to in the reports of Drs Lewin and Hordern, Psychiatrists, who examined the Applicant on behalf of the Respondent and the Applicant's solicitors respectively.
If the Applicant's perceptions are the parameter by which the events outlined above are to be ascertained, given the view we take of the Applicant's credibility, we would not accept the same unless, as stated earlier, it is corroborated. In any event, again it is difficult to see how the events come within the SOP for post traumatic stress disorder as being an event which initiated a response involving intense fear, helplessness or horror.
Both Drs Hordern and Wade, Psychiatrists, are of the opinion that the Applicant suffers a post traumatic stress disorder. Dr Hordern is of the opinion that the post traumatic stress disorder had its origin in the incidents surrounding the collision and sinking of HMAS Voyager and that the condition was then aggravated by further stressors during the Applicant's eligible war service. In addition, Dr Hordern stated that the Applicant had suffered from alcohol dependence since 1964.
Reading the report of Dr Wade, it is apparent that he implicates the HMAS Voyager disaster as the initiating cause of the Applicant's post traumatic stress disorder although the other incidents in the Applicant's naval service, previously referred to, have contributed.
Dr Lewin does not accept that the Applicant has a post traumatic stress disorder. He opines (Exhibit R2 p10):
"I looked carefully for clinical signs consistent with a diagnosis of Post Traumatic Stress Disorder. There is a great deal of doubt about the reliability of this diagnosis in Mr. Weyling's case. I note firstly the nature of the stressors that he describes. He was never in combat nor was he injured. He reports that he witnessed terrible things happening to others. People involved were total strangers. I think it very unlikely that the sort of experiences Mr. Weyling describes could give rise to enduring psychiatric illness. It is quite likely that he would have been distressed in the immediate aftermath of those events but one would expect that the sorts of experience Mr. Weyling described would give rise to transient distress rather than to ongoing lifelong illness.
He described a number of clinical features which were not consistent with my own clinical experience of Post Traumatic Stress Disorder."

Dr Lee, Psychiatrist, also examined the Applicant and, in his report (T16), stated:
"There were no traumatic incidents that he could recall apart from one incident in which an Indonesian infiltrator was shot when he produced a hand gun. He did not witness this incident but was below deck conducting search operations."

It will be noted that in the admittedly terse report by Dr Lee, no mention is made of the HMAS Voyager disaster and, the incident of the accidental discharge has been magnified into an actual shooting. At the conclusion of his report, Dr Lee opined:

"Mr. Weyling does not present with anxiety symptoms or depression. I believe his problems are related to his alcohol dependence …"

Dr Lewin is also of the opinion that the Applicant is addicted to alcohol and states, in Exhibit R2 at p11:
"Mr. Weyling was born in circumstances of particular adversity. He spent the first three years of his life in a Japanese concentration camp where his life must have been constantly in peril. It is likely that his mother and his older sibling were significantly ill treated and his survival in those circumstances probably owes a great deal to his mother's heroism. In my opinion, if there was enduring psychiatric disturbance throughout his adult life, then this series of experiences would be the likely cause. It is very common for the sort of childhood experiences described by Mr. Weyling to be followed by a history of alcoholism. The sorts of experiences that Mr. Weyling described during his military service are unlikely to give rise to lifelong psychiatric disturbance."

Given the view we take of the Applicant's credibility, we are more persuaded by the views of Drs Lewin and Lee, and find that we are not satisfied that the Applicant does in fact suffer from a post traumatic stress disorder. We do find, however, that he is addicted to alcohol. As Dr Lewin points out, the events witnessed by the Applicant may have led to transient distress, if accepted, but not to a post traumatic stress disorder.
Even if the Applicant does suffer from a post traumatic stress disorder (a view which we reject), it is more consistent with the SOP to be satisfied that the events surrounding the sinking of HMAS Voyager caused the Applicant to suffer the said condition. We are, however, also satisfied that, if such a condition were to exist, it would not have been aggravated by the Applicant's operational service.
In evaluating the opinions of the witnesses called in this matter, we note that Dr Lewin was unshaken in his opinions and gave reasons therefor, whereas Dr Hordern tended to dismiss any recitation of facts that did not fit with his perceived diagnosis of the Applicant's condition. Both Dr Hordern and Dr Wade refer in the history which they took, of the Applicant hearing the screams of sailors trapped in the aft section of HMAS Voyager as it sunk. We have found this evidence to be false and can thus say a basis for the opinions of Drs Hordern and Wade does not exist.
In addition, as Dr Lewin points out in his report, there is no evidence in the Applicant's service medical documents, or service records, of any anxiety problems. The Applicant was discharged from the Navy at his own request upon the expiration of his engagement and, although there is some evidence that he was drinking heavily at that time, there is no evidence whatsoever as to any other morbid condition.
The Applicant's evidence to the Tribunal was that he had not drunk alcohol until he was on his way home from service off Borneo aboard HMAS Hawk. Prior to that time although members of ship's company received a daily ration of one large can of beer, he had given his ration away. On the way back to Sydney, however, he had been homesick and so had sat down and decided to have a beer.
There is no doubt that the Applicant has been adversely affected by an addiction to alcohol. His evidence is that he has lost employment because of episodes of being affected by alcohol and was removed from a promotion course, while still in the Navy, because of a failure to adequately perform his duties. This Tribunal must consider therefore whether the Applicant's addiction to alcohol is attributable to his operational service and, in this regard, Dr Lewin's evidence is that the Applicant was, because of his childhood experiences, vulnerable to alcohol abuse.
Questioned by the Tribunal, the Applicant restated his original evidence that he had not drunk alcohol until his returning from operational service off Borneo. This is in direct contrast with the evidence of his wife who stated that when she had first met the Applicant, which was in September/October 1962, he "didn't really drink at all at that time". Later, in contrasting his drinking habits after operational service, she stated that prior to his service off Borneo "he might have had a beer occasionally". Both these statements imply that, although the Applicant was not a heavy drinker prior to his Borneo service, he was not, as he stated, a teetotaller.
That the Applicant drank alcohol prior to his operational service is born out by two documents in his service medical records. At Document T3 page 31 in the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a medical report dated 22 October 1963 which reads inter alia:
"DIAGNOSIS
Laceration L. Occipital region.
Involved in a fight on board … Rating has been drinking but is wide awake & co-operative. …"

Similarly, Document T3 page 34 is a medical report dated 12 February 1962 which reads inter alia:

"Injured in a fight ashore …
… Breath: Alcohol +."

Both of the above documents evidence not only that the Applicant partook of alcohol prior to his operational service, but that even then he had a problem with his drinking.
Document T11 at page 66 is an alcohol questionnaire, signed by the Applicant and dated 1 February 1996. That document reads inter alia:
"Q2.     Why did you start drinking alcohol?
A.Due to stress and irregular working conditions whilst on war service activities.
Q3.     When did you start?
A.1959
Q4.     Was this:        a. Before your service?
b. During your service?
  c. After your service?
A.During service
Q6.     Did your drinking habit change during service?
A.Yes
Q7.     If the answer to Q6 was YES, when and how did your habit change?
A.From 1959 when joining the Navy and whilst serving I became more stressed so I started to drink more
Q9.     Did your drinking habit change after your service?
A.Yes
Q10.    If the answer to Q9 was YES, when and how did your habit change?
A.I drank more for some reasons I can't explain."

The Applicant was questioned about this document during cross-examination and stated that it had been filled in by the Pensions Officer at his local Returned Services League Club. He agreed that he had signed it.

Similar responses were given by the Applicant when he was questioned regarding a smoking questionnaire signed by him. That document states that he started to smoke in 1959 not, as given in evidence to this Tribunal, whilst on operational service in 1964.
To us it is incomprehensible that the Applicant, who according to Dr Hordern's report does three or four days a month of voluntary work for Legacy as well as some paperwork for the Returned Services League Club Pensions Officer, did not appreciate the significance of the alcohol and smoking questionnaires and signed documents pertaining to his claims without verifying the accuracy of those documents. Given the service medical documents we are persuaded, and so find, that the alcohol questionnaire correctly sets out the Applicant's history.
It is of course well recognised that a member of the services who smokes and/or drinks alcohol may increase his consumption due to the exigencies of operational service – cf McGlynn v Repatriation Commission 1 RPD 210. In this case, however, the Applicant gave sworn evidence that he did not drink alcohol (or smoke) prior to his operational service and we find, on the basis of his service medical documents, his wife's evidence and the alcohol questionnaire, that this account of his alcohol use was a deliberately false statement.
As we reject the Applicant's account of how he came to drink alcohol, we are satisfied that he does not meet the criteria in Instrument No 5 of 1994 re Psychoactive Substance Abuse or Dependence. In other words, to use the language of the Full Federal Court in Deledio supra, the hypothesis sought to be raised by the Applicant does not fit the "template" to be found in the SOP.
As we are satisfied that no reasonable hypothesis exists connecting any disease which may or may not be presently suffered by the Applicant with the circumstances of his operational service, the Tribunal is deemed to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's current psychiatric illnesses, howsoever described, are war-caused. The decision under review is therefore affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
  Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 September 1999
Date of Decision  31 March 2000
Counsel for the Applicant               Mr A L Hill – 23 September 1999
Solicitor for Applicant  Mr B Winship, Rockliffs
Advocates for the Respondent      Mr J Sylvestre,
  Department of Veterans' Affairs -
  22 September 1999
Mr G Wright,
  Department of Veterans' Affairs -
  24 March 2000