Youngnickel and Repatriation Commission
[2004] AATA 19
•14 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 19
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1005
VETERANS’ APPEALS DIVISION ) Re TERRENCE JOHN YOUNGNICKEL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date14 January 2004
Place Sydney
Decision The Tribunal affirms the decision of the Repatriation Commission dated 1 February 2001 as affirmed by the Veterans’ Review Board on 6 May 2002, which refused the claim of Mr Terrence John Youngnickel that post traumatic stress disorder was war-caused.
The Tribunal finds that Mr Youngnickel suffered alcohol abuse/ dependence, which was however not war-caused pursuant to section 9 of the Veterans’ Entitlements Act1986.
[Sgd] Ms G Ettinger
Senior Member
CATCHWORDS
Veteran – claim regarding “severe stressor” – initially claim for PTSD – abandoned at hearing – claim for alcohol abuse/dependence – application of SOP – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 120, 120A 120(1) 120(3)
RMA Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998
CASE LAW
Repatriation Commission v Cooke (1998) 52 ALD 1
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission (1997) 47 ALD 261
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Cornelius [2002] FCA 750
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission [2003] FCAFC 160
Robertson v Repatriation Commission (AAT 12666, 2 March 1998)
REASONS FOR DECISION
14 January 2004 Ms G Ettinger, Senior Member
1. The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Mr Terrence John Youngnickel (“the Applicant”), for review of a decision of the Repatriation Commission (T2), dated 1 February 2001 as affirmed by the Veterans’ Review Board (“the VRB”), (T17), on 6 May 2002, refusing the Applicant’s claim that his post traumatic stress disorder (“PTSD”) was war-caused. The decision of the Repatriation Commission increased the level of Mr Youngnickel’s disability pension, but argument regarding that aspect of his affairs was not further discussed at the Tribunal. If Mr Youngnickel’s claim was successful, his application would be remitted to the Repatriation Commission for assessment of pension.
2. The Tribunal convened a Hearing in this matter on 28 July 2003 in Sydney, with closing submissions taking place on 9 September 2003. At the initial Hearing the Applicant was represented by Mr M Vincent of counsel, instructed by Vardanega Roberts Solicitors, and the Respondent, by Mr M Ryan and Mr J Marsh of the Advocacy Section of the Department of Veterans’ Affairs. When closing submissions were made on 9 September 2003, Mr Vincent represented the Applicant, and Ms R Henderson of counsel presented closing submissions for the Respondent. At the time of closing submissions, Mr Vincent’s ultimate application on behalf of the Applicant was for alcohol abuse/dependence only, having decided not to pursue the initial claim for PTSD as being war-caused.
3. At the Hearing, oral evidence was given by the Applicant, and concurrent evidence was given by psychiatrists Dr L Brown and Dr R Lewin.
BACKGROUND
4. The following information was provided by way of background. The Applicant was born on 2 July 1947. He served in the Royal Australian Navy (“the Navy”) from 24 July 1964 to 23 July 1973, and served his country on operational service.
5. The Respondent received Mr Youngnickel’s application to have PTSD recognised as war-caused pursuant to section 9 of the Veterans’ Entitlements Act 1986 (“the Act”), and for an increase in disability pension on 12 December 2000. On 1 February 2001, the Repatriation Commission refused the claim.
6. The Applicant sought review of the decision by the Veterans Review Board, which affirmed the decision under review on 6 May 2002.
7. On 15 July 2002, the Applicant sought review by the Tribunal. After the Hearing, the Tribunal adjourned and resumed to hear oral closing submissions. At that time, the only conditions pursued were alcohol abuse/dependence.
8. The Tribunal noted that the agreed date of effect for any condition found to be war-caused was 12 September 2000.
ISSUES BEFORE THE TRIBUNAL
9. The issues the Tribunal had to decide initially were whether Mr Youngnickel’s claimed condition of PTSD, was war-caused pursuant to section 9 of the Act.
10. At the time of the closing submissions, Mr Vincent narrowed the claim on behalf of the Veteran to consist solely of alcohol abuse or alcohol dependence and I have made my decision based on those issues.
11. Accordingly I affirmed the decision refusing the claim for PTSD to be war-caused without further comment.
12. The agreed date of effect in this matter was 12 September 2000.
LEGISLATION
13. A decision in this matter requires consideration of relevant provisions under the Veterans’ Entitlements Act1986. The issue of whether a condition is war-caused is determined pursuant to section 9 of the Act which relevantly 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;
…”
14. The standard of proof applying in the case of operational service is the reasonable hypothesis as provided for by section 120 of the Act, which provides relevantly:
“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 subsection 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;
…
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 120A
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b)a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(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.
…”
15. Section 120A of the Act deals with the Statements of Principles (“SoP”) and requires that an assessment of the reasonableness of an hypothesis must be undertaken with any Statement of Principles issued by the Repatriation Medical Authority (“the RMA”) or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
“120AReasonableness of hypothesis to be assessed by reference to 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
...
(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.”
16. The standard of proof for diagnosing a condition prior to considering whether it is war-caused, is to the reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act which follows as relevant. (Repatriation Commission v Cooke (1998) 52 ALD 1; Budworth v Repatriation Commission [2001] FCA 317; Benjamin v Repatriation Commission [2001] FCA 1879.)
“120Standard of proof
…
(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.
…”
STATEMENTS OF PRINCIPLES
17. I was mindful that in cases of operational service, the determination of whether a condition is war-caused is made pursuant to tests in sections 120 and 120A of the Act, and where applicable, the application of the Repatriation Medical Authority’s, SoPs. Principles for selection of these have been determined in the cases of Repatriation Commission v Keeley (2000) 60 ALD 401 and Gorton v Repatriation Commission (2001) 63 ALD 723. Accordingly, the relevant SoP in this case was:
· Instrument No.76 of 1998 – Revocation of SoP concerning Psychoactive Substance Abuse or Dependence and Determination of SoP concerning Alcohol Dependence or Alcohol Abuse
THE EVIDENCE BEFORE THE TRIBUNAL
18. The following documents were tendered and taken into evidence at the hearing:
ITEM
DATE
NUMBER
Applicant's Statement of Facts and Contentions
3 July 2003
Exhibit A1
Applicant's Statement
23 September 2002
Exhibit A2
Report of Dr Lisa Brown
21 February 2003
Exhibit A3
T-Documents, T1-T20, pp1-73
Various
Exhibit R1
Respondent's Statement of Facts and Contentions
9 July 2003
Exhibit R2
Transcript of VRB hearing
6 May 2002
Exhibit R3
Applicant's Record of Service
Various
Exhibit R4
Report of Dr Robert D Lewin
6 December 2002
Exhibit R5
Records from NSW Fire Brigades
8 May 2003
Exhibit R6
Additional Documents from NSW Fire Brigades
23 May 2003
Exhibit R7
Service Records & Attachments
various
Exhibit R8
EVIDENCE OF THE APPLICANT - MR TERRENCE JOHN YOUNGNICKEL
19. The following account is the summary of evidence given by Mr Youngnickel at the Hearing, and which was conveyed to psychiatrists Drs L Brown and R Lewin who gave concurrent evidence before the Tribunal. There was also a statement of Mr Youngnickel dated 23 September 2002 at Exhibit A2.
20. Mr Youngnickel told me that he joined the Navy at aged 17, and that until the “fish on board” incident aboard HMAS Derwent, when he was about 19, he liked the Navy.
21. He said that on the day of the alleged incident which he has claimed is the “severe stressor” leading to his PTSD, he was alone on deck on lifebouy sentry watch. He told me that a boarding party was half way down the ship; he did not know the distance, but it was a big ship. He understood the people were civilians, and knew that searches were conducted for contraband, but did not know if the people were armed, and in effect had nothing to do with them.
22. The Veteran said he had been warned about people in boats coming alongside, and indeed had the experience of a fish being thrown up onto the deck while he was on watch. He said that he thought he was dead because it was a grenade, and either blacked out, or blanked out, or ducked for cover. He had no actual memory of the event other than seeing an object being thrown, and landing on the deck. When he ascertained it was a fish and not a grenade, he kicked it overboard. The Applicant said that with his training in underwater weapons he later understood he should not have touched the fish because at times they were loaded. He said that his underwater weapons training included exploding grenades, detonating, and other such activities, so he was familiar with explosions.
23. Mr Youngnickel’s evidence was that he was traumatised by the event, and felt unable to seek assistance, although he accepted it was available. Mr Youngnickel said that he was unable to speak to anyone about his trauma even though there was counselling available, and debrief also took place at the New South Wales Fire Brigades where he worked after his discharge from the Navy. He said that he had not even told his children about the “fish on board” incident.
24. He said that from the time of that incident, he drank a lot, and later abused alcohol. He said that he felt very cranky that it had happened to him, and very lonely on the occasion of the “fish on board” incident, and very upset. Mr Youngnickel served in the Navy for approximately nine years until 1973, then worked with the New South Wales Fire Brigades until 1997, when he was discharged medically unfit after a physical injury.
25. When asked about any trauma suffered through being part of, or witnessing injuries or other fire related trauma, Mr Youngnickel said that he did not feel traumatised through experiencing fire related traumas. He told me that Dr Schmidtman, his psychiatrist had explained to him that he was sensitised through his Navy experience.
26. Mr Youngnickel sought assistance for his anxiety and drinking after meeting a Vietnam Veterans advocate at an Anzac Day party, and then consulted Dr Schmidtman. He confused the date of the first visit to Dr Schmidtman, thinking it was 1993 or 1994, although it appears to have first been in 1997 when he also made a claim for anxiety to the Repatriation Commission. The claim was characterised as PTSD by the Repatriation Commission and rejected, although tinnitus was accepted.
27. Mr Youngnickel said at the Hearing that he feels better now, and has lost a large amount of weight after moving to a hobby farm in the country where he undertakes more physical exercise than before and has less access to alcohol.
SUBMISSIONS AND CONCLUSIONS
28. I had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Youngnickel’s claimed conditions of alcohol abuse or alcohol dependence, were war-caused pursuant to section 9 of the Act. I noted that the Applicant served his country on operational service.
29. I noted further that when the Tribunal resumed for closing submissions, Mr Vincent told me that the Applicant was not disputing the VRB’s decision to reject Mr Youngnickel’s claim that he suffered PTSD which was war-caused. Accordingly I affirmed the decision of the Respondent in that regard. However the claim Mr Youngnickel did make before me was for alcohol abuse or alcohol dependence, the diagnosis of which I had first to consider pursuant to the standard of proof in section 120(4) of the Act.
30. The parties agreed that the correct date of effect for the Applicant’s claims was 12 September 2000, and I so find. I accepted further that in regard to assessment of disability pension, the matter be remitted to the Respondent as appropriate.
WHETHER MR YOUNGNICKEL SUFFERS ALCOHOL ABUSE/DEPENDENCE
31. The standard of proof to take into account regarding whether Mr Youngnickel suffers alcohol abuse/dependence is, as stated above, according to section 120(4) of the Act, that is to the reasonable satisfaction of the Tribunal. (Cooke (supra); Budworth (supra); Benjamin (supra)).
32. The diagnostic criteria for alcohol abuse and alcohol dependence are those specified in DSM-IV.
33. Alcohol abuse has been defined to mean the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
34. Alcohol dependence has been defined to mean the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
35. The diagnostic criteria for both alcohol abuse and dependence are those specified in DSM-IV and have been considered.
36. In the Alcohol Questionnaire at T4 dated 21 July 1997, Mr Youngnickel stated that he drank alcohol due to peer pressure and that this increased due to the pressures of being away from family and friends, and being in a stressful war zone. He stated that he commenced drinking beer in 1965, and consumed on average three to four schooners once a week. This increased, he stated, to 16 schooners on an average day ashore in 1966, after commencing his service in the Navy.
37. In his claim form at T5, dated 21 July 1997, Mr Youngnickel described an incident in which a fish was thrown up from a sampan to the deck of HMAS Derwent on which he was doing lifebuoy sentry duty. He wrote that he “dived for cover” as he thought it was an explosive device, and that he was going to be “blown up”. He had relied on this incident to make his claim for PTSD.
38. Dr L Schmidtman, psychiatrist, in her report at T6, dated 2 December 1997, diagnosed chronic PTSD with associated anxiety and alcohol abuse/dependence. Dr Schmidtman reported again at T15/55, dated 8 March 2001, this time to confirm that the Applicant continued to experience symptoms consistent with chronic PTSD of moderate intensity. She also explained her understanding of what a “severe stressor” was, and what had occurred in regard to Mr Youngnickel’s report of a fish having been thrown onto the deck of HMAS Derwent, stating that the Applicant had at the time, perceived it as a threat of death or serious injury and that his response involved intense fear and helplessness. The incident constituted she opined, a “severe stressor”.
39. Dr A Frukacz, also a psychiatrist, reported at T13/52 dated 21 June 2001 that Mr Youngnickel’s symptoms were consistent with suffering chronic PTSD, and that he consoled himself by drinking heavily.
40. Dr A McClure, psychiatrist diagnosed the Veteran as suffering PTSD and treated Mr Youngnickel in 1999 and 2000 (T8). He described various manifestations of the illness including “excessive alcohol use”.
41. Dr L Brown whose report was dated 21 February 2003 (Exhibit A3), and Dr R Lewin, whose report was dated 6 December 2002 (Exhibit R5), both psychiatrists, gave concurrent evidence at the Hearing. I summarised Mr Youngnickel’s oral evidence for the doctors, and they then discussed their opinions formed at examination, on the basis of Mr Youngnickel’s evidence, and as a result of the reading of material provided to them.
42. Dr Brown diagnosed anxiety disorder which she opined could be “anxiety disorder not otherwise specified”, which I noted no other doctors had diagnosed. Dr Brown stated that Mr Youngnickel suffered a co-morbid condition in that he suffered anxiety coupled with alcohol abuse and dependence. Dr Brown noted that Mr Youngnickel had had an uneventful youth, no anxiety conditions as an adolescent, and that he developed alcoholism with anxiety secondary to the drinking following the incident with the fish being thrown on board ship during his operational service. Dr Brown mentioned that even though Mr Youngnickel realised immediately after the fish landed on the deck that it was not a grenade, his training and the information given to him, had alerted him to the potential danger. She also emphasised that individuals varied in their subjective levels of fear response to ambiguous situations. Dr Brown agreed with Dr Lewin that Mr Youngnickel did not suffer PTSD.
43. Dr Lewin agreed with Dr Brown that there had been no history of childhood anxiety, and that Mr Youngnickel had intermittent symptoms of anxiety secondary to his alcohol dependence. He too rejected the prospect of Mr Youngnickel suffering PTSD, pointing out the Veteran worked as a fireman for many years after the “fish on board” event, after discharge from the Navy in 1973. When asked about the “fish on board” incident, Dr Lewin stated that he did not consider one event such as that could be the cause of Mr Youngnickel’s alcoholism.
44. I noted that both Drs Brown and Lewin agreed that Mr Youngnickel exhibited clinical features of alcohol dependence, both made the diagnosis of alcohol abuse and dependence, and both doctors opined that alcoholism could occur without a particular stressor. I noted that the symptoms and manifestations included nightmares, sleep disturbance, headaches, family and financial and other problems.
45. I was satisfied from the evidence that Mr Youngnickel did not attend for assessment or treatment and that he did not report any complaint of depression, anxiety, drinking problems or other psychiatric symptoms whilst in the Navy, or on discharge. His discharge documents and medical examination at T3, indicated in several places that his emotional stability was normal. Of the record of naval penalties imposed during Mr Youngnickel’s service, at Exhibit R8, only one was for being drunk on shore in Hong Kong, while several others were for breaches of dress code.
46. I was satisfied from the evidence that Mr Youngnickel did not seek assistance until after he had met an advocate from Granville, and until he consulted Dr Schmidtman in 1997. He had previously served in the Navy between 1964 and 1973, and with the New South Wales Fire Brigades from 1973 (for approximately 24 years) until his retirement in connection with a degenerative spinal condition in August 1997. I noted also that Mr Youngnickel was, pursuant to his employment with the Fire Brigades, on 23 June 1974, (Exhibit R7), certified fit physically and mentally to be admitted to the State Superannuation Fund. There was no mention of any illness which might prevent that, and indeed he was certified “free from any defect which might prevent the satisfactory discharge of his duties as a member of the fire-fighting service, or which might cause him to be prematurely retired on the grounds of invalidity or physical or mental incapacity …”
47. I accepted from the evidence of Drs Brown and Lewin that the “fish on board” incident may have caused a temporary reaction, but that Mr Youngnickel’s alcohol abuse and dependence did not occur as a result of that incident. I accepted also the evidence of Drs Brown and Lewin that alcohol abuse and dependence could occur without any specific identifiable stressor. I accepted from the medical evidence that Mr Youngnickel has been in treatment and that his alcohol abuse/dependence is in remission, and has been so since approximately 1998.
48. Having considered all the evidence I was reasonably satisfied pursuant to the requisite standard (section 120(4) of the Act), with the diagnosis of Mr Youngnickel as suffering alcohol abuse/dependence as diagnosed by Drs Brown and Lewin. I noted that the earlier reports of psychiatrists Schmidtman and Frukacz were more concerned with PTSD, and as PTSD was no longer before me, do not comment on those further.
49. Being reasonably satisfied that Mr Youngnickel suffers alcohol abuse/dependence, (taking into account the onus of proof in section 120(4) of the Act) and Cooke (supra), Budworth (supra) and Benjamin (supra), I moved to consider whether these conditions were war-caused as claimed.
WHETHER MR YOUNGNICKEL’S CONDITION OF ALCOHOL ABUSE/DEPENDENCE WAS WAR-CAUSED
50. As Mr Youngnickel served on operational service, the determination regarding whether his claimed conditions were war-caused must be made taking into account the principles in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) and section 120 of the Act.
application of principles in repatriation commission v deledio(1998) 83 FCR 82
51. Ultimately, in determining whether the Veteran’s claimed conditions of alcohol abuse or alcohol dependence, were causally related to his service in accordance with sections 9,120(1), 120(3) and 120A of the Act, I had to follow the steps as outlined by the Full Federal Court in Deledio (supra) as follows:
“…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1The 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.
2If 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.
3If 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.
4The 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.”
52. With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach in Deledio v Repatriation Commission (1997) 47 ALD 261 which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
“Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
53. I turned then to decide whether, applying the principles set out in Deledio (supra), and considering the whole of the material before me, an hypothesis was raised connecting Mr Youngnickel’s conditions of alcohol abuse/dependence, with his war service. It was the onset of the alcohol abuse/dependence, conformity with the relevant SoP, and the decision whether it was war-caused pursuant to the legislation which was in issue. I noted that there was no fact finding at this stage.
54. I considered the whole of the material before me noting:
· Mr Youngnickel’s statement (Exhibit A2) in which he described an incident in which a fish was thrown from a fishing boat onto the deck of HMAS Derwent during life buoy sentry duty, and his account of his reaction to that event;
· Mr Youngnickel’s oral evidence in which he stated that he thought the fish was a grenade and that he either blacked out, blanked out, or ducked for cover. The Veteran’s evidence was that he was traumatised by the event, felt very cranky that it had happened to him, felt very lonely and very upset, and that he was unable to speak to anyone about it. Mr Youngnickel told the Hearing that from that time on he drank a lot of alcohol, and later abused alcohol.
· There was the medical evidence of Drs McClure, Schmidtman, Frukacz, Brown and Lewin who dealt with the Applicant’s alleged stressor, (the “fish on board” incident), PTSD, and alcohol abuse/dependence.
55. On consideration of the above, and the total material before me, I found that an hypothesis was raised linking Mr Youngnickel’s alcohol abuse/dependence with his war service.
56. I moved then to consider pursuant to the principles established in Keeley (supra) and Gorton (supra) that the following SoP applied:
· Instrument No.76 of 1998 – Revocation of SoP concerning Psychoactive Substance Abuse or Dependence and Determination of SoP concerning Alcohol Dependence or Alcohol Abuse
57. I noted that where an SoP has been determined pursuant to section 196B(2) of the Act, it sets out the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. Accordingly, I had to form an opinion whether the hypothesis raised linking Mr Youngnickel’s alcohol abuse/dependence with his war service, was a reasonable one. The hypothesis will only be held to be reasonable if the hypothesis fits, that is to say is consistent with the template to be found in the SoP. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. The relevant factor in Mr Youngnickel’s case was factor 5(b):
“5.(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or
58. A severe stressor is defined in Instrument No.76 of 1998 as follows:
"experiencing a severe stressor" means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person's, or another person’s physical integrity, which events might evoke intense fear, helplessness or horror.”
59. Accordingly, if Mr Youngnickel can be found to meet the tests in Instrument No.76 of 1998, then a reasonable hypothesis can be raised linking his claimed conditions of alcohol abuse/dependence to his war service. In that connection, I considered all the evidence, case law and submissions with regard to Mr Youngnickel "experiencing a severe stressor" within the terms of the SoP.
60. I considered whether all the material before me regarding the “fish on board” Mr Youngnickel claimed to have experienced on HMAS Derwent raised a reasonable hypothesis linking the claimed condition of alcohol abuse/dependence to his war service, and the “fish on board” constituted a “severe stressor” as claimed, which led to the alcohol abuse/dependence. I was mindful of Mr Youngnickel’s stated reaction to the “fish on board” incident, and considered whether that could be characterised as Mr Youngnickel experiencing, witnessing or being 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 which events might evoke intense fear, helplessness or horror.
61. There is ample case law with regard to what constitutes a “severe stressor” in the terms of the SoP, and counsel for the parties made submissions in that regard.
62. Mr Vincent submitted on behalf of the Veteran that he had been on life buoy duty, alone on deck when the fish was thrown onto the deck from the sampan below. He had seen the dark object not knowing what it was, but having been instructed that such object could be a grenade. Mr Vincent told the Tribunal that Mr Youngnickel was unsure what he had done, whether he had blacked out or hidden in the well/depression of the ship, and that he had later kicked the fish overboard. Mr Vincent said that Mr Youngnickel’s evidence that he thought he was going to die, was consistent with the definition in the relevant SoP of experiencing a “severe stressor”. He referred to paragraphs 107 and 112 of Woodward v Repatriation Commission [2003] FCAFC 160, noting that the Federal Court now put less emphasis than previously on the objective event. He referred to paragraphs 133/134/5 of Woodward (supra) in relation to Mr Youngnickel’s reaction, to the “fish on board” incident. He submitted that the Veteran’s reaction to it was one of fear for his life. Mr Vincent pointed to the expert medical evidence before the Tribunal, in particular that of Dr Brown who noted that Mr Youngnickel had been briefed about grenades, and fully expected that the fish which was thrown on board was such a grenade, and that in the circumstances of fear and war, and being unable to communicate the event with others and seek assistance, he reacted by markedly increasing his drinking.
63. Ms Henderson raised a doubt about the event occurring at all, in that she submitted given the height of HMAS Derwent in relation to a sampan, it must have been a remarkable throw. She also referred to the loneliness and crankiness Mr Youngnickel described as his reaction to the “fish on board” incident, rather than fear, noting also that the Veteran could not recall whether he had dived for cover or fallen.
64. Ms Henderson referred to the decision of Stoddart v Repatriation Commission (2003) 74 ALD 366.
65. Ms Henderson submitted that pursuant to factor 5.(b) of the SoP, the clinical onset of alcohol abuse/dependence was not satisfied, noting that Mr Youngnickel was in Malay waters in August 1966, and that accordingly his onset of symptoms would have to have been by August 1968. She submitted that there had been no submissions made, and no evidence given before the Tribunal of that timeframe for the onset of alcohol abuse/dependence and referred to Repatriation Commission v Cornelius [2002] FCA 750 as authority for onset.
66. Ms Henderson submitted I could not be satisfied that Mr Youngnickel had suffered a “severe stressor” as contemplated in Instrument No.76 of 1998.
67. I considered the definition of “severe stressor” and whether Mr Youngnickel experienced, witnessed or was confronted with actual or threat of death or serious injury, or that they were a threat to Mr Youngnickel or other another person’s physical integrity. I also considered all the evidence and submissions about Mr Youngnickel’s reactions to the “fish on board”, without preferring one or the other, noting that the Veteran could not remember precisely how he reacted, but that he may have blacked out, blanked out, or ducked for cover. I noted also that notwithstanding some accounts of fear of death to doctors, Mr Youngnickel stated in his oral evidence to the Tribunal that his reaction was one of being upset, very cranky and very lonely.
68. I was mindful that in the setting of service in the Defence Forces, or other service where the Act applies, events that qualify as “severe stressors” as per Instrument No.76 of 1998 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;"
69. I was also mindful of a number of cases where the Federal Court and the Tribunal have dealt with the issue of a veteran experiencing a “severe stressor” within the terms of an SoP. In particular, the most recent authoritative cases have been Stoddart (supra) and Woodward (supra). Relying on these, and without fact finding, it would seem that the evidence before me regarding the “fish on board” incident pointed to Mr Youngnickel, alone on lifebuoy duty, believing his life was in danger from a grenade when he saw the object he could not at first identify being thrown on board. Notwithstanding Mr Youngnickel also expressed other feelings, such belief was reasonable, and he can therefore be held to have experienced a “severe stressor” in the terms of Instrument No.76 of 1998.
70. I had next to consider whether that “severe stressor” was experienced within the two years immediately before the clinical onset of alcohol abuse or alcohol dependence (Factor 5.(b)). Noting there is no fact finding at this stage, rather only an assessment of all the material to consider whether the hypothesis raised is a reasonable one, I considered clinical onset of Mr Youngnickel’s alcohol abuse/dependence, which to satisfy the template in the SoP must have taken place on or before August 1968.
71. I noted that in Cornelius (supra) Branson J referred to clinical onset as defined in Robertson v Repatriation Commission (AAT 12666, 2 March 1998) where the Tribunal stated in regard to clinical onset.
“On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
72. In Mr Youngnickel’s case the evidence pointed to him increasing his drinking after the “fish on board” incident. There was however no material which pointed to features and symptoms of alcohol abuse/dependence by August 1968. Papers documenting Mr Youngnickel’s discharge and a medical examination at T3 did not indicate he suffered any disabilities at that time, and his “emotional stability” was recorded as normal in several places.
73. At Exhibit R7, Mr Youngnickel was after examination in June 1973, certified on 23 January 1974 to be physically and mentally fit for admission to the State Superannuation Fund.
74. Exhibit R8, a record of Naval activities, indicated Mr Youngnickel had been found guilty of various offences during 1966 in relation to punctuality and dress code, with a single offence recorded as “drunk on shore in the White Horse Bar … Hong Kong”. Apart from the single instance of being drunk on shore in Hong Kong in 1966, there is no material pointing to clinical onset of alcohol abuse or alcohol dependence by August 1968. It is well known that there was a culture of drinking amongst services personnel, particularly on shore leave, at the relevant time, and one instance of being caught drunk could hardly be classed as clinical onset of alcohol abuse or alcohol dependence.
75. Accordingly Mr Youngnickel does not meet the tests in factor 5.(b) of Instrument No.76 of 1998. He can be found to have experienced a “severe stressor”, but not within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse. The material before me does not therefore raise a reasonable hypothesis linking Mr Youngnickel’s alcohol dependence or alcohol abuse with his war service.
76. Accordingly I am not required to proceed to the next stage, and the application must fail.
77. However, for the sake of completeness, and in case I am wrong as to date of onset of Mr Youngnickel’s alcohol abuse/dependence, I have considered his situation pursuant to section 120(1) of the Act, noting that the claim will succeed unless one or more facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt, the hypothesis.
78. Accordingly, I have noted the different versions of Mr Youngnickel’s report of the “fish on board” incident, noting that in his statement (Exhibit A2), he described an incident in which a fish was thrown from a fishing boat onto the deck of HMAS Derwent during life buoy sentry duty. He also gave an account of his reaction to that event, saying he thought it was a grenade and that he was going to die. Notwithstanding the Respondent’s argument that there were enormous height discrepancies between the fishing boat and HMAS Derwent, I accepted that the event had occurred and constituted a “severe stressor” within the terms of Instrument No.76 of 1998.
79. In Mr Youngnickel’s oral evidence, he stated that he thought the fish, first perceived as a little black ball, was a grenade. He gave various versions of either blacking out, blanking out, or ducking for cover. He thought he might have dived into the well/depression of the boat, but could not actually recall that.
80. The various versions of the Veteran’s evidence were that he was traumatised by the event, or felt very cranky that it had happened to him, felt very lonely and very upset, and consistently that he was unable to speak to anyone about it. He told the Tribunal that there was a doctor on board, but that he felt he would be derided if he reported such an incident.
81. Mr Ryan asked Mr Youngnickel in cross-examination:
“Right … When you thought you were going to die, did you shake, tremble?”
Mr Youngnickel: “I really don’t know. I was just blank and feeling lonely. That’s all.”
(Transcript, 28.7.03 page 30)
82. Mr Youngnickel told me that from the time of the “fish on board” incident, he drank a lot of alcohol, and later abused alcohol. He said in his Alcohol Questionnaire at T4, that in 1965 he drank three or four schooners once a week, and that after serving on operational service in the Navy in 1966, he drank an average of 16 schooners a day when ashore to relieve tension and stress. He said that this was the effect of being away from family and friends and being in a war zone. In the Alcohol Questionnaire, he did not make mention of the “fish on board”.
83. I found from the records no indication that Mr Youngnickel did not function well in the Navy, and noted that he undertook various courses to gain promotion in the Navy (nothwithstanding he did not pass all). Mr Youngnickel was discharged in 1973 after some nine years in the Navy with discharge documents and a medical report giving him a clear emotional health report (T4). This was followed almost immediately by employment with the New South Wales Fire Brigades where Mr Youngnickel worked for approximately 24 years until he was retired medically unfit due to a degenerative back condition in 1997. There was no indication either during Mr Youngnickel’s naval duty, at discharge from the Navy, or during his time at the Fire Brigades that he was known to have suffered alcohol abuse/dependence.
84. The question of alcohol abuse/dependence did not arise until either 1993/4 (Mr Youngnickel stating he consulted Dr Schmidtman then), or October 1997 (Dr Schmidtman’s report at T6).
85. I noted Mr Vincent’s submission that there was no explanation for Mr Youngnickel’s alcohol abuse/dependence other than the severe stressor “fish on board” incident aboard HMAS Derwent. However I preferred the evidence of Drs Brown and Lewin that alcohol abuse/dependence can arise independently of any particular stressor.
86. I found applying section 120(1) of the Act and taking into account all the evidence, that I was satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Youngnickel’s alcohol abuse/dependence was war-caused.
87. The decision under review must be affirmed.
DECISION
88. The Tribunal affirms the decision of the Repatriation Commission dated 1 February 2001 as affirmed by the Veterans’ Review Board on 6 May 2002, which refused the claim of Mr Terrence John Youngnickel that post traumatic stress disorder was war-caused.
89. The Tribunal finds that Mr Youngnickel suffered alcohol abuse/dependence, which was not war-caused pursuant to section 9 of the Act.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ms G Ettinger
Signed: Neil Glaser
AssociateDates of Hearing 28 July 2003
9 September 2003
Date of Decision 14 January 2004
Solicitor for the Applicant Vardanega Roberts Solicitors
Counsel for the Applicant Mr M Vincent
Advocates for the Respondent Mr M Ryan, Mr J Marsh
Counsel for the Respondent Ms R Henderson (closing submissions only)
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